Karki (Migration)

Karki (Migration) [2023] AATA 2366 (26 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Rakshya Karki
Mr Sudhir Basnet
REPRESENTATIVE:  Mr Sanjeev Prasad Pandey (MARN: 1172267)
CASE NUMBER:  2216670
HOME AFFAIRS REFERENCE(S):          BCC2017/829870
MEMBER:David Barker
DATE:26 July 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 26 July 2023 at 9:02am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Circuit and Family Court remittal – genuine temporary entrant – visa and study history – long residence with two short returns – alternating primary and secondary applications with husband – lack of academic progress and short, inexpensive courses – no completed diploma or degree – injury, deaths of sister-in-law and mother, non-payment and non-commencements – no study during first review and appeal – long-term, stable employment in Australia and only general plans for business in home country – similar courses available there – member of family unit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 March 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 2 March 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied the applicant intends genuinely to stay in Australia temporarily.
The applicant requested a review of this decision and the Administrative Appeals Tribunal (the Tribunal) (differently constituted), on 11 September 2018, affirmed the visa refusal decision. The applicant subsequently appealed to the Federal Circuit and Family Court of Australia (the FCFCA) and on 12 October 2022 the FCFCA remitted the matter to the Tribunal for determination according to law.
The Tribunal wrote to the applicant inviting her to attend a hearing on 18 July 2023, through the MS Teams video platform. This invitation asked the applicant to provide any additional documents or information she would like the Tribunal to consider when making its decision. The Tribunal was satisfied it was reasonable to hold a hearing through the MS Teams video platform, having regard to the nature of this matter and the individual circumstances of the applicants, which include that they are residing in Hobart, Tasmania and the matter is constituted to a Member based in NSW. The Tribunal notes that neither the applicant nor her representative raised concern that the hearing was to occur through this medium until immediately prior to the hearing.
On 18 July 2023, prior to the start of the hearing the applicant conveyed a preference to participate by audio only. The Tribunal conducted preliminary matters by video and requested reasons for the applicant’s preference, noting she was accompanied in Hobart by her representative and the second named applicant. The applicant informed the Tribunal that she felt anxious about appearing by video and would find it easier to speak to the Tribunal by audio only. The Tribunal, in the interests of not having the applicant’s evidence potentially impacted by anxiety, consented to the request the applicant give her evidence by audio only and the hearing proceeded on that basis, with the applicant giving evidence and presenting arguments. Neither the applicant nor her representative gave further indication that the applicant felt nervous or that her evidence was impacted by anxiety or any related factors. The second named applicant was present during the hearing as a support person for the applicant but was not called by the applicant as a witness and gave no indication that he wished to provide evidence during the hearing.
The applicants were assisted in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant is a national of Nepal and is 37 years old. The second named applicant, her husband, is also a national of Nepal and is 40 years old.
The Department of Immigration and Border Protection (the Department) delegate’s decision record, a copy of which was provided with the review application, states that the applicant was granted a Subclass 572 Student visa offshore on 16 August 2007, which was valid until 3 June 2009. She subsequently arrived in Australia on 18 September 2007. The applicant was granted a Subclass 573 (Higher Education Sector) visa on 10 June 2009, which ceased on 31 May 2011, upon which date she was granted a Subclass 573 Student visa, as a secondary applicant on her husband’s Subclass 573 Student visa. She remained a secondary applicant on Subclass 573 Student visas held by her husband until 31 May 2015 and then, on 3 September 2015, was granted a Subclass 485 Temporary Graduate visa, valid till 3 March 2017, again as a secondary applicant on the Subclass 485 visa granted to her husband. It is the Subclass 500 Student visa the applicant subsequently applied for on 2 March 2017, with her husband as a secondary applicant, which is the matter currently before the Tribunal on review.
The delegate’s decision record indicates that in association with the Subclass 500 Student visa application lodged on 2 March 2017 the applicant provided the Department with Confirmation of Enrolment (CoE) documents to undertake an English course and a Diploma of Leadership and Management, through the International Institute of Business and Information Technology in Sydney, NSW.
In association with the visa application the applicant provided the Department with a ‘Statement of Purpose’, which stated the following:
My name is [provided] and D.O.B is [provided]. I have completed my Higher Secondary Education (10+2) in year 2006. I completed certificate III in Financial Service (account Clerical) in year 2009.
After finishing my higher secondary education my dream was to go abroad to peruse my further education for better learning and get educated in different environment for better future possibilities in my career. I decided to go to Australia for my further study and my family was happy with my decision and did fully support my decision so i came to Australia in 2007 to study diploma of accounting at Group College of Australia. In august 2008 I got married to [the second named applicant] during which I was undertaking diploma of accounting. After completion of certificate III in financial service 2009 my husband support and encourage me to study further so I decided to study and enrolled in bachelor of professional accounting course at Holmes institute. But we have to undergo a family trauma soon after I had started my course my husband younger sister was seriously ill and soon passed away. This was a very stressful and difficult time for us and our family which also caused depression on both of us. So I could not give much time to the university even after several weeks. But my husband at this time able to overcome this issue and I had decided to apply as dependant to my husband to support and encourage him to study during difficult time.
life has been tough for me and my husband while we are in Australia I had unfortunate accident and facture elbow and worst nightmare finding out my mother suffering from stage 3 cancer and losing my mother in 2015 after 2 years unsuccessful chemotherapy I have gone through lot in my life during last few years of time. But this experience has taught me a lot. Even though during this difficult time my husband managed to finished his study master in accounting which I am very proud of and now I put my head up and be strong. He was a great companion during the difficult time. Sudhir has now completed his study and is encouraging and helping me to finish my study. Now I try to forget everything that I am gone through for last couple of years and now my deep desire to study and make it worth to what I came to Australia for and make my mother dream come true even she is not with me anymore. I hope you will consider my personal circumstance and grant me student visa to build my better future in coming years.
I thank you for your consideration and look forward to continuing my study.
As referred to previously in these Reasons, the delegate refused the visa applications on the basis they were not satisfied the applicant met cl 500.212 of the Act. In association with her review application the applicant, on 6 September 2018, provided the Tribunal with a Statutory Declaration signed by her on 5 September 2018 in which, in summary,[1] she declared:
[1] Information from the statutory declaration of 5 September 2018 is summarised and not fully transcribed.
·For some reason she did not do well in study associated with the Bachelor of Business she commenced through Charles Sturt University in 2009. Despite the full support from her husband she struggled with but failed to maintain her academic progress.
- She dislocated her elbow as a result of slipping on her bathroom floor in 2011 and doctors advised her it would take several months to fully recover. Her husband then decided to study and she became the secondary applicant on his Student visa application. Her husband completed a Master of Professional Accounting degree in February 2015 and then successfully applied for a graduate visa.
·It is not that she did not want to continue her studies. She wanted to do so when her husband completed his studies in 2015, but every time she wanted to start again, she encountered some problems.
·She lost her mother in August 2015 and could not resume her studies in 2015 because of this tragedy. She could not think about starting again for months after her mother passed away and felt very disturbed and hopeless.
·She applied for a Subclass 500 Student visa on 2 March 2017 and enrolled in a 10-week General English course and a Diploma of Leadership and Management through the International Institute of Business and Information Technology, affiliated to Federation University. She completed the General English course and two terms of the diploma course.
·She then enrolled in a different Diploma of Leadership and Management course through Southern Academy of Business and Technology, Sydney and anticipated that with credits she would receive for subjects already studied, it would take her about one year to complete her studies.
·She and her husband wanted to return to Nepal when he completed his studies, however she felt that it would be wiser if she completed an Australian qualification before they returned to Nepal.
·The qualification is very important to her future as she wants to go back to Nepal as a winner, with an Australian qualification. If she returns to Nepal without a qualification she will be perceived as a weak woman and will not be able to do anything notable. Nepal is a country where the gender stereotype of women is that they are perceived as being physically and emotionally weak. People in the society she was raised in have the opinion that the only thing that women are capable of is attending to household jobs. She needs to complete the Diploma of Leadership and Management, not only to increase her prospects of getting better career opportunities but also to show that women are capable of anything and everything that men do.
·She and her husband have strong incentives to return to Nepal, as it now has a stable government and is headed towards a path of prosperity and stability. It is high time for them to return to Nepal as the country has recently embraced federalism and has created a large number of jobs across many industries. There has been very good progress in terms of attracting foreign investment in various sectors and in addition, the private sector is also hopeful with various policy reforms brought about by the government in recent times.
·The Diploma of Leadership and Management course will help her learn many skills such as developing emotional intelligence, risk management, manage personal work priorities and professional development, identify and evaluate marketing opportunities and so on. These skills have high importance for her future.
The Tribunal has had regard to the Provider Registration and International Student Management System (PRISMS), particulars of information from which were put to the applicant for her comment pursuant to s 359A of the Act. The PRISMS record which documented the applicant’s study history in Australia indicated she has been enrolled in and completed the following courses since her arrival in Australia:
·Diploma of Accounting[2] which ran from 2 October 2007 until 3 April 2009.
·General English – Beginner to Advanced which ran from 30 August 2010 until 22 October 2010.
[2] The applicant declares and has provided documentary evidence to demonstrate that this course was actually a Certificate III Financial Services (Accounts Clerical).
The PRISMS record indicated the applicant since her arrival in Australia has enrolled in the following courses but the enrolments were subsequently cancelled:
·Bachelor of Business (Accounting), which was to commence in 2009 and finish in 2012, was cancelled on 19 June 2009 due to the non-payment of course fees.
·Diploma of Leadership and Management, which was to commence in July 2017 and finish in July 2018, was cancelled due to the non-commencement of study.[3]
- Diploma of Leadership and Management, which was to commence in October 2018 and finish in April 2020, was cancelled on 13 March 2019, due to the non-commencement of study.
Particulars of information put to the applicant pursuant to s 359A of the Act
On 20 June 2023 the Tribunal wrote to the applicant, pursuant to s 359A of the Act, inviting her to comment on or respond in writing by 4 July 2023 to particulars of information arising from the Tribunal’s review of information, which would provide the reason, or part of the reason for affirming the decision under review. The letter explained why the particulars of information were relevant and the implications flowing from the Tribunal placing weight on the particulars of information.
The particulars of information put to the applicant were as follows.
Issue 1
·The PRISMS record indicates a Diploma of Accounting the applicant commenced on 2 October 2007 finished on 3 April 2009 and that since that time the only course of study the applicant has completed was a General English (Beginner to Advanced) course, which ran from 30 August 2010 to 22 October 2010.
·The PRISMS record indicates a Bachelor of Business (Accounting) course she was to undertake between February 2009 and February 2012 was cancelled on 19 June 2009 due to the non-payment of course fees. A Diploma of Leadership and Management she was due to undertake between July 2017 and July 2018, and a further Diploma of Leadership and Management she was due to undertake between July 2018 and April 2020 were both cancelled due to the applicant not commencing study in these courses.
The s 359A letter explained that this information is relevant because a successful applicant for a Subclass 500 Student visa must be both a genuine temporary entrant and a genuine student, and that for a review such as the applicant has asked the Tribunal to undertake, the genuine temporary entrant criterion for Student visa applications requires the Tribunal to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c. if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and
d. any other relevant matter.
The s 359A letter explained that in considering the applicant’s immigration history the factors the Tribunal will have regard to include the amount of time she has spent in Australia and whether the Student visa applied for may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification.
The s 359A letter explained that the amount of time since the applicant successfully completed a qualification, which exceeds 12 years, in conjunction with her overall lack of academic progress and her enrolment in short, inexpensive courses, such as brief English language courses, raises concern that the Subclass 500 Student visa she applied for in March 2017 was to be used primarily for maintaining ongoing residence rather than to assist her to obtain employment or improve employment prospects in her home country.
The s 359A letter explained that the Tribunal considers this concern to be raised, notwithstanding the applicant was for a period of around 17 months between September 2015 and March 2017 on a Subclass 485 Temporary Graduate visa.
The s 359A letter explained that the applicant’s failure to commence study in the two Leadership and Management courses which provided the basis for her Subclass 500 Student visa application in March 2017 raises concern that the visa she applied for in March 2017 was for the purpose of maintaining ongoing residence rather than to assist her to obtain employment or improve employment prospects in her home country.
The s 359A letter explained that if the Tribunal relies on that information, it may find the applicant is not a genuine applicant for entry and stay as a student and that she is using Student visas to maintain her residency in Australia for other reasons. The s 359A letter explained that if the Tribunal finds the applicant is not a genuine applicant for entry and stay as a student, or that she does not intend genuinely to stay in Australia temporarily it will affirm the decision to refuse the application for a Subclass 500 Student visa.
Issue 2
The applicant’s movement records indicate that she has not departed from Australia since July 2014 and since her initial arrival in 2007 the applicant has only departed twice, between 4 October 2012 and 5 November 2012, and 19 May 2014 and 1 July 2014.
The s 359A letter explained that this information is relevant because the applicant’s lack of time offshore since her arrival in Australia in 2007 gives rise to the concern that she does not have the sort of ties with her home country, for example family, community and employment ties, which would be indicative of a person with a strong incentive to return to their home country.
The s 359A letter explained that if the Tribunal relies on that information it may find that the applicant is not a genuine applicant for entry and stay as a student and that she is using Student visas to maintain her residency in Australia for other reasons. The s 359A letter explained that if the Tribunal finds the applicant is not a genuine applicant for entry and stay as a student, or that she does not intend genuinely to stay in Australia temporarily it will affirm the decision to refuse the application for a Subclass 500 Student visa.

The Tribunal received a response to the s 359A letter on 4 July 2023, which included a statutory declaration declared by the applicant on 4 July 2023 and a CoE, created on 30 June 2023, for a Diploma of Leadership and Management through the International College of Tasmania, commencing on 3 July 2023 and finishing on 30 June 2024.
The statutory declaration, in paragraphs 1 through 29 duplicated the information in the statutory declaration previously declared by the applicant on 5 September 2018.[4] Further to this the information in the statutory declaration is as follows:
30) the diploma course at TAS College will help learn many skills such as developing emotional intelligence, risk management, manage personal work priorities and professional development, identifying and evaluating marketing opportunities and so on. These skills are of very high importance for my future.
31) I would like to assure the Tribunal that I’m a genuine student and I have very strong incentives to return to Nepal upon graduation I just want to complete the diploma and returned to Nepal with my husband that is why I have applied for the credit transfer.
32) I have submitted the confirmation of enrolment, my previous Australian academics and English language course certificate for your perusal. I would like to request the Tribunal to consider the above-mentioned facts and give me a positive decision. We have already spent more than a decade in Australia after completing my studies, my husband and I would return to Nepal we intend to start a family once we go back to our home country.
[4] See Paragraph 13 of these Reasons.
THE HEARING
The Tribunal explained to the applicant that whilst it had read the delegate’s decision record, along with the decision record from the Tribunal’s previous review, and also the FCFCA decision, the Tribunal (presently constituted) had not reached any conclusions on the basis of these documents, as it would be taking a fresh look at the visa application and making its own decision.
The Tribunal explained to the applicant that in making a fresh decision it would be focusing on whether she meets the requirements of cl 500.212, which are known as the genuine temporary entrant requirements. The Tribunal explained that to meet these criteria it is required that the Tribunal be satisfied on the evidence before it that the applicant is a genuine applicant for entry and stay in Australia as a student.
The Tribunal explained that when a decision maker, such as the Tribunal, is determining whether an applicant for a Subclass 500 Student visa, is a genuine applicant for entry and stay in Australia as a student it is required by law to have consideration to a document known as Ministerial Direction No 69, which details the sorts of factors that need to be considered when determining whether the applicant is a genuine applicant for entry and stay in Australia as a student. The Tribunal explained that these factors include: an applicant’s circumstances in their home country, their potential circumstances in Australia, the value of the course they are proposing to undertake with respect to their future employment or business prospects in their home country, an applicant’s immigration history, and any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the application for the Student visa.
Where relevant, evidence provided at hearing or in the documents before the Tribunal is discussed in the following sections of these Reasons.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.
The issue in the present case is whether the applicant is a genuine applicant for entry and stay in Australia as a student. This requires the Tribunal to determine whether the criteria in cl 500.212 of the Regulations are satisfied.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The applicant’s circumstances in their home country
Whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there
The applicant does not comment on this factor in the ‘Statement of Purpose’ addressing Genuine Temporary Entrant requirements which she provided to the Department in association with the visa application.
In the statutory declaration provided to the Tribunal on 6 September 2018 the applicant declared the qualification she was seeking was very important to her, as Australian qualifications are highly regarded in Nepal and she wants to return to Nepal “as a winner, with an Australian Qualification”. The Tribunal perceives this to be a reason put forward by the applicant as to why she would prefer to undertake study in a Diploma of Leadership and Management course in Australia and by inference may reflect on a reason for not undertaking study in a similar course in her home country. Of interest, the applicant has provided evidence of her attainment in May 2009 of an Australian qualification, namely the Certificate III in Financial Services (Accounts Clerical) through Central College, Redfern, NSW.
When previously before the Tribunal (differently constituted) on 11 September 2018[5] the applicant gave evidence regarding this factor, as follows:
[5] The Tribunal has the view that evidence provided by the applicant at hearing on 11 September 2018, before the Tribunal as previously constituted, is information which meets the exception in s 359A(4)(b).
MemberBut one of the questions, why don’t you do the studies at home? You say the course is not available over there?
ApplicantYes. So it goes like, in our country, it’s not – like the courses are, like, very limited, you can’t find this kind of course over there. So that’s why I came here, like, you know, to get the qualification of higher degree so that I can do better job, or have a good future over there, sir.
Member But there are courses available over there?
ApplicantYes, there are, but like, this is the course which I’m studying is very limited over there, sir.
MemberWell, if this course that you’re studying is a course that’s only changed its name. It used to be called a Diploma of Management, and you’ve got – there are multiple colleges in Nepal that provide Diploma of Management courses?
ApplicantYes, but the thing is, like, you know, when I have an Australian qualification, it’s – I get more chances of having, like, better future over there. So I just want to finish this course, and that’s, like you know? And then go back proudly and back to home. But that’s only the reason I just applied for, like a student visa and finish my course and go back to my home, sir.
Of note the extract from the applicant’s evidence from September 2018 documents her conceding that there were similar courses available in Nepal, but that in her view she has an increased chance of a better future in her home country if she attains an Australian qualification. The Tribunal considers this to be consistent with the reasoning which can be inferred from her 2017 ‘Statement of Purpose’ and to be a generic reflection on how Australian academic and vocational qualifications are viewed in Nepal.
As to whether the applicant’s view that graduating with a Diploma of Leadership and Management from an Australian education provider would provide her with more opportunities in her home country is a reasonable reason as opposed to whether she were to undertake a similar course there, the Tribunal is satisfied that as a hypothetical reason it may well be so. There is however no evidence before the Tribunal regarding comparative research of Leadership and Management courses in Australia and Nepal, relevant to the time of application in 2017, or in relation to the applicant’s recent enrolment into this type of course. There is also no research or other third-party documentation as to the vocational prospects for graduates of either country’s education providers to corroborate the applicant’s contentions with respect to this factor.
As to whether it would in any event be a reasonable reason, the Tribunal considers the applicant’s failure to complete a Diploma of Leadership and Management through the International Institute of Business and Information Technology and a subsequent Diploma of Leadership and Management through the Southern Academy of Business and Technology mitigates the weight given to this as a reasonable reason for not undertaking a similar course in Nepal. This is because the applicant’s failure, without adequate reason, to complete either of the Diploma of Leadership and Management courses in which she has previously enrolled contrasts with the stated importance she placed upon not undertaking a similar course in her home country.[6]
[6] The Tribunal accepts the applicant undertook some study in the Diploma of Leadership and Management through the International Institute of Business and Information Technology, evidenced by a Statement of Attainment issued on 31 August 2018 which indicates she completed six units of study.
When the applicant was asked, at hearing before the current Tribunal, for reasons for not undertaking the Diploma of Leadership and Management course, in which she had enrolled only recently, given other evidence provided by her at hearing as to the importance of returning to her home country to both start a family and open a supermarket business, the applicant indicated that she has no option to study this type of course in Nepal as a similar course is not available there. In response to the Tribunal asking the applicant what research she had undertaken to ascertain whether there were similar courses to the Diploma of Leadership and Management course currently available in Nepal, the applicant gave evidence that “recently [she was] not sure what was available”.
As to when she had most recently undertaken research about the availability of similar courses in her home country, the applicant conceded that she had not looked into whether similar courses were available more recently than when she had applied for the Student visa in 2017. When her attention was drawn to her evidence before the Tribunal in September 2018, where she had acknowledged there were similar courses available in Nepal, the applicant contended that at that time there were post-graduate degree courses such as a Master of Business Administration available in Nepal, but that there were not similar courses to a Diploma of Leadership and Management.
The Tribunal has concern about the inconsistency in the applicant’s evidence regarding the availability in Nepal of similar courses to the Diploma of Leadership and Management courses in which she has repeatedly enrolled in Australia. The Tribunal questions the basis of the applicant’s claim that there is no similar course in her home country to the Diploma of Leadership and Management in which she has recently enrolled, as she has previously conceded similar courses did exist and she has also not undertaken any research as to the availability of similar courses in Nepal since in or around March 2017.
After considering the currently available information, being that: she has previously conceded similar courses exist; she did not complete previous similar courses she had enrolled in within Australia; she has not provided probative evidence in support of the contention graduating from the course through an Australian education provider, rather than an education provider in Nepal, would advantage her; and she has not obtained more recent information about study options in Nepal than what she claims to have obtained over six years ago, the Tribunal is not satisfied the applicant has established a reasonable reason for not undertaking the proposed study in her home country.
The extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether they would serve as a significant incentive to return to their home country
The applicant gave evidence at hearing that her parents are deceased and that she has a sister and brother residing in Nepal. She indicated that her husband’s family are also in Nepal, but did not further elaborate on their current circumstances. In her evidence before the Tribunal on 11 September 2018 the applicant indicated that as well as her sister and brother, she also has grandparents residing in Nepal.
The applicant gave evidence at hearing that both she and her husband come from families with a secure economic and social base in Nepal. She indicated that she and her siblings were the beneficiaries of their parents’ estate, which has been distributed and that this provides them all with a degree of economic security. The applicant gave evidence that she has access to the funds which are her portion of her parents’ estate and does not need to be in Nepal to access the funds.
The applicant refers to the death of her mother and of her husband’s younger sister in the Statement of Purpose she provided in association with the visa application in 2017, but does not otherwise refer in this document to personal ties to her home country, whether they be family, community or employment. Of note, she has not visited Nepal since 2014.
In the statutory declaration prepared by the applicant in September 2018 she declares having very strong incentives to return to Nepal upon her graduation. She does not identify specific family ties held by her in the declaration, beyond referring to her husband, with whom she has resided in Australia since their marriage in 2008.
In the statutory declaration prepared by the applicant in September 2018 she refers to employment and business opportunities arising from an improved economic outlook in Nepal, with these opportunities likely available to Nepalese nationals with overseas qualifications, such as those held by her husband and herself if she can graduate with an Australian qualification. The applicant also in this document refers to a benefit to women in Nepal if she returns with an Australian qualification, as this will challenge existing gender stereotypes. The Tribunal is open to this reflecting an interest the applicant has in the position of women in Nepalese society. The Tribunal regards these contentions to be of a general nature, rather than specific to the applicant’s personal ties to Nepal.
The applicant gave evidence at hearing that she and her husband want to open a supermarket business upon their return to Nepal, but that at this stage they have taken no steps to develop such an enterprise in their home country. The applicant gave evidence that neither she nor her husband held employment in Nepal, prior to coming to Australia. She gave no indication that they have established employment opportunities in Nepal to return to.
In her response to the concern raised in the s 359A letter that her limited time offshore from Australia since 2007 is not indicative of a person maintaining the sort of ties with their home country which would provide a significant incentive to return there, the applicant reiterates contentions made in her September 2018 declaration regarding the stability of the government and improved economic circumstances in Nepal providing a strong incentive for her and her husband to return there. When given further opportunity to comment on this concern during the hearing, the applicant gave evidence that it is now a priority for her and her husband to return to Nepal, as she is 37 years old and they want to start a family. She also indicated that the COVID-19 pandemic disrupted and affected everything.
The Tribunal accepts the pandemic impacted the applicant, as it has everyone to differing degrees. The Tribunal accepts that the impact of the pandemic included restrictions on overseas travel and that this can account for the applicant not having the option of return trips to her home country whilst those travel restrictions were in place. The Tribunal is aware the applicant has held Bridging visas since applying for the Subclass 500 Student visa in 2017 and that there can be conditions associated with such visas which affect a person’s capacity to re-enter Australia if they were to depart whilst on the Bridging visa. The Tribunal is however also aware that application can be made for a variation of any such condition.
The applicant has current access whilst in Australia to the benefit of her portion of her parents’ estate.[7] The Tribunal therefore does not consider accessing the benefit of an inheritance to be a factor that would present as a significant incentive for the applicant to return to her home country.
[7] Applicant’s evidence at hearing on 18 July 2023.
In considering the available evidence the Tribunal is not persuaded that the applicant has personal ties to Nepal, such as for example, family, community and employment, which would serve as a significant incentive for her to return to her home country. The Tribunal acknowledges the applicant’s interest in the position of women in her home country and her claim that the stability of government and improving economic circumstances in Nepal provide a strong incentive for her to return. The Tribunal is not however persuaded these factors reflect existing personal ties which serve as a significant incentive for her to return to her home country. The Tribunal accepts the applicant and her husband wish to start a family, but it is not apparent why they have been constrained from doing so whilst here in Australia. The Tribunal is not satisfied the stated intention to start a family serves as a significant incentive for her to return to Nepal, as the infrequent trips made by the applicant to Nepal do not reflect her having familial or community ties there which may provide the reason for delaying having a child until she is in her home country. The Tribunal acknowledges the applicant has siblings and grandparents in Nepal and that her husband has relatives there. However the Tribunal is not satisfied the evidence establishes that this serves as a significant incentive for her to return to Nepal.
Economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country, including consideration of the applicant’s circumstances relative to the home country and to Australia

The applicant and her husband do not have property assets in Australia[8] that would present as a significant incentive for the applicant not to return to their home country.
[8] Applicant’s evidence at hearing on 18 July 2023.
Both the applicant and her husband have held stable employment with Coles supermarkets for a number of years. She started work with this employer within a year of her arrival in 2007 and is currently in charge of the office in a Coles supermarket in Hobart, where her husband is the grocery manager.[9] Prior to managing the office the applicant worked in the cashiers section as a shift supervisor.[10] In the 2023 income period the applicant worked part time, earning around $50,000, whilst her husband worked full time and earned around $96,000.[11] The applicant conceded that both she and her husband earn more in Australia than they would from comparable employment in Nepal.[12] She contended however that it is a good time to start and operate a business, such as a supermarket business, in Nepal.[13]
[9] Applicant’s evidence at hearing on 18 July 2023.
[10] Applicant’s evidence at hearing on 11 September 2018.
[11] Applicant’s evidence at hearing on 18 July 2023.
[12] Applicant’s evidence at hearing on 18 July 2023.
[13] Applicant’s evidence at hearing on 18 July 2023.
In considering the available evidence the Tribunal has not placed significant weight on the applicant’s contention that it is a good time to start and operate a business, such as a supermarket business, in Nepal as a factor mitigating the weight given to the income earning capacity the applicant has in Australia. This is because the applicant and her husband do not have an established business interest in Nepal, nor have they taken steps to plan or develop any such enterprise. The applicant and her husband have a good income from stable employment in Australia, which earns them more than they would earn for comparable work in Nepal. The Tribunal considers this to be a circumstance that would present as a significant incentive for the applicant not to return to her home country.
Military service commitments that would present as a significant incentive for the applicant not to return to their home country
The Tribunal accepts the applicant’s evidence that neither she nor her husband have military service commitments that would present as a significant incentive for the applicant not to return to Nepal.
Political and civil unrest in the applicant’s home country, including situations of a nature that may induce the applicant to apply for a Student visa as means of obtaining entry to Australia for the purpose of remaining indefinitely
The Tribunal accepts the applicant’s evidence that she does not hold concern in relation to civil and political unrest in Nepal that may induce her to apply for a Student visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. The Tribunal is also unaware of any such factors in Nepal which could act as such an inducement.
The applicant’s circumstances in their home country relative to the circumstances of others in that country
The Tribunal accepts the applicant’s evidence that both she and her husband come from a caste in Nepalese society that is not subject to discrimination on the basis of their caste and that their respective families are of good standing and in relatively good economic situations when compared to others in her home country.
The applicant’s potential circumstances in Australia
The applicant’s ties with Australia which would present as a strong incentive to remain in Australia
With regard to the applicant’s ties with Australia which would present as a strong incentive to remain in Australia, there is no evidence before the Tribunal that she has relatives in Australia other than her husband, the second named applicant. The Tribunal does however find the applicant’s ties to her husband are more significant than ties she has to other relatives she has in her home country. Both the applicant and her husband have stable employment in Australia. The applicant gave evidence at hearing that she and her husband are happy in Hobart and that they find it a pleasant city to live in. Apart from this, there is no evidence before the Tribunal to indicate the applicant has developed community ties in Australia.
Evidence that the Student visa program is being used to circumvent the intentions of the migration program
With regard to evidence that the Student visa program is being used to circumvent the intentions of the migration program, the Tribunal is aware that the intention of this program is for a person to acquire skills and qualifications that will enable them to return to their home country with improved employment or business prospects. Whilst the applicant contends she has had the goal of achieving an Australian qualification through graduating with a Diploma of Leadership and Management, it is of concern to the Tribunal that she did not complete either of the Diploma of Leadership and Management courses in which she was previously enrolled, respectively in 2017 and 2018. In conjunction with her previous failure to complete the Bachelor of Business (Accounting) degree in which she had enrolled in 2009 the Tribunal has concern as to the applicant’s lack of academic progress and as to why the applicant has not before 30 June 2023 sought to resume study in the Diploma of Leadership and Management which she contends the successful completion of is of such importance to her and which has delayed, since 2015, her and her husband’s wish to return to their home country.
It is the view of the Tribunal that there is a lack of credible reasons as to why the applicant could not have completed a Diploma of Leadership and Management course and returned to her home country well before the present time and that her acquisition of a CoE for a further Diploma of Leadership and Management course is an indication that the Student visa program is being used to circumvent the intentions of the migration program.
It is the view of the Tribunal that the applicant’s explanation for her recent enrolment and for her lack of academic progress to date is unconvincing. When asked why she ceased study in the Bachelor of Business (Accounting) degree, the applicant indicated she gave up her studies because of everything going on back then. When asked to provide more specific information the applicant referred to difficulty affecting her after she injured her elbow and required surgery. When asked when this occurred, the applicant said it was in 2011. When the Tribunal pointed out that, as put to her in the s 359A letter, the PRISMS records indicate her enrolment in the Bachelor of Business (Accounting) degree was cancelled in 2009 due to the non-payment of course fees, the applicant did not dispute that this had occurred and referred to being affected at that time by the death of her mother. The Tribunal noted that the information before it indicated the applicant’s mother died in 2015 and queried how this or the injury to her elbow in 2011 caused her to cease study in 2009. In response, the applicant reiterated her previous comment that she was affected by everything going on, such as the injury to her elbow and her mother’s death. She did add that her mother had been ill with cancer for some time before she died in 2015.
The Tribunal acknowledges that the applicant would have been affected by the illness and death of her mother, however evidence previously provided by her indicates her mother suffered and was treated for cancer for two years prior to her death.[14] This would indicate the onset of her mother’s cancer occurred in or around 2013 and is therefore not relevant to the cancellation of the Bachelor of Business (Accounting) degree in 2009. The Tribunal also acknowledges that recovering from an elbow injury may have restricted the applicant’s functioning for a period of time. However, the Tribunal is not persuaded how this event explains the applicant’s lack of academic progress with respect to the Bachelor of Business (Accounting) degree.
[14] Applicant’s Statement of Purpose.
In statutory declarations prepared by the applicant in September 2018 and more recently in response to the s 359A letter, the applicant declares she struggled with her academic progress at Charles Sturt University, which is where she had enrolled in the Bachelor of Business (Accounting) degree. She then refers to injuring her elbow in 2011 and that medical advice that it would take her several months to recover influenced her husband’s decision to study and for her to become a secondary applicant on his Student visa application. The Tribunal notes that there is no explanation for the gap in the applicant’s study record from when she ceased the Bachelor of Business (Accounting), “after several weeks”[15] and when she applied as a secondary applicant on her husband’s visa application in or around 2011.
[15] Applicant’s Statement of Purpose.
The Tribunal acknowledges there may have been a condition restricting the applicant’s capacity to study whilst a secondary applicant on her husband’s Student and subsequent Subclass 485 visa, but notes that it was open to the applicant to apply, as a primary visa applicant, for further Student visas to enable her to complete an Australian qualification, during the period she was a secondary applicant on visas held by her husband between 2012 and 2017.
The Tribunal is not satisfied the applicant has adequately explained her failure to complete the previous Diploma of Leadership and Management courses in which she enrolled in 2017 and 2018. At hearing, when asked about this issue she reiterated the somewhat vague statement about everything going on, such as the death of her mother. The Tribunal does not consider this to be an adequate explanation for not completing either the Diploma of Leadership and Management course in 2017, which provided the apparent rationale for her application for the visa that is the focus of the current review, or the subsequent Diploma of Leadership and Management course she applied for in 2018. The applicant provides no explanation for the lack of academic progress in these courses in either of the statutory declarations she has provided to the Tribunal in association with her review application.
When responding to questions regarding this issue when she appeared before the Tribunal in September 2018, the applicant conceded she started the first Diploma of Leadership and Management course after the visa application was refused but that she then became confused as to whether to continue with the course, because friends were telling her that she may need to attend a hearing before the Tribunal within a few months. The Tribunal is not persuaded this is an adequate explanation for discontinuing her study in the first Diploma of Leadership and Management course. As to why she subsequently enrolled in a different Diploma of Leadership and Management course which had an 18-month duration rather than re-enrolling in the previous 12-month course, in evidence before the Tribunal in September 2018 the applicant indicated that she had waited until finding out about the Tribunal hearing before enrolling in the second Diploma of Leadership and Management course.
The Tribunal acknowledges that the period in which an applicant awaits the outcome of a review before the Tribunal is a period in which they experience uncertainty with regard to their visa status. However an applicant is not restricted from undertaking study during this period and in the particular circumstances of this case, if the applicant had done so she could have completed the course she is now proposing to undertake some years ago.
The pattern whereby an applicant does not enrol in a further course of study until receiving an invitation to appear before the Tribunal, as is the case with her most recent enrolment in a Diploma of Leadership and Management course and her previous 2018 enrolment, is of concern insofar as it is a pattern which may be present when the Student visa program is being used to circumvent the intentions of the migration program.
Whilst a lack of academic progress may have other explanations, in the view of the Tribunal it is a pattern frequently present when the Student visa program is being used to circumvent the intentions of the migration program. In the particular circumstances of this case, the applicant’s lack of academic progress over the 15 years she has been in Australia raises concern that the Student visa program is being used to circumvent the intentions of the migration program.
A further pattern which can be apparent when the Student visa program is being used to circumvent the intentions of the migration program is where a couple in effect take turns to be either the primary or secondary applicant for a Student visa. Whilst there can be valid circumstances where this occurs, there are circumstances where there is concern such visa applications are made for the purpose of maintaining residency in Australia through a sequence of temporary visa applications. The Tribunal is of the view that this does not reflect the intention of the Australian migration program. This pattern is present in the circumstances of the applicant’s migration history in Australia and she is now seeking a further Student visa which will, if granted, maintain her residency in Australia for a further period of time.
For these cumulative reasons, any one of which may in and of itself not be sufficient to warrant the following finding, the tribunal finds there to be a pattern of evidence that the Student visa program is being used by the applicant to circumvent the intentions of the migration program.
Whether the Student visa is being used to maintain ongoing residence
In the particular circumstances of this case the Tribunal is aware that the applicant applied for the current visa in 2017 with a stated intention to complete a Diploma of Leadership and Management course so as to gain the Australian qualification she contended would improve her employment or business prospects in her home country. At the time of application she had an existing Australian qualification[16] which was at a vocational level, as was the diploma course she had at that time enrolled in, rather than the higher education sector course she had previously failed to complete. She failed to complete the Diploma of Leadership and Management course after her visa application was refused and subsequently enrolled in a further Diploma of Leadership and Management course after receiving notice of a hearing before the Tribunal where the visa application refusal was under review. She did not commence study in this second Diploma of Leadership and Management course and then, over four years later, after the successful outcome of a judicial review of the previous Tribunal decision and after receiving an invitation to attend a further hearing before the Tribunal, enrolled in yet a further Diploma of Leadership and Management course.
[16] Certificate III in Financial Services (Accounts Clerical).
If successful in relation to her Student visa application the applicant will be able to maintain residence in Australia until July 2024, which will result in her residing in Australia on temporary visas for well over 16 years. In a context where the Tribunal is satisfied the applicant has economic reasons to maintain residence in Australia and was not precluded from study over the period since March 2017 and has not completed a vocational sector diploma course with a duration of 12 or 18 months, the Tribunal finds the current application for a Subclass 500 Student visa is being used to maintain ongoing residence.
Whether the primary and secondary applicant have entered into a relationship of concern for Student visa purposes
I do not consider that there is evidence that the applicant has entered into a relationship of concern for Student visa purposes.
The applicant’s knowledge of living in Australia and their intended course of study and the associated education provider
With regard to the applicant’s knowledge of living in Australia and her intended course of study, the applicant has displayed a level of knowledge regarding the Diploma of Leadership and Management course. I am also satisfied she has, in the more than 15 years she has resided in Australia on temporary visas, developed an understanding of life in Australia and an ability to manage within the socio-economic and cultural society in Australia.
The value of the course to the applicant’s future
Whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country
The Tribunal is satisfied that the course in which the applicant has recently enrolled, a Diploma of Leadership and Management, is consistent with her current level of education, given she completed the equivalent of Year 12 in Nepal and since arriving in Australia in 2007 she has completed a Certificate III in Financial Services (Accounts Clerical). As to whether the course will assist the applicant to obtain employment or improve employment prospects in her home country, the Tribunal is satisfied it could potentially do so and also could potentially assist with the applicant’s stated intention to, in conjunction with her husband, open a supermarket business in Nepal.
The relevance of the course to the student’s past or proposed future employment either in their home country or a third country
The applicant has no history of employment prior to coming to Australia in 2007.[17] Given a Diploma of Leadership and Management is a vocational sector course which teaches skills applicable to a very wide range of vocational arenas, the Tribunal is satisfied that the course in which the applicant has recently enrolled has potential relevance to employment the applicant could feasibly seek in Nepal or a third country.
Remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study
[17] Applicant’s evidence at hearing on 18 July 2023.
The remuneration the applicant could expect to receive in Nepal or a third country, compared with what she could receive in Australia, using the qualifications to be gained from the proposed course of study, is unclear, as there is no objective, third-party evidence before the Tribunal which could allow the Tribunal to assess this issue. However, given the applicant already has extensive experience working in supervisory roles for a major supermarket chain in Australia it is the view of the Tribunal that there is no certainty her level of remuneration could be expected to increase significantly as a consequence of attaining the qualifications associated with the course she has recently enrolled in. As well, the applicant’s evidence is that she is earning more from her employment in Australia than she would from comparable employment in Nepal and it is the view of the Tribunal that this would not necessarily change because she held the vocational sector diploma qualification she has recently enrolled in to study.
The applicant’s immigration history
The Tribunal is aware an applicant’s immigration history refers both to their visa and travel history.
The applicant’s previous visa applications for Australia or other countries
The applicant has previously successfully applied for Student visas, both as a primary visa applicant and as a secondary visa applicant. She has also successfully applied, as a secondary visa applicant, for a Temporary Graduate visa. Further information about the applicant’s previous visa applications are detailed at Paragraph 10 of these Reasons.
There is no evidence before the Tribunal to suggest the applicant has previously applied for, but was refused visas to other countries.
The applicant’s previous travels to Australia or other countries

During the applicant’s previous appearance before the Tribunal in September 2018 there was discussion of the delegate’s concern as to whether the applicant will comply with Australia’s immigration laws in future. The Tribunal, previously constituted, in their Reasons for Decision noted the applicant failed to comply with condition 8516, which was attached to her Subclass 573 (Higher Education Sector) Student visa which required her to, whilst on that visa, maintain study at a level equivalent to the undergraduate degree in which she was enrolled at the time she applied for that visa. Noting the applicant also held a Student visa, as the primary visa applicant, for a period in which she was not enrolled between 2009 and 2012 it is apparent the applicant also failed to comply with condition 8202, attached to Student visas, which is a requirement to remain enrolled whilst holding a Student visa.
As to the circumstances of the applicant’s non-compliance with conditions attached to previous visas held by her, the applicant has claimed to have been impacted by stressors such as the death of her mother and her husband’s younger sister,[18] and as well injury to her elbow which required surgery and a period of rehabilitation. The Tribunal acknowledges the impact the death of her sister-in-law may have had, but the Tribunal does not accept that that death or the illness and subsequent death of her mother, or the injury to the applicant’s elbow, are factors which mitigate the applicant’s non-compliance with the visa conditions, as the applicant’s breaching of these conditions started and largely occurred prior to the onset of these other stressors. The Tribunal also notes that the circumstances in which the non-compliance occurred include the applicant managing to maintain her employment, despite her claimed inability to study due to emotional difficulties arising out of the stressors affecting her. There is also no indication and the applicant has made no claim that she sought to at any stage defer studies she was experiencing difficulty with. The applicant’s contention at hearing that she was unaware of such provisions was not in the view of the Tribunal persuasive. However the Tribunal is satisfied that the applicant is now aware of the importance of complying with conditions which may be attached to Student vias and she has indicated she intends to comply with any conditions attached to a visa she is granted.
[18] Raised in the Applicant’s Statement of Purpose, but not pressed by the applicant in other evidence before the Tribunal.
Conclusion upon genuine temporary entrant criterion assessment
The applicant has now been in Australia for over 15 years on temporary visas and within her first two years here attained something which in 2023 she has declared remains an unmet priority goal for her, namely an Australian qualification. Since attaining a Certificate III in Financial Services (Accounts Clerical) in 2009 the applicant has made little further academic progress. Whilst she has for a considerable portion of time since 2012, held visas as a secondary applicant of her husband’s visas and had restrictions on her ability to study during these periods, the Tribunal is aware the applicant had the option of applying for Student visas in her own right as a primary visa applicant, which would have enabled her to complete the sort of vocational diploma course in which she has now, for the third time, enrolled.
In making a decision in the particular circumstances of this matter, the Tribunal has considered all the available evidence, including that the applicant has recently enrolled in a Diploma of Leadership and Management, which is due to finish in July 2024. The Tribunal accepts the proposed course of study could enhance the applicant’s employment or business opportunities in her home country. In the view of the Tribunal it would be difficult, when considering a course such as a Diploma of Leadership and Management, to find other than that it has the potential to enhance an applicant’s future prospects given the range of vocational arenas it may have relevance for. The Tribunal also accepts the vocational nature of this course is consistent with the applicant’s previous education levels. Her evidence is that she has previously, both in her home country and during her time in Australia, commenced but failed to complete study at a higher education sector undergraduate level.
The Tribunal accepts the applicant has family ties in Nepal, but does not consider these ties to be stronger than her ties to her husband, who is residing with her in Australia, as he has since 2008, and as he will continue to as a secondary applicant if they are granted the current visa applications.
The Tribunal is not satisfied the applicant has economic ties which serve as an incentive for her to return to Nepal and the Tribunal is satisfied the applicant and her husband’s employment in Australia provide her with an incentive to maintain her residence in Australia for economic reasons.
The Tribunal is not satisfied the applicant has adequately explained gaps in her studies whilst she has held Student visas as the primary applicant, or why she has elected to not at other times seek a Student visa as a primary applicant, in order to achieve the academic qualifications she contends are of such ongoing importance to her. In particular, the Tribunal is not persuaded by the applicant’s explanation for why she did not complete a Diploma of Leadership and Management in the period since her visa application was refused in 2017, as it was open for her to do so.
The Tribunal acknowledges the applicant’s wish to return to Nepal as a ‘winner’ and positive role model for other women in Nepalese society. Given she has an Australian qualification and has worked for a major Australian company for over 12 years and been promoted into supervisory roles, the Tribunal has difficulty understanding why the applicant would not feel that she has achieved a lot during her time in Australia.
For the cumulative reasons outlined I do not accept the applicant has on 30 June 2023 enrolled in a further Diploma of Leadership and Management for the reasons she claims, but rather is using the Student visa program as a pathway to maintain her residence in Australia.
Based on what is evidenced of the applicant’s circumstances overall, including her immigration and study history, her economic circumstances in Australia and other matters the Tribunal considers relevant, including in respect of Direction No 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal is not satisfied that she intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The second named applicant

100. As the Tribunal does not accept that the first named applicant satisfies the primary criteria, the second named applicant is unable to meet the criteria because he is not a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in cl 500.212.
101. Accordingly, the decision under review must be affirmed.
DECISION
102. The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.
David Barker
Member

Attachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton

Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant matter.

This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application.

5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
d.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

[2023] AATA 2366

26 July 2023

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal