Karki (Migration)

[2021] AATA 4773

Karki (Migration) [2021] AATA 4773 (25 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Govind Singh Karki
Neha Gurung

CASE NUMBER:  1936338

HOME AFFAIRS REFERENCE(S):          BCC2019/4897748

MEMBER:T. Quinn

DATE:25 August 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 25 August 2021 at 6:36pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – enrolment history – lengthy stay in Australia – multiple courses completed – applicant changed to vocational level course – cricket playing and coaching in Australia – maintaining ongoing residence in Australia – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 338, 347, 359, 499; Direction No 69
Migration Regulations 1994, Schedule 2 cls 500.212, 500.311

CASES

Baker v Minister for Immigration and Citizenship [2012] FCAFC 145
Chen v Minister for Immigration and Border Protection [2017] FCA 46
Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345
FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555
Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482
Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372
Khan v Minister for Immigration & Another [2019] FCCA 565
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Rathor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1187
Tshering v Minister for Home Affairs [2019] FCCA 2667
Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112 

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 10 December 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicants applied for the visa on 30 September 2019 (‘the application’).   At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The primary applicant (‘the applicant’) applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. 

3. On 10 December 2019, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that the applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicants’ review application.

4. On 24 December 2019, the applicants applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.

5. Approximately twenty months have elapsed since the making of the delegate’s decision and the applicants’ application for review with the Tribunal. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed during that time. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information to the Tribunal for the purposes of determining the outcome of their application for review. To this end, on 30 June 2021, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’). The applicant sought and was granted an extension of time within which to respond to the s359(2) letter and subsequently responded to the s359(2) letter on 28 July 2021 which was within the extended prescribed timeframe.

6. Both applicants appeared before the Tribunal on 25 August 2021 for a telephone hearing to give evidence and present arguments, however, the secondary applicant attended only in a support role and did not give oral evidence.  

7. The applicants were assisted in relation to the review by their registered migration agent who also attended the hearing on 25 August 2021.

8. It is for the applicants to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicants’ case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicants, in as much detail as necessary, to enable the decision maker to properly consider the case that is being put.

9. The Tribunal has proceeded to a decision having regard to all the information before it, including the material and evidence provided by the applicant prior to and on the day of the hearing.

10. For the following reasons, the Tribunal has concluded that the decision under review ought to be affirmed in this case.  In reaching its decision, the Tribunal has had regard to:

    a.the oral evidence of the applicant given at the hearing;

    b.the submissions of the applicants’ migration agent at hearing;

    c.all written material filed by or on behalf of the applicants before, during and after the hearing; and

    d.other relevant documents on the Tribunal and Department files.

    The Tribunal notes that not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference only to that information that the Tribunal has been found to be fundamental or materially significant to the determination of the issues in the case.

    STATUTORY FRAMEWORK

11. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant.

12. 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?

13. In considering whether the applicant satisfies clause 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’ (‘the Direction’), made under section 499 of the Act. The Direction 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.

14. 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.

15. The Direction is a lawful direction of the Minister made in accordance with section 499 of the Act. The Tribunal is therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[1]  Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before the Tribunal.  The Tribunal, however, recognises that it is an independent statutory body.  It must therefore reach its own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate.  In this regard, the Tribunal also notes the decision of Judge McNab in Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]), wherein his Honour referred to the decisions of Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]) and Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) in relation to the proper approach to the consideration of guidelines such as the Direction. Most pertinently, his Honour endorses the view espoused in those cases, that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.

    [1]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The primary applicant is a 33-year-old male Nepali citizen who is married to the second applicant (aged 30 years).[2]  The applicant first arrived in Australia on 29 January 2009 and, with the exception of one trip to his home country in 2013, has remained onshore on the basis of student visas, one Temporary Graduate visa (subclass 485) (‘the 485 visa’) and associated bridging visas since that time.[3] 

    [2]See delegate’s decision and applicant’s response to the s359(2) letter.

    [3]See delegate’s decision and applicant’s response to the s359(2) letter.

17. Prior to coming to Australia, the applicant completed High School in 2006 in Nepal.[4]  Since his arrival in Australia, the applicant has completed the following:

    a.83% of an Advanced Diploma of Accounting;[5]

    b.A Bachelor of Professional Accounting;

    c.A Graduate Diploma in Business.[6]

    The applicant has provided corroborating documents to this effect to the Tribunal and the Tribunal accepts that the applicant studied continuously, with very good course progress, during his time onshore from 2009-2015 inclusive.  The Tribunal commends the applicant in this regard.

    [4] See applicant’s response to the s359(2) letter.

    [5]The applicant gave evidence at hearing that he ceased this course because he was granted admission into his next, higher level, course based on 83% completion.  The Tribunal accepts this explanation and has not placed any weight against the applicant in relation to his non completion of this course.

    [6] See applicant’s response to the s359(2) letter.

18. The applicant’s application which is the subject of this review was to complete a Diploma of Project Management and a Graduate Diploma of Management.[7] However, the applicant’s questionnaire filed in response to the s359(2) letter indicates the applicant did maintain his enrolment in the Diploma of Project Management and Graduate Diploma of Management which she initially proposed to the Department – and which, had he continued with, he would be due to finish in October of this year – less than two months away (3 October 2021 was the completion date).[8]  The applicant made submissions and gave evidence at hearing that he was ‘in limbo’ and he was not getting information from his agent and he was not sure what to do with his future.  The Tribunal empathises with the applicant in this regard.  However, the Tribunal also notes that the applicant did not re-enrol in his current package of courses until February 2020.  To his credit, the applicant has completed a Certificate III in Wall and Floor Tiling since that time and provided a corroborating certificate in this regard.[9]  He has also provided corroborating documents to indicate he has completed four units towards a Certificate IV in Building and Construction which he is due to complete in April 2022.[10]

    [7] See delegate’s decision and applicant’s response to the s359(2) letter.

    [8] See delegate’s decision and applicant’s response to the s359(2) letter.

    [9] See applicant’s response to the s359(2) letter.

    [10] See applicant’s response to the s359(2) letter.

19. Whilst the Tribunal acknowledges that the applicant’s overall study progress is to his credit, his more recent enrolment history onshore is of concern for the Tribunal.  The applicant has engaged, or proposed to engage, in a variety of different fields of study.  The Tribunal allows for reasonable changes to study and career pathways but finds the applicant’s change from Accounting to Business to Project Management to Building and Construction concerning in terms of his genuine intentions in seeking a further student visa.  The Tribunal is concerned that the applicant may be using the student visa migration programme to maintain residence, in circumvention of the intentions of the migration programme.  In this regard, the Tribunal notes it is not only the change in fields of study that it is concerned about but the very significant downgrade in education level the applicant’s current study represents – the applicant holds a Bachelor and Graduate Diploma both obtained in Australia and is now studying a Certificate IV vocational level course.  Whilst the Tribunal accepts that this particular field of study, Building and Construction, is often undertaken at a vocational level prior to any tertiary study, it is still troubled by this evidence.

20. The applicant gave evidence at hearing that he discovered a new public housing project opportunity in Nepal and decided to change his future career plan to Building and Construction in Nepal.  He gave evidence, when asked about the significant change from Accounting this package of courses represented, that his mother and others wanted to see him as an accountant but that he has come to realise that construction is what was made for him and he believed it was a good change.  The Tribunal considers this explanation is plausible but also considers the applicant has had ample time to engage in such study – having been onshore for over twelve years now.

21. The applicant gave evidence that he would like to use these qualifications to work in the building and construction industry in Nepal as a Supervisor or Project Manager and then start his own construction company as a builder.  He gave evidence at hearing that he anticipates earning AUD1,161-2,798 equivalent per month using the qualifications gained.  The Tribunal accepts that these courses are relevant to and likely to assist and improve the applicant’s new stated future career plans.

22. The applicant is currently living with his immediate family unit: his wife.[11] He has left the section of the questionnaire filed in response to the s359(2) letter blank in relation to his community ties to Australia. However, he gave evidence at hearing that he has undertaken a cricket coaching course in Australia (stating that this was with a view to using this in Nepal upon his return) and has played cricket in Australia. The Tribunal has difficulty accepting the applicant does not have strong ties to the Australian community. The applicant has now been living in Australia for over twelve years, which has included considerable time working and studying onshore (and necessarily engaging in those respective communities). The second applicant has also been working onshore.[12]  The length of the applicant’s stay in Australia for over twelve years indicates that he has a preference to remain onshore.  It is reasonable to conclude that after twelve years onshore – which has included a considerable period working and studying onshore – the applicant has cultivated a satisfactory life and established strong ties to the Australian community acting as a strong incentive for him to remain onshore.  As each day passes, those ties strengthen.

    [11] See applicant’s response to the s359(2) letter and evidence at hearing.

    [12]          See evidence at hearing.

23. The length of the applicant’s time onshore is of concern to the Tribunal in and of itself – a period of twelve years is very difficult to reconcile with the meaning of ‘temporary’ as required by the Act and Regulations in relation to student visas.

24. The applicant has returned to Nepal once since his arrival – for two months in 2013.[13]  The Tribunal acknowledges that the COVID19 Pandemic and associated restrictions has made international travel virtually impossible since early 2020.  The applicant’s mother and sister live in Nepal and he speaks to his mother two-three times per week and to his sisters once a week.[14]  He has a brother living in the United Arab Emirates and another brother living in South Korea.[15]  He has filed a number of documents relating to his exceptional history as a very high level cricket player and gave evidence at hearing that he intends to pursue his cricket career upon return to Nepal with a dream to play for his country.[16]  The Tribunal commends the applicant in relation to his sporting achievements.  He also gave evidence he has undertaken a coaching course in Australia with a view to coaching cricket on the side when he returns to Nepal.  He gave evidence at hearing that his widowed mother is his greatest incentive to return to Nepal and that as the youngest child it is traditionally his responsibility to look after her and that her mental health is problematic following the COVID19 pandemic situation and the losses she has faced personally in this regard.  The Tribunal empathises with the applicant and his mother in this regard.  The Tribunal accepts that the applicant has personal ties to Nepal acting as an incentive for him to return but does not consider the evidence supports a conclusion that those ties are acting as a significant incentive for him to return particularly given he has been living onshore for such a lengthy period and only returned to Nepal once in that time. 

    [13] See applicant’s response to the s359(2) letter.

    [14] See applicant’s response to the s359(2) letter.

    [15] See applicant’s response to the s359(2) letter.

    [16] See applicant’s response to the s359(2) letter and evidence at hearing.

25. The applicant submits that there are very few education providers in Nepal who offer Building and Construction or closely similar courses at the vocational level.[17]  He further states that very few institutions provide training on building design and construction related technology programs.[18]  He states the quality and standard of courses in Nepal are not up to the standards offered in Australia and the value of recognition of such courses completed in Australia is higher than similar courses in Nepal.[19]  The Tribunal accepts the applicant has provided reasonable reasons for undertaking this study in Australia rather than his home country.

    [17] See applicant’s response to the s359(2) letter.

    [18] See applicant’s response to the s359(2) letter.

    [19] See applicant’s response to the s359(2) letter.

1. The applicant did not complete any of the annual income figures in the questionnaire filed in response to the s359(2) letter in relation to his income onshore.[20]  This raises concerns for the Tribunal about whether the applicant is being selective in relation to the information he is providing the Tribunal.  The applicant stated at hearing that he did not list the income figures because he was working only casually.  This explanation perplexed the Tribunal.  The applicant also worked as an part time Accountant for twelve months when he was onshore on the 485 visa but did not list that employment or income in the section of the questionnaire asking about work onshore.[21]  Again, this raises concerns for the Tribunal about whether the applicant is being selective in his answers in this regard.  The Tribunal enquired about this at hearing and the applicant merely stated, ‘I missed that part that’s why’.  The Tribunal does not find this to be an adequate explanation.  The applicant has been working onshore as: a Bar Assistant from April 2009-December 2011 earning AUD400-500 per week (AUD20,800-26,000 per annum); as a Warehouse All Rounder from February 2012-December 2013 earning AUD400-500 per week (AUD20,800-26,000 per annum); as a Retail Assistant from February 2014-September 2019 earning AUD400-500 per week (AUD20,800-26,000 per annum); and as a Support Worker from April 2021-present earning AUD300-400 week (AUD15,600-20,800 per annum.[22]  However, he gave evidence at hearing that whilst onshore on the 485 visa he had full time work rights and his earning as a retail assistant during that time (May 2016-November 2017) was AUD800-900 per week (AUD41-600-46,800 per annum) and that for twelve months of that period he was also earning AUD400-500 per week (AUD20,800-26,000 per annum) in his role as part time Accountant.[23]   The applicant gave evidence at hearing that his wife, the second applicant, is working as a barista earning AUD450 per week (AUD23,400 per annum).  The applicants’ expenses onshore are AUD27,300 per annum.[24]  The Tribunal notes that the United Nations Human Development Index, which is a statistical comparison of life expectancy, education and per capita income indicators by country, ranks Nepal as 142^nd in the world as compared to Australia’s ranking of 8^th in the world.[25]  The Tribunal is concerned that, given the amount the applicants are earning - in Australian dollars – in excess of their expenses onshore and the exchange rate between Australia and Nepal,  the applicants’ economic circumstances onshore may be acting as a significant incentive for them to remain onshore.

   [20] See applicant’s response to the s359(2) letter.

   [21] See applicant’s response to the s359(2) letter and evidence at hearing.

   [22] See applicant’s response to the s359(2) letter and evidence at hearing.

   [23] See applicant’s response to the s359(2) letter and evidence at hearing.

   [24] See applicant’s response to the s359(2) letter.

   [25]See Table 1 of United Nations’ Human Development Report 2020 commencing at page 343 < See also: Rathor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1187 at [42]-[44].

2. There is no evidence that the applicant has had any other travel, visa, or immigration issues in the past.  The applicant does not have any potential military service obligations or political or civil unrest concerns in Nepal.[26]

   [26] See applicant’s response to the s359(2) letter.

3. In this case, the factors falling against the applicant in relation to whether he is a genuine student and whether he is a genuine temporary entrant have outweighed those falling in his favour, the length of his time onshore and his economic incentives to remain have been particular aspects of concern in this case.

4. The Tribunal is concerned that the applicant is motivated by factors other than study and is using the student visa program as a means of maintaining residence in Australia.  The Tribunal cannot be satisfied on the material and evidence before it that the applicant genuinely intends to stay in Australia temporarily.

5. The applicants’ application and submissions do not satisfy the Tribunal that the applicant genuinely intends to stay in Australia temporarily.  The Tribunal is concerned that the visa is being sought primarily to maintain residence in Australia. 

6. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet clause 500.212 and the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by clause 500.212.

7. Having had regard to the applicant’s circumstances, his immigration history and all other relevant matters, the Tribunal cannot be satisfied that the applicant is a genuine applicant for entry and stay as a student temporarily as required by clause 500.212. Accordingly, the applicant does not meet clause 500.212.

8. 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. Therefore, the decision under review must be affirmed.

9. Consequently, as the decision in relation primary applicant’s review has been affirmed, the Tribunal cannot be satisfied that clause 500.311 in Schedule 2 of the Regulations is met by the second applicant as it requires that they be a member of the family unit of a person who satisfies, or has satisfied, the relevant primary criteria.

10. Therefore, the criteria for the grant of a Student visa are not met by the second applicant and the decision in relation to the second applicant’s review must also be affirmed.

    DECISION

11. The Tribunal affirms the decisions not to grant the applicants’ Student (Temporary) (Class TU) visas.

    T. Quinn
    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;

    dwhether 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.