KASHYAP (Migration)

KASHYAP (Migration) [2019] AATA 2239 (28 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr AMIT KASHYAP
Mrs REENA REENA
CASE NUMBER:  1618862
HOME AFFAIRS REFERENCE(S):           BCC2016/2706035
MEMBER:Justin Meyer
DATE:28 February 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Statement made on 28 February 2019 at 12:46pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – value of course – Advanced Diploma of Leadership and Management – sufficiency of qualifications already held – benefit to future remuneration and career prospects – taking over uncle’s business – relevance of proposed studies – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

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 27 October 2016 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 16 August 2016. 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 (the Regulations) because she as not satisfied that the applicant intends genuinely to stay temporarily in Australia.
The applicants appeared via telephone before the Tribunal on 8 August 2019 to give evidence and present arguments. The applicants were assisted in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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 genuinely intends to stay temporarily in Australia.
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 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
The primary applicant (“the applicant”) is a 37 year-old male who was born in India.
His wife is Ms Reena, an accompanying family member applicant attached to this application. She does not make additional or separate claims.
I have no issues with the applicant’s record of compliance with any condition of a visa previously held by the applicant.
Applicant submission to Department
The applicant submitted to the department the following in 2016:
“My self Amit Kashyap from Jalandhar India. I finished my Senior Secondary School in commerce. After finishing my 10+2, I started to assist my Uncle in his business. Since then I am taking keen interest in business. We have a plan to start seller business next year and planning to start rice export business in near future as well. My father's planning encouraged me to pursue education in business stream which I have completed recently, Now I believe I need to improve my marketing and communication skills as well which is really important for every business man. That is why I have decided to undertake Advanced Diploma of Marketing.
My future study planning and choosing country
After completing Advanced Diploma of Marketing I will go back to my country so that I can expand my business with my father. As I am already studying in Australia and very happy so far with my decision, so I decided to completed Advanced Diploma of Marketing from Australia as well because I am already here and used to of the environment of Australia. Australian weather is quite similar to Indian weather except less humidity. Furthermore, Adelaide is very quiet city to live I enjoy my studying in here.
My Study Destination:
As I am already studying in Adelaide and happy with my decision, that is why I have decided to completed my Advanced Diploma of Marketing from Adelaide as well and my current college is offering this qualification.
My Future Courses:
I am mentioning the courses that I am going to pursue next.
Advance Diploma in Marketing (1 Year) Course Contents
Core Units
-BSBMKG603 - Manage the marketing process
-BSBMKG609 - Develop a marketing plan
-BSBMKG607 - Manage market research
-BSBMKG608 - Develop organisational marketing objectives
Elective Units
-BSBMGT616 - Develop and implement strategic plans
BSBMGT617 - Develop and implement a business plan
BSBMGT605 - Provide leadership across the organization
BSBMGT608 - Manage innovation and continuous improvement
My Future Plan:
My plans are to finish my Advance Diploma of Marketing from Durban International College, Adelaide and to improve my Marketing and communication skills. Being as International student in Australia I will have chance to interact with diverse background of people that will enhance my personality and communication skill as well. After finishing my study I will return back to my country and set up our family business and will take our business to new heights.
In my opinion, being educated from Australia I will have more advantage over my competitors and will have more regard within stakeholders.
At last, I can say that, whatever information I mentioned above is true and correct I am hoping that you will consider my request for this visa application.
Delegate’s decision
The delegate made the following points in her decision:
oThe applicant completed a Certificate III in Printing and Graphic Arts, Diploma of Management, Certificate IV in Business, Diploma of Business, Certificate IV in Business Administration, Diploma of Business Administration, and Advanced Diploma of Business in Australia.
oHe now wished to study ‘Advanced Diploma of Marketing’.
oThe proposed study in Australia is of the same qualification levels as his previous study. It does not show education progression or advancement. It is in the same field as the previous study
oA favourable decision would enable the applicant to remain in Australia for an additional year, in addition to an already extensive immigration history which raises concerns in regards to intentions to remain in Australia temporarily.
oThe applicant mentioned that after completing senior secondary school, he started to assist his uncle in his business. He has a keen interest in business. He had a plan to start a ‘Seller’ business in the next year and is planning to start rice export business in the near future as well. He needs to improve his marketing and communication skills as well, which is important for a businessman.
oThis situation, the applicant said, led him to undertake an Advanced Diploma of Marketing.
oThis course proposed to study is similar to his past courses. The previous study in Diploma of Business Administration includes the subject unit ‘Market the small business’. The value of the course to the future is in question. It therefore appears that he had enrolled in this course for the purposes of the visa application only in order to secure a student visa rather than due to a genuine interest in this area of study and overall academic progress.
oThe applicant stated that upon return to India he intended to start his own business. The intended qualifications would be relevant to these roles. However, he had not provided details in regards to the expected business operations or how proposed qualifications would assist him in attaining this goal.
oThe applicant had been in Australia for almost eight years. He had had plenty of opportunity to complete any courses required to facilitate business plans.
oHe initially studied printing and multimedia courses. Since 2011 he have been studying business courses yet after studying in this field for five years he wanted to study another course in the same field and same sector (VET sector).
oHe had no evidence to demonstrate how the proposed course would benefit future remuneration level significantly enough to justify the expenses incurred while in Australia. There were no business plans.
oThere was no credible career plan on completion of studies. He had not demonstrated the value of the proposed course to his future.
oThere was no substantial evidence of close ties to his home country. He is married and his spouse lives with him in Australia. There was no evidence of any assets or family business ties to his home country. He would not be compelled to return to India on account of any economic reasons. Limited family ties in India may not present a significate incentive to return.
oConcerns as to incentives to return to his home country upon completion of proposed studies in Australia indicate that he is not a genuine student. Rather, he appeared to be using the Student visa program as a means of maintaining on going residence in Australia and he did not genuinely intend to stay in Australia temporarily.
oThe previous immigration history shows he has previously travelled to Australia and been compliant with his visa conditions.
oHe arrived in Australia in November 2008 on a TU-572 student visa valid until October 2010.
oA TU 572 student visa was granted in November 2010 until December 2011.
oA TU 572 student visa which was granted in December 2011 until March 2013.
oA TU 572 student visa was granted in January 2013 valid until May 2015.
oA TU 572 student visa which was granted July 2015 valid until August 2016.
oHe had spent almost 8 years in Australia. Taking the length of time in Australia already into consideration, noting he wished to remain for an additional year to study a vocational course, raises concern of genuine temporary intentions. Taking into consideration the previous immigration history this alone does not constitute a strong incentive to return home at the completion of proposed study.
Submission before hearing
The applicant’s representative certain points in a written submission to the Tribunal, and the applicant himself gave oral evidence in the hearing, along the following lines:
The applicant had previously successfully completed the following courses:
·Certificate III in Printing and Graphic Arts,
·Diploma of Management,
·Certificate IV in Business,
·Diploma of Business,
·Certificate IV in Business Administration,
·Diploma of Business Administration,
·Advanced Diploma of Business
·Advanced Diploma in Leadership and Management (commenced)
It is the applicant's career ambition that the skills and experiences acquired from these qualifications will enable him to manage his own business in India. The applicant whilst undertaking his qualifications in Australia has been in close contact with his maternal uncle, Mr. Jatinder Kumar, who lives in India and who successfully runs a sports business by the name J K Sports in Jalandhar, Punjab. His uncle is now 63 years old and wants to retire. However, he wants the applicant to run his business after his retirement. Given the applicant's qualifications in business, and management, the applicant along with his uncle, who has a wealth of experience in the business, would learn the tricks of the trade from him for the initial few months and after his uncle's retirement would solely run the business.
The applicant is planning on managing this business and given his qualifications and experience, he will be ideally suited for the position.
The decision by the Department placed significant weight on the fact that the applicant had already held a Diploma in Business, Diploma in Management and did not feel satisfied that the multiple qualifications that the applicant already held were insufficient and did not feel that his proposed study was necessary in order to allow him to achieve his career goal of establishing his own business. This line of reasoning is significantly flawed.
To manage the operations of a significant business like the one the applicant is proposing, significant knowledge and experience of both the business, marketing and managerial aspects of the venture will need to be held. Qualifications in Business and Management are both very different qualifications and it is a generalisation that they are adequately similar. Qualifications in Management and Business are widely considered to be two very different qualifications by academic institutions otherwise there would be no reason to offer both qualifications to students. By having both the Diploma of Management and a Diploma of Business, the applicant will be equipped with the best possible qualifications to effectively run and manage his proposed business back in India. To enhance his skills, the applicant is now going to pursue the Advanced Diploma of Leadership and Management. The level of knowledge and application provided in the Advanced Diploma of Leadership and Management would be significantly higher and more in-depth than a Diploma and this is why the applicant has decided to pursue the Advanced Diploma of Leadership and Management to supplement and advance his knowledge obtained from diploma qualifications. The Advanced Diploma of Leadership and Management will help the applicant to successfully and efficiently run and control the entire operations of his business
For the Department to say that the applicant's already held qualifications would be sufficient for his proposed career plan and would not benefit the applicant's future remuneration and career prospects is severely misguided and also lacks serious insight into the precise career ambitions of the applicant. The fact that the applicant intends to undertake the significant task of commencing his own business necessitates that the applicant holds the most advanced and current knowledge of business operations, marketing, and management. Given the ever-increasing competition in the global market, it is crucial that Managers are able to keep up to date with the latest and most innovative developments in business operations, marketing, and managerial strategy. Australian qualifications are well recognized and respected around the world and the applicant feels confident that the education and skills that he will have learned in Australia will hold him in very good stead when undertaking the relatively daunting task of beginning a new business.
Having an Advanced Diploma in Leadership and management and a Diploma in Business in addition to the Diploma of Management would ensure that the applicant will have the leadership and business acumen to grow and develop their business in the increasingly competitive commercial space in India.
The applicant is currently enrolled in an Advanced Diploma of Leadership and Management from Durban International College in Adelaide, South Australia. The applicant feels that in order to effectively market and grow their business, it is vital to have the skills and technical know-how in order to run a business successfully and reach the local customers. Having a globally recognized qualification in Leadership and Management from a well-established and recognized Australian institution will be the final step before he will be able to return to India and confidently commence his business operations.
The applicant was pursuing the Advanced Diploma in Marketing when it was discontinued by the provider college midway. However, the applicant had completed all the required units of the advanced diploma which were taught before the same was discontinued. A certificate was forwarded to the Tribunal.
The applicant has been through very rough times lately as his wife was diagnosed with very severe gynaecological disease in late 2016 and has been under the treatment of different doctors including a specialist. A certificate in this regard was attached. The applicant is the only one in Australia who had to take care of his wife at the time of crises. His wife was suffering from a serious health issue and was not in a position to perform her day to day work. The applicant had to stay by her side and therefore could not study for some period. His wife is now better and is pregnant and the applicant has decided to study one last course of Advanced Diploma in Leadership and Management before returning to his home country to start his own business by taking over from his uncle.
The applicant’s intentions are centred at being of greater value in the market as an employer/employee and obtaining more skilled for future needs in life. This course is just another part of the journey. His education in the end is about dedication, perseverance, and self-motivation. It matters least where he will go to study because it is his own willingness that will determine the knowledge acquired, and performance exhibited. Selecting a country and an institution is an important step but the journey is much more than that. He is enjoying his studies a great deal and he wishes to acquire more skills to accelerate the number of responsibilities which he should be prepared to take on in the future.
Matters discussed in the hearing

In the hearing the applicant said that he arrived in Australia for the first time in December 2008.
His purpose was to pursue graphic arts studies. His brother had a printing press and he wanted to partner with him. Unfortunately his brother had an accident 2009 and the applicant could not join this business because of his lack of experience. The applicant said that his Diploma of Management and Business, which he had studied in Adelaide, was done because his uncle had a sports business and he wanted to do well in it. There had been a death in the family - a cousin. Ultimately the plan was for his uncle to stand aside and for the applicant to take over the sports business in India. This business employs 15 to 20 people. It is in Punjab in India. The applicant’s uncle is 63 years old and he would keep working until the applicant returns and gains experience. The business will then be put under the applicant’s name. The applicant said that he is parents knew about the plan. The applicant said his parents and not his uncle paid for the fees and student life expenses.
The applicant had been back to India four times for family visits. The applicant is married having gone through a ceremony on 13 March 2013. The applicant’s wife lives with him in Australia. As yet they do not have children. The applicant’s wife has a gynaecological issue. It was put to the applicant that he had seven qualifications and it was queried why this would not be enough for his uncle in order to fulfil the plan of taking over the business. The applicant replied that he needed to know all aspects of the business. Dealing with customers for example was something he needed to learn. The applicant said he had had previous work as an office manager and had had casual work, three to four hours per week. He knew matters about solving disputes, processing staff, and had been working in a salads business. The applicant was asked whether his uncle had qualifications in order to do his business. The applicant replied that his uncle did not have formal qualifications but he did have 25 years of experience. The applicant said that he personally needed qualifications because of globalisation. He said Australian qualifications are recognised. It was put to the applicant that his uncle might be impressed with seven qualifications. The applicant replied that he did not want to spoil his uncle’s business and that this was one last step before he could go and take over the business, i.e. that he would finish his current course, an Advanced Diploma in Leadership and Management.
The applicant provided a Confirmation of Enrolment (CoE) for this course to the Tribunal and various certifications of completed results in the various courses that he is completed all of were ranked at satisfactory or above. The Tribunal has no issues with the applicant study’s record or progress.
The Tribunal put to the applicant’s concerns about the number of courses that he had undertaken and the vagueness of the description of taking over his uncle’s business. The applicant was convinced that he needed one final qualification in order to fulfil his plan which was to run his uncle’s business upon his return to India.
Whilst it is understood that his uncle's business includes all areas of sporting equipment including the manufacturing of cricket equipment for example, and may well be a complex business, the Tribunal was unable to understand how his uncle could run such a business without any qualifications whatsoever, yet the applicant could not. The Tribunal understands that 25 years of experience in this business is learned on the job and is of value. Yet it is not apparent to the Tribunal that the various qualifications of the applicant has obtained are essential to the running of the business although they almost certainly would be beneficial. Despite questioning, the applicant could not described clearly why his present course - the Advanced Diploma in Leadership and Management – would alter matters so that his present inability to lead that business would change to a situation where he could head it once the qualification is obtained. This distinction between the present and the time of his completion of his course that the applicant made was artificial. The Tribunal has concluded that his present course is unnecessary to his future as he described it.
Whilst the applicant might well get value from an advanced diploma in leadership and management, he struggled to explain specifically how it would help him in his future work at his uncle’s company. The Tribunal is concerned that this would be the eighth qualification of the applicant after a long period in Australia of ten years holding student visas. The Tribunal considers the other qualifications of the applicant obtained in Australia would enable him to present a detailed and nuanced description of what he would do in his uncle’s business, and yet this was not forthcoming. The Tribunal suggested that being possessed of sufficient skills knowledge and qualifications to work in his uncle’s business his proposal to add yet another qualification was puzzling. The applicant did not have a specific answer to this concern. Whilst the Tribunal accepts that the applicant’s uncle has employed 15 to 20 people in a healthy, growing industry such as sporting goods manufacture, the Tribunal is still concerned that the applicant did not link in detail his study proposal with the management or running of that particular company.
Turning now to other matters indicated by direction 69, the applicant gave evidence that his wife lives in Australia. The Tribunal accepts that the applicant’s wife has been unwell and that this has been a reason that would serve as an incentive for remaining in Australia. She is now recovered and is pregnant which adds a different complexion to matters. The Tribunal notes the relevant travel has taken place including family visits and the Tribunal notes that this is an indication that the applicant has incentives to return, for example a link with family.
The Tribunal has concluded that the qualifications that applicant already has i.e. Certificate III in Printing and Graphic Arts, Diploma of Management, Certificate IV in Business, Diploma of Business, Certificate IV in Business Administration, Diploma of Business Administration, Advanced Diploma of Business was sufficient for the applicant to fulfil his goal and dream to return to India and work in the mentioned business in 2017.
The Tribunal accepts that the applicant’s point that education and skills that he will have learned in Australia will hold him in very good stead, and this was major reason why he wanted to access a superior Australian education market over his home country. He certainly has ties to his home country in the form of family members and potential employment for example. He could well be paid favourably for working in India. There is no civil unrest and the like as a factor, nor was a military service obligation relevant here. But nonetheless my above concerns mean that these favourable points are outweighed.
Taking all of the considerations and direction 69 overall by December 2017 the applicant appeared had every personal and business reason to cease his residence in Australia and return to India. His own conduct in proposing to extend his further stay to study with the cost for course in time and money, exceeds its value to his future and lead me to conclude that he will not yield to the array of incentives he has to leave Australia, including the presence of family members in India but rather intends to stay in Australia. It is the applicant’s claim that he is always intended to stay in Australia temporarily and he continues to have that intention. If that is and was so the Tribunal finds the applicant would have departed Australia to set in motion his plan to work in his uncle’s business by the end of 2017 and would have not propose an extended further study plan.
The Tribunal contemplates the applicant’s oral evidence that he needed to study further in order to learn about matters such as dealing with clients and customers. Whilst I accept that this is a possible area of formal study where knowledge can be obtained to a certain degree, it would seem that this is a skill that would mostly be learned on the job.
It is therefore puzzling to the Tribunal as to what would be detaining the applicant from going to India as soon as he can to gain such experience which would be on the job. The Tribunal notes that some of such experience may have already been gained in the applicant’s part-time work in Australia, and bears in mind the fact that the applicant has life experience at the age of 37 years. It is no doubt correct in many contexts that managers crucially need to up to date with the latest and most innovative developments in business operations, marketing, and managerial strategy, as suggested by the applicant. Yet the applicant’s present level of qualification already held would facilitate this to significant extent.
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 cl.500.212(a).
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. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Justin Meyer
Member

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:
c.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
d.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
e.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
f.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
g.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;
i.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
ii.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
iii.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country
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.

[2019] AATA 2239

28 February 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction

Procedural Fairness