Kaur (Migration)

Kaur (Migration) [2022] AATA 1041 (19 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Harpreet Kaur
Mr Lakhwinder Singh
Ms Harleen Kaur
REPRESENTATIVE:  Mr Harsatbir Singh (MARN: 1807094)
CASE NUMBER:  2003048
HOME AFFAIRS REFERENCE(S):          BCC2019/6183606
MEMBER:Michael Biviano
DATE:19 January 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 19 January 2022 at 9:00 am
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant was not a genuine applicant for entry and stay as a student – economic circumstances in Australia – applicant’s immediate family are all residing in Australia – applicant is seeking to undertake low level VET courses – significant period of time living in Australia – genuine temporary entrant criterion not met – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65,499
Migration Regulations 1994, 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 7 February 2020 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 22 November 2019. 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(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 delegate also found that as the applicant has not met the requirements of cl 500.212 of Schedule 2 to the Regulations, then her spouse and child (the secondary applicants) did not meet the requirements of cl 500.311 of Schedule 2 to the Regulations, and they did not meet the criteria for the grant of a student visa.
The applicants appeared before the Tribunal on 13 October 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicants were 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 30-year-old Indian national who first came to Australia on 8 September 2019 pursuant to a tourist visa. She claimed in evidence that she came to Australia with her husband to visit Australia and her brother-in-law who resides here. She gave evidence that she knew she was pregnant when she came to Australia and she claimed that she had a return air ticket to return home.
The Decision Record of the delegate of the Department of Home Affairs dated 7 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 22 November 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 Certificate III and Certificate IV in Commercial Cookery and a Diploma of Hospitality Management (Hospitality Courses).
The applicant in support of her application had provided to the delegate a Statement of Purpose (Statement) which confirmed that the applicant wanted to study the Hospitality Courses to improve her skills and education to work in the hospitality industry. The Statement relevantly provided:
I have completed my Matriculation with in 2007 from SGNGS Model school affiliated to PSEB. I have passed my senior secondary with in 2009 from SGNGS Secondary School affiliated to PSEB. I was working full time in India however I was not satisfied with myself because I always wanted to be a part of hospitality industry.
During my search, I have found that not only overseas programs are more prestigious, also the basic approach and methodology of teaching is massively different from the education system in India. I discussed all the options available with my parents. Convincing my parents was not an easy task but we discussed and researched a lot on this and once the country and course was decided all of us were excited with the fact that many new doors would open for me after completion of the course and I would be flying high in my career. With this thought in mind, my parents have agreed to support me and to provide all the financial and moral support.
Why Hospitality Management:
When considering a career, the timeless advice of choosing something that interests you could never be more relevant than when considering a potential career in the hospitality industry. When one considers he could be working long hours in a career field for decades, the actual value of that advice becomes clearer. It is no coincidence people gravitate toward jobs in which they excel.
Individuals who make the decision to pursue a career in hospitality often do so for a variety of reasons. Common denominators among those who are successful in the hospitality industry are the ability to be empathetic and passionate about what they are doing. Those who are most successful in the industry are those who have a genuine desire to provide outstanding service and see their guests satisfied.
On 6 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.Certificate III in Commercial Cookery from the Technical Institute of Victoria (TIV) dated 28 July 2021, together with Record of Results and completion letter;
b.Confirmation of Enrolment (COE) No. C3595D96 for the applicant to study a Certificate IV in Commercial Cookery with a course start date of 14 June 2021 and a course end date of 12 December 2021 at TIV which was created on 26 March 2021; and
c.COE No. C3596A83 for the applicant to study a Diploma of Hospitality Management commencing on 3 January 2022 with a course end date of 3 July 2022 at TIV created on 6 March 2021.
The Decision Record confirms that the delegate noted that the applicant enrolling in the Hospitality Courses was to extend her stay by a further 2 years, which were to conclude on 22 November 2021 and her conduct was not consistent with the behaviour of a genuine student by seeking a change in pathway shortly after arriving in Australia on a visitor visa and would have required a greater level of planning and preparation before arriving in Australia.
The Decision Record noted that in the applicant’s Statement the applicant claimed she was required to complete the Hospitality Courses in order that she can return home and seek employment as hospitality graduates are highly employable.
The applicant in evidence claimed that she wanted to complete the Hospitality Courses in order that she could return to India and go and work in her father-in-law’s restaurant for the purpose of assisting him in its expansion and working there. The purpose stated in evidence was varied from the applicant’s Statement.
Prior to coming to Australia, the applicant had completed secondary school studies in India and had not undertaken any tertiary studies back in India. She claimed that prior to 2017 she did not work in India apart from a short-term packing job. Between 2017 and 2019 she worked as an Assistant Manager at BECS Jandigah where she earnt IRs15,000–25,000 per month, which equates to A$280–$470 per month.
The applicant gave evidence that her employment ceased after she came to Australia, which is inconsistent with her visa application which states she had been unemployed from 8 September 2019, being the date of her arrival in Australia. The applicant gave evidence that her husband resigned from his position back in India 3 months after his arrival in Australia. The applicant did not provide any corroborating documentary evidence as to these matters regarding when their employment ceased.
The applicant gave evidence that she came to Australia with her husband to see her brother-in-law and look around. She claimed that they went around Melbourne, Phillip Island and the Great Ocean Road. She claimed while in Australia she undertook research about undertaking a course so that she could commence a business in India. She claimed that as her father-in-law wanted to expand his restaurant business, she made a decision to undertake the Hospitality Courses so that she could assist him in the business. She claimed that she decided to study here having experienced the food scene and restaurants here in Melbourne. The applicant was questioned about when she decided to undertake study here in Australia. She gave evidence that she made the decision after being here for 3 weeks. The applicant submitted to the delegate a copy of a Pearson PTE Academic Report which confirmed that she had undertaken the test on 20 August 2018, which is a test usually undertaken in anticipation of undertaking tertiary studies, including in Australia. The test in 2018 contemplates that she was considering undertaking tertiary studies before coming to Australia.
The applicant in the Statement stated:
I browsed the websites of various institutes in Canada, UK, NZ and USA as well. It was Australia which topped my list. Australian education system is the best in the world with technological drive as well as high standard of living. Employers all over the world recognize, accept and value Australian degrees. Also, Australia brings the best education services, facilities with strict quality standards that meet the needs of most international students. This country has the third highest number of International students in the world. I would consider it is the perfect destination for me where I can sharpen my skills and invest into my interest to get excellent grades. I have chosen Australia as I have a strong belief that it would surely safeguard my interests in the competitive area.
The applicant by undertaking research of all the international locations, would indicate such research was undertaken before coming to Australia and is consistent with the applicant having had an intention to come to Australia to study while on a tourist visa.
The Tribunal considers that the applicant’s conduct in deciding to study here after having been in Australia for a period of 3 weeks and enrolling in the Hospitality Courses, which will extend her duration here to a total of 2 years and 10 months, in circumstances where the applicant and her spouse were employed back in India and she was pregnant is more consistent with someone who had made plans to come to this country to stay, 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.
The Tribunal has had regard to the fact that the applicant has used the visitor visa for an inconsistent purpose for the purposes of coming here to study.
The applicant gave evidence that she had completed the Certificate III in Commercial Cookery but her studies were delayed as a consequence of giving birth to her daughter here in Australia, who is also a secondary applicant. As at the date of the hearing she was studying the Certificate IV in Commercial Cookery which was expected to conclude on 12 December 2021. Having completed the Certificate IV, the applicant would have a 1-month break and commence studies in the Diploma of Hospitality Management which is expected to conclude on 3 July 2022. The applicant appears to have studied continuously without long gaps in study.
The applicant in evidence, confirmed that she wishes to complete the qualifications so that she can obtain employment in her father-in-law’s restaurant to help expand it in managing the restaurant and also acting as a chef. She has not provided any supporting documents or evidence that confirms that she would have such a role. She claimed that the likely income she would receive working in India with the Hospitality Courses as qualifications from Australia would equate to A$1,000 per calendar month.
In the circumstances, the Tribunal accepts that the courses the applicant is studying in Australia will improve her employment prospects and remuneration back in India having regard to the fact that the applicant has not obtained any previous tertiary qualifications, in India or elsewhere.
The applicant has changed her career pathway initially from management to commercial cooking and to hospitality management. The courses she has studied and is studying are connected to each other and lead to a career path or position in employment as a chef and in restaurant management. The courses she has studied and intends studying would assist her in those endeavours.
The Tribunal recognises that it is important to allow for reasonable changes to career and study pathways. However this is not the case where an applicant has merely decided to change careers through undertaking short vocational education training (VET) courses. The courses in which the applicant has enrolled in Australia are all short VET 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. However the courses she is undertaking are not higher education level courses and there is nothing preventing the applicant from undertaking hospitality management courses back in India. The applicant in evidence confirmed that she does have the opportunity to undertake hospitality management courses back in India.
The applicant in the Statement outlined the following reasons as to why she seeks to study in Australia:
Once, I complete my course I will come back to my home country and seek employment there. Hospitality management graduates are highly employable, applying their skills to careers in events, hotel and conference management, sales and business development and forestry and fishing management. With excellent hospitality employment skills, you may find yourself being offered incredible opportunities to work at some of the most famous and desirable destinations in the world. Service is a universal concept that is in demand all over the world. There are many different types of careers in this field. You could become a general manager, other options include opening your own restaurant, working as an event planner, or even pursuing career in travel or tourism.
I could have undertaken the same study in my home country, but the in that case there won’t be anything different to what is missing. Not only I want to learn from the classrooms the techniques but also the efficiency of the catering businesses in Australia. My program will offer me to do On the Job training with some renowned catering institutions in Australia. I’ll be directly interacting with the seasoned Chefs and such benefiting in practical terms.
I’ve learned that Melbourne is the food capital of Australia, with many restaurants of cuisines like the Modern Australian, Italian, Greek, Middle Eastern, Turkish, South American, Chinese, Vietnamese, Thai and many more. Also, successful franchisee like the Coffee club, Max Brenner, Lazy Moes which is not available in India.
Melbourne also hosts some of the major world events every year, like the Australian Open, Grand Prix, Melbourne Cup and many more events related to Food and Wine. The city has a multicultural community and hosts may community events like the Chinese New Year, Italian Food festival and many more. Such events too are places to learn the food habits and some of the authentic recipes.
The applicant in evidence claimed she could have undertaken the Hospitality Courses in India but the courses in Australia provide better skills and the Australian qualifications are internationally recognised and provide better value.

The Tribunal considers that whilst the above matters may be correct, the fact is that the applicant has completed the Certificate III in Commercial Cookery and was scheduled to complete the Certificate IV in Commercial Cookery, completing the cooking and cuisine components of the courses. She has had ample opportunity to learn about international cuisines. The only component remaining is the Diploma of Hospitality Management and there is nothing preventing the applicant from undertaking a similar course back home which would avoid the additional costs of studying in a foreign country. Further she has completed sufficient qualifications to be able to undertake work as a chef/cook and enable her to operate a restaurant in conjunction with her father-in-law in India. In light of the above matters the Tribunal does not consider she has a reasonable motivation for undertaking a Diploma of Hospitality Management in Australia when she could undertake a suitable course back in India.
The Tribunal notes on the applicant’s evidence that she has not completed tertiary qualifications either in India or elsewhere and consequently the Tribunal accepts that her current level of studies here in Australia are consistent with her level of education.
The applicant, if she completes the Diploma of Hospitality Management, will have remained in Australia for a period of over 2 years and 10 months. The course is expected to conclude in July 2022. The Tribunal considers that the duration of her stay here in Australia is for a long period of time, especially having regard to the fact that she came to this country on a visitor visa and is inconsistent with the stay being on a temporary basis.
The applicant has lived in Australia for the last 2 years and 4 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 Certificate III and IV in Commercial Cookery and her studies at TIV for more than 2 years, the applicant has a substantial degree of knowledge about both the course and its provider.
The applicant has been in employment whilst in Australia. She gave evidence that she worked as a cook for 1 year working 20 hours per week, earning $22 per hour, which equates to $440 per week. Further her husband worked for Uber Eats as a delivery driver working 40 hours per week earning approximately $1,000 per week. The level of income they were earning jointly being $1,440 per week is a comparatively high level of income which would provide them with a substantial incentive to remain here. As discussed above, the applicant gave evidence that if she is able to return home and work in a restaurant full time she would only be able to earn A$1,000 per calendar month, which is substantially less than what she is earning in Australia on a part-time basis. Further 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.[1] The applicant also gave evidence that the levels of income in Australia are higher than the levels of income in India, which would provide her with an economic incentive to remain here rather than to return home.
[1] National Minimum Wage Order 2021 – PR729671.
The applicant gave evidence that the economic conditions in India were not as favourable as those in Australia which would also not present a significant incentive for her to return to India but provide her with an incentive to remain here.
The applicant has not returned home to India during her 2-year and 4-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 or in India. The applicant in evidence claimed that she had no assets in her own name but her spouse has property, including a house and land worth approximately A$1 million. However no documentary evidence was provided corroborating that evidence. The applicant claimed that the land was being farmed by someone else pursuant to a contract and the income is received by her spouse’s family who are living in the house. Those assets would ordinarily provide some incentive to return home. However as the farming land is being used as an investment property and returning an income and having regard to the level of wages in Australia, the Tribunal considers that it would provide the applicant with only a marginal incentive to return home.
The applicant in the Response and in evidence did not have any concerns about returning to India 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 and her spouse’s family and their assets that, relative to others in that country, she is in a good position, and it would not provide a significant incentive for her not to return home.
The Tribunal accepts that the applicant and her spouse have been married since 2017 as set out in the Certificate of Marriage provided to the delegate and the applicant’s spouse has accompanied her to Australia and they have had a child together while here in Australia. By reason of those matters the Tribunal accepts that they are not in a relationship of concern for a successful visa outcome.
The applicant has personal ties both in Australia and at home in India. The applicant in evidence confirmed that she has her mother, brother and sister in India which would ordinarily provide her with an incentive to return home. However she has not seen them since departing India. The applicant claims that she keeps in contact with them via phone and video calls. However such ties must be considered in the context of the duration of her stay here in Australia of 2 years and 4 months and an intention to remain in this country for at least a further 6 months. Further, the applicant’s circumstances are that she is living here with her spouse and daughter, and they have the support of her brother-in-law who is providing them with substantial assistance and support. When considered in the context of the higher level of wages that are available here in Australia, the Tribunal finds that her ties to India 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 her spouse and daughter in stable accommodation and they have had the support of her brother-in-law who is living in Australia and providing her support. They are close and see each other 1–2 times per week. The applicant gave evidence that she has friends here in Australia whom she met through the course of her studies and through her brother-in-law. Considering the duration and stability of her living arrangements here and the ability to earn a high level of income when compared to the level of wages back in India 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 not identified any visa refusals or cancellations in Australia or elsewhere. There is nothing 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 tourist visa. She is here with her family and establishing roots here and the applicant and her husband are earning a high level of income. She is undertaking a VET course, being a Diploma of Hospitality Management, to work in her father-in-law’s business for which she could undertake comparable studies at home. 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 here 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.
Given the applicant has not met the requirements of cl 500.212 of Schedule 2 to the Regulations, then the secondary applicants do not meet the requirements of cl 500.311 of Schedule 2 to the Regulations, and they do not meet the criteria for the grant of a student visa.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
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 1041

19 January 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction