Kumar (Migration)

Kumar (Migration) [2022] AATA 3161 (14 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ankit Kumar
REPRESENTATIVE:  Mr Harpal Bajwa (MARN: 0955800)
CASE NUMBER:  2115295
HOME AFFAIRS REFERENCE(S):          BCC2021/36477
MEMBER:Peter Booth
DATE:14 September 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 14 September 2022 at 11:03am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study and work history – non-completion of courses and enrolments at lower levels in different subject areas – job offer in home country subject to completion of proposed course – social, family and financial ties to home country – vague evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
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 26 October 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 11 March 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 applicant was not a genuine temporary entrant.
The applicant appeared before the Tribunal on 23 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was assisted in relation to the review.
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 follows.
The applicant had read the delegate’s decision dated 26 October 2021 refusing his application for a student visa.
The applicant understood that the issue for determination was whether he was a genuine temporary entrant.
The applicant was asked to describe his current enrolment including commencement and completion dates. The applicant said, “Certificate IV Commercial Cookery start 10 January 2022 and will finish 14 August 2022, after that will do Diploma Hospitality Management start on 10 October and finish 5 March 2023”. When asked whether he had any other enrolment he said “no”. Tribunal asked why he had enrolled in a Graduate Diploma in Management (learning). He said “I cancelled it”. He was asked when he cancelled the course. He said, “after Certificate III in October 2021”.
The applicant had produced confirmations of enrolment to the Tribunal in respect of a Certificate IV in Commercial Cooking which commenced on 10 January 2022 and was due to be completed on 14 August 2022 and in respect of a Diploma Hospitality Management due to commence on 10 October 2022 and be completed on 5 March 2023. The Tribunal accepts that he is enrolled in the courses described in the confirmations of enrolment.
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).
In summary the information provided by the applicant was as follows.
The applicant completed secondary education in India in 2017. He did not disclose any Indian employment history.
The applicant arrived in Australia on 1 February 2018 and since that time has not returned to India.
The application for the student visa in question was made on 11 March 2021. The applicant stated his visa history in Australia to be as follows: he held a “student Visa (500)” between January 2018 and March 2021.
The applicant stated his study history in Australia to be as follows: he enrolled in a Bachelor of Business course in March 2018 but did not complete it, he enrolled in a diploma of information technology in December 2018 but did not complete it, he completed a Certificate III in Cookery between February 2020 in September 2021 and was “studying now” a Certificate IV in Cookery which commenced in January 2022 and was expected to be completed in June 2022 and he had a “future enrolment” in a “Diploma in Cooking” due to commence in August 2022 and be completed in March 2023..
The applicant stated that he was employed as a “baker” between April 2018 and March 2020 and as a “chef” from November 2021 to date. He did not disclose his current income but did state that he derived an annual salary of $29,000 from his employment as a baker.
The applicant stated that his father, mother and sister reside in India.
The applicant stated that he owned assets in India comprising a “plot”.
As to his future employment plans the applicant stated, “at the completion of my study I plan to go back to India and work with some of the best restaurants or hotels in India. Because I always had a hobby of cooking and in future I look forward to work as a chef into a commercial kitchen”.
As to his expected future remuneration the applicant stated, “60 to 80 K”.
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.
The applicant was asked to state his employment history in India. He said, “didn’t work”.
The applicant confirmed that he arrived in Australia on 1 February 2018 as the holder of a student Visa. When asked to state the type of visa he said, “subclass 500”.
The tribunal informed the applicant that a search of his study history had been undertaken and a copy had been sent to him prior to the hearing. He was asked whether he had read the search. He said “yes”.
The Tribunal informed the applicant that it was required to give him clear particulars of any information that it considers would be the reason or a part of the reason for affirming the decision that is under review.
He was informed that the Tribunal was also required to ensure as far as is reasonably practicable that he understood why the information is relevant to the review and the consequences of the information being relied on in affirming the decision that is under review.
The applicant was informed that on 12 May 2022 the Tribunal accessed the applicant’s record on the Provider Registration and International Student Management System register (PRISMS). The purpose of this search was to ascertain whether the applicant was enrolled in a registered course of study, as required by cl 500.211(a), In summary The PRISMS search showed that the applicant has has an extremely poor study history
He was informed that the Tribunal would go throught the search in in detail, in summary the particulars of the information were as follows. First that he had only completed three courses since arriving in Australia. Secondly, he had enrolled in numerous courses which he had not completed. They were as follows: the applicant enrolled in a Bachelor of Business but did not complete it, he then enrolled in a Diploma of Information Technology Networking but did not complete it , then he enrolled in a Bachelor of Information Technology systems but did not complete it,he enrolled in a Diploma of Hospitality Management but did not complete it and he had enrolled in a Graduate Diploma of Management (Learning) but did not complete it.
Lastly, he was informed that he had changed the direction of his study from business, then to information technology courses, then commercial cookery andalso management. The applicant was informed that this information may suggest that he was not a genuine temporary entrant or not a genuine student.
The Tribunal stressed that it had not come to a view about this but would ask the applicant some more detail questions about this information.
However, he was invited to comment on or respond to the information. The applicant was informed that before he did so he may seek additional time to comment on or respond to the information.
The applicant said “can explain it now, in India my father wanted me to have a Bachelor’s Degree, so I was 18 years old, I chose Bachelor of Business, but when enrolled did not good, wanted to do something in art and father was a doctor, pressure to do this, I tried to do it, and only pass three or four units, could not complete the course, family did not allow me to change, I change to IT, I tried to say I want to do something related to our hospitality, but I opted for IT, finally I gave up, I work in bakery for two years, I want to work in hospitality, I opted for bakery, my mentor said do cookery get both, learn about hospitality, took course in cookery, I love it, it is my passion, I was offered a job by father friend, he said job offer letter I accepted it”.
The Tribunal observed that the applicant enrolled in a Bachelor of Business Course on 13 March 2018 but the enrolment was cancelled. The applicant agreed. He was asked when he stopped studying the course. He said, “did for one year, passed 3 of 6 units”. When the question was repeated, he said “in January 2019”. He was asked whether he abandoned the course or was excluded from it. He said, “I cancelled it, I asked them to cancel, so I went to other course”.
The Tribunal observed that he next enrolled in a Diploma of Information Technology Networking on 12 November 2018. The applicant agreed. He was asked when he stopped studying that cause. He replied “December 2019”. He was asked whether he abandoned the course or was excluded from it. He said, “I asked them to cancel”.
He was asked whether he enrolled in the same course again in August 2019. He said “no”. He was asked whether he completed the course. He said “no”.
The Tribunal observed that he next enrolled in a Bachelor of Information Technology and systems in February 2020. The applicant agreed. He was asked when he stopped studying that course. He said, “I did not study at all”.
The Tribunal observed he next enrolled in a Certificate III in Commercial Cookery in February 2020 which he had completed. The applicant agreed. He was asked when he finished that course. He said, “October 2021”.
He was asked when he started the Certificate IV Commercial Cookery course. He said “April 21, next intake was January’s, it was extended I took that”.
The applicant was asked what he did between October 2021 and January 2022. He replied, “there was a gap, I did not study”.
The Tribunal observed that his next student enrolment was in a Diploma in Hospitality Management due to start on 10 January 2022. He replied, “I did not start because doing Certificate IV had to extend”. The applicant was asked whether he has now completed the Certificate IV in Commercial Cookery course. He said, “not yet will finish in October 2022”. He was asked whether this was due to pandemic extension. He said “yes”.
The Tribunal asked the applicant why his enrolment in the graduate diploma of management course had been cancelled. He said, “I want to go back to India”. He was asked why he enrolled in such a course. He said, “initially I wanted to do a full course, if I had time, I cancelled because I wanted to go back to India”. The Tribunal asked the applicant why he enrolled in the Graduate Diploma of Management if his interest was in commercial cookery. He said, “at times I thought would be good for business skills, but I got offer for job”.
He was asked whether the job offer was in writing. He said “yes”. The applicant had provided the letter dated 12 May 2022 from Shivay Group. He was asked to explain the business of the potential employer. He said, “a hotel with restaurant”.
He was asked whether he had any family in Australia. He said, “no”.
The applicant was asked to state his career intentions when he returns to India. He said, “I will get a job and support my family”. When asked to explain his career plan. He said, “I want to work as executive chef as future plan, and one day maybe start own business”.
He was asked whether he had any assets in India. He said, “I do have”. The applicant was asked whether the asset was in his own name. He said, “in my name”. When asked to explain the nature of the asset he said, “a plot and agricultural field for farming”. He was invited to provide documentary corroboration.
The applicant declined an opportunity to add anything further to his application for review.
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. The Tribunal makes a number of observations in relation to those documents. A certificate dated 30 July 2021 confirms that the applicant completed a Certificate III in Commercial Cookery. The letter dated 12 May 2022 from Shivay group offers the applicant employment as a chef in India from 14 April 2023 subject to completion of the Diploma of Hospitality Management. The commencing salary is identified. A document dated 3 April 2022 confirms the applicant owns real property in India.
Prior to the hearing the applicant provided a statement in support of his application for review. The statement is signed but 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. The Tribunal makes a number of observations in relation to the statement. The applicant states an intention to seek employment in the hospitality sector in India and also refers to this the offer of employment discussed above. He also states that his sister is currently residing in Australia and studying. There is no mention of his poor study history or in the change in direction and level of his studies whilst in Australia.
CONCLUSIONS
The evidence of the applicant was often unresponsive to the question, vague, imprecise or discursive. Often the evidence of the applicant contained elements of all these issues. The Tribunal has rehearsed the evidence as a representative narrative, given in real time, which was often quite disjointed. The Tribunal’s rehearsal of the evidence is not intended to be a transcript of the evidence, rather the best recording as it transpired. It does give and is intended to give an appreciation of the nature and quality of the applicant’s evidence.
Without diminishing the applicant’s evidence, it can be summarised as follows.
The applicant completed secondary education in India in 2018. He had in Australia on 1 February 2018 and has not returned to India. At the time of arrival, he held a subclass 500 student Visa valid from January 2018 until March 2021. The application for the student visa in question was made on 11 March 2021. The applicant described his study history as follows: he enrolled in a Bachelor of Business Course in March 2018 but did not complete it, he enrolled in a Diploma of Information Technology in December 2018 but did not complete it, he completed a Certificate III in Cookery between February 2020 in September 2021. At the time of the hearing was studying a Certificate IV in Cookery which commenced in January 2022 and was expected to be completed on 14 August 2022 and has a further enrolment in a Diploma of Hospitality Management due to commence in August 2022 and be completed in March 2023.
At the time of the hearing, he had completed one course of study, a Certificate III in Commercial Cooking in September 2021. The applicant stated that he expected to complete the Certificate IV in Commercial Cooking course on 14 August 2022 but has not provided any proof of successful completion of the course.
Whilst in Australia the applicant has changed the level of his studies from bachelors’ level to vocational level courses and has also changed the direction of his study from business, then to information technology, then management and now cooking. The applicant has an offer of employment as a chef in India contingent upon completing the Diploma of Hospitality Management.
The applicant has not explained to the Tribunal’s satisfaction why he has changed the level and direction of his study in Australia, while he has not returned to India since arriving in 2018, but he did not return to India permanently when his student visa application was refused, why he has only completed one or perhaps two courses of study whilst in Australia, details of a career path, and why his existing skills and experience obtained in Australia are insufficient to enable him to embark on his vague career path.
In considering whether the applicant has met the genuine temporary entry criterion, the Tribunal had regard to the following factors consistent with cl 500.212 and the Ministerial 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 his home country. The applicant is unmarried and is from India. The applicant has provided evidence of social, direct family and financial ties to his home country or other economic incentives to return. The Tribunal finds that he has been able to demonstrate ties to act as an incentive to return to his home country at the completion of the actual or proposed study. Whilst the Tribunal accepts that the applicant may have family ties to India, 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 India.
The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 1 February 2018 as a holder of subclass 500 student visa valid to March 2021. The proposed study would extend the applicant’s stay until at least March 2023. 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 Tribunals view this is not the conduct of a genuine temporary student. On balance it is consistent with the applicant having decided to extend his stay in Australia by utilising the student visa programme.
The Tribunal does not place substantial weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. There are several reasons for this. First the applicant has given extremely vague evidence about his future career plans. Secondly whilst the applicant has an offer of employment contingent upon completion of the Diploma of Hospitality Management there exist reasonable doubt having regard to his study history as to whether he will complete that course. Lastly the applicant has not explained to the Tribunal satisfaction why his existing skills and experience obtained in Australia is sufficient to enable him to embark on his vague career plan.
The Tribunal has considered the applicant’s study history since arrival and notes that commence studying in 2018 and has only provided proof of completion of one course since that time.
The Tribunal observes the applicant’s current study pathway is inconsistent with his plans when he entered Australia.
On balance, the Tribunal is not satisfied that the applicant has established that study will provide him with significant benefits in his proposed career plan, considering the cost of the study and the fact that the applicant already has qualifications in commercial cookery and experience as a chef obtained in Australia. Accordingly, the Tribunal is not satisfied that the proposed additional study has a reasonable prospect of providing significant value to his 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 his home country relative to his potential circumstances in Australia. Having regard to the disparity in economic circumstances between India and Australia, the Tribunal is not satisfied that the applicant has significant incentive to return to India. The applicant has been unable to demonstrate substantial ties or personal assets in her home country which diminishes his incentive to return to India.
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 hisproposed 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 his proposed course to her future.
The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 1 February 2018 the applicant has spent more than four and a half years in Australia and has not returned to India, he has stable employment in Australia, his sister resides in Australia, and he intends to reside in Australia if permitted until at least March 2023 all of which indicates that he does not appear to have strong personal ties to India. On balance, the Tribunal assesses the applicant’s incentive to return to India to be poor.
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 him to achieve that goal. The applicant was granted a subclass 500 student visa which would have facilitated the applicant’s study in his desired field. The applicant lodged this application sometime proximate to the expiry of the visa. The applicant has only completed one course of study in Australia and has change the level and direction of his study. 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 his 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 India; political or civil unrest circumstances in India; remuneration the applicant could expect to receive in India or a third country compared with Australia; circumstances in India relative to Australia or any other country; and the applicant’s circumstances in India 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.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
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;
d.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

[2022] AATA 3161

14 September 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness