Kumar (Migration)

Kumar (Migration) [2019] AATA 5278 (7 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Kuldeep Kumar
CASE NUMBER:  1714475
HOME AFFAIRS REFERENCE(S):          BCC2017/988466
MEMBER:Genevieve Cleary
DATE:7 August 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 07 August 2019 at 8:58pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – circumstances in home country – change in study direction – vague future plans – academic progress – employment in Australia – visa and travel history – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 21 June 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
2.The applicant applied for the visa on 13 March 2017. 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.
3.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 (the Regulations) because the delegate was not satisfied that the applicant intended to genuinely stay temporarily in Australia.
4.The applicant appeared before the Tribunal on 23 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
5.The applicant was assisted in relation to the review by their registered migration agent.
6.Prior to the hearing, the Tribunal received from the applicant:
·     The Decision of the delegate of the Department;
·     A letter from Migration Agent, Ultrafast Migrations Australia dated 7 March 2019 including a response to specific criteria referred to in the delegate’s decision (‘written submissions’);
·     The applicant’s Response to the Request for Student Visa Information;
·     Payslips from employers;
·     Certificate III in Commercial Cookery, Stanley College dated 27 February 2017;
·     Certificate IV in Commercial Cookery, Stanley College, dated 19 May 2017;
·     Proof of health cover;
·     Document entitled “Agricultural Property” which shows that his family have leases over 2 plots of agricultural land;
·     Document entitled “Agricultural Income Certificate,” which shows that the applicant’s family earn an income from a farm, and
·     Bachelor of Commerce, University of Karachi, dated 31 December 2011 and other academic papers and certificates.
7.The Tribunal has also had regard to the Department file.
8.For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE
9.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’s circumstances in India
The applicant’s mother and father live in India, as do his 1 brother and 4 sisters. His brother, 34, lives with his parents. His sisters are married and do not live with his parents. The oldest is 42 and the youngest is approximately 33. The applicant is 32 years old.
The applicant’s parents are currently not working; his father had a heart operation earlier this year and is recuperating and his mother does not work. As is referred to later in these reasons, his mother has been ill, needing surgery in 2017. The applicant’s brother works on the family farm, as does his father when he is well. The farm produces wheat and rice which supports the family. They also have buffalo and cows. His father also has investment property from which he receives income. The family farm is in 2 plots and is not large.
Before he came to Australia the applicant lived with his mother and father and assisted on the farm, performing general farming jobs. While he explained that the plots of land were not large, he said that the farm earned the family good money. The applicant provided certificates showing the income of the farm. The Tribunal is satisfied that the applicant’s family’s economic position in India is not such that it provides a significant incentive not to return, and the Tribunal places a little weight in his favour on that factor, however this must be seen in light of later findings the Tribunal makes about the applicant’s employment prospects in India and as compared to his employment in Australia, which detract weight from this factor.
While the applicant has ties to India, in family, and his parents have been ill, and, he told the Tribunal, are getting old, the applicant did not speak of any commitment to his family other than that they were loving and he wanted to return to them. The Tribunal has placed a little weight in his favour on this factor.
The applicant is not subject to military service, and there are no economic, political or civil reasons why the applicant cannot return to India, and the Tribunal gives this factor some weight in the applicant’s favour.
The written submissions provided by the applicant prior to the hearing say that once in Australia the applicant had the opportunity of following his passion, being cooking, awakened because he had the opportunity of working in a restaurant here. While it may be that a person does not realise the true extent of a passion prior to becoming immersed in the industry, as the applicant appears to have done some time after he arrived in Australia, the Tribunal expects that someone with a passion or dream will have had some idea that that was at least an interest before becoming immersed in the industry, and there would be some evidence of his interest while in his home country and before he came to Australia. There is no evidence before the Tribunal to suggest that the applicant engaged in, or even knew he had, that passion before coming to Australia. The consequences of this absence are expressed later in these reasons.
The applicant’s education
After completing high school, the applicant completed a Bachelor of Commerce in India at a university close to his home. He thought that his course in India cost the equivalent of approximately $30-40,000 AUD and therefore relatively similar to the cost of a similar education in Australia. He then found it difficult to find employment and worked on the family farm. Otherwise, he was looking for any business to work in or commence, or bank jobs.
He said, in the written submissions that he had a lot of family and social pressure to complete a ‘prestigious’ international course. In fact, the submissions say that the pressure could be “excruciating” on young men such as the applicant, and that he had struggled throughout his academic life studying subjects that in fact did not interest him because of that pressure. He also said in those submissions that he thought, given his completion of the Bachelor of Commerce, it would be interesting to study the International Business course. This latter statement seems at odds with the statement in those submissions that he had in fact studied subjects in the past that did not interest him because of the pressure from his parents.
The applicant told the Tribunal at the hearing that his parents urged him to do something for himself and the applicant decided to study in Australia so that he could increase the likelihood of employment, after consulting with friends, and an agent. Again, there appear to be inconsistencies in the applicant’s evidence on this subject: that the applicant’s parents had been putting pressure on him to complete a particular type of degree such that his parents were at once urging him to do something for himself, but also pressuring him regarding the prestigious international degree.
The initial decision to study in Australia was made after research and comparisons of the education standards between his country and Australia. In addition, he said the standards in terms of facilities, study environment, group pressure and quality of qualification level is higher in Australia, and provides a more practical education, with ongoing assessment rather than one exam at the end, as they have in India. The Tribunal accepts that Australia was a reasonable choice for those reasons, however given the inconsistencies identified above, the Tribunal is not satisfied that the applicant had a genuine incentive to study in Australia, and therefore that he had a genuine intention to study when he came to Australia, and the Tribunal places significant weight on this factor in favour of the delegate’s decision not to grant the visa being affirmed.
The applicant arrived in Australia in November 2014 and commenced an English course in January 2015. He came to study English and then international business and was granted a TU573 visa for the purposes of studying a higher education degree, being a Master of International Business. He did not commence the Masters degree - his Confirmation of Enrolment was conditional on his reaching a particular level of English, and he did not reach that level. He therefore could not enrol in the Masters course and his enrolment was cancelled. He told the Tribunal at the hearing that he was confused about what to do, and a friend suggested he go to Stanley College and they referred him to a migration agent. He had a 5.5 grade in English and the agent asked him if he was working. As he was working in a restaurant, the agent, he told the Tribunal at the hearing, suggested he should do a cookery course, followed by a Bachelor course. He said he wanted to be like the chef at the restaurant, so he thought the suggestion was a good idea. He spoke to his parents and they suggested he do what made him comfortable.
His parents suggesting this also appears to be at odds with what the applicant told the Tribunal about the pressure he felt from them, as described above, in the written submissions. In addition, after reporting in the written submissions his struggles to secure average scores in courses that did not invigorate him in the past, the submissions say that in Australia he felt a freedom to change direction and “to pursue something that actually interests him.” However, as the submissions acknowledge, the applicant, after having completed cookery and a hospitality course, is, once again, studying a course similar to his Bachelor of Commerce.
The applicant’s change in direction
The applicant told the Tribunal that he was unable to commence the Masters course because he had not achieved the English qualification required. The applicant did not speak of, at the hearing, any motivation to break away from the pressure of his family’s expectations, or to engage any “passion” in cooking. It was, as has been set out above, his oral evidence that it was the migration agent that suggested he complete a cookery course because he was already working in a restaurant.
At no time in the hearing before the Tribunal did the applicant speak of any passion for cooking, what ignited that passion, and what he had previously done, if anything, to engage with that passion. It was the written submissions which spoke of a “passion.” The Tribunal expects that someone with a passion for something would take every opportunity to speak of that thing and their passion for it.
Further, the applicant did not return home when his Masters enrolment was cancelled because, he told the Tribunal at the hearing, once he had started studying here, he realised he liked the environment, and thought that he should stay, obtain a qualification and then leave. He felt that any course would have international value to him, meaning that an Australian qualification would be have more value to him than and Indian qualification. He clarified that this meant that his friends told him that an overseas degree would assist in finding a job.
The Tribunal doubts that the applicant has any real passion for cooking, given it was the migration agent which suggested he complete the course, and that, other than an expression in his written submissions, he did not speak of any past or ongoing ‘passion’ at the hearing. It appears more likely that, unable to commence the Masters course because of his English, the applicant has started a lower level course in order to work to a course commensurate with the expectations of his family – a ‘prestigious’ international qualification. In addition, because of the inconsistencies identified in the applicant’s evidence, the Tribunal cannot be satisfied as to what the applicant’s motivation for study actually is. This weighs against a finding that the applicant is a genuine student.
The written submissions state that he chose to include in his hospitality studies the Bachelor of Business so he would not be limited in his qualification, preparing him for life, and so that he could have “Options to pursue Hospitality/Business career back in India,” and “Setting up foundation and pathway towards managing own business in Hospitality industry whether it is in a Restaurant or hotel/motel business.” The written submissions do refer to the applicant’s ‘dream’ to open a restaurant, and, towards the completion of the hearing, the applicant told the Tribunal that he would like to be able to complete his current course so that he can fulfil that ‘dream’ of opening a restaurant. The applicant did not speak at all in the hearing of any other prospective career in hospitality, and the mention of a hotel or motel business in the written submissions is the only reference the Tribunal has that he has any intentions to pursue a career in that direction. As has been suggested above, if he applicant truly had a passion or strong interest in the hospitality industry it would be expected that he would have described that in detail at the hearing. As is described below, the applicant only explained his plans in a very limited manner.
While the Tribunal accepts that a course in business may assist in running a restaurant, from the various reasons that applicant gave to the Tribunal for commencing studies in commercial cookery, and the lack of any significant or passionate reference to opening a restaurant or working in hospitality, the Tribunal questions the true motivation of the applicant in moving from commerce, to international business, to cookery and hospitality, and back to business. This is particularly questionable when, elsewhere in the written submissions and in the hearing, the applicant said that it is his “dream” to open a restaurant, a comment inconsistent with his statement that he wanted to have “options.” The applicant has said nothing else about running a hotel or motel business.
The Tribunal accepts that people may change direction in their studies as they mature, and international students may face, and struggle with, an increase in standards when they study in Australia, however, the Tribunal is not satisfied that this applicant has had a reasonable change in direction. Given the circuitous route of his studies, his admission to the Tribunal that he did not go home because he liked the atmosphere here and decided it would be good to get a qualification in something from Australia, and the conflicting information about the pressure from his family and what he actually intends to do when he returns to India, as is expressed below, the Tribunal is not satisfied that the applicant genuinely wishes to have a qualification in hospitality.
That does not, of itself, mean that he is not a genuine student. The Tribunal accepts that any course of study, genuinely being attempted, may satisfy criteria to be considered. However, for reasons set out below, the Tribunal is not satisfied that the applicant is a genuine student intending to remain temporarily in Australia.
The applicant’s father was to pay for the Masters course, but he and his father shared the cost of the cookery course; as the applicant was now working, he could contribute to the cost. The applicant enrolled in the Certificates III and IV in Commercial Cookery at Stanley College in 2016. In the decision record, the delegate notes that the original education institution at which the applicant was enrolled, Curtin University of Technology, informed the Department that the applicant had insisted that his course be downgraded. As Curtin refused, the applicant’s enrolment was cancelled. The applicant did not inform the Department of the cancellation and enrolled in a lower level course.
The applicant’s academic progress
The applicant has successfully completed a Certificate III and IV in Cookery. In March 2017 the applicant applied for a further Higher Education visa. He commenced a Diploma in Hospitality and Management in July 2017. Although the Bachelor of Business may be considered higher education, that course which he was to commence, and did in fact commence, in March 2018, was at the same level as his existing qualification from India. The applicant has therefore studied for 2 years since his arrival at courses well beneath his Bachelor level qualification already obtained, and is now studying a course at the same level as his existing qualification. Therefore, at no time since his arrival in 2014 and commencement of study in 2015 has the applicant furthered his academic standing, and neither, it appears, does he intend to.

In 2017 the applicant learned that his mother was unwell, and he was concerned about her. He said he completed the courses he was studying at the time – the Certificate IV and the Diploma. He told the school about his mother, and they accepted that and provided him further time to submit his assessments. However, the applicant told the Tribunal at the hearing that the College refused to certify him as having completed the Diploma course, saying that as he submitted his assignments late, he could not be provided with that certification. The applicant’s agent told the Tribunal that she is pursuing the college and his certification on the applicant’s behalf.
The Tribunal is not so concerned with the lack of certification but is more concerned with the fact that it is not satisfied as to the reason the applicant did not submit his assignments on time. While he said he was worried about his mother, the applicant did not elaborate on how that affected him. There are no medical certificates or other evidence before the Tribunal to show that the applicant was unable to study or attend classes, or that he sought any assistance for his lack of ability to study due to his worry. It is noted that the applicant was still employed at this time, at two separate establishments for the majority of 2017. While the Tribunal accepts that, ultimately, for whatever reason, Stanley College has not provided the applicant with the certification he says he deserves, the Tribunal places weight on the fact that the applicant struggled to attend to his studies during a period in 2017, however maintained 2 jobs.
Given the downgrading of his courses, the lack of adequate explanation as to why he struggled to complete assignments in 2017, the maintenance of his employment in 2017 and the fact that the Tribunal is not satisfied that the applicant has a dream or passion for cooking or hospitality, the Tribunal is satisfied that the applicant is using the Student visa system to maintain ongoing residence in Australia, and the Tribunal places significant weight on this factor against the applicant gaining a Student visa.
The future
In March 2018 the applicant commenced a Bachelor of Business, to be completed at the end of 2019.
The applicant told the Tribunal that at completion of his current course he will return to India and go into the restaurant business. While he said that is his “dream,” as discussed above, his said his plans are all in his mind at present. He has spoken to his father who has agreed to contribute funds to open a restaurant, and his father is happy to be in partnership with him. The restaurant will possibly be in Bombay; the location is currently under consideration. It will serve vegetarian food. The applicant said that it will be a ‘normal’ restaurant. His parents have enquired about an appropriate venue out of their town, however they are having second thoughts-they feel it may be better in their home town, as his home town is relatively prosperous, as it is connected to politics. He told the Tribunal that his cousins are in the restaurant business, however when asked what that meant, he said he was not actually sure what they did in the restaurant; they may have been in management and had possibly expressed an interest in partnership of a restaurant with him.
The applicant’s plans for his future, as expressed above, are less than vague – the Tribunal is not satisfied that he in fact has any real plans. In conjunction with this, the value of both the hospitality courses and the business course to the applicant’s future appear limited. In relation to the hospitality courses, the Tribunal is not satisfied that the applicant actually intends to open a restaurant or work in the hotel or motel industry. In relation to a business course, the applicant already had a qualification in commerce. While it is accepted that the focus of the subjects, as set out in the applicant’s written submissions, is somewhat different, neither course is necessary for the running of a restaurant, or working in the hotel or motel business; particularly when the applicant already has completed subjects in the Diploma in Hospitality. The applicant has not provided the Tribunal with any other prospects or plans for his future in India, and the Tribunal is not satisfied that he actually has any.
Given the Tribunal is not satisfied that the applicant has any plans in relation to his future the Tribunal is not satisfied that the courses either completed, or yet to be completed, have any value to the applicant’s future. It appears to the Tribunal, therefore, that the applicant is using the Student visa program to maintain ongoing residence in Australia. The Tribunal places significant weight on this factor against a Student visa being granted.
The applicant’s circumstances in Australia
The applicant lives with friends in Australia and pays his expenses from his employment. His parents contribute money for fees if required. Sometimes he sends money home for special occasions. He owns a car and some household effects in Australia.
He does not have family or a partner in Australia. The Tribunal is satisfied that the applicant has not entered into a relationship of concern for a successful Student visa outcome, and he believes his parents have arranged or are in the process of arranging a marriage partner for him. He said he would be happy to oblige them.
When he first came to Australia, he lived with a friend from his home town. He said he knows quite a few people from his home town who are here – most of them are here studying.
The applicant, having arrived in November 2014, commenced employment at the Bollywood Indian Restaurant in June 2015 as a kitchen hand, moving to cook in December 2016. At the time of the hearing in 2019 he was still working there. In addition he has worked at the Magic Hand Car Wash from August 2015 to November 2017 and at another Indian Restaurant as a cook from July 2018 to February 2019. Unlike his studies, the applicant’s employment has been steady, and he has at times worked for 2 different employers.
While the applicant does not appear to have significant family or personal ties in Australia, neither does he have significant ties to his home country. He has a significant work history in Australia compared to his work history in India, having been unable to gain employment there after completing his degree, assisting on his family farm. He has built ties to the community here, his employer attempting to sponsor him to remain on another visa, as discussed below, and that provides him an incentive to remain here to continue with that employment, despite his family being in India. The Tribunal gives some weight to that incentive to remain against him having a Student visa.
Further, in comparison to his circumstances in his home country, the applicant has significant incentive to remain in Australia, being consistently employed, compared to his inability to gain employment in India, despite his qualification. He has greater potential, it would appear, for continued employment in Australia as compared to that potential in India. While it may be that an Australian qualification may assist him in gaining employment in India, given the applicant’s evidence that he is considering opening a restaurant, such an advantage must be a lesser consideration for the applicant, as he will not be necessarily looking for employment. The Tribunal is satisfied that in that comparison, the applicant has significant incentives to stay in Australia, and has used, and is using, the Student visa program to maintain ongoing residence in Australia, and gives that factor significant weight against the applicant obtaining a Student visa.
Visa history
The applicant’s first Student visa was to expire in March 2017, and the current application under review was to enable him to continue his courses. The Student visa application was refused in June 2017. He has not applied for a visa to any other country and the Student visa he was granted to come to Australia was the first visa granted to him by Australia. He has never had a visa cancelled. However, in October 2018, after he went to India to visit his family, he applied for a training visa, so that he could train as a cook. He had asked his family for advice about whether to apply for the training visa, and they thought it was a good idea. By this time he had finished the Diploma in Hospitality, albeit without the certification, and had commenced the Bachelor of Business.
At first he told the Tribunal at the hearing that he applied for the training visa while he was still studying the Bachelor of Business because he wanted to have extra training in cooking. The training would take place in the restaurant in which he had been working, the Bollywood Restaurant. He told the Tribunal it was the restaurant who suggested this – they said that if he wanted to stay, he should apply for that visa. He thinks there may have been a problem with sponsorship or the nomination, and the visa was refused. He therefore remained on a Bridging visa. He engaged a migration agent to assist him in applying for the training visa. However he also told the Tribunal that one reason he wanted to remain in Australia was so he could continue to attempt to get his Diploma, having paid for it and completed the studies, albeit that he handed his assessments in late. Having engaged an agent, the Tribunal is not satisfied that the applicant felt he needed to remain to obtain his Diploma, and that evidence is counter to other evidence he gave that he wanted to stay to gain extra training in cooking.
The Tribunal does not place any weight against the applicant for the reasons for the refusal of the training visa. The Tribunal does place weight, however, against the applicant for the fact that he applied for the visa at all, as is described below.
The fact that the applicant applied for the training visa may in some respects add weight to his submissions that he wants to work in the hospitality industry, however, the fact that he applied for the visa at all also adds weight to a finding that the applicant wishes to stay in Australia in some way, whether studying or working. There is no evidence before the Tribunal as to the applicant’s plans regarding the training, the skills he would be taught, any programs or progression provided by the restaurant or how that would further his “dream” to open a restaurant, or to enable him to pursue one of the other options he has nominated in his written submissions. The Tribunal cannot place any weight on the fact that the applicant says he applied for the training visa so that he could continue his training in the hospitality industry. The Tribunal is satisfied that the application for the training visa was an attempt to gain ongoing residence in Australia, given that his application for a further Student visa had been refused, and weighs against the applicant being considered to be a genuine student. The Tribunal places weight on the fact that the applicant saw this as an opportunity to stay in Australia, whether actually studying or not. He was not so interested in gaining an actual qualification in Australia, but rather maintaining ongoing residence in Australia.
The applicant said that if his Student visa remains refused, he will try to continue his studies and complete the Bachelor of Business. When asked whether he would apply for another type of visa if the Student visa remains refused, he said that he will apply for a Student visa, suggesting that he would seek review of this Tribunal’s decision, if that decision is to affirm the delegate’s decision. He asked that he could continue his studies. His parents are expecting him to finish his degree; they are ill, and his failing to complete his courses would place more pressure on them. A Student visa, he said at the completion of the hearing, would enable him to complete his dream. If he leaves Australia now, he said, he would not have the Bachelor or the Diploma, given his agent is still having difficulty retrieving his qualifications from Stanley College. However, this request is in conflict with his application for the training visa, which would not have amounted to him gaining a Bachelor’s degree to go home with. The Tribunal places significant weight against him obtaining a Student visa on that conflict.
There are no other outstanding visa applications yet to be finally determined. There is no evidence that any of his family have an immigration or visa history of concern. The applicant has not travelled to any other country. The Tribunal gives the applicant some weight in his favour for those factors.
However, the applicant first came to Australia in December 2014 having been granted a Higher Education Sector (subclass 573) visa.
As was noted by the delegate, the applicant was initially granted a Higher Education Sector visa based on his intention to study a Masters degree. Given his failure in the English course he was to complete first, the applicant was unable to commence the Masters course, and his enrolment was cancelled. Rather than contact the Department, as was suggested by the College, the applicant enrolled in and studied Certificates III and IV in Commercial Cookery at Stanley College, being a course in the Vocational Education and Training sector.
The applicant’s first Student visa expired in March 2017. In March 2017 the applicant was approximately half way through the Certificate IV course in Commercial Cookery. Therefore, he studied the Certificate III in Commercial Cookery and commenced the Certificate IV in Commercial Cookery while still subject to the conditions of the Higher Education Sector visa. Certificates III and IV are not higher education. The applicant has therefore not abided by the visa originally granted to him; neither can the Tribunal be confident that, as a result, he will comply with any visa conditions in the future. The Tribunal places weight on these factors in favour of the applicant not being granted a Student visa.
Further, the applicant agreed that he did not contact the Department to alert it to the change or make an effort prior to his visa expiring to change his visa criteria. The Tribunal also places weight on this factor, as it suggests he does not have a desire to improve his education standards, but rather maintain ongoing residence in Australia in any way possible.
The applicant returned to India to visit his family in 2018. He did not return when his mother was ill, because his family urged him to wait for a study break and return then, and, in any event, his mother’s surgery was a success, and there was no rush to get to her. The Tribunal accepts that that is a reasonable reason for him not returning.
However, he has only returned once to see his family, and the Tribunal is satisfied that this is further evidence that he does not have such close personal ties to his family or home country that he has significant incentive to return to them, and the Tribunal gives this factor further weight against the applicant being granted a Student visa.
Having regard to the applicant’s visa and travel history, weighed with the other factors discussed, the Tribunal is satisfied that the applicant is using the Student visa to maintain ongoing residence or circumvent the intentions of Australia’s migration program.
Any other relevant matter
The Tribunal is satisfied that there are no other relevant matters to consider.
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.
Genevieve Cleary
Member
Attachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton

Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

[2019] AATA 5278

7 August 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction