Kaur (Migration)

Kaur (Migration) [2022] AATA 1887 (28 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Kamalpreet Kaur
REPRESENTATIVE:  Mr Vikram Bir (MARN: 0851838)
CASE NUMBER:  2003555
HOME AFFAIRS REFERENCE(S):          BCC2019/6793989
MEMBER:Michael Biviano
DATE:28 January 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 28 January 2022 at 4:25 pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No. 69 – visa history – change in pathway – long gap in studies – incentives to return home – time spent onshore – 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 Home Affairs on 3 February 2020 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 20 December 2019. 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.
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(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) for the reason that she was not a genuine applicant for entry and stay as a student because she did not intend to stay in Australia temporarily.
The applicant appeared before the Tribunal on 25 October 2021 to give evidence and present arguments.
The applicant was assisted in relation to the review.
It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary, to enable the examiner to establish the relevant facts.
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 was a genuine applicant for entry and stay as a student.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The applicant is a 31-year-old national from the United States of America who first came to Australia in 2015 on a visitor visa and returned home, then attended on 17 December 2017 on a visitor visa and returned home. She returned to Australia on 15 December 2018 pursuant to a visitor visa. She claimed in evidence that she came to Australia to visit friends and she then returned home. She came to Australia on a Visitor visa in December 2019.
The Decision Record of the delegate of the Department of Home Affairs dated 3 February 2020, which was provided to the Tribunal by the applicant, confirms that the applicant made the current application for a Student (Class TU Subclass 500) visa on 20 December 2019 (Decision Record). The Decision Record set out the reasons why the delegate refused the visa application.
At the time of the current visa application, the applicant had enrolled to undertake a Diploma and Advanced Diploma of Leadership and Management (Management Courses).
The applicant, in support of her application, had provided to the delegate a statement dated 19 December 2019 claiming that she wanted to study the Management Courses to improve her skills and education to work in the trucking and logistics industry. She claimed that she had worked in the trucking industry as a driver with supervisor duties and that she was not finding that career fulfilling and that she wanted to gain work in a management position. She claimed that obtaining qualifications in Australia would be recognised in the United States of America and help her stand out as a managerial candidate.
On 24 February 2020, the applicant filed with the Tribunal in support of her application:
a.High School transcript for the applicant from Washington State High School;
b.Applicant’s Social Security Card and Certificate III in Commercial Cookery from the Technical Institute of Victoria (TIV) dated 28 July 2021, together with Record of Results and completion letter;
c.Confirmation of Enrolment (COE) No. B2AC8269 for the applicant to study a Diploma of Leadership and Management, commencing on 13 January 2020, with a course end date of 24 January 2021, at Salford College, created on 18 December 2019.
d.COE No. B2A3D262 for the applicant to study an Advanced Diploma of Leadership and Management from Salford College with a course start date of 22 February 2021 and a course end date of 21 August 2022, which was created on 17 December 2019;
e.Statement to the delegate dated 19 December 2019 (Statement);
f.Photograph of the applicant;
g.Passport extract; and
h.Bupa Overseas Student Health Cover for the applicant until 13 November 2022.
On 23 September 2021, prior to the hearing, the applicant provided to the Tribunal a Response within time pursuant to an invitation to supply student visa information about the courses she was studying and information about her entry and stay in Australia in accordance with s 359(2) of the Act (Response).
In addition to the Response the applicant filed supporting documentation, which comprised:
a.Visitor (Subclass 600) visa dated 26 November 2018 for a one month stay from date of arrival; and
b.Visitor (Subclass 600) visa dated 12 November 2019 for a one month stay from date of arrival.
c.COE No. C855AF31 for the applicant to study a Diploma of Leadership and Management, commencing on 4 October 2021, with a course end date of 2 October 2022, at Pacific College of Technology (PCT), created on 23 September 2019.
d.COE No. C855BD27 for the applicant to study an Advanced Diploma of Leadership and Management at PCT, with a course start date of 3 October 2021 and a course end date of 1 October 2023, created on 23 September 2021.
The applicant gave evidence that she was born in India but migrated to the USA when she was young and completed high school in the USA but did not graduate as she was required to work in the family business. She claimed that she wanted to be a nurse and study nursing, but instead helped her family by working in transport.
The applicant in the Response confirmed that she first came to Australia on 29 July 2015 for a period of 2 weeks and returned home to the USA. The applicant returned to Australia in December 2017 when she stayed for a period of 3 months. The Decision Record confirms she overstayed:
I note the applicant has declared within their application form they were previously refused a visitor visa on 20 June 2018. Furthermore, the applicant declares they previously travelled to Australia on 17 December 2017 and 15 December 2018 on a visitor’s visa. The applicant has declared when they were visiting Australia from 17 December 2017 until March 202018 (sic) they overstayed their visa resulting in the applicant being an unlawful non-citizen for two days, consequently this indicates a lack of adherence to the Migration Regulations.
The applicant claimed that during these visits she was staying with distant relatives who were friends and with whom she got on well and felt very comfortable.
The applicant in the Response confirmed that she returned to Australia on a visitor visa in December 2018 for a period of one month and returned home to the USA after one month. She gave evidence that she further returned to Australia on a visitor visa on 9 December 2019 for one month’s duration but she has not returned home and instead she made the current application for a student visa on 20 December 2019. She claims that she made the decision to study in Australia after arriving here on the visitor visa, which means that the decision was made within less than 2 weeks of her arrival. Her enrolments at Salford College were confirmed in the COEs as being created on 17 and 18 December 2019.
Prior to coming to Australia, the applicant had worked in various roles:
a.From June 2012 to October 2018 she worked as a despatcher for Purewal Transport, which was the family transport business with one truck, and she received an income of approximately AU$30,000 per annum;
b.From May 2018 to December 2018 she worked in ItekEnergy as a Main Lead in production, and she received an income which equated to AU$28,000 per annum;
c.From June 2019 to December 2019 she worked at Swift Transport as a CDL Class OTR Driver transporting trucks and trailers to other states, with an income of AU$45,000 per annum.
The applicant claims she came to Australia on vacation on 5 December 2019 while on leave from work, and she had booked a return air ticket on or around 5 or 6 January 2020 to return home. She claimed while she was here she was encouraged by her friends to undertake a Diploma and Advanced Diploma of Hospitality Management in Australia. They claimed that they would support her while she was here.
The applicant claimed that while here on a visitor visa she decided to study a Diploma and Advanced Diploma of Leadership and Management in Australia. However, the Tribunal notes that she has made that decision within 2 weeks of arriving here whilst still employed, and she had visited this country on 3 prior occasions.
The Tribunal considers that the applicant’s conduct in deciding to study here after having been in Australia for a period of 2 weeks, and enrolling in the Management Courses at Salford College, which would extend the duration of her stay here to a total of more than 2 and a half years, is more consistent with someone who had made plans to come to this country to stay and study for a long period of time, rather than someone who was merely visiting on holiday. The Tribunal considers that the applicant’s conduct is more consistent with someone who came to this country for the purpose of undertaking study for a long duration of time and that her conduct is inconsistent with the purposes of the visitor visa, which was granted to visit this country for a period of one month.
The Tribunal considers her conduct was not consistent with the behaviour of a genuine student, given that she sought a change in pathway shortly after arriving in Australia on a visitor visa, which would have required a greater level of planning and preparation before arriving in Australia. The Tribunal has had regard to the fact that the applicant has used the visitor visa for an inconsistent purpose for which it was granted, that is, for the purpose of coming here to undertake study.
The applicant claims that by obtaining the management qualifications she would be able to obtain a management position in a logistics or transport company in the USA where she claims that she could earn between AU$70,000 to AU$80,000 per annum as a manager, but she did not produce any documentary evidence that such positions existed and that she would be able to obtain such a position with such qualifications and experience. The Tribunal notes that the applicant did not obtain tertiary qualifications in the USA or elsewhere and it accepts that the courses she proposes to study would advance both her employment prospects and level of remuneration in the USA.
The applicant commenced studying the Diploma of Leadership and Management in January 2020 and was enrolled to study the Advanced Diploma of Leadership and Management at Salford College. The applicant claims that she ceased her studies during 2020 because she was stressed as her visa application had been refused and her friends had moved to Sydney while she remained in Adelaide, and as a consequence of the COVID-19 pandemic there was a break in her studies and they subsequently went online. She claimed that she wanted to study in person and she waited until the office opened.
The applicant stayed at home for a period of one year and 4 months and did not study. The applicant’s failure to study for that duration of time represents a long gap in studies. She claims that her friends have supported her financially and she did not work.
While the Tribunal understands the applicant’s reasons for the long gap in studies, those reasons do not justify a gap in studies of a year and 4 months. The applicant has had ample opportunity to study online and to look at moving to a different education provider if she wished to continue to undertake studies. The purpose of a student visa is to enable a person to come to this country and undertake studies in a timely matter and immediately return home. Long gaps in study are inconsistent with that purpose and more consistent with a person who is seeking to stay here permanently. Further, the applicant has enrolled in the courses at PCT on the day she filed the Response and the timing of her enrolment is consistent with an attempt to maintain her visa to stay here rather than to genuinely undertake study.
The applicant gave evidence that she has moved to Blacktown and is living with her friends, and on 23 September 2021 she obtained COEs to undertake the Diploma and Advanced Diploma of Leadership and Management at PCT. Those courses would require the applicant to undertake studies from 4 October 2021 to 1 October 2023. She claims that she is in a better place to undertake study at this college. However, if the applicant completes those qualifications, it will have taken just under 4 years, which is a long period of time and is inconsistent with the stay being temporary given that she will have completed 2 short VET courses, having come here for a one month stay on a visitor visa.
The applicant has maintained studies in leadership and management. The courses she is studying and intends studying are connected to each other and do lead to a career path or position in employment, coupled with her experience in a supervision or management position. The courses she has studied and intends studying would assist her in those endeavours.
The courses that the applicant is undertaking are short vocational education training (VET) courses and not higher education courses. The applicant has not been enrolled previously in higher education courses, and on the applicant’s evidence the courses she is undertaking here will assist her in obtaining qualifications for her future endeavours and are consistent with the level of her education.
However, there is nothing preventing the applicant from undertaking those courses back in the USA. The applicant in the Response confirmed that she does have the opportunity to undertake such management courses in the USA.
The applicant in evidence claimed she could have undertaken the Leadership and Management Courses in the USA. The applicant in her Response stated as to studying in Australia:
The purpose of applying for this course is to secure a better career. In USA , I worked as a truck driver with some supervisor’s duties, at the end I am not finding this career very fruitful and promising for future. If I go back to USA and look for a different career, I would find it very difficult to find a suitable job due to lack of qualifications and management experiences.
I realize that Australian qualifications are recognised worldwide and are very comparable to Qualifications available in my home country USA. I believe that with the completion of my proposed qualifications in Australia, I will stand out as a better candidate for a Managerial Position when applying for employment back in my home country USA. After the completion of my qualification, I will be looking for employment working in a Managerial Position for a transport & logistics company. I am sure my qualification attained in Australia will position me to provide my prospective employer a professional and desired relationship and I can grow better with my career.
I personally feel that I will be gaining a competitive knowledge through my academic learning which will help me in finding a professional career in my desired Industry. My other prospects will be to commence my own business after gaining a few years of experience.
Further she stated in her Response that she wanted to study in Australia instead of the USA for the following reasons:
Although similar qualifications are available in USA, and USA has also been recognised for providing quality education to Local and International Students. But I have decided to study in Australia because I wanted to stay away from my committed life in USA and family who have not really supported me or encouraged me for education rather got me involved in working life at a very young age. My background being from a traditional Punjab Indian Family, I have been pressured to get involved in a married life whereas I wanted to get myself educated first, pursue a career and then think about family matters.
Considering all these pressure from the society and my family, I decided to study in Australia so that I can peacefully accomplish my life priorities.

The applicant confirmed those reasons in evidence.
The Tribunal considers that whilst the above matters may be correct, the fact is that the applicant has the ability to undertake those studies in the USA and she has chosen to study here predominantly to get away from her life and family in the USA. The applicant could have undertaken studies in a different state or part of the USA if she wanted to get away from her family and concentrate on studies. In light of the above matters, the Tribunal does not consider she has a reasonable motivation for undertaking a Diploma and Leadership and Management in Australia when she could undertake a suitable course back in the USA.
The Tribunal notes on the applicant’s evidence that she has not completed tertiary qualifications either in the USA or elsewhere and consequently the Tribunal accepts that her current level of enrolled studies here in Australia is consistent with her level of education.
The applicant has lived in Australia for the last 2 years and 2 months, and she has a substantial degree of knowledge about living in Australia. The Tribunal accepts by reason of the duration of her studies in the Diploma of Leadership and Management and her studies at PCT since September 2021, the applicant has a substantial degree of knowledge about both the course and its provider.
The applicant has not been in employment whilst in Australia. The Tribunal notes that if the applicant is able to remain in Australia, then the minimum wage, if she obtained full time employment, as at 1 July 2021, as set out by the Fair Work Commission in Australia, is $772.60 per week, which equates to $40,175.20 per annum, which is a high level of income.
The applicant gave evidence that the levels of income in USA are higher than those in Australia, although the level of wages in Australia are comparable, which would provide her with a marginal economic incentive to return to the USA rather than to remain here.
The applicant gave evidence that the economic conditions in the USA were more favourable than those in Australia, but again they appear comparable, which would provide her with a marginal incentive to return home.
The applicant has not returned home to the USA during her 2-year and 2-month stay in Australia. However, for a large period of her stay in Australia, there have been travel restrictions by reason of the COVID-19 pandemic, which has prevented her from returning home. The Tribunal makes no adverse findings against the applicant by reason of her failure to return home.
The applicant in the Response did not outline any assets that she has in Australia, nor any in the USA that would provide her with an incentive to return home.
The applicant in the Response and in evidence did not have any concerns about returning to the USA and she had no concerns about military service commitments or political or civil unrest in her home country. They do not present as a significant incentive for the applicant not to return home.
The Tribunal finds that, based on the applicant’s evidence and circumstances in her home country, including her education, employment prospects and support from her family, relative to others in that country, she is in a good position, and this would not provide a significant incentive for her not to return home.
The Tribunal accepts that the applicant is single and not in a relationship of concern for a successful visa outcome.
The applicant has personal ties both in Australia and at home in the USA. The applicant in evidence confirmed that she has her mother, father and brother in the USA, which would ordinarily provide her with an incentive to return home. However, she has not seen them since departing the USA in December 2019. The applicant claims that she keeps in contact with them via phone. However, such ties must be considered in the context of the duration of her stay here in Australia of 2 years and 2 months and an intention to remain in this country for at least a further year and 10 months. Further, the applicant’s circumstances are that she wanted to be away from her family and have the freedom of living here with her friends, who are providing her with substantial assistance and support. When considered in the context of the availability of employment in Australia and the ability to earn a high level of wages, the Tribunal finds that her ties to the USA do not provide a significant incentive for her to return home.
Further, the applicant has substantial ties here in Australia. She has been living and staying here with friends and had their support and has been in stable accommodation with her friends. She is close with her friends, having visited them in Australia on 4 occasions and purportedly taking their advice in regard to studying here. They are obviously close and considering the duration of her stay here and her intention to stay here for at least a further year and 10 months, her ability to gain employment and the high level of wages here, the Tribunal considers that this demonstrates strong ties to Australia. The Tribunal finds that such ties demonstrate that she has a strong incentive to remain in Australia rather than to return home.
The applicant in her Response has identified that she was refused a visitor visa in June 2018 (as identified in the Decision Record) because she had inadvertently overstayed her visa by 2 days. The Tribunal notes that the applicant was subsequently issued a visitor visa to come to Australia. The Tribunal accepts the applicant’s evidence that the breach was not deliberate and was inadvertent. The Tribunal makes no adverse finding against the applicant by reason of that visa refusal. There is nothing further before the Tribunal from the delegate’s Decision Record which indicates that the applicant has experienced any other visa refusals either in Australia or outside of Australia.
The applicant has been in Australia for a substantial period of time, especially for someone who came to this country on a visitor visa. She is here with her friends and is enjoying the freedom of living away from her family. She is undertaking VET courses but there is a long gap in her studies, where she did not study for a year and 4 months, which is inconsistent with the purpose of a student visa. If the applicant had undertaken studies in that time she would have likely completed the Diploma of Leadership and Management, and evidenced an intention to undertake and complete her studies. The applicant claims that she ultimately wishes to commence her own transport business. However, if she was keen to undertake those studies she could have completed those studies at home or at least completed the Diploma of Leadership and Management. Further, the duration of her stay is inconsistent with the purpose of the original visitor visa on which she came to this country. In light of the above matters, the Tribunal considers that the applicant is undertaking these studies in Australia for the purposes of maintaining ongoing residence in this country.
Based on the above matters, the Tribunal is not satisfied that the applicant has made this application to gain a student visa to study temporarily and it considers the primary objective of the application is to maintain ongoing residence in Australia and to remain here permanently.
On the basis of the above, the Tribunal is not satisfied 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 decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Michael Biviano
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.

[2022] AATA 1887

28 January 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction