Koirala (Migration)

Koirala (Migration) [2021] AATA 959 (26 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Reema Koirala
Mr Sailesh Dhungana
CASE NUMBER:  1924260
HOME AFFAIRS REFERENCE(S):          BCC2019/2277704
MEMBER:Peter Booth
DATE:26 February 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 26 February 2021 at 1:03pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – current enrolment – limited academic progress – adequate existing qualifications and experience for career – demonstrated value of proposed course – maintaining ongoing residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359; 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 August 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 26 April 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 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was not a genuine temporary entrant.
The applicants appeared before the Tribunal on 1 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the secondary applicant, Mr Dhungana.
The applicants were assisted in relation to the review by their registered migration agent.
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 is a genuine temporary entrant.
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 gave evidence at the hearing, the substance of which was as follows. The applicant had read the delegate’s decision dated 26 August 2019 refusing her application for a student visa. The applicant understood that the issue for determination was whether she was a genuine temporary entrant.
The applicant said that she is currently enrolled in a Graduate Diploma of Management (Learning) which commenced on “June 2020 and is to be completed by 13 June 2021”. The applicant had produced a confirmation of enrolment document to the Tribunal in that regard. However the document stated that the course commenced on 28 September 2020 and was due to be completed on 5 September 2021. The applicant was asked to provide a current confirmation of enrolment after the hearing. Subsequently a confirmation of enrolment in respect of that course was provided to the Tribunal which stated that the course started on 6 July 2020 and is scheduled to be completed on 13 June 2021.
The applicant had also provided information to the Tribunal in the form of a response to a request to do so pursuant to s.359(2). The applicant confirmed that she did not want to add to or vary this document. In summary the information provided by the applicant was as follows.
Prior to arriving in Australia the applicant completed a course described by her as “BBA” between July 2005 and July 2009. She did not provide any details of her employment prior to arriving in Australia.
The applicant arrived in Australia on 7 November 2014 and since that time has returned to her home country on one occasion, in 2016 for one month.
The applicant did not provide any information regarding her visa history in Australia.
As to her study history in Australia the applicant stated that she completed a vocational course in English between December 2014 and February 2015, she enrolled in the course described as “MPA” in March 2015 but did not complete it, she again enrolled in a course described as “MPA” in March 2016 and completed it in March 2017. She stated she was “studying now” an “advanced leadership management” course which commenced in April 2019 and had a future enrolment in a Graduate Diploma of Management (Learning) due to commence in September 2020 and be completed in September 2021.
The applicant stated that she was employed as a “manager” at “Subway” in February 2015 from which she derived an annual salary of AU$40,000. The applicant stated that her husband, father and mother all reside in Nepal.
The applicant did not provide any information regarding ownership of assets in Nepal.
As to her future employment plans the applicant stated:
I would like to be a successful business person in my chosen endeavour in the future.Moreover, these courses will build my skills, capabilities and can help to widen the horizon of my knowledge so that i can be a competent business lady in the future. Thus, these courses play an imperative role in my personal and professional development and benefit me in several ways.
As to her expected future remuneration the applicant stated: “Annual Salary AUD5000 annually in home country.”
The Tribunal proceeded to ask the applicant some questions arising from the responses paraphrased above. The questions and the answers, in summary, were as follows.
As to her employment history prior to arriving in Australia the applicant stated: “in the United Kingdom in McDonald’s and Brimarks”. She did not elaborate. When asked as to the nature of that employment she said “in customer care”. She did not elaborate.
The applicant confirmed that she arrived in Australia on 7 November 2014 as the holder of a student visa. The Tribunal pointed out that she had not provided any information regarding her visa history in Australia and invited her to do so. She responded “student visa 2014 to 2017, then got TR visa, for two years until 2019, after TR I applied for student visa”. In answer to a question from the Tribunal she said that she applied for that student visa in 2019. The Tribunal asked whether she applied for it on 26 April 2019 to which she said “yes”.
The Tribunal observed that the applicant had enrolled in the “MPA”, which apparently was a reference to a Master of Professional Accounting course, in March 2015 but did not complete it. The applicant replied “I transferred from Charles Darwin then to KOI [King’s Own Institute], either credits, finished it at King’s Own Institute”. When asked why the applicant had changed education providers she said “Charles Darwin was [a] complicated course”. She did not elaborate.
The Tribunal asked the applicant what she had done during the period of holding a temporary resident visa. She replied “I worked in Subway”. She did not elaborate. When asked as to the nature of that employment she said “as a manager”. She did not elaborate. When asked how long she worked at Subway she said she is “still working there”.
The applicant confirmed that she owned no assets in Nepal in her name. When asked as to her employment intentions when she returns to her home country she said “[I] want to work as a senior manager, because Nepal does not have this type of course, I want to utilise the knowledge from here”.
The Tribunal invited the applicant to explain the change in the level of her study. She replied that the “MPA focused on accounting terminology, I thought the knowledge was not adequate for me”. She did not elaborate.
The applicant confirmed that she has not applied for permanent residency in Australia and does not intend to do so. She added: “I intend to go back to Nepal”.
The applicant confirmed that she got married in “February 2011”. She also confirmed that she travelled to Australia together with her husband, the secondary applicant.
When invited to add anything further to her evidence the applicant said “I just want to go to Nepal and get a student visa”.
The secondary applicant gave evidence. He said “I am supporting my wife”.
The Tribunal observed that the secondary applicant had provided an undated statement to the Tribunal which it had read. In answer to questions from the Tribunal the secondary applicant confirmed that he had arrived with his wife in 2014 and that it was the first time he had visited Australia. Asked as to the visa he held at that time he said “I had spouse visa”. When asked what visa he had held since that time he said “all times”. The Tribunal asked the secondary applicant what he had done since arriving in Australia. He replied “I have worked in different places, I have worked at a hotel in Randwick, then Liquorland, then I moved to Canberra, transfer job, I work in first choice liquor in Canberra, sales assistant”. In response to a question from the Tribunal he said that his income was AU$50,000 annually.
The Tribunal asked what education level the secondary applicant had completed prior to arriving in Australia. He responded “MBA from UK”. When asked why he had chosen to come to Australia and to work as a sales assistant he responded “the weather is better”.
The secondary applicant confirmed that he had not applied for permanent residence in Australia and did not intend to do so.
The applicant was invited to comment upon the evidence of her husband and she responded “while in the UK I got sick, it was an insufficient of vitamin D”. She did not elaborate.
Prior to the hearing the applicant provided a variety of documents to the Tribunal. The applicant did not refer to any of these documents during the course of giving evidence at the hearing. Nonetheless they have been taken into account by the Tribunal to the extent relevant and given appropriate weight.
Prior to the hearing the applicant provided a statement in support of her application for review. The statement is undated, and without page numbers or paragraph numbers. The statement was not referred to by the applicant during the course of giving evidence at the hearing. Nonetheless it has been taken into account by the Tribunal to the extent relevant and given appropriate weight. It is in the following terms:
I am Reema koirala and I am currently living in Canberra, Australia, permanent resident of Kathmandu Nepal. I am glad to write this statement of purpose to study Graduate Diploma of Management (Learning) at Crown Institute of Business and Technology (CIBT), Canberra. I am writing this statement of intend to support my visa application and I am explaining my brief education and work experience background, reason for studying in Australia, reasons for choosing CIBT for Graduate Diploma of Management (Learning) and brief career plans through this statement.
Educational Background and Work Experience:
I completed my Secondary School (Year 10) from Inaruwa English boarding school Inaruwa, Sunsari, Nepal and later enrolled to study higher secondary course at V.S Niketan, Kathmandu, Nepal. To explore the best practice of business and finance, I decided to pursue Bachelor’s in business administration at Everest College, Kathmandu. Despite acquiring my bachelors I found that there is still a need to upgrade my knowledge in accounting in this fast paced market which is always aspiring to achieve higher goals and climb the corporate ladder. This being the reason I decided to study Masters in Professional Accounting in a developed nation, which would grant me a global exposure and at the same time allow me to understand the work culture, which would be diverse, and with multi-cultural background.
After thorough due diligence and deliberations over countries like the US, UK, Canada and Australia I decided to study Master in Professional Accounting at Kings Own institute, Sydney. On successfully completing my master’s degree, I thought of gaining some Australian work experience hence, I applied for temporary graduate work visa, and was granted with 485 visas on 1/05/2017. With the sheer objective of gaining Australian work experience, I joined a professional year course, from where I gained an immense knowledge related to Australian work culture, Work health safety Act, preparing customized resume, developing Interview skills, managing conflict etc.
Moreover, I have finished my advanced diploma of leadership and management recently from CIBT college .I got an opportunity to start my career at Subway restaurant in Australia as a manager. As a manager of the team, my role is to be responsible for the store, access team member and motivate them, prepare weekly roster sometimes. I am also responsible for training and performance development of employees.
During my employment at Subway restaurant as a manager, I have got opportunities to explore my academic knowledge from master’s degree in Professional Accounting to implement into the corporate world which has provided me with strong foundation as well has fortified my communication skills in accounting and cash handling transactions as well. However, I realized that despite knowledge and skill with in Accounting, I still lacked leadership and management skills, which I believe is an essence in any middle and senior management level, which was also stagnating my growth within the organization and on my future dream career. This being the primary reason for my decision to pursue this course which can add value on my efficiency and by equipping me with management of staff and leading my team with more vigor to deliver desired productivity.
There is also a need to develop my interpersonal skills along with physical endurance at work. It would also enable me to develop my problem-solving skills along with other aspects. Strategic thinking perhaps the most important skill a manager needs and what really distinguishes leaders from managers is to be able to think strategically. This means, in simple terms, having an idea or vision of where you want to be and working to achieve that. Being self-aware is the most important skill to build like trustworthiness and empathy. A good manager needs to lead with passion via great communication and harness commitment, honesty, integrity and accountability from the staff for a productive outcome. It teaches team building by inspiring other through creativity and innovations as such, I feel that all these qualities can be achieved by learning from graduate diploma of management (learning), which can enhance my performance towards my responsibilities as a responsible manager. I believe that this particular course will help me understand how to deal with people in workplace, manage conflicts, help co-workers achieve their goals, lead the team properly; manage work properly for efficient output etc.
Additionally, this course will make me eligible to apply for senior managerial position in different organization in Nepal and other emerging markets on different prospective jobs. Moreover, I am trying my best to get my dream job in the near future. Thus, I believe this particular course will assist me in finding my potential job despite being stagnant in subway’s career. Hence, this course will definitely play an imperative role for my personal and professional development which would only benefit me in the long – term.
Reasons for Studying in Australia:
Australia is democratic nation with moral values and ethnicity, which is diverse and is multicultural. Australian economy has had a steady growth despite of global upheavals and has never been subjected to recession for the last 25 years. Education delivered through Australian Universities and colleges are of high standards and are globally recognized for students who want to build the professional career in Business, Accounting, Science and Technology. Also, the cultural diversity in Australia highly favorable for international students as we get an opportunity to meet new people every day, learn new things, gain new experiences get taught by industry professionals and prepares students like me for higher growth outlook back home country which I can gain and share knowledge, skills and experiences after completing my studies. These things raised my awareness about Australia as a country, and why it attracts international students from every corner of the world. I am also aware that Australia is ranked 8th ahead of Germany, UK, Japan and Netherlands in University Ranking System. Australian cities such as Sydney, Melbourne, Canberra and Brisbane etc. are among the most livable cities in the world out of 30 cities and more so for students. It is exciting to also to know that; Australian Government invests around 200 million dollars for international scholarships. While I hope to improve my literacy skills, I know that studying in an English-speaking country like Australia would be more sensible.
Unlike in Australia, the colleges and universities in Nepal are offering very limited accounting and management course like Master of Business Administration, Graduate diploma of management (learning), Master of Finance, and Master of Business and others. However, these programs in Nepal lack the understanding as well as the principles of the courses and don’t provide the analytical techniques from leadership, commercial law, business communications and the other management contexts related to this chosen course. Thus, in order to widen my horizon of knowledge on different subjects matter I would like to choose Australia for my academic pursuit because Nepal is still a developing country, which lags behind on myriad of infrastructures and educational courses. Thus, Australia will be the right country for me for many aforementioned reasons and Australia has been one of my favorite countries in case of academically, geographically and culturally.
Reasons for studying at Crown Institute of Business and Technology (CIBT).
I have chose CIBT because CIBT has highly-experienced faculty as they provide practical hands-on training, which helps us to get ready for the job market. These colleges provide student cantered, friendly and supportive learning environment. The course is designed to encourage students to develop a mix of theoretical and practical knowledge. CIBT is in Canberra and is easily accessible to public transport. Canberra is a planned city, getting around is easy. Everything is usually within a 20-minute drive or less. More than 2,400 kilometres of dedicated bicycle track, trails and lanes will deliver us to each of the major CBD areas in the city nd our public transport system, ACTION, is a fast, safe and reliable bus service.
The fees structure in these institutes is comparatively reasonable in comparison to the other course providers for the same course. CIBT is nationally and internationally recognized and provides the career training that takes to succeed in our chosen profession anywhere in the world.
Reasons for studying Graduate diploma of management (learning).
This course will teach me about the delegation of responsibilities, gathering feedback and consistency. It is also believed that this qualification reflects the roles of an individual who applies highly specialised knowledge and skills in the field of organisational learning and capability development. An Individual in these roles generates and evaluates complex ideas. I can also initiate, design and execute major learning and development functions within an organisation. Typically I would have full responsibility and accountability for the personal output and work of others. This qualification helps in the development the prospective leaders and managers in an organisation where learning is used to build organisational capability. Moreover, this qualification provides the skills, knowledge and competencies to deal with relevant real- life situations in the workplace for an individual to function as a Manager or who want to get into senior executive positions across a range of organisations.
This course will help to discover the critical capabilities of the management skills that we didn’t learn during Master in Professional Accounting program. I wish to continue this learning subject to enhance my skills and knowledge. The Graduate diploma of management (learning) is a focused course suited to those wishing to upgrade in several management areas, which are not covered in the university degree. It is designed specifically for senior executives that have responsibility towards a team building, as well as those who participate in operational planning. I trust that this course will help me in understanding flow of knowledge and information within the organization. Developing workplace policy and procedure are also important part for the organization, which is also the effective units, included in the program. In Graduate diploma of management (learning). Management has following 8 units delivered throughout 52 weeks.
BSBINN801 Lead innovative thinking and practice.
BSBRES801 Initiate and lead applied research.
BSBINN501 Establish systems that support innovation.
BSBLED802 Lead learning strategy implementation.
BSBLDR803 Develop and cultivate collaborative partnerships and relationships.
BSBLDR801 Lead personal and strategic transformation
BSBLED805 Plan and implement a mentoring program
BSBLED806 Plan and implement a coaching strategy.
I didn’t have an opportunity to study above units during my Master of Professional at KOI, which I now realize is an essential for people who wish to advance their further career in corporate world, in management and executive, or even accounts and higher level manager level thus, by completing this course, I am able to establish my career in both professional and personal development acknowledging my previous Accounting knowledge and work experience with the intended course which I believe will definitely add significant value for my future career and employability.
Career Goal
My career goal is to complete the Graduate diploma of management (learning) course and seek a career in a leading firm in Nepal that places priority on professionalism and lead such organization towards achievement of set goals by making use of knowledge, experience that I will have gained after completion of the course. As we all know, as by learning from Australian university and being College graduates there are many opportunities for me in both global and domestic organization in Nepal. There are some big names which has provided big contribution to Nepal’s economic industries such as Chawdhary Group, Nepal Rastra bank, Nepal Telecom, Coca-Cola Pty ltd. Additionally, there are many opportunities in accounting and business areas inside those organization as Accounts managers, Financial Adviser, Tax officer, Budget Analyst, Financial controller, senior executives and others. Moreover, there are different corporate fields like, banking and retail industries are also offering very attractive salaries and give priorities to graduate from international universities and colleges. Therefore, I am confident about prospect of job opportunities in home country after finishing the studies.
Reasons for returning to home country Nepal
As I mentioned above, I am eager to Nepal after completing my education. All members in my family and my close friends are still in Nepal and love to join them permanently. In addition to that, my family and friends and all my loved ones are in Nepal. I received full support and love from my parents throughout my life and facilitated me with every means necessary to help me attain my goals. Their financial, psychological and emotional support have encouraged me to follow my dreams and make my own path so that I can earn a name for myself in Nepal, which is my main reason to go back to Nepal.
In Addition, I have been in a regular touch with my family, a friend near and dear ones through social medias like facebook, instagram, viber, messenger and other mediums. I have visited Nepal once I came here as well as my parents had accompanied me here for nearly five months in 2017 A.D as well. Moreover, I was planning to visit in my country this year but due to co-vid – 19, I am not being able to visit my friends and families over there according to my plan. Thus, my unconditional and undying love towards my motherland, families and friends are some of the main reasons for me to go back home after completion of my study.
Conclusion
I am aware of the numerous mandatory visa conditions for international students under visa class 500 which I must follow during my prescribed duration of stay in Australia and I want to assure you that I respect all the conditions and will follow them. I hereby declare that the information provided above is true and correct. I understand that any incorrect and/or misleading statements made by me may result in my student visa application being refused.
Please feel free to contact me should you require further information.

Without diminishing the applicant’s evidence it can be summarised as follows. The applicant completed a course described as “BBA” in Nepal in July 2009. She worked in customer service for several years in the UK thereafter. She arrived in Australia on 7 November 2014 and since then has returned to Nepal on one occasion for one month. The applicant held a student visa from 2014 until 2017, then a “temporary resident” visa from 2017 until 2019 and she applied for the student visa in question on 26 April 2019. She enrolled in a Master of Professional Accounting in March 2015 but did not complete it. Apparently she transferred to another course provider and completed a Master of Professional Accounting with the other provider. During the period in which she held a Subclass 405 visa she was employed at Subway as a manager. She gave quite vague evidence of her intention to work in management when she returns to Nepal. Her husband has accompanied her to Australia. He completed an MBA in the UK. He now works as a sales assistant in Australia. The applicant owns no assets in Nepal. Her father and mother reside in Nepal.
The applicant has not explained to the Tribunal’s satisfaction why she has regressed in her studies, why she did not complete the first Master of Professional Accounting course in which she was enrolled, the details of a future career path and why her existing qualifications and experience are insufficient for her future path.
In considering whether the applicant has met the genuine temporary entrant criterion, the Tribunal had regard to the following factors consistent with cl.500.212 of Schedule 2 to the Regulations and Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether she has satisfied the genuine temporary entrant criterion.
The Tribunal has considered the applicant’s circumstances in her home country. The applicant is married and is from Nepal. The applicant has provided evidence of direct family ties to her home country which may operate as an incentive to return. The Tribunal finds that she has been unable to demonstrate ties to act as an incentive to return to her home country at the completion of the actual or proposed study. Whilst the Tribunal accepts that the applicant may have family ties to Nepal, having regard to the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to Nepal.
The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 7 November 2014 as a holder of a student visa valid to 2017. The proposed study would extend the applicant’s stay until at least June 2021. The Tribunal considers that the length of the proposed stay suggests that the applicant is studying for the purposes of staying in Australia. Whilst plans can change, in the Tribunal’s view this is not the conduct of a genuine temporary student. On balance it is consistent with the applicant having decided to extend her stay in Australia by utilising the student visa programme.
The Tribunal does not place weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. She has given vague evidence about her future intentions and also not explained why her existing qualifications and experience are insufficient.
The Tribunal has considered the applicant’s study history since arrival and notes that she commenced study in Australia in 2015 and has completed a Master of Professional Accounting. She has also completed a professional year during the period in which she held a Subclass 405 visa. She now wants to complete a Graduate Diploma in Management.
The applicant relies on a statement in which she addresses the genuine temporary entrant criterion. It has been taken into account and given appropriate weight.
On balance, the Tribunal is not satisfied that the applicant has established that study will provide her with significant benefits in her proposed career plan, considering the cost of the study and the fact that the applicant already has extensive qualifications and experience. Accordingly, the Tribunal is not satisfied that the proposed additional study has a reasonable prospect of providing significant value to her career beyond the existing qualifications.
The Tribunal turns to consider whether there are any other relevant matters. The Tribunal finds that there are no other relevant matters to consider that may be beneficial or adverse to the applicant, and that this aspect is not relevant.
The Tribunal has considered the applicant’s economic circumstances in her home country relative to her potential circumstances in Australia. Having regard to the disparity in economic circumstances between Nepal and Australia, the Tribunal is not satisfied that the applicant has significant incentive to return to Nepal. The applicant has been unable to demonstrate substantial ties or personal assets in her home country which diminishes her incentive to return to Nepal.
The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from her proposed study which will outweigh the significant time and monetary commitment this course will require. Accordingly the Tribunal is not satisfied that the applicant has demonstrated the value of her proposed course to her future.
The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 7 November 2014 the applicant has spent more than six years in Australia and one month outside of Australia; she owns no assets in Nepal and resides in Australia with her husband. She has also resided in the UK with her husband for a period of time prior to arriving in Australia. In the Tribunal’s view these matters indicate that she does not appear to have strong personal ties to Nepal. On balance, the Tribunal assesses the applicant’s incentive to return to Nepal to be minimal.
The Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. Whilst the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant was previously granted a visa specifically to enable her to achieve that goal. The applicant was granted a student visa which facilitated the applicant’s study in her desired field. She completed those studies. She was then granted a Subclass 405 visa and worked in Australia for two years. The applicant lodged this application shortly prior to expiry of that visa. It therefore appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study.
The Tribunal has considered all information provided by the applicant in support of her application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in her home country, potential circumstances in Australia, the value of the proposed course to her future, her immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.
On the contrary, the evidence suggests that the applicant has enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study. the Tribunal considers that the applicant is using the student visa programme as a means of maintaining ongoing residence in Australia, and does not have a genuine intention to stay in Australia temporarily.
There is no evidence before the Tribunal regarding the following factors indicated by Direction No.69: economic circumstances of the applicant; any potential military service in Nepal; political or civil unrest circumstances in Nepal; remuneration the applicant could expect to receive in Nepal or a third country compared with Australia; circumstances in Nepal relative to Australia or any other country; and the applicant’s circumstances in Nepal relative to others in that country.
On the basis of the above, the Tribunal is not satisfied that 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.
The application of the applicant having been unsuccessful, it follows that the application of the secondary applicant must also fail.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Peter Booth
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;
dwhether 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.

[2021] AATA 959

26 February 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction