Khawaja (Migration)

Khawaja (Migration) [2022] AATA 1797 (21 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Saroosh Khawaja
REPRESENTATIVE:  Mr Imran Ali (MARN: 0959879)
CASE NUMBER:  2006799
HOME AFFAIRS REFERENCE(S):          BCC2019/6826932
MEMBER:Michael Biviano
DATE:21 April 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 21 April 2022 at 11:45 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 – substantial financial incentive to remain in Australia – applicant has been in Australia for a very long period of time – current employment history –use the student migration program to maintain ongoing residence – 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 19 March 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 23 December 2019. At the time of application, Class TU contained 2 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 he was not a genuine applicant for entry and stay as a student because he did not intend to stay in Australia temporarily.
The applicant appeared before the Tribunal on 14 February 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Imran Ali and Mr Varun Maini in support of the applicant’s application.
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 27 year old Pakistani national who first came to Australia on 29 December 2013 on a student visa. He has stayed and resided here in Australia until January 2021 when he returned home to visit family.
The decision record of the delegate of the Department of Home Affairs dated 19 March 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 23 December 2019 (Decision Record).
Further, the Decision Record confirmed that at the time of the application he was proposing to undertake a Diploma and Advanced Diploma of Leadership and which would extend his stay here in Australia to at least 30 September 2022.
The Decision Record also set out the reasons for which the visa application was refused.
On 25 October 2021, 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 he was studying and information about his entry and stay in Australia in accordance with s 359(2) of the Act (the Response).
The Response confirms that he has resided in Australia on 2 student visas and 1 temporary graduate visa. In addition to the Response, the applicant filed with the Tribunal the following documents in support of his application:
a.Genuine Temporary Entrant Statement for the applicant (GTE Statement);
b.Submission from the applicant’s representatives Vision Consultants dated 25 June 2020 for priority processing of the application (Priority Submissions);
c.Confirmation of Enrolment (COE) No.C23CB611 for applicant to study a Diploma of Leadership and Management at Australia Techno Management College (ATMC) with a course start date of 19 April 2021 and course end date of 24 April 2022, which was created on 24 February 2021;
d.COE No. C23CC815 for applicant to study an Advanced Diploma of Leadership and Management at ATMC with a course start date of 25 April 2022 and course end date of 8 October 2023, which was created on 24 February 2021;
e.COE No. B2325E36 for applicant to study a Diploma of Leadership and Management at Southern Cross School of Business (SCSB) with a course start date of 24 February 2020 and course end date of 19 February 2021, which was created on 6 December 2019;
f.COE No. B2327A23 for applicant to study an Advanced Diploma of Leadership and Management at SCSB with a course start date of 5 April 2021 and course end date of 30 September 2022, which was created on 6 December 2019;
g.Diploma of Accounting awarded to the applicant from Holmes Institute issued 2 May 2016 with academic transcript;
h.Statement of Completion from Holmes Institute dated 14 July 2017 together with academic transcript confirming that the applicant had completed the Bachelor of Professional Accounting on 10 July 2017;
i.Applicant’s high school results and secondary school certificate.
The Tribunal has considered that documentation, the applicant’s evidence and the documentation retained on file in making its decision.
The applicant gave evidence that he first came to Australia on 29 December 2013 on a student visa to study here in Australia for the purpose of obtaining a Bachelor of Accounting.
Prior to coming to Australia the applicant completed secondary schooling in Pakistan in 2012. The Response indicates that he did not gain employment in his home country prior to coming to Australia.
After arriving in Australia the applicant undertook studies at Holmes Institute where he completed a Diploma of Accounting and a Bachelor of Professional Accounting, which courses were completed in July 2017.
The Response confirms that in September 2017, immediately prior to the expiration of his student visa, he applied for and subsequently obtained a Temporary Graduate (Subclass 485) visa which ceased in December 2019.
During this period of time the applicant had several jobs:
a.Between 2017 and 2018 he worked as a cleaning supervisor at Mermaid Cleaning where his salary was A$45,000 per annum;
b.Between July 2018 and September 2018, he worked as a tax accountant with CTS Accounts, where his salary was A$50,000; and
c.Between October 2018 and the date of hearing, the applicant has worked at Howard Silvers and Sons as a finance manager/accountant and his salary is A$65,000 per annum.
The position represents long term stable employment at a high level of income which would provide a substantial financial incentive to remain here rather than return home.
The applicant at the expiration of the temporary graduate visa made the current application for a student visa and applied to undertake a Diploma and Advanced Diploma of Leadership and Management at SCSB which were to conclude in September 2022. The applicant in the GTE Statement outlined the following reasons for undertaking those courses:
The reason for undertaking professional work after completion of my studies was because, Accounting is a practical and pragmatic field. Employers here in Pakistan prefers employees who not only have a recognized degree but also international work exposure which further leads them to higher positions in companies with attractive employment packages and other benefits, hence the reason I started working in Australia was to strengthen my grasp on field and earn valuable experience from Australian employer which is extremely worthful in Pakistan.
However, during my work tenure, I started realizing that though I excel in all the accounting skills which includes budgeting, reporting, negotiation, managing P&L cash flow account etc., I lack the basic managerial skills which I need to adapt which eventually is holding me back to be on a managerial position. Hence I decided to apply for an additional study course of Diploma leading to Advanced Diploma of Leadership & Management in Southern Cross School of Business but unfortunately my visa application got refused on the grounds which I will address in following statement.
…
My chosen program will equip me with all the practical skills which will be helpful for me in the workplace. By further exploring the various facets of leadership and management within the accounting sphere in SCSB program, I will be given a broad understanding of the skills needed to succeed in my career in Accounting. Below are some reasons as to why leadership and management study is important and how it can open a world of possibilities for me in my field;
 Development of Crucial Communication Skills:
Writing a convincing report or presenting a winning pitch or even drafting the right email requires having excellent communication skills. Whilst studying leadership & management, I will study alongside with students from around the world with different views and experiences which will be different from my opinion which may even clash which will help me build my analyzing skills and to explore how diplomatically to respond to conflicting opinions and master the art of making my own point of view.
 Increased Business Skills:
Better leadership, communication and technology skills are all necessary to survive and thrive in the current business climate as “Accounting Sector” is a part of business. The wide variety of classes involved in SCSB’s leadership and management degree will include finance and workplace relations to build a better team of employees, economics to understand what a company needs to improve.
 Entrepreneurship:
Being your own boss has many perks, but becoming a successful entrepreneur demands creativity, innovation, and a strong execution strategy which will develop my entrepreneurial skills and enables me to test launch my ideas.
 Increases Confidence:
Leadership and management is all about developing interpersonal skills so that student feel more
confident dealing with people in the workplace, by involving students in hands-on activities such as group projects and fundraising.
 Investment and Finance:
For a lot of big purchases like buying a house, car, or business school degree, we may look to financial loans as an option. How do you decide when it is safe to borrow? Or similarly, you may reach a point in your life when you want to invest in stocks, bonds, or real estate. What should you invest in and what factors should you consider? This degree will give me a good understanding of basic economic principles, how markets are affected by world events, and how to assess a firms’ financial health. Combined, this can help me make better-informed investment decisions and ultimately, how to achieve a higher ROI as well as maximize my chances to work in this sector of this vast business field.
The applicant claimed in the Response that the leadership and management courses would lead to many job pathways in his area of work including:
·Business Reporter
·Accounts Manager
·Finance Director
·Investment Manager
·Stockbroking Manager
·Financial Controller
·Finance Manager
·Investment Analyst
·Management Consultant
·Personal Financial Advisor
·Manager Operations
·Credit Control/Loan Manager
·Senior Executive
The applicant in the GTE Statement further claimed that he was undertaking the Vocational Education program rather than a Higher Education program, as it would allow him to obtain the requisite core skills and as the course is practical to allow him to apply those skills in practice. Further the Vocational Program would be completed within 2 years for a cost of A$15,000 whereas a Higher Education program would take longer and be more expensive.
The applicant commenced studies at SCSB but he did not complete the Diploma of Leadership and Management. The applicant claimed that he started but could not complete the course which had been interrupted by reason of the COVID-19 pandemic and he ceased the enrolment in January 2021. He then switched courses and enrolled in a Diploma and Advanced Diploma of Leadership and Management at ATMC, which he took up in February 2021. The applicant is about to end the course in the Diploma of Leadership and Management. If he completes that course and then completes the Advanced Diploma of Leadership and Management his study will conclude in October 2023, extending his stay here for a further 1 year and 6 months.
The applicant returned home to Pakistan in January 2021 and as at the date of the hearing remains there.
If he completes the Advanced Diploma of Leadership and Management, his stay in Australia would extend to nearly 9 years, which is a long period of time and inconsistent with the stay being temporary. The applicant claims that he is also enrolled in a Chartered Accountants course and at the conclusion of the Advanced Diploma, he would like to explore studying a Master of Professional Accounting (MPA). He claimed that he had not looked into it, but his first preference is to complete those studies in Australia if he is able to continue his studies. If he undertakes that course here it would further extend his stay here.
The applicant has been residing in Australia holding 2 student visas and a temporary graduate visa, all being temporary visas and now seeks a further student visa to complete the Diploma and Advanced Diploma of Leadership and Management.
The applicant claimed in evidence and in the GTE Statement the level of income he would expect to earn with the additional qualifications of the Diploma and Advanced Diploma of Leadership and Management would enable him to earn 4,500,000 Pakistani rupees per annum as a financial controller (which equates to approximately A$33,500). The GTE Statement confirms that amount is the average rate of pay for that position and the entry pay is around 2,800,000 Pakistani rupees per annum (which equates to approximately A$21,000). The Tribunal notes that this amount must be contrasted with the amounts in the Response which confirms that he was seeking job opportunities in finance and accounting at management level which paid from 120,000 to 170,000 Pakistani rupees per calendar month, being 1,440,000 to 2,040,00 Pakistani rupees per annum (which equates to approximately A$10,700 to A$15,100 per annum).
The Tribunal notes that the income the applicant claims to be able to obtain in Pakistan with his new qualifications, which appears to range between A$10,700–A$33,500 is substantially less than the amount the applicant is currently earning while working in Australia being A$65,000 per annum. The level of income that the applicant has been earning in Australia is a high level of income when compared to Pakistan and would provide a substantial financial incentive to remain here rather than to return home.
The Tribunal having regard to the extensive qualifications the applicant has obtained here including a Diploma and Bachelor’s degree and his international work experience he has obtained here in accounting and finance roles, considers that the obtaining of the Diploma and Advanced Diploma qualification would only marginally improve his employment prospects and remuneration back in Pakistan, if he seeks employment back home.
The applicant in the Response confirmed that he wanted to undertake studies in Australia rather than Pakistan because:
Similar courses are available in my home-country but the reason i want to pursue this qualification from australia is because its first world country and student who are internationally qualified, especially from a country like australia are given more job opportunities and remuneration (with other perks and beenfits).
The applicant also claimed that he wanted to study here in Australia because he was already living and working here in Australia. The applicant in the GTE Statement claimed that:
The reason I intend to undertake said program in Australia and not in my home-country is because, Pakistan has quite a few universities that solely focus on “Business” education and keeping the count number of youth in mind, the number of quality universities drastically decrease and not enough to cater every folk and therefore I was smitten by the quality of education in my field of study in Australia which is “Leadership & Management”. Another reason not to undertake vocational program in my home-country is because Pakistani diploma programs are not globally recognized and hence worthless as employers here in Pakistan does not give any value to domestic diplomas. Since I am in Australia currently and fortunate enough to be completed my graduation from here, hence I am aware of the quality of education offered by Australian institute. The diversified educational background and infrastructure, high quality of life and relatively lower living expenses and education standards are unparalleled hence I simply cannot deny the importance of studying this program from Australia rather than in my home-country.

While the applicant’s evidence on this issue may be correct, it is important to note that the applicant has already obtained high level qualifications at Bachelor degree level here in Australia and there does not appear anything preventing him from undertaking a similar management or leadership course back in Pakistan. As the management course is being studied at Diploma level in Australia, it is questionable what impact it would have on opportunities and remuneration back in Pakistan when compared to him completing a similar course back in Pakistan.
When the Tribunal considers the qualifications and experience obtained here, and that there are suitable similar courses back home, which he could study, the Tribunal considers that it does not provide him with a reasonable motive to undertake these studies in Australia rather than in his home country.
The applicant has changed his career and study pathways initially from Accounting to Leadership and Management. The courses he has studied do have some connection in the business field and the applicant claims that they will assist him in obtaining a high level position such as a finance manager, accounting manager or financial controller. The Tribunal does accept that qualifications in management are complementary and do lead to a career path. However, the studies being undertaken at Diploma level, in circumstances where he has completed a Bachelor’s degree and represent study regression, is more consistent with an applicant seeking to extend their stay in this country, rather than to come to this country to complete their studies in a timely manner and return home, which is the purpose of the visa.
The Tribunal recognises that it is important to allow for reasonable changes to career and study pathways. However, reasonable changes to career and study pathways do not arise where an applicant has merely decided to change careers through undertaking short vocational education training (VET) courses. The courses in which the applicant is currently enrolled in in Australia are short VET courses and the change to his career and study pathways are not reasonable. His current studies in the Diploma and Advanced Diploma level are inconsistent with his level of education.
The Tribunal also notes that the applicant has had ample opportunity to complete the Diploma and Advanced Diploma of Leadership and Management in Australia, since completing the Bachelor of Professional Accounting in 2017, but his application for the student visa and to undertake the courses at Diploma and Advanced Diploma level appear to be undertaken to extend his stay here in order that he can continue to remain in stable employment and earn a very high level of income.
As discussed above, if the applicant returns to Australia and completes the courses that he is enrolled in, his stay in Australia will be just under 10 years less the time he has remained in Pakistan since January 2021, which is a very long period of time and inconsistent with his stay being on a temporary basis.
The applicant has currently lived in Australia for the last 8 years and 4 months less the 1 year and 3 months he has been in Pakistan since January 2021; by reason of the duration of his stay in Australia he has a substantial degree of knowledge about living in Australia.
The applicant has been enrolled at ATMC and studied for the last year, and is undertaking the Diploma of Leadership and Management. Ultimately, the Tribunal accepts that by reason of his experience with that education provider and the course he has studied there for the last year, he has both a substantial degree of knowledge about the course and its provider.
The applicant also gave evidence that the economic conditions in Australia are more favourable than those in Pakistan, which would present as a significant incentive to remain here, rather than return home.
The applicant in the Response confirmed that he has returned home to Pakistan 3 times since his arrival in Australia in December 2013. The Tribunal notes that there have been COVID-19 travel restrictions imposed by reason of the pandemic since March 2020 to earlier this year. The applicant at the time of the hearing was in Pakistan and he had been there since January 2021. The Tribunal notes that the number of trips home in his first 7 years was that he travelled home twice for a total stay of just over 2 months which is inconsistent with someone who intends returning home.
The applicant in the Response did not indicate he had any assets. The applicant claimed that he was being supported in his studies financially by his family back in Pakistan. The Tribunal considers that his asset position in the context of his level of income in Australia would ordinarily provide him with an economic incentive for him to remain here rather than to return home.
The applicant both in the Response and in evidence did not have any concerns about returning to Pakistan and he had no concerns about military service commitments or political and civil unrest in his home country. The Tribunal finds they do not present as a significant incentive for him not to return home.
The Tribunal finds that, based on the applicant’s evidence and circumstances in his home country, including his education, and support from his family, that relative to others in that country he is in a good position and this would not provide a significant incentive for him not to return home.
The Tribunal accepts that the applicant is not married and he is not in a relationship of concern for a successful visa outcome.
The applicant has both personal ties in Australia and at home in Pakistan.
The applicant gave evidence that his father, mother and a sister reside in Pakistan and that would ordinarily provide him with an incentive to return home after completing his studies. The applicant has remained in Pakistan since January 2021. The applicant claims in the Response he remains in contact daily with his family. However, those ties must be considered in the context of his circumstances in Australia, where he is in stable high paid employment, he has lived here since December 2013, save since his departure home in January 2021, and wishes to undertake studies in Australia for at least a further 1 year and 6 months and possibly longer if he decides to extend his studies to an MPA. Having considered those matters, the Tribunal finds that his ties to Pakistan are not strong and do not provide a significant incentive for him to return home.
Further, the applicant has substantial ties to Australia. In evidence he confirmed that he has a sister here in Australia, he is earning a high level of income, he is in stable high paid employment, he has friends here and has established a charity here ‘Blessed Olive Ltd’ with other like-minded persons to operate out of Pakistan, India and Australia, to provide social welfare. The charity is seeking to enter into partnerships with organisations in each country to assist in fundraising. Currently the charity has less than A$1,000 in funds. The applicant intends to stay in Australia for at least a further 1 year and 6 months to undertake the Advanced Diploma of Leadership and Management, and even longer if he undertakes the MPA. He has been here for 7 years, once his last stay in Pakistan is taken into account, and he has a few friends here. Two of those friends gave evidence in support of the applicant. Mr Maini gave evidence that he was good friends with the applicant and they had played in a social cricket team for 2 years and Mr Ali gave evidence that they knew each other socially and had been involved in community sports together, which confirms his developing ties to this country. The Tribunal finds that his circumstances in Australia are such that they demonstrate that he has strong ties here, which provide a strong incentive to remain here rather than to return home.
The applicant in the 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 to indicate that the applicant has experienced any other visa refusals or any immigration issues either in or outside of Australia.
The Tribunal notes that the applicant has been here for a very long period of time and intends staying for a total period of at least 7 years, which is a long period of time to be in this country studying. The applicant is studying the Diploma and Advanced Diploma level courses, which show regression in his studies and he has had ample opportunity since completing the Bachelor of Professional Accounting in 2017, to pursue management studies. When considered in light of his ties to Australia in particular his long term and high level of income he is receiving, it reveals that he has developed roots here, and seeks to extend his stay here to main his high level of income in this country and he does not intend to stay temporarily.
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 that the primary objective of the application is to maintain an ongoing residence in Australia to earn a high level of income and to remain here with an intention to reside here 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).
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 1797

21 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Intention

Standing