Kumar (Migration)

Kumar (Migration) [2024] AATA 3065 (9 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ajay Kumar
REPRESENTATIVE:  Mr Shiva Raj Neupane (MARN: 1383508)
CASE NUMBER:  2207370
HOME AFFAIRS REFERENCE(S):          BCC2021/1083674
MEMBER:Frank Russo
DATE:9 August 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 9 August 2024 at 6:06pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – one completed course, multiple cancellations and enrolments at lower levels in unrelated subject areas, and enrolment gaps – no current enrolment at time of first hearing – granted 14 days to obtain new enrolment – re-enrolment in first subject area – intermittent work in Australia and no work record in home country – little or no research into potential employment and vague plans for own business funded by father – vague, evasive and misleading evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359AA
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 May 2022 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 14 May 2021. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.
The applicant appeared before the Tribunal by telephone on 30 April 2024 and by video on 14 May 2024 to give evidence and present arguments.
The applicant is a 24-year-old Indian national. The Student visa application under review was made in respect of the applicant’s enrolment in a package course which included a Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery and Diploma of Hospitality Management. The applicant did not successfully complete any of these courses. At the hearing held on 30 April 2024, the applicant was not enrolled in a course of study. Following adjournment of the hearing, the applicant obtained a confirmation of enrolment (CoE) for the Diploma of Business starting on 1 June 2024 and ending on 13 September 2024.
The applicant was assisted in relation to the review, although his representative did not attend the hearing.
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 applicant for entry and stay as a student.
In addition to the application for review form and copy of the delegate’s reasons for decision and notice of decision from the Department, on 29 February 2024 the applicant provided the Tribunal with a response to an invitation under s.359(2) of the Act to provide information, which included:
a.A completed ‘Request for Student Visa Information’ form;
b.A CoE for the Diploma of Business at Barkly International College (Barkly), with a start date of 1 March 2024 and an end date of 13 June 2025, created on 28 February 2024; and
c.Award of the Certificate III in Light Vehicle Mechanical Technology by Acumen Education (Acument) on 25 November 2019, together with statement of attainment and course completion letter.
The applicant provided a response to the hearing invitation on 25 March 2024, together with copies of documents already provided to the Tribunal.
On 23 April 2024, the applicant provided further copies of documents already provided, as well as the following additional documents:
a.CoE for the Bachelor of Business with Federation University Australia from 19 March 2018 to 19 March 2021;
b.Letter from Acknowledge Education, dated 21 October 2019;
c.CoE for the Bachelor of Business with Acknowledge Education, starting on 18 November 2019 and ending on 1 July 2022;
d.CoEs for the following courses issued by Acumen:
i.Certificate III in Light Vehicle Mechanical Technology from 7 November 2018 to 4 November 2019;
ii.Certificate IV in Automotive Mechanical Diagnosis from 25 November 2019 to 21 April 2020;
iii.Diploma of Automotive Technology from 3 May 2020 to 17 January 2021
iv.Certificate III in Commercial Cookery from 5 June 2021 to 4 June 2022;
v.Certificate IV in Commercial Cookery from 16 May 2022 to 27 October 2022; and
vi.Diploma of Hospitality Management from 3 November 2022 to 27 April 2023.
On 1 May 2024 the applicant provided the Tribunal with a response to the invitation to the resumed hearing on 14 May 2024. On the day of the resumed hearing the applicant provided a CoE for the Diploma of Business with Barkly, commencing on 1 June 2024 and ending on 13 September 2025, created on 13 May 2024.
The Tribunal has had regard to these documents. The Tribunal also has a copy of the Department file and has had regard to the documents provided by the applicant on that file, which include a system-generated copy of the Student visa application, copies of documents provided to the Tribunal and the following other documents:
a.Biodata pages from the applicant’s Indian passport;
b.Undated statement of purpose;
c.Statement in response to a s.57 natural justice letter from the Department;
d.Course confirmation letter from Acumen, dated 1 September 2021; and
e.Evidence of overseas student health cover.
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 108, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. The Tribunal notes that Direction No 108 commenced on 23 March 2024. Part 2 of Direction No 108 is expressed in the same terms as Part 2 of Direction No 69 (which the delegate was required to apply), other than the addition of the words ‘or Student Guardian visa application’ at clause 4(d) of the Direction No 108. The Tribunal discussed the operation of Direction No 108 with the applicant at the hearing.
Direction No 108, 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.
Evidence given at the hearing on 30 April 2024
The applicant confirmed that he first arrived in Australia on 21 February 2018, holding a Student visa. He gave evidence that he arrived in Australia with the purpose of completing a Bachelor of Business but stated that he found the study to be hard, so he transferred to courses in the Automotive field. He stated that he completed a Certificate III in Light Vehicle Mechanical Technology, which is the only course of study that he has successfully completed in Australia.
The Tribunal questioned the applicant about his current enrolment, in response to which the applicant gave evasive responses. The Tribunal asked the applicant whether he is currently studying, to which he responded yes, that he has a current CoE for the Diploma of Business. When asked if he has been attending classes, he responded yes, and stated ‘it’s started already’. When asked when he last attended his course, he responded that it started last month. When asked again when he had last attended a class, he stated ‘Last week’, and stated that he had attended at Barkly.
When asked what his plans are after he completes the Diploma of Business, the applicant stated that he can return to his home country and start working in the business sector. He stated that a course from Australia will give him better opportunities to get a better job.
The Tribunal adopted the procedure in s.359AA of the Act to put to the applicant information from his enrolment records from the Provider Registration and International Student Management System (PRISMS) database. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal put to the applicant that his PRISMS record shows that his enrolment in the Diploma of Hospitality Management which commenced on 1 March 2024 was cancelled on 26 March 2024 because of non-commencement of studies.
The Tribunal put to the applicant that this information may be relevant to the issue before the Tribunal, because it may indicate that he does not have a current enrolment in a registered course of study and that his last enrolment was cancelled on 26 March 2024 because he had not commenced his studies. The Tribunal explained to the applicant that, in order to be granted a Student visa, it is a requirement that he be enrolled in a registered course of study, and that arising from the evidence in his PRISMS records, he is not enrolled in a course of study and therefore the enrolment requirement in cl.500.212 of the Regulations has become the determinative issue in the application for review.
The Tribunal also explained to the applicant that information from his PRISMS record may be relevant to the issue of whether he is a genuine applicant for entry and stay as a student, the particulars of which are set out below. The Tribunal also explained to the applicant that the information from his PRISMS record may indicate that he attempted to mislead the Tribunal about his enrolment status, which may be relevant in deciding whether it was reasonable to grant the applicant an extension of time to meet the enrolment requirement, as well as to the issue of whether he is a genuine applicant for entry and stay as a student. In particular, the Tribunal raised concern that the applicant may have obtained enrolment in the Diploma of Business for the purpose of meeting the enrolment condition for the Student visa, but did not commence studying the course and therefore may not have any intention to study the course.
The applicant confirmed that he understood the information the Tribunal had put to him and the relevance of the information to the review, including the consequences of the Tribunal relying on the information in affirming the decision under review. The applicant requested an extension of time of one day to provide an explanation for why he did not commence the Diploma of Business and to set out his circumstances. He stated that he had visited his college, though not in the week prior to the hearing. He stated that he was not aware that his enrolment had been cancelled and he had not received any email indicating this from his college. The Tribunal granted the applicant an extension of 14 days to obtain an enrolment, and indicated that if he was enrolled by the time of the resumed hearing, the Tribunal would consider whether he is a genuine applicant for entry and stay as a student, otherwise it would make a decision on the enrolment issue.
Evidence at resumed hearing on 14 May 2024
At the resumed hearing the Tribunal noted that the applicant had that morning provided the Tribunal with a CoE for the Diploma of Business at Barkly, starting on 1 June 2024 and ending on 13 September 2025. The Tribunal noted that as the applicant had provided evidence of a current enrolment, the issue before the Tribunal was once again whether he is a genuine applicant for entry and stay as a student.
The Tribunal again used the procedure set out in s.359AA of the Act to put to the applicant information from his PRISMS enrolment record and from his Departmental movement records. The Tribunal put the following particulars of information to the applicant:
a.He was first enrolled in the Bachelor of Business from 19 March 2018, however this enrolment was cancelled after only a few months on 24 July 2018 because he notified his education provider that he was ceasing his studies;
b.He commenced the Certificate III in Light Vehicle Mechanical Technology on 7 November 2018, which he finished on 4 November 2019;
c.He had enrolments in the Certificate IV in Light Vehicle Mechanical Technology and the Diploma of Mechanical Diagnosis commencing in November 2019 and May 2020, however both enrolments were cancelled on 25 January 2020 because of non-commencement of studies;
d.He had another enrolment in the Bachelor of Business starting on 18 November 2019, which was cancelled on 23 April 2020 because the applicant notified his education provider that he was ceasing his studies;
e.He was not enrolled again until 5 June 2021 when he commenced the Certificate III in Commercial Cookery, which ‘Finished’ on 4 June 2022, however, on his own evidence at the hearing on 30 April 2024, the applicant did not successfully complete this course;
f.He had enrolments in the Certificate IV in Commercial Cookery commencing on 5 June 2021 and the Diploma of Hospitality Management commencing on 3 November 2022, however both enrolments were cancelled on 29 September 2022 due to non-commencement of studies;
g.He was not enrolled again until 1 March 2024, when he enrolled again in the Diploma of Business, however this this enrolment was cancelled on 26 March 2024 because of non-commencement of studies; and
h.He is now enrolled again in the Diploma of Business from 1 June 2024 to 13 September 2025, with the status of the enrolment being ‘Approved’.
The Tribunal again noted that this information may be relevant to the issue of whether the applicant is a genuine temporary applicant for entry and stay as a student for a number of reasons, because it indicates that:
a.At the time of the hearing, he had not attended or studied a course since at least 4 June 2022, when his enrolment in the Certificate III in Commercial Cookery ended. This will result in a period of almost two years without studying or attending a course prior to his next enrolment in the Diploma of Business commencing on 1 June 2024;
b.His enrolment in the Diploma of Business commencing on 1 March 2024 came over 20 months after his enrolment in the Certificate III in Commercial Cookery finished and over 17 months after his enrolments in the Certificate IV in Commercial Cookery and Diploma of Hospitality Management were cancelled. This may raise concerns about the applicant’s intentions in remaining in Australia, as well as raise concerns that he obtained his enrolment in the Diploma of Business primarily to meet the enrolment requirement and to obtain a successful Student visa outcome. His failure to commence the Diploma of Business in March 2024, as well as his lack of awareness that his CoE had been cancelled on 26 March 2024 may further strengthen the concern that he does not have a genuine interest in studying this course or obtaining the qualification;
c.He has enrolled in courses in unrelated fields, including in Business, Automotive studies and Commercial Cookery/Hospitality Management, and has once again enrolled in Business, raising concern that he is enrolling in a range of courses to maintain ongoing residence;
d.He held a Student visa from his arrival in Australia in February 2018 until 19 May 2021. Condition 8202 of his Student visa required that he maintain enrolment in a course of study, including to maintain enrolment in a course of study at the same Australian Qualifications Framework (AQF) level as the course of study for which the visa was granted, as well as maintain satisfactory attendance and course progress. He was not enrolled in a course from 23 April 2020 until 5 June 2021, which is a breach of the enrolment condition of over a year. His first enrolment in the Bachelor of Business was cancelled in July 2018, only a few months after arriving in Australia, and he then enrolled in vocational courses until November 2019. He was also enrolled in vocational courses after 23 April 2020; and
e.Since arriving in Australia, he has not successfully completed any course of study other than the Certificate III in Light Vehicle Mechanical Technology in November 2019. He has not successfully completed any courses in over four years, which may be relevant in assessing his intentions.
In response to these concerns the applicant stated that when he first came to Australia, he found the Bachelor of Business difficult to grasp as he had only a basic knowledge of English, which is why he enrolled in the Certificate III in Light Vehicle Mechanical Technology. He stated that he received a warning from the Department that he had enrolled in a course of study at a lower AQF level that that for which his visa had been granted, so he enrolled again in the Bachelor of Business in November 2019. The applicant stated that he was unable to attend his college because of the lockdowns associated with the college, after which his enrolment was cancelled and his visa expired. The Tribunal put to the applicant that his enrolment record indicates that his enrolment in the Bachelor of Business was cancelled on 23 April 2020 because ‘Student Notifies Cessation of Studies’, and questioned why it would state this. The applicant responded that he was not aware of the systems and may not have received an email or may have missed things. He stated that he was near Shepparton at the time and was unable to return to Melbourne for three to four weeks. The Tribunal questioned the applicant as to whether there was any reason why he did not obtain another enrolment after that until June 2021. He responded that the pandemic was going on and he thought he would wait for another visa or for his visa to expire. The Tribunal put to the applicant that his enrolment record indicates that he has two significant periods of non-enrolment, which may suggest that his intention is not to remain in Australia temporarily for the purpose of study. The applicant responded that he does genuinely want to complete the Diploma of Business so he can go back to his home country.

The applicant confirmed that he did not successfully complete the Certificate III in Commercial Cookery. He stated that he did nearly half of the course, then the Student visa was refused. When asked whether there were any reasons why he remained unenrolled after this, he stated that there were no other reasons and he was waiting for his visa to ‘be clear’.
When asked why he enrolled in the Diploma of Business on 1 March 2024 but did not commence the course, the applicant stated that he made a mistake. He stated that he was not aware of the course start date and it was cancelled before he started. The Tribunal put to him that at the hearing on 30 April 2024 he claimed he was enrolled in this course, despite nearly two months having passed since the course start date. The applicant responded that he made a mistake and would like an opportunity. The Tribunal put to the applicant that he has not been enrolled for two lengthy periods of time which add up to over 30 months. The applicant responded that there is no other reason for him to stay in Australia other than to complete his course. He stated that when he arrived in Australia, he had already made up his mind to return to India, but he wishes to complete his studies first.
As to his reasons for wishing to undertake the course of study in Australia rather than his home country, the applicant stated that several courses are available in India, but he would have to go to a big city to do them. He stated that he has the opportunity to obtain better qualifications in Australia, which has a better study system. He stated that he has completed some study in Australia, which he has learned a lot from.
As to his personal ties, the applicant stated that his family ties are just his mother and father. He stated that he has no family in Australia, only some friends. He stated that he is not in a relationship. He stated that his father has 6 acres of farming land, their family home and a shop which is rented out.
The applicant told the Tribunal that he was not working at the time of the hearing. He stated that he last worked about one month before the hearing as an Uber eats delivery driver. He stated that his salary doing this work was around $30,000 to $40,000 per year and that it would go up and down. The Tribunal put to him that in his s.359(2) response he indicated that he earned $50,000 a year as an Uber driver. The applicant responded that the figure he listed was approximate and was the maximum amount he earns. He stated that he has worked other places, such as in 2020 he worked in a cleaning department in the city. He also worked for two months in a warehouse. He stated that he is waiting to get his visa and for college to start, and that once his study starts he will start working again. The Tribunal put to the applicant that in his s.359(2) response he stated that he has been working as an Uber driver since 2018 and has been earning $50,000 a year, and his employment may act as an incentive to remain in Australia. The Tribunal put to the applicant that it appeared as though he continued to do this work even when he was not studying. The applicant responded that working here is not his reason for staying in Australia and he has not been working consistently. He stated that he keeps the work limitations imposed by his visa in mind and often his parents have to send him money.
The applicant confirmed that he has never worked in India, and he has no current offers of employment. He stated that he will probably receive some job offers when he returns to India because he has been in Australia.
The Tribunal asked the applicant again about his plans upon return to India. He stated that he has studied Cookery, so his father has decided to open a small business so the applicant can work there. He stated that it will be a food business or restaurant, which his father will fund. The Tribunal put to the applicant that the evidence he had provided regarding the value of the course of study to his future and pout to him that the evidence he had provided about the proposed business was vague and general, and that he had provided little information as to how his current enrolment in the Diploma of Business would assist him with employment or business opportunities in his home country, and there was little evidence to indicate he had undertaken any research into the opportunities his proposed qualification would provide. The applicant responded that the course will give him a lot of options. One is to start a business, another option is to get a job. When asked again about any research he had undertaken into employment opportunities, he stated that he knows there are a lot of opportunities, like hotel management jobs or he can manage his own business.
Findings regarding the factors in Ministerial Direction No.108
Having considered the applicant’s claims against all the factors specified in Direction 108 and taking into account all the relevant information, the Tribunal is not satisfied that the applicant meets the genuine temporary entrant criterion. This finding is based on my findings with respect to a number of factors of concern in Ministerial Direction No.108.
The applicant’s circumstances in his home country
I make no adverse findings regarding the applicant’s reasons for not undertaking the study in his home country. In his s.359(2) response, the applicant states that while similar courses are available in his home country, the same facilities are not available and the courses in India have a greater focus on theory. I also note the explanations provided in his GTE statement to the Department, even though I note the statement was prepared in relation to his previous enrolments in Commercial Cookery and Hospitality Management. I have considered these statements and the applicant’s evidence at the hearing and accept that the applicant has provided reasonable reasons for not undertaking the course of study in his home country.
I accept that the applicant’s family ties to India include the presence there of his parents. I accept that the applicant’s father owns farming land, their family home and a shop which is rented out. In his s.359(2) response the applicant claims that he speaks to his parents almost every day. He claims that he has no community ties to India. He has not returned to India since arriving in Australia in February 2018. The applicant confirmed at the hearing that he has never worked in India, and he has no current employment offers in India. He claims that upon return to India he will either look for a job or his father will assist him to open a restaurant, although he provided no convincing evidence of any research into employment opportunities in his home country, nor any evidence of any planning towards the opening of a business. I accept that the applicant has family and some community ties which would serve as an incentive for him to return to his home country. I find that he has no employment ties to India which would act as an incentive to return there and give little weight to his claims about having business plans, which appear to be at the idea stage only.
The applicant gave vague evidence about his current employment in Australia. In his s.359(2) response he declared that he has been working as an Uber driver since 2018 and been earning $50,000 a year, yet at the hearing he denied earning this much and claimed his work has been on and off. I find the applicant has provided insufficient information and supporting evidence regarding his economic circumstances, but on this occasion I make no adverse findings regarding this factor.
There is no evidence of any military service requirements or of any civil or political issues which would act as an incentive for the applicant to remain in Australia. There is no adverse evidence before the Tribunal regarding the applicant's circumstances in India, relative to others in that country, and I make no adverse findings in relation to these factors.
The applicant’s potential circumstances in Australia
The applicant first arrived in Australia on 22 February 2018, holding a Student visa which was granted for the purpose of completing a Bachelor of Business. According to both his own evidence, the applicant studied this course for only a few months before ceasing his studies and then enrolling in the Certificate III in Light Vehicle Mechanical Technology from 7 November 2018 to 4 November 2019. On the applicant’s own evidence, this is the only course of study that he has successfully completed in Australia. The applicant then had a second enrolment in the Bachelor of Business from 18 November 2019 to 1 July 2022, but this was cancelled on 23 April 2020. According to his PRISMS records, it was cancelled because the applicant notified his college that he was ceasing his studies. The Tribunal questioned the applicant about this at the hearing, but he gave a vague and unconvincing explanation for the cancellation of the enrolment. He claimed that he was unaware of the systems and may have missed communications from his college and was in Shepparton at the time and was unable to travel because of the COVID-19 pandemic.
The applicant then remained unenrolled until 5 June 2021, a period of over 13 months. When asked why he remained unenrolled for such a lengthy period of time, he responded that the pandemic was going on and he thought he would wait for another visa or for his visa to expire. I find the applicant’s explanation for remaining unenrolled for this length of time while holding a Student visa to be unsatisfactory and raises concerns about the applicant’s intentions in remaining in Australia.
On 5 June 2021 the applicant commenced the Certificate III in Commercial Cookery, but on his own evidence, he completed only half of this course before he stopped attending. His enrolment in this course finished on 4 June 2022 and his subsequent enrolments in the Certificate IV in Commercial Cookery and Diploma of Hospitality were cancelled on 29 September 2022 because of non-commencement of studies. The applicant then remained unenrolled again until 1 March 2024, when he had an enrolment in the Diploma of Business. I note that on 14 February 2024 the Tribunal had sent the applicant an invitation under s.359(2) of the Act to provide information about his enrolments. The applicant responded to this invitation on 29 February 2024. His response included providing the CoE for the Diploma of Business, which according to the document he provided to the Tribunal, was created on 28 February 2024. I therefore have concerns that the applicant’s enrolment in the Diploma of Business came after a period of over 17 months in which he was not enrolled in a course of study, and that his decision to obtain a CoE was prompted by the Tribunal’s request for information about his enrolments. This raises strong concerns that the applicant’s decision to enrol in his current course of study was motivated primarily by his desire to obtain a successful Student visa outcome, rather than because of a genuine interest in studying the course and obtaining a qualification which will be of value to his future.
Further concern about the applicant’s intentions is raised by his evidence at the hearing on 30 April 2024. At the hearing, the applicant gave evidence that he was enrolled in the Diploma of Business. He claimed that he had attended his college in person the week before the hearing. As noted above, the Tribunal put to the applicant that his enrolment in the Diploma of Business had been cancelled on 26 March 2024 because of non-commencement of studies. This raises further concern that the applicant’s enrolment in the Diploma of Business was obtained for the purpose of obtaining a successful Student visa outcome. I find the applicant’s evidence about commencing the course and visiting his college to be vague and not supported by his PRISMS record, and under the circumstances, I prefer to rely on the information contained in the applicant’s PRISMS record to his oral evidence about attending the course. I find that the applicant was unaware that his enrolment had been cancelled on 26 March 2024 and consider that he attempted to mislead the Tribunal by answering questions in an evasive manner and claiming that he had attended his college the week before the hearing. I also find that the applicant has provided insufficient explanation for why he remained unenrolled for two significant periods of time which add up to over 30 months. I consider that the length of time the applicant has remained in Australia and his enrolment history during this time raise concerns that the Student visa is being used to maintain ongoing residence and to circumvent the intentions of the migration programme.
In making these findings I have also had regard to the explanation the applicant provided to the Department in a statement in response to a s.57 natural justice letter, which set out concerns about his enrolment history. The applicant claimed that when he first arrived in Australia, the level of education was higher than in his home country and that he had difficulty understanding topics. He claims that after completing the Certificate III in Light Vehicle Mechanical Technology he missed his enrolments in his other Automotive studies courses, and then decided to return to studying the Bachelor of Business, but he could not focus or concentrate on his education and none of the units were interesting to him. He claims that this was devastating and troubled his mental health, but he has provided no evidence in support of any diagnosis or treatment for any mental health conditions. He claimed that his studies were also affected by the COVID-19 pandemic, which also put him in a state of depression and anxiety. He claims that he realised he had a passion for cookery, hence his enrolment in the Certificate III in Commercial Cookery and the associated package courses. While I have considered these explanations, the applicant has provided no supporting evidence to support these claims, and I also find they offer insufficient explanation to address the very significant issues set out above with the applicant’s enrolment history.
There is no evidence that the applicant has any family ties in Australia. I accept there is no evidence of any family ties which would present as a strong incentive for the applicant to remain in Australia, and I take this into account in assessing his circumstances as a whole.
As to his employment ties to Australia, the applicant declared in his s.359(2) response that he has worked as an Uber driver since 2018 and has an annual salary of $50,000. At the hearing, the applicant claimed that he had not worked in this role for one month and that his salary was usually around $30,000 to $40,000 per year, and that he had not worked consistently in this job. The applicant has not provided any evidence of his employment or salary, such as payslips or taxation records and I have some concerns about the potential inconsistency between the applicant’s evidence at the hearing and his declaration in his s.35((2) response. However, given the applicant gave evidence that he had not worked as an Uber driver for one month prior to the hearing, I am prepared to give the applicant the benefit of the doubt and make no adverse findings regarding his employment ties to Australia on this occasion.
I accept the applicant’s evidence that he is not in a relationship and find there is no evidence to indicate he has entered a relationship of concern for a successful Student visa outcome.
Given the length of time the applicant has remained in Australia, I make no adverse findings regarding his knowledge of living in Australia. At the hearing on 30 March 2024, the applicant claimed that he was enrolled in the Diploma of Business at Barkly, and he was unaware that his enrolment which commenced on 1 March 2024 had been cancelled on 26 March 2024 because of non-commencement of studies. The applicant claimed that he had attended the college the week before, but after the Tribunal explained his enrolment history in his PRISMS record, he claimed that he had talked to his college, though not within the past week. He claimed that he did not receive an email from his college about cancellation of the course. He also claimed that he was not aware of the course start date. Overall, I find the applicant was untruthful in his evidence about his communication with his education provider and responded to the Tribunal’s questions in an evasive manner. This raises concerns about the applicant’s knowledge of his education provider and his course of study. I note that in his s.359(2) response, the applicant claims that he visited his college and met with staff prior to making the decision to enrol in the Diploma of Business, but I give little weight to this given the evidence that the applicant was unaware that his enrolment was cancelled and my concerns regarding his communication with his education provider. I find the applicant has not demonstrated a realistic level of knowledge about his education provider or research into his proposed course of study.
Value of the course to the applicant’s future
The applicant has not successfully completed any courses of study to date in Australia, other than the Certificate III in Light Vehicle Mechanical Technology. The applicant studied the Certificate III in Commercial Cookery, but on his own evidence, he only studied about half the course. The applicant is now enrolled in a Diploma of Business and claims that after he completes this course he will return to India, where he will either find employment or his father will assist him to open a restaurant business. The applicant has no qualifications from India other than completing high school there.
In his s.359(2) response, the applicant claims that after he completes the Diploma of Business he will become a business development manager. He claims the qualification is required to run a successful business. He claims that he intends to start his own business in India after gaining some work experience and that he will earn good money. I note also the applicant’s GTE statement to the Department, which was prepared in relation to his previous enrolments in Commercial Cookery and Hospitality Management, and note that he claimed that he would work for a few years to gain more experience and his aim is to then have his own chain of restaurants.
Overall, I found the applicant’s evidence regarding the value of the proposed course of study to his future to be of a general nature, demonstrating little or no research into the potential employment opportunities he could gain in his home country with the proposed qualification. I also found the applicant’s evidence regarding his intention to start a business with his father’s help to be of a vague and general nature, demonstrating little evidence that he has any genuine intention to start such a business. For instance, the applicant stated that the qualification from the Diploma of Business will assist him to start work in the business sector and will give him better opportunities to find a better job. He later claimed that it could assist him to find jobs such as in hotel management. He also claimed that he studied Cookery briefly and the qualification can assist him to open his own restaurant with funding from his father. I give little weight to this claim given the applicant did not complete the Certificate III in Commercial Cookery and has no other formal qualifications in Cookery.
While I have taken into account that the applicant only holds a Certificate III in Light Vehicle Mechanical Technology, and the Diploma of Business is a vocational course at a slightly higher level, given the applicant’s vague and general evidence and the lack of any convincing evidence of his research into potential roles in his home country, I am unable to find that the proposed course of study will assist the applicant to obtain employment or improve his employment prospects in his home country, nor that it would improve his remuneration opportunities. I also note that the applicant arrived in Australia to undertake a Bachelor of Business but discontinued this course within a few months. On his own evidence, he enrolled in this course again in November 2019 following a warning from the Department. The applicant claims that he struggled to study at the Bachelor degree level upon first arriving in Australia, but gave a vague and unconvincing explanation for why he ceased studying the Bachelor of Business in April 2020 and why he remained unenrolled for over a year after that before deciding to enrol in another vocational course. However, given the applicant only holds a Certificate III qualification to date, I don’t make any adverse findings regarding the consistency of his current course of study with his current level of education. Overall, on the evidence before the Tribunal, I fins that the course of study will provide only little value to the applicant’s future.
The applicant’s immigration history

The applicant’s immigration history refers to both his visa and travel history. As noted above, the applicant arrived in Australia in February 2018, holding a Student visa for the purpose of completing a Bachelor of Business. Since arriving in Australia, the applicant has only successfully completed one course of study, the Certificate III in Light Vehicle Mechanical Technology, which he completed in November 2019. The applicant has also remained unenrolled for two significant periods of time, the first one being from 23 April 2020 to 5 June 2021, a period of over 13 months while he was holding a Student visa. He was also unenrolled from 29 September 2022 to 1 March 2024, a period of over 17 months. As noted above, the applicant obtained a CoE for the Diploma of Business commencing on 1 March 2024 following a s.359(2) invitation from the Tribunal, but failed to commence the course and was unaware that his enrolment had been cancelled on 26 March 2024 until this was raised by the Tribunal at the hearing.
The applicant now proposes remaining in Australia at least until June 2025 to complete the Diploma of Business, which will bring his time in Australia to over 7 years. This is a significant amount of time for an applicant to remain in Australia on temporary Student visas and associated Bridging visas having regard to his enrolment and study record to date.
The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. Given the amount of time the applicant has now spent in Australia, and his enrolment history as set out in his oral evidence and his PRISMS record, I have concerns that a further Student visa would be used primarily to maintain ongoing residence. I consider that the applicant arrived in Australia in 2018 to obtain a Bachelor degree qualification, but after April 2020 has studied only at the vocational level, has completed only one relatively short vocational course at the Certificate III level, has enrolled in courses in unrelated fields (including Business, Automotive studies, Commercial Cookery and now again in Business) and has significant gaps in his enrolments. The Tribunal gives weight to the applicant’s circumstances which indicate that the Student visa is intended primarily for maintaining residence in Australia.
As to whether the applicant has complied with the conditions of his previous visas to Australia, I note his non-enrolment from 23 April 2020 to 5 June 2021, while he was holding a Student visa. This was a breach of the enrolment condition (Condition 8202) of his Student visa for a period of over 13 months, which I consider to be a significant length of time. While I have taken into account the COVID-19 pandemic at the time, the applicant did not offer convincing or compelling reasons for this breach, nor did he provide convincing evidence of any circumstances that were beyond his control. I note that I have considered the explanation the applicant provided to the Department in response to a s.57 natural justice letter, but find these explanations to be insufficient to explain a breach over such a significant length of time. I find that the applicant has previously not complied with the enrolment condition of his Student visa and that there is insufficient evidence to indicate that this was because of circumstances beyond his control.
I also note the applicant’s evidence that he was warned by the Department about his enrolment in a course of study which was at a lower level that the course for which his Student visa had been granted. I note, however, that the applicant’s Student visa was not cancelled, and I make no adverse findings regarding this factor.
I confirm that I do not make adverse findings regarding the remaining factors relevant to the applicant’s immigration history. There is no evidence to indicate that the applicant has any other visa applications which are yet to be determined. There is no evidence that he has had any other visa applications to Australia refused. There is no evidence of any adverse visa visa history to other countries. However, for the reasons provided above, I have concerns regarding whether the Student visa may be used primarily for maintaining ongoing residence (including he has not successfully completed any qualifications since November 2019) and the applicant’s previous compliance with the enrolment condition of his Student visa.
Any other relevant matters and conclusion regarding findings
The Tribunal has also given regard to whether there are any other relevant matters and finds there are no other relevant matters to the assessment of the applicant's intentions to stay in Australia temporarily in addition to the matters covered above. The Tribunal has considered all the information provided by the applicant in support of the application.
In weighing up the applicant’s circumstances, I note concerns raised in relation to several factors, including factors relating to the applicant’s potential circumstances in Australia and his immigration history, as well as my finding that the proposed course of study will be of only little value to his future.
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.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Frank Russo
Member

Attachment – Direction No.108
DIRECTION NUMBER 108 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, CLARE O’NEIL, Minister for Home Affairs and Minister for Cyber Security, give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 21 March 2024
Clare O’Neil
Minister for Home Affairs and Minister for Cyber Security
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 - Preliminary
Name of Direction
This Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 108.
Commencement
This Direction commences on 23 March 2024.
Revocation
Direction No. 69, given under section 499 of the Act, is revoked.
Interpretation
Act means the Migration Act 1958.
Finally determined has the same meaning as is set out in subsections 5(9) and (9A) of the Act.
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 against the genuine temporary entrant criterion for Student visa applications and Student Guardian visa applications (as applicable).
This Direction also applies to members of the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; who review the decisions of primary decision-makers in relation to a Student visa or Student Guardian visa application.
This Direction applies in relation to Student visa applications and Student Guardian visa applications made before 23 March 2024 but not finally determined on that date, including such visa applications that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for a Student visa and seek to satisfy the primary or secondary criteria, or an application for a Student Guardian visa and seek to satisfy the primary criteria.
Note: Direction No. 106 applies in relation to Subclass 500 (Student) visa applications and Student Guardian visa applications made on or after 23 March 2024, including visa applications made on or after that date that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.
Preamble
The Australian Government operates a student visa program 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 program 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 – 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 or Student Guardian 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 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.
iii. b. Previous travels to Australia or other countries, including:
iv. 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;
v. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
vi. 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
vii. 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 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.

[2024] AATA 3065

9 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction