KHAENAM (Migration)

KHAENAM (Migration) [2022] AATA 3802 (19 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss SIRIRAT KHAENAM
CASE NUMBER:  2116502
HOME AFFAIRS REFERENCE(S):          BCC2021/1477808
MEMBER:Michael Biviano
DATE:19 October 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 19 October 2022 at 2:15 pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – lengthy stay in Australia – reasonable academic progress – diverse courses in unrelated fields – several changes to career path – return visits to Thailand – managing family business in home country – maintaining ongoing residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 499; Direction No 69
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 26 October 2021 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 27 July 2021. 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 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 because she did not intend to stay in Australia temporarily.
The applicant appeared before the Tribunal on 30 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
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 must 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 Thai National who came to Australia on 27 June 2014 pursuant to a student (Class TU Subclass 573) visa.
The decision record of the Delegate of the Department of Home Affairs dated 26 October 2021 which was provided to the Tribunal by the applicant confirms that the applicant made her application for a student (Class TU Subclass 500) visa on 26 July 2021 (Decision Record). The Decision Record confirms that the applicant proposes studying a Certificate IV in Marketing & Communication, a Diploma in Marketing & Communication and an Advanced Diploma in Marketing & Communication. The Decision Record confirmed that the applicant had in addition to studying General English courses completed an additional 6 vocational education courses in Australia.
On 13 April 2022, prior to the hearing, the applicant filed with 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 a significant number of documents in support of her application comprising:-
a.confirmation of enrolment (COE) No. C64A5215 for the applicant to study a Certificate IV in Marketing & Communication at VIA Education with a course start date of 19 July 2021 and a course end date of 11 December 2022 which was created on 14 July 2021;
b.COE No. C64A5C87 for the applicant to study a Diploma of Marketing & Communication at VIA Education with a course start date of 30 January 2023 and a course end date of 23 June 2024 which was created on 14 July 2021;
c.COE No. C64A6419 for the applicant to study an Advanced Diploma of Marketing & Communication at VIA with a course start date of 15 July 2024 and a course end date of 7 December 2025 which was created on 14 July 2021;
d.Certificate of Achievement from Kingsway Institute confirming the applicant completing a General English course from 14 July 2014 to 13 March 2015 which was issued on 18 July 2018;
e.Statement of attainment from the Crown Institute of Business & Technology (CIBT) dated 12 July 2018 for units completed in the Certificate IV in Leadership & Management together with interim transcript from CIBT for units completed in the Certificate IV in Front Line Management also issued on 12 July 2018;
f.Diploma of Leadership & Management issued 9 July 2018 from CIBT together with transcript of academic results and letter confirming completion;
g.Advanced Diploma of Leadership & Management from the CIBT issued 9 July 2018 together with letter of completion and transcript of academic record;
h.Certificate IV in Accounting from CIBT issued 2 September 2019 together with transcript of academic record and letter of completion;
i.Diploma of Accounting from CIBT issued 1 July 2020 together with transcript of academic record and letter confirming completion;
j.Advanced Diploma of Accounting from CIBT issued 30 June 2021 together with transcript of academic record and letter of completion;
k.interim transcript of results from VIA Education issued 20 May 2022 confirming that the applicant had enrolled in the Certificate IV in Marketing & Communication commencing on 19 July 2021.
The Tribunal has had regard to the applicant’s evidence together with documents submitted both to the Tribunal and the Department in support of the applicant’s application.
Prior to coming to Australia, the applicant completed a Bachelor of Economics from North Eastern University in Thailand in June 2013. The applicant in evidence confirmed that instead of commencing work in Thailand she decided to undertake studies in Australia to improve her employment prospects and her skills to obtain better employment in the future.
The applicant in evidence claimed that she came to Australia for the purposes of studying English language courses and then undertake further studies in business. The applicant claimed that she did not complete the business courses and consequently enrolled in a Certificate IV in Frontline Management. The applicant in the Response claims that she completed that course in June 2016 but has not provided documentation confirming she was awarded that qualification.
The applicant has claimed that between July 2014 and June 2015 she studied 2 English courses at Kingsway Institute in Advanced English and then from July 2015 to June 2016 studied the Certificate IV in Frontline Management. Thereafter from January 2016 to June 2016 she studied a Certificate IV in Leadership & Management. The applicant has not submitted the qualifications she completed in relation to that course and the academic transcript provided only relates to units completed as at that date. Consequently, the applicant from July 2016 to June 2017 studied the Diploma of Leadership & Management which she completed and then from July 2017 to June 2018 completed an Advanced Diploma of Leadership & Management at CIBT.
The applicant has also studied and completed the following qualifications in accounting - a Certificate IV, Diploma and Advanced Diploma at CIBT which she commenced in July 2018 and concluded in June 2021.
The applicant has now enrolled in 3 marketing courses comprising a Certificate IV, Diploma and Advanced Diploma of Marketing & Communication at VIA Education. Those courses commenced in July 2021 and are to conclude in December 2025. The COE submitted by the applicant confirms that her current study, the Certificate IV in Marketing & Communication concludes on 11 December 2022. Ultimately if the applicant completes all the Marketing & Communication courses that she is enrolled in, her studies will conclude with the Advanced Diploma of Marketing & Communication on 7 December 2025 which will have resulted in the applicant studying for a period of some 11½ years which is an extremely long period of time and inconsistent with the stay being temporary.
The applicant has completed, based on the qualifications provided to the Tribunal, 1 Certificate, 2 Diplomas, 2 Advanced Diplomas and 2 Certificates of Achievement in the English language. The applicant has been here for a very long period of time, some 8 years and 4 months and has had ample opportunity to complete the courses that she perceives necessary to advance her career.
The applicant in evidence claimed that she wants to complete the Marketing & Communication courses as it will assist her in managing her own business in the future and when coupled with her management and accounting qualifications will assist her in obtaining a good job or alternatively owning and operating her own business. The applicant in evidence confirmed that her family owns their own restaurant and once she completes her qualifications, she will return back to Thailand for the purposes of managing that restaurant. Remarkably the applicant has not undertaken any hospitality qualifications but purely business-related qualifications. The applicant, when questioned why she wants to now undertake Marketing & Communication courses when she has already completed accounting and leadership and management courses and an economics course back at home, claimed that she would like to know about all aspects of the business and make sure she has all the requisite knowledge otherwise she would need to hire people to undertake certain roles within the business. Such response is not logical. To suggest that she needs to study marketing courses and accounting courses over 7 years to avoid hiring an accountant or marketing consultant in a business is not rational. The cost and time take taken to complete those courses so as to avoid not engaging experts, who not only have qualifications but real-world experience, would be outweighed by the substantial benefit to the business in engaging those experts.
The applicant claimed that by undertaking Marketing & Communication courses, it will enable her to improve the family business. The Tribunal has serious reservations about that evidence and her intentions. While undertaking a course may provide some benefit, undertaking more than 4 years of study in Marketing and Communication, would only provide a marginal benefit, if she is seeking to manage the business. The applicant does not require Marketing and Communication qualification to manage the family business.
The Tribunal notes that the applicant had already completed an economics course back in Thailand, and it is unclear how undertaking accounting courses, which are of a specific nature and for the purposes of preparing accounts for a period of 3 years, would assist her in operating and managing a business back in Thailand.
Furthermore, the applicant has had more than ample opportunity to undertake studies in Marketing & Communication during her 8 years and 4 months stay here if they were so important to her business aspirations. The Tribunal, having considered the qualifications and experience that the applicant has obtained both in Australia and in Thailand considers that the Marketing & Communication courses that she is currently undertaking would only marginally improve her employment prospects and remuneration when she returns back to Thailand. This is further supported by her evidence that she does intend to work in the family business and the Marketing & Communication courses are unlikely to improve her employment prospects and remuneration in those circumstances.
The applicant claims that she has a reasonable motive for undertaking these studies in Australia because the level of qualification she would obtain here will improve her opportunities and ability to obtain employment back in Thailand. The applicant further claimed that her marketing qualification in Thailand is only accepted by the Thai authorities whereas an Australian qualification is globally recognized. She also claimed that the Thai education system is outdated and moreover if she sought to gain qualifications back in Thailand, she would only be able to obtain qualifications at the Certificate and Diploma level but not obtain qualifications at the Advanced Diploma level. The applicant in the Response outlined that to undertake the Certificate IV and Diploma level courses back in Thailand would require a total period of 5 years whereas undertaking the 3 courses in Australia would take a total of 4 years and 4 months. The applicant claimed there was no equivalent to an Advanced Diploma back in Thailand and that the closest qualification would be a Bachelor degree which would take 4 years to study. However, the Tribunal considers that if the applicant could complete a Bachelor degree in Thailand within 4 years in the Marketing & Communication field then it would be more advantageous than undertaking a 4 year 4 month VET courses here in Australia. Further even if the applicant was required to complete the Certificate and Diploma courses in Thailand which are 5 years it would be reasonable having regard to the inconvenience and increased costs of living in Australia rather than in her home country. The applicant claims that English skills are crucial for employment in globalized workplaces and for career potential in Thailand. However, the applicant has already been here for over 8 years, completed courses at Diploma and Advanced Diploma levels in English and has had ample opportunity to develop her language skills. The Tribunal does not consider that further studies here would necessarily improve her current English skills. Ultimately the Tribunal does not accept she has a reasonable motive for undertaking these studies in Australia rather than back home.
The Tribunal notes that the applicant has changed her career path initially from economics to front line management, to leadership and management, to accounting and now to marketing and communication. The courses studied and those in which she is currently enrolled are loosely connected to each other by reason that they are business and commerce related however the courses together do not lead to a career path or position in employment. It is unclear how a frontline management qualification is consistent with courses in marketing and communication, accounting and leadership and management.
The applicant had indicated in the Response and GTE Statement that she wanted to undertake work in business consulting roles at a management level. However, it is unclear how the applicant intends to obtain such roles by merely completing VET courses and not undertaking Bachelor or higher-level courses and obtain a university qualification which would assist her to do that. It is more likely that the applicant will be returning to work in the family restaurant business which the applicant in evidence confirmed employs approximately 10 to 15 people.
The Tribunal recognizes it is important to allow for reasonable changes to career and study pathways however this is not the case when an applicant merely decides to change careers through undertaking short vocational education training (VET) courses. The courses in which the applicant has enrolled in in Australia are all VET courses albeit some are of a longer duration. However, the fact is that the applicant has previously completed 2 Diplomas and 2 Advanced Diplomas in Australia and has completed a Bachelor degree back in Thailand. The course that the applicant is currently studying is a Certificate level course and she proposes undertaking studies in the Diploma and Advanced Diploma of Marketing & Communication. Clearly such studies are inconsistent with her level of education.
Moreover, those studies are not reasonable changes to her career and study pathways. Considering her level of studies, it would be more apt for the applicant to be undertaking either studies at a Bachelor level or post graduate level. Nevertheless, she has chosen otherwise and it would appear based on the courses she has previously completed that she is undertaking the Marketing & Communication courses to extend her stay here in this country with a view to remaining here on a permanent basis. The applicant in the GTE Statement had indicated that she had initially enrolled in these courses due to the COVID-19 pandemic. While that may be the case it does not justify enrolling in courses with a duration of nearly 4½ years. In those circumstances the Tribunal does not consider the change to her career and study pathway in undertaking Marketing & Communication via the courses she has enrolled in is reasonable in the circumstances.

The applicant has lived in Australia for the last 8 years and 4 months and has a substantial degree of knowledge about living in Australia. The applicant in the GTE Statement outlined that her intentions had been to return to Thailand but due to the COVID-19 pandemic, it would have been detrimental in the short term for her returning to Thailand and her future prospects because of poor employment opportunities by reason of the pandemic closing businesses that she was unable to obtain a role. She claimed it would be more useful to continue with her vocational training program in Marketing & Communication in Australia.
The applicant in the GTE Statement outlined that she wanted to study the Marketing & Communication courses at VIA Education having done initial research and made a short list of colleges and also considered the options based on the content on websites and discussions with her education agent. The applicant has been studying at VIA Education since July 2021 and undertaking Marketing & Communication courses. By reason of the applicant’s experience in undertaking those studies the Tribunal accepts that she has a substantial degree of knowledge and experience about the course and the provider.
The applicant in the Response outlined the work that she had been undertaking whilst in Australia. From July 2014 until October 2017, she had worked as a waitress at the Kinn Thai Restaurant, where her income was approximately A$23,000 per annum. From December 2019 to September 2021, she worked as a bartender at the Oxford Hotel and her annual salary in that role was A$28,000 and from March 2022 she has been working at the Librewry bar as a bartender where her income is approximately A$34,840 per annum. The income that the applicant has been earning whilst in Australia is at a high level especially when compared to the level of income she would potentially receive in Thailand for similar roles. Such level of income would provide the applicant with a substantial financial incentive to remain here rather than to return home. This position is further bolstered by the applicant’s evidence that the level of wages in Australia are higher than those in Thailand.
The applicant gave evidence that the economic conditions in Australia were significantly more favourable than those in Thailand which would also present as a significant incentive for her to remain here rather than to return home.
The applicant in evidence claimed that she anticipates that when she returns to Thailand with her qualifications, she will operate the family business and be able to earn 50,000 Thai baht per week which is approximately A$2,000 per week. The applicant did not provide any documentation which supports that that is the level of income she would receive and there were no business plans or documents which would evidence that she could make such level of income per week.
The applicant in the Response outlined that she has returned home to Thailand on 3 occasions during her 8 years and 4 months stay in Australia. In 2018 she returned for a period of 3 weeks for the purposes of visiting family, in 2018 she returned for a period of 5 weeks to renovate her house and in 2017 she returned home for a period of 2 weeks when her grandfather passed away.
The Tribunal notes that there were travel restrictions imposed by reason of the COVID-19 pandemic from the end of March 2020 until the commencement of 2022. However, having regard to the applicant’s long stay in Australia in excess of 8 years even accounting for the travel restrictions, the Tribunal considers that the applicant’s 3 visits back to Thailand for a total duration of 10 weeks whilst in this country is more consistent with someone intending to remain here on a permanent basis rather than someone who is intending to return home especially having regard to the higher levels of income that the applicant can receive whilst in this country.
The applicant in the Response did not outline any assets that she had in Australia and only claimed to have a savings account in Thailand worth A$25,000. The Tribunal notes that that asset is liquid and portable which would not provide a substantial financial incentive to return home especially taking into account the higher levels of income that the applicant can earn in this country.
The applicant both in the Response and in evidence did not have any concerns about military service commitments or political or civil unrest in her home country. The Tribunal finds they do not present as a significant incentive for her not to return home. The Tribunal also finds that based on the applicant’s evidence including the support she has had from her family, her education and their financial circumstances 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 applicant gave evidence that she is married and her spouse was with her here in Australia but he returned home to Thailand in 2020 prior to the COVID-19 pandemic commencing. The applicant’s spouse is not a party to this application and in the current circumstances the Tribunal does not consider that they are in a relationship of concern for a successful visa outcome.
The applicant has both personal ties here in Australia and back in Thailand. The applicant both in the GTE Statement and the Response confirmed that she has her mother, father and younger brother back in Thailand but in addition to that she has her spouse. The Tribunal notes that she has not seen her parents and brother in person since July 2019 although she claims that she is in contact with them every day by video call and chat through Facebook. The applicant last saw her spouse when he left in Australia in early 2020. Those ties would ordinarily provide a significant incentive for the applicant to return home. However, if the applicant obtains a student visa there is a prospect that the applicant would be able to make an application for her spouse to join her as a dependent which would reduce the strength of the ties to return back home. Furthermore, the applicant has lived in Australia for the last 8 years and 4 months and intends to stay here based on her future enrolments for a further period of 3 years and 2 months. When those matters are considered in addition to the higher level of wages she can earn in this country as compared to Thailand, the Tribunal is not satisfied that the ties that she has to Thailand would provide a substantive incentive for her to return home.
The applicant has substantial ties to this country. She has been living in accommodation sharing with a good friend for the last 6 years which demonstrates that she is in stable accommodation. Furthermore she gave evidence that she has close friends here a,nd that the person that she is living with is a good friend of her mother. Such ties in conjunction with the high level of income she is earning here, the duration of her stay here and her intention to remain for at least a further 3 years and 2 months demonstrate that such ties would provide her with a substantial incentive to remain here rather than to return home.
The applicant in her Response did not identify any visa refusals or cancellations in Australia or elsewhere. There is nothing before the Tribunal from the Delegate’s Decision Record to indicate that the applicant has experienced any other visa refusals or any immigration issues either in or outside of Australia.
In all the circumstances the applicant has been in this country for a very long period of time and intends staying here for a further 3 years and 2 months which would extend her stay in this country to 11½ years for the purposes of undertaking VET courses. Such proposed duration of stay when coupled with her above circumstances in particular, the higher level of income and stable accommodation arrangements indicate that the applicant wishes to reside in this country and utilize the student visa program for the purposes of maintaining residency in this country which is inconsistent with the purpose of the student visa program. The applicant has had ample opportunity to complete the courses that she considers are necessary for her future career prospects.
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 this application is to maintain an ongoing residence in Australia on a permanent basis.
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).
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 3802

19 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice