Kumchompoo (Migration)

Kumchompoo (Migration) [2020] AATA 2985 (21 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Rattaporn Kumchompoo
CASE NUMBER:  1908587
HOME AFFAIRS REFERENCE(S):          BCC2018/6162445
MEMBER:Peter Booth
DATE:21 May 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 21 May 2020 at 3:14pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – Community Services course – similar courses in Thailand – limited ties to home country – relevance of studies to future employment – maintaining ongoing residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 363; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 March 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 14 January 2019. 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 (the Regulations) because the applicant was not a genuine temporary entrant.
On 23 April 2020 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information about the review application in writing. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 7 May 2020 the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
In her response, the review applicant stated that consent was given to the matter being determined without the need for a hearing. The Tribunal is satisfied that the necessary consent has been given under s.360(2)(b) of the Act and that, pursuant to s.360(3), the review applicant is no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.
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 delegate’s decision refusing the application for a student visa is dated 25 March 2019. Relevant findings of the delegate are as follows:
The applicant had been granted their initial Work and Holiday (Class US subclass 462) visa
valid until 29 December 2016 on 15 December 2017. They subsequently arrived in Australia
on 10 March 2017. The applicant was granted their second Work and Holiday (Class US
subclass 462) visa on 15 December 2017 valid until 17 January 2019.
In this application, the applicant has applied for a Student (Temporary) (Class TU) (subclass
500) visa on 14 January 2019. At time of application, the applicant provided details of their
proposed Vocational Education and Training (VET) Sector Confirmation of Enrolments. The
applicant was enrolled to undertake the following courses:
✃ English Language Programs (Beginner to Advanced) (1 to 52 weeks)
✃ Diploma of Community Services
The applicant provided a confirmation of enrolment document in respect of a Diploma of Community Services which was scheduled to commence on 18 April 2019 and to be completed on 15 April 2021.
The applicant also provided a narrative statement in support of her application for review which relevantly stated as follows:
My name is Rattaporn Kumchompoo, born on 10^th December 1991. I am writing to you as I believe the Department of Home Affairs has come to an incorrect decision regarding my application for a Student (subclass 500) visa. On the 25^th of March they declined my visa and I am writing to you as I believe the basis of their decision did not have enough evidence, and I wish to provide more to support my case. In this letter I will allude directly to their concerns and hope to alleviate them.
In my home country I have all my family and friends wishing for my safe return with a broader sense of the world, taking life experiences from overseas as I have done after my tertiary studies by having a travel period going travelling to Nepal, Laos, China, South Korea, Singapore, Taiwan, Hong Kong and of course Australia on my Work and Holiday visa. This experience from my post degree travel period travelling the world has allowed me to see different perspectives and gain insights into what I am truly passionate about.
I have realised that I have become passionate about community services particularly in relation to my home country where there is a large disparity with the rich and poor and many of those less well-off don’t have access to proper care. In my home country I have seen too many people left to take care of themselves in a country which does not support the needs of them well. The infrastructure for these services is poor and I feel compelled to assist them in any way possible. I have previously volunteered in my home country where I travelled to poorer regions during my university break periods and helped to build facilities for a school while also helping to teach and play with the children. I have also attended teaching camps organised by the Mirror Foundation, teaching children between Thailand and Myanmar which has driven my passion that I know I can be a force for good change in my country.
I have seen the social services and community centres provided to people in the countries I’ve travelled to and I believe Australia has the best system in the world. In addition during my 2 year stay in Australia I have come to respect and enjoy Australia’s values, morals and way of life. These are the reasons why I wish to study in Australia at a college which will give me the appropriate education and skills above and beyond any course that I could ever take back in my home country due to the high education standards in Australia. The research I have conducted on courses in my home country I have found, that although there are appropriate courses with a Thai culture focus, they do not give adequate training with western skills, ideologies and techniques. With the new education and experiences provided to me by studying at a tertiary institution in Australia, I feel confident that I can bring back first world knowledge and skills to the benefit of my home country with a sense of pride that I can alleviate societal problems at home. As I have previously volunteered in community services and lived in Thailand throughout my life, I can easily adapt these techniques to suit my culture.
I have already completed my studies in English at Greenwich English College in Sydney between January to March 2019, which required daily weekday attendance and cost me 2,300AUD. Having now completed the course I feel more confident that I can understand the curriculum set out while studying my Diploma of Community Service. During my Diploma I wish to obtain more skills in providing direct support to communities through management and coordination of these services. In addition I have researched which organisations I would like to conduct my employment with after the completion of my Diploma.
I have decided to complete my full time diploma with the 4Life College as I have been given recommendations from friends, alongside inspecting the college for myself and I can see that I will be able to attain the level of skill I want from this college while fitting in with the friendly and multicultural classroom which is something I look forward to. I have also chosen this college as they specialise their courses for international students and they give particular focus towards the health and community sector, which is what I am most interested in. Finally they are also located conveniently in the Sydney CBD which I am now familiar with and the tuition fees are within my financial reach of $17,520 over the 2 years. Utilising my Bachelor of Communications degree from a highly respected University in Thailand, I aim to combine both my Bachelor degree and my Diploma into a valid skill set as community services relies heavily on proper communication to ensure that services are being correctly directed to those people in need. In addition community services can secure funding from external sources as revenue, and with my Communications degree skill set, I have the ability to seek funding from third parties and spread the word about our good activities effectively.
As mentioned before I have already volunteered and although this was a great experience for me, I believe I will be able to enhance my employability and be able to attain employment at my home country with larger, more pronounced organisations such as the Asia Foundation, Openmind Projects or with more experience under my own foundation utilising my highly sort after skills, whom others would appreciate my Bachelors degree, western education, English speaking abilities and my understanding of western culture from my two years in Australia on a Work and Holiday visa. In addition overseas education is held in particularly high regard within Thailand and I may be able to secure a position within Government to allow me to help the various foundation programs operating in my home country and support them with Government funding. Thailand is currently going through a period of change which I am excited about as democratic elections have just taken place and it seems that a pro-democracy Government will form with more emphasis on community services that I wish to be involved in.
During the course of my full time study I intend to live in Sydney sharing an apartment with friends I have made here, whilst working 20 hours a week as an unaccredited trainee carer to further extend my experience in relation to my course, as well as paying for living costs. Having work experience will help me understand the contents of my course so I am able to achieve a high course outcome which will be highly regarded back in my home country. I have already received my Certificate of Enrolment and paid for my Working With Children Check as required. In addition I have also extended my medical insurance to ensure I comply with my visa requirements.
I have the necessary finances to support my study and living costs in Australia from the support of my parents and my job placements in Australia. I have proven that this is stable throughout the two years I have been here. Although I feel that Australia is a fantastic place to live, I still find myself wanting to return to my country as I enjoy the Thai public holiday festivities not thoroughly celebrated in Australia, and I also miss the companionship of my family and friends in the familiar city that I grew up in, alongside my sense of belonging with my culture, religion and community.
I do indeed hope that this supporting documentation further outlines the reason for my request to study in Australia and although I understand the appeal process may take some time, I plan to continue with my study plans whilst on my Bridging visa and I hope that this shows my seriousness to study in Australia.
The Tribunal invited the applicant to provide information, pursuant to s.359(2) of the Act. In response the applicant filed a variety of documents and provided information. The information included the following. The applicant completed a Bachelor of Communication Arts in Thailand between May 2010 and March 2014. Thereafter she was employed in Thailand as a sales executive between January 2015 and February 2017 earning approximately AU$12,000 annually. The applicant arrived in Australia on 10 March 2017 and since that time has returned to her home country on three occasions each for a period of two weeks. During that time the applicant has also travelled to eight other countries, apparently on vacation for periods between two days and two weeks.
The application for a student visa in issue was made in January 2019.
As to the applicant’s study history she stated that she completed an English language course between January 2019 and April 2019, a further general English course between May 2019 and June 2019 and she is currently studying the Diploma of Community Service.
As to why she chose her current course of study the applicant stated:
I chose to complete a Diploma of C ommunity Services with Australian Learning Group, as I know that the C ommunity Services industry will increase in the future, and with the skills and education I have learnt from this Diploma, I will then bring to Thailand to help serve my community and my parents personally. During my Diploma I am obtaining more skills in providing direct support to communities through the management and coordination from what I have learnt. In fact I am currently conducting work placement with Tender Loving C are Disability Services Pty Ltd, where I feel part of a team giving care to those less able than ourselves, by completing administrative work and directly interacting with our clients. I believe I will be able to assist them further during the course of my studies. I have also done some short work placement with Afford (Australian Foundation For Disability) hich is a non-for-profit organisation where directly I helped clients who suffered from a disability. I have decided to complete my full time diploma with the Australian Learning Group as I have been given recommendations from friends who are within the industry, alongside inspecting the college for myself. I can see that I will be able to attain the level of skill I want from this college while fitting in with the friendly and multicultural classroom which is something I look forward to. I have also chosen this college as they specialise their courses for international students and they give particular focus towards the health and community sector, which is what I am most interested in. Finally they are also located conveniently in the Sydney C BD which I am now familiar with and the tuition fees are within my financial reach. I had issues starting my Diploma because my previous IELTS score was too low for the course, and therefore I took the initiative to enrol myself into Greenwich English C ollege, from there I wanted to gain more English skills to ensure that I can understand the course material, and pass the necessary requirements for their English entry. However I have been continuously studying with a C oE since January 2019. Utilising my Bachelor of C ommunications degree from a highly respected University in Thailand, I aim to combine both my Bachelor degree and my Diploma into a valid skill set as community services relies heavily on proper communication to ensure that services are being correctly directed to those people in need. In addition community services can secure funding from external sources as revenue, and with my C ommunications degree skill set, I have the ability to seek funding from third parties and spread the word about our good activities effectively.
In answer to whether there are similar courses in Thailand the applicant stated:
In my home country I have seen too many people left to take care of themselves in a country which does not support the needs of them well. The infrastructure for these services is poor and I feel compelled to assist them in any way possible. I have previously volunteered in my home country where I travelled to poorer regions during my university break periods and helped to build facilities for a school while also helping to teach and play with the children. I have also attended teaching camps organised by the Mirror Foundation, teaching children between Thailand and Myanmar which has driven my passion that I know I can be a force for good change in my country. I have seen the social services and community centres provided to people in the countries I’ve researched and travelled to and I believe Australia has the best system in the world. In addition during my stay in Australia I have come to respect and enjoy Australia’s values, morals and way of life. These are the reasons why I wish to study in Australia at a college which will give me the appropriate education and skills above and beyond any course that I could ever take back in my home country due to the high education standards in Australia.
The research I have conducted on courses in my home country I have found, that although there are appropriate courses with a Thai culture focus, they do not give adequate training with western skills, ideologies and techniques. With the new education and experiences provided to me by studying at a tertiary institution in Australia, I feel confident that I can bring back first world knowledge and skills to the benefit of my home country with a sense of pride that I can alleviate societal problems at home. As I have previously volunteered in community services and lived in Thailand throughout my life, I can easily adapt these techniques to suit my culture. In addition an overseas education is highly regarded in Thailand, particularly from Australia.

As to her future employment plans the applicant stated:
At the end of my studies, I would like to return home to Thailand to be with my family and friends. With my diploma and experience from living in Australia and enjoying the western culture influences, I would like to bring these new experiences, skills and education to benefit my home country. I believe I would be able to easily find employment in Thailand with larger, more pronounced organisations who have more opportunities to benefit more people, such as The Asia Foundation, or Openmind Projects. I would like to be in a higher up position managing some of the organisation which I can do confidently with my diploma, to gain more experience and real world value. After having networks in an organisation, I would like to work for the Government in the Ministry of Social Development and Human Security, to see where I can make things better and learn more, and get more connections. Thailand puts overseas western education in high regard, and it would be easy for me to gain employment in the Government with my diploma and western experience. After this I would like to open my own organisation in Thailand, like my parents have opened their own business, although I would like mine to focus on creating a more positive community. In Thailand there is a large disparity with the rich and poor and many of those less well-off don’t have access to proper care. In my home country I have seen too many people left to take care of themselves in a country which does not support the needs of them well. The infrastructure for these services is poor and I feel I would like to assist them in any way possible.
As to her expected future remuneration the applicant stated:
The majority of community service organisations, particularly larger ones like Openmind Projects are NGOs (non for profit) and because of this I can expect little, or no remuneration when I start. This isn't a problem as my living costs in Thailand are low (I live with my parents), and the main reason I do this is for make a more positive for the community, which is why I study Diploma of C ommunity Services. Then when I start working for the Ministry of Social Development and Human Security, in the Government I can expect a full time salary which will help me to save enough money to open my own organisation. With the connections and experiences I will gain in the NGO and Government I would like to then create my own organisation nursing home to help those who need it, particularly ex-pats. With my diploma and experiences from Australia this will hopefully help me gain ex-pat clients as I will market my organisation in a way whereby it has Thai and Western education, and values. With 20 clients in a nursing home I believe I will be able to charge approximately $700 a month (which is within pension rates), equalling $14,000 in revenue a month.
The applicant stated that she had been continuously enrolled in registered courses whilst in Australia. As to her employment in Australia, the applicant has an extensive employment history between 2017 and 2020. The most recent employment is as a bar attendant earning approximately AU$60,000 annually.
The applicant’s mother and father reside in Thailand. The applicant stated that she owns shares listed on the Thai stock exchange with a value of approximately AU$5200.
Other documents provided to the Tribunal by the applicant included a letter confirming her enrolment in the current course dated 1 May 2020, a further letter confirming her enrolment in the current course dated 5 May 2020, a statement of academic results in her current course, a record of payment for the current course, and attendance record in respect of the current course, a work placement confirmation in respect of the current course and an expired confirmation of enrolment document in respect of a previous course.
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 her home country. The applicant is unmarried and is from Thailand. The applicant has provided evidence of social, direct family and financial ties to her home country or other economic incentives to return. When considering the applicant’s circumstances in her home country, the Tribunal therefore finds that she has been able to demonstrate ties to act as an incentive to return to her home country at the completion of the proposed study.
The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 10 March 2017 as a holder of a ‘working holiday’ visa valid to 15 December 2017. A second such visa was granted which was valid until 17 January 2019. However the application for a student visa was not made until 14 January 2019. The proposed study would extend the applicant’s stay until at least April 2021. The Tribunal finds that the length of this proposed additional stay creates serious concerns that the applicant is studying for the purposes of staying in Australia. Whilst the Tribunal accepts that plans can change, this is not the conduct of a genuine temporary student. Rather, it suggests the applicant has decided to extend her stay in Australia by utilising the student visa programme.
The Tribunal does not place weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. She has given very vague evidence in that regard.
The Tribunal has considered the applicant’s study history since arrival and notes that she commenced study in 2019, in vocational English courses, followed by a Diploma of Community Services which she is still studying. This was after being in Australia since March 2017 having arrived as a holiday worker, which she did until a few days before the expiry of such a visa when she applied for the student visa.
The Tribunal notes that this course plan is inconsistent with the applicant’s qualifications obtained in Thailand and is inconsistent with her plans when she initially entered Australia. The applicant now wishes to pursue a community service vocational course in Australia. The course is asserted to have relevance to very vague future plans.
The applicant has provided a statement in which she attempts to address the genuine temporary entry criterion. The applicant claims that she will gain value from community services because she wishes to work in related fields in her home town.
The Tribunal is not satisfied that the applicant has established that study will provide her with significant benefits in her proposed career plan, considering the cost of the study and the fact that the applicant already has qualifications obtained in Thailand. Further the applicant has not explained the regression in level of study from University level to vocational level. The Tribunal therefore is not satisfied that the applicant has demonstrated that the proposed additional study has a realistic prospect of providing significant value to her future beyond the qualifications she already holds.
The Tribunal has had regard to whether there are any other relevant matters.The applicant had been in Australia for several years on a working holiday prior to applying for a student visa. She is entitled to apply for a student visa in those circumstances. However the circumstances are nonetheless relevant. The result, if the current application is granted, is that the applicant will be in Australia by reason of two working holiday visas and a student visa for a total of approximately four years. However the applicant has not explained the reason for course level regression, why she chose to apply to study a few days prior to the expiry of the second working holiday visa or why she appears to have used Australia as a base for travel to other countries but has only travelled to Thailand on three ocaisions. The Tribunal gives these factors some weight.
The Tribunal has considered all the information provided with the visa application. After weighing up these factors as a whole, the Tribunal finds that the applicant has not been able to satisfy it that the applicant genuinely intends a temporary stay in Australia as a student.
The Tribunal has considered the evidence and has taken into account the applicant’s economic circumstances in her home country relative to her potential circumstances in Australia. Given the disparity in economic circumstances between Thailand and Australia the Tribunal cannot be satisfied that the applicant has significant incentive to return to Thailand. The applicant has been unable to demonstrate substantial ties or personal assets in her home country which diminishes her incentive to return to Thailand.
The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from her proposed study which will outweigh the significant time and monetary commitment this course will require. Therefore the Tribunal is not satisfied that the applicant has demonstrated the value of her proposed course to her future.
The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 10 March 2017 the applicant has spent substantial time in Australia and six weeks in Thailand, but travelled extensively to other countries which indicates that she does not appear to have strong personal ties to Thailand. Based on this evidence the Tribunal assesses the applicant’s incentive to return to be poor.
On balance, 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 two visas specifically to enable her to achieve that goal, namely to pursue a working holiday. The applicant lodged this application shortly prior to expiry of the second working holiday visa. It therefore appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study. The Tribunal has also had regard to whether there is any other relevant matter and finds there to be no other relevant matter to the assessment of the applicant’s intentions to stay in Australia temporarily. The Tribunal has considered all information provided by the applicant in support of her application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in her home country, potential circumstances in Australia, the value of the proposed course to her future, her immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.
On the contrary, the factors indicate that the applicant appears to have enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study and overall academic progress. The applicant appears to be 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 Thailand; political or civil unrest circumstances in Thailand; remuneration the applicant could expect to receive in Thailand or a third country compared with Australia; circumstances in Thailand relative to Australia or any other country; and the applicant’s circumstances in Thailand relative to others in that country.
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, the Tribunal is concerned the student visa may be used primarily for maintaining ongoing residence.
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;
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.

[2020] AATA 2985

21 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction