Katkuri (Migration)

[2023] AATA 561

Katkuri (Migration) [2023] AATA 561 (16 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sai Kumar Reddy Katkuri

REPRESENTATIVE:  Mr Shiva Sesham (MARN: 0105419)

CASE NUMBER:  2113272

HOME AFFAIRS REFERENCE(S):          BCC2020/2101719

MEMBER:David Thompson

DATE:16 February 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl 500.212 of Schedule 2 to the Regulations.

Statement made on 16 February 2023 at 1:08pm

CATCHWORDS  
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– applicant is due to finish his courses in the next few months – a borderline case – satisfied (albeit barely) that the applicant intends genuinely to stay in Australia temporarily – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359, 499

Migration Regulations 1994, r 1.03, Schedule 2, cl 500.212

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 on 28 September 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2.The applicant applied for the visa on 17 August 2020. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). 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.

3.The delegate in this case refused to grant the visa 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 she was not satisfied that the applicant intended genuinely to stay temporarily in Australia.

4.The applicant appeared before the Tribunal on 13 May 2022 to give evidence and present arguments.

5.The applicant was assisted in relation to the review.

6.For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

7.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 or not the applicant meets the requirements of cl 500.212.

Genuine applicant for entry and stay as a student (cl 500.212)

8.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?

9.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.

10.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.

Evidence

11.As well as giving oral evidence at hearing, the applicant provided the Tribunal of the following relevant documents:

a.the delegate’s decision record and notification letter, both dated 28 September 2021;

b.two completed Request for Student Visa Information forms (M17), the first of which is completed partly in handwriting and partly in typescript and appears to have been submitted by the applicant prior to an invitation from the Tribunal, and the second of which is completed entirely in typescript and was submitted in response to an invitation issued by the Tribunal on 9 March 2022 pursuant to s 359(2) of the Act;

c.identification pages from the applicant’s Indian passport;

d.a document apparently prepared by the applicant and entitled ‘GTE Statement’ (undated);

e.Confirmation of Enrolment (CoE) BA784848, in respect of the applicant’s enrolment in an Advanced Diploma of Leadership and Management at Lennox Institute, scheduled to run from 27 July 2020 to 28 November 2021;

f.CoE A8052F71 in respect of the applicant’s enrolment in a Graduate Diploma of Management (Learning) at Albright Institute of Business and Language, scheduled to run from 15 April 2019 to 12 April 2020;

g.CoE B6215026 in respect of the applicant’s enrolment in a Diploma of Hospitality Management at Imperial College of Australia, scheduled to run from 4 October 2021 to 20 March 2022;

h.CoE 9D24CE48 in respect of the applicant’s enrolment in a Master of Information Technology and Systems at the University of Tasmania, scheduled to run from 16 July 2018 to 30 June 2020;

i.CoE B6211112 in respect of the applicant’s enrolment in a Certificate IV in Commercial Cookery at Imperial College of Australia, scheduled to run from 2 April 2022 15 September 2021;

j.a written submission (undated) prepared by the applicant’s representative, but including a chronology on its face prepared by or dictated by the applicant himself;

k.an online article entitled “Hotel General Manager Salary”, printed on 8 October 2021 from a website with the URL letter dated 4 July 2021 from Mr Alex Grioli, who is warehouse supervisor at a company known as Bidfood, regarding the applicant’s employment with that company;

m.a provisional certificate issued by Osmania University dated 24 May 2018, stating that the applicant had passed the requirements for the degree of Bachelor of Science at that institution;

n.a consolidated marks memorandum issued by Osmania University dated 24 May 2018, giving the applicant’s results for his Bachelor of Science University studies;

o.a certificate of completion issued by Lennox College dated 13 December 2021, certifying the award of an Advanced Diploma of Leadership and Management to the applicant, with record of results and completion letter attached;

p.CoE CC702889 in respect of the applicant’s enrolment in a Graduate Diploma of Management (Learning) at Lennox Institute, scheduled to run from 28 February 2022 to 2 July 2023; and

q.Commonwealth Bank of Australia account statement dated 4 May 2022 showing the applicant’s account balance at that date.

12.Prior to hearing, the Tribunal obtained the departmental file in relation to the applicant’s these are application. That file contains the following relevant documents submitted by the applicant and not already mentioned above:

a.the applicant’s student visa application, lodged on 17 August 2020;

b.the applicant’s Secondary School Certificate, issued on 17 May 2013 by the Board of Secondary Education, Andhra Pradesh, India;

c.the applicant’s Intermediate Pass Certificate and memorandum of marks dated 27 April 2015, issued by the Telangana State Board of Intermediate Education;

d.a letter dated 27 November 2020 from Lennox College confirming the applicant’s enrolment in an Advanced Diploma of Leadership and Management;

e.a document entitled ‘Statement of Purpose’, undated but on its face prepared by the applicant; and

f.a statement of attainment issued by Lennox College, undated, showing the applicant’s progress in his Advanced Diploma of Leadership and Management course.

13.Where I refer to any of the documents listed above in the body of these reasons, I do so using that documents paragraph number. For instance, the document referred to in paragraph 11(a) will simply be referred to as “document (a)”, and so on. I should note at this point that in the course of hearing the applicant disclaimed document 12(e), stating that it had been prepared by his then migration agent and had not been provided to him for approval before it was submitted to the Department. I have therefore treated that document with some caution in reaching my decision in this case.

14.Prior to hearing, I obtained copies of the applicant’s movement record, and record from the Provider Registration and International Student Management System (PRISMS). The first of those documents reflects the applicant’s evidence at hearing. The second of those documents contains information regarding the applicant’s study history that might have been a reason or part of a reason why I would affirm the delegate’s decision. That information was put to the applicant in the course of hearing pursuant to s 359AA of the Act. The results of that exercise inform my discussion below.

Consideration

The applicant’s circumstances in his home country

15.the applicant is a citizen of the Republic of India. He has family in that country, namely, both of his parents and an elder brother. He stated that hearing that he contacts his family once or twice a week, by WhatsApp video call. He explained that he used to call them several times a day, but said that now that he is actually studying, he calls them less frequently. He stated at hearing that he has no community ties in his home country. There is no evidence before me to suggest that the applicant is married or has a partner of any other kind, either in India or Australia. I find that the applicant has personal ties in his home country that would provide him with some incentive to return there upon finishing his studies in Australia.

16.The applicant gave evidence at hearing regarding property in India owned by his family. He said that such property includes a house, some agricultural land, and a transport business which runs three trucks. He stated that none of that property was registered in his name or was his own. There is no evidence before me to suggest that the applicant has any assets in his own name in India, and I do not understand the applicant to have been suggesting otherwise. In 2018 the applicant was awarded the degree of Bachelor of Science by Osmania University. This is the highest level of education applicant has reached in India. I asked at hearing whether he had worked in India, and he said that he had not. He came to Australia to continue his studies on 19 July 2018. I find that the applicant has no particular economic incentive to return to his home country once he has finished his studies in Australia. That being said, there is nothing in the evidence before me to indicate that he has any economic reason for avoiding returning to India.

17.The applicant stated at hearing that he has no military service obligations to perform on his return to India, and no concerns regarding civil or political unrest in that country. I accept that evidence, there being nothing before me to contradict it. I find that these matters do not provide the applicant with any incentive to avoid returning to India.

18.The applicant has given evidence that he decided to come to Australia to study after he finished his bachelor’s degree because he wanted to get a higher degree from an overseas university. He chose Australia because of the international recognition given to its qualifications and because of the high standard of its institutions. He said that he considered a number of other countries but decided on Australia with the reasons just given, and because of the standard of Australian living conditions. I asked him whether he could undertake the courses in which is currently enrolled, which are in the area of management, in India. He stated at hearing that there were no such courses available, but also stated that he had not researched the options for the study of management in his home country. Discussed some doubt on his claim to intend genuinely to return to his home country upon finishing his studies in Australia.

19.Overall, I find that the applicant circumstances in his home country give him some incentive to return there, but not a strong incentive.

The applicant’s potential circumstances in Australia

20.the applicant’s evidence at hearing was that he has no family and no close friends in Australia, and no community ties either. He did, however, stated in document 11(b) that he has being involved in organising Hindu festivals and community programs in this country. The extent to which that involvement amounts to a community ties is unclear on the evidence before me. I do not accept that the applicant has no community ties in Australia, but find that such tires as he does have are weak at best. I find that the applicant has no personal ties to Australia that would give him any significant incentive to remain in this country once he has finished his studies.

21.The applicant stated that he has no property in Australia. There is nothing before me to suggest otherwise, and I accept the applicant’s evidence on that point. The applicant has some history of employment in Australia, in that since October 2018 he has worked on a part-time basis for a number of businesses. The best documented, and most remunerative, of those positions is that referred to in document 11 (l), which states that the applicant had worked for Bidfoods as a pick packer for (at the date of the letter) 2 ½ years, and states that he would be offered a full-time position as soon as it was able to work in that capacity. The applicant’s own evidence was that he was paid $23,000 per annum for his part-time work for Bidfoods. It should be noted that some of his other positions have paid considerably less. Nonetheless, I find that the applicant’s history of employment in Australia gives him some economic ties with this country, and some incentive to remain in Australia once he has finished his studies.

22.There is no evidence before me to suggest that the applicant has entered into any relationship concern whilst in Australia, in the sense of a relationship contrived or contracted for the purpose of obtaining a better visa application outcome than would otherwise be available to him. Indeed, his evidence is that he is not in a relationship, and has no partner of any sort of Australia. I accept that to be the case. There is no direct evidence before me that the applicant is attempting to use the student visa system simply to maintain residence, or is attempting to circumvent the requirements of the Australia immigration program in any other way. That does not, of course, exclude the possibility that such intentions could be inferred indirectly from the evidence that is before me. However, the lack of direct evidence on these matters gives some support to the applicant’s claim to be a genuine temporary entrant.

23.The applicant first arrived in Australia on 19 July 2018. He lodged the student visa application the refusal of which has given rise to this review on 17 August 2020, some two years after his first arrival in Australia. He therefore had considerable practical experience of life and study in Australia at the date of his visa application. His preparations for life and study in Australia at that date sheds no light on his intentions as to the length of his stay, and does not assist me in reaching my decision in this case. Ask the applicant at hearing how he came to choose his current course provider, Lennox College. His response was vague and unsatisfactory, in that it referred to the features of the course without stating how the applicant came to hear of it, or what steps are investigations he made before enrolling. This deficiency is not remedied in any of the written evidence he has submitted, except that document 11 (d) the applicant speaks of having asked and educational consultancy to find a diploma level course for him. The implication is that he made his choice entirely on the basis of the consultancy’s recommendation. The extent to which that recommendation contained detailed information about the course provider is unclear. However, I note that a recurring theme in the applicant’s evidence is dissatisfaction with this particular educational consultant, against whom the applicant went so far as to allege what was essentially fraudulent conduct. Even so, I find that the applicant’s evidence on the manner in which he chose his course provider tends to detract from his claim to be a genuine temporary entrant.

24.Taking these matters together, I find that the applicant’s potential (and indeed actual) circumstances in Australia give him some incentive to remain in this country once he has finished his studies, but not a particularly strong incentive.

The value of the applicant’s courses for his future

25.The applicant has previously obtained a bachelor’s degree in science, and is now studying at graduate diploma level. I note that the entry requirement for the applicant’s course, as stated on Lennox Colleges website, is successful completion of a Diploma or higher qualification. It is not clear to me that this enrolment represents a progression in the applicant’s level of study. However, his current studies are in an entirely different area to that in which he obtained his bachelor’s degree, and that must be taken into account.

26.The applicant’s evidence as to his plans on his return to India was that he intends to open his own business. He stated that the business he had in mind was a chain of food businesses. He was quite vague as to the nature of this prospective business, and stated that he had made no preparations for this venture on his return to India. He stated, however, that he would be able to borrow the funds needed to set the business up from his father, and that his family is very supportive of his ambition. He was able to say that his aim was to start his own brand and that it didn’t wish to purchase a franchise, but could say nothing more definite about the nature of its proposed business than that. The applicant submitted document 11(k) as part of his documentary evidence. That document is an article about working as a general manager for a hotel in India. I asked about hearing what the relevance of that document was. He was unable to give any clear answer that question, beyond saying that a food business might involve supplying hotels with food.

27.The applicant gave evidence that he expected to earn the equivalent of A$20,000 per annum working on his business. I can find no basis whatsoever for this forecast in the evidence before me.

28.For these reasons, I find that the applicants courses have only the most general value for his future, in that they teach skills that might be applicable in a number of different professions or careers.

The applicant’s immigration history

29.The applicant stated at hearing that he has never travelled to any country other than Australia. He stated that he has never before been refused a visa, and has never had a visa granted to him cancelled. He also stated that he has no other Australian visa application on foot. There is no evidence before me to contradict these statements, and I accept them. As the applicant has not travelled to any other country, there is no evidence before me that he has breached the migration laws of any such country. These considerations give some support to the applicant’s claim to intends genuinely to remain in Australia only temporarily.

30.The applicant first arrived in Australia, as I said above, on 19 July 2018. He has returned to his home country at least twice since then, but only for very short periods. He has, therefore, resided principally in Australia for a period of some four and three-quarter years. That is not in itself an inordinate length of time to take studying in a foreign country, and I would be most reluctant to infer any intention to remain in Australia permanently on that basis. However, it is relevant to consider how the applicant has used his time in Australia. I will discuss his record of study below, in considering whether the evidence supports this claim that he intends to remain temporarily in Australia as a student. It suffices to say at this point that the applicant’s record of study is distinctly chequered, and that there have been periods of time when the applicant was clearly not studying. However, there is no evidence before me to suggest that the applicant was engaged in those periods and some other activity that would be inconsistent with an intention to remain in Australia only temporarily.

31.I find that the applicant’s immigration history neither supports nor detracts from his claim to intend to remain in Australia only temporarily.

Conclusion on cl 500.212(a)

32.This case, at least as regards cl 500.212(a), is very much a borderline case. The applicant has no very strong incentives to return to his home country, nor any very strong incentives to remain in Australia. He has been unable to give me any clear idea of his plans for his return to India, but there is no indication in the evidence before me that he has any plan for his future that would involve him staying in Australia. The applicant attributes many of the less satisfactory aspects of his evidence as to his time in Australia to having been comprehensively misguided and misled by the education agents into whose hands he fell. I will say more about that below, as it is most immediately relevant to the issue of whether he intends to stay in Australia as a student. The conclusion I have reached on the issue of the applicant’s intentions as to the length of his stay in Australia is that he does not intend to stay here other than temporarily, even if it would appear to have no concrete plans for his future in India.

33.On that basis, I am satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).

Does the applicant intend to comply with visa conditions?

34.For the applicant to meet cl 500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

35.A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl 500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed in some cases (cl 500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).

36.The applicant stated at hearing that he fully intended to comply with any conditions that might be placed on any student visa granted to him, and also made it clear that he understood the nature of those conditions. However, there have been times during his stay in Australia when he has been in breach of the requirement that he remain enrolled as a full-time student and an approved course of study at all times. I put this to him at hearing, as a reason why I might not accept his statement of his intention. His response mischance was that his periods of non-compliance were unintentional, or the result of negligent or dishonest advice and conduct on the part of his education consultants. He submitted that he had made a mistake, and a very expensive one, by relying on them for as long as he did, and that his intention was genuinely to observe all of the rules imposed on him by the conditions on his student visa so that he could finish your studies and return home with some form of foreign qualification to his name.

37.For the purposes of cl 500.212(b), I am required to come to a conclusion as to the applicant’s actual intentions in that regard, having regard to his record of compliance and his statements regarding his intentions. The conclusion that I have reached is that, despite his history (which is admittedly distinctly prejudicial to his claims), he does now genuinely intend to comply with the conditions that will be placed on any student visa granted to him. I am therefore satisfied that the applicant meets the requirements of cl 500.212 (b).

Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

38.For the applicant to meet cl 500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl 500.212(a) and (b)).

39.The chapeau to cl 500.212 requires the decision-maker to be satisfied that an applicant is a genuine applicant for entry and stay as a student (taking into account the matters set out in subclauses (a) to (c)). It is therefore appropriate to consider at this point whether the applicant proposes to stay temporarily in Australia as a student or in some other capacity. In this case, this involves a consideration of the applicant’s history of study in Australia.

40.As I have said above the applicant arrived in Australia in July 2018 at that time, he was enrolled in a Master of Information Technology and Systems course at the University of Tasmania. He withdrew from that course towards the end of August 2018. He then enrolled in a Graduate Diploma of Management course, which was scheduled to run from 15 April 2019 to 12 April 2020 (see document 11 (f)). His enrolment in that course was cancelled on 2 September 2019. He then enrolled in sequence of courses consisting of Essential English, which was scheduled to run from 30 September 2019 to 24 February 2020 and which he finished successfully, a Certificate IV in Commercial Cookery, which was scheduled to run from 2 April 2020 to 15 September 2021, and a Diploma of Hospitality Management, which was scheduled to run from 4 October 2021 to 20 March 2022. His enrolments in the last two of those courses were cancelled on or about 12 February 2021. The applicant stated at hearing that he had never started studying those courses at all. Honour about 7 July 2020, the applicant enrolled in an Advanced Diploma of Leadership and Management, which ran from 27 July 2022 28 November 2021, and which he finished successfully. He then enrolled in a Graduate Certificate of Management, which became (by reason of the reorganisation of the course) the Graduate Diploma of Management that the applicant is currently studying.

41.At hearing, the applicant stated that he had withdrawn from his initial master’s degree program because it was run from the Launceston campus of the University of Tasmania, and he was unhappy living there. He stated that the University refused to transfer him to the Hobart campus, so he gave up the course altogether and moved to Melbourne. Once he arrived in Melbourne he decided to start from scratch. It was not, however, until 3 April 2019 (according to document 11 (f)) that he enrolled in the course again. He claimed that this was because he had arrived in Melbourne too late to take enrolment in the previous academic session. The gap in enrolment is a substantial one, approximately eight months, and I am not convinced that the applicant could not have found enrolment in a suitable course in the interim.

42.As I have noted above the applicant’s evidence was that he never started his hospitality courses at all. He explained that around the time he enrolled in them, his grandmother in India became seriously ill, and he had to return to India. He stated that his education consultants advised him that he needed to have an enrolment before he left the country, or he would not be allowed to return. He therefore enrolled in the hospitality courses noted above without any intention to actually study them. He also gave evidence that he had paid money to his education consultants to pay course fees, but that it appeared that they had neither made the payment nor return the money to him. I am prepared to accept that the applicant was the victim of unscrupulous practices, but I am not convinced that this provides a complete explanation for all of the unsatisfactory aspects of his study history. The manner in which the applicant enrolled in his hospitality courses shows at very least a propensity to comply with the rules governing his residence in Australia superficially, although not in substance. I note that he did in fact return to India around this time, but only for 10 days. As the applicant did not actually commences hospitality courses, it follows that he was not studying between the end of his Essential English course (24 February 2020) and the commencement of his courses at Lennox College (27 July 2020), a period of five months.

43.In summary, the applicant has been less than serious about remaining enrolled in courses of study for significant periods of time during his stay in Australia. That would tend to suggest that he is remaining in Australia for reasons other than study. Against that, however, I must balance the fact that I have been unable to find any clear indication of any other purpose the applicant may have for remaining in Australia on the evidence before me, and the fact that since he started his studies at Lennox College the applicant appears to have applied himself and is due to finish his courses in the next few months. Those considerations would tend to indicate that whatever the applicant’s intentions or attitude were previously, he is now genuinely engaged in study. As the criteria provided in cl 500.212 must be applied as at the date of decision, I give those considerations greater weight and reach my conclusion. I find that the applicant is, despite indications to the contrary in his study history, present in Australia as a student.

44.No other relevant consideration arises on the evidence before me.

45.For these reasons, I am satisfied (albeit barely) that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.

46.Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

DECISION

47.The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl 500.212 of Schedule 2 to the Regulations.

David Thompson
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.