Lama (Migration)

Lama (Migration) [2022] AATA 1646 (22 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Saroj Lama
CASE NUMBER:  2106978
HOME AFFAIRS REFERENCE(S):          BCC2017/1000188
MEMBER:Gabrielle Cullen
DATE:22 March 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 22 March 2022 at 4:08pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–– Federal Circuit Court remittal – lack of enrolment – 10-month gap in study – extended length of stay in Australia – applicant was not a genuine applicant for entry and stay as a student – studying in low level courses –use the student migration program to maintain ongoing residence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 499
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 Immigration and Border Protection on 16 June 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 14 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.
The applicant arrived in Australia on 9 July 2009 as the secondary applicant on his wife’s student visa. He held student visas and a Subclass 485 visa as a dependant to 15 March 2017. He applied for the visa to which this decision relates on 14 March 2017 as the primary applicant. Since his arrival he has departed on one occasion from 21 May 2018 to 4 June 2018.
Since the application for the visa, he has divorced his spouse. The evidence indicates they divorced on 13 Janaury 2021. The applicant’s spouse withdrew her application from the Tribunal as a result.
Confirmation of Enrolments (CoEs) indicate the applicant enrolled in a PTE-A Exam Preparation Course from 15 November 2021 to 17 December 2021, and a Diploma of Event Management from 3 January 2022 to 20 November 2022.
Evidence from the Department’s decision[1] and that provided by the applicant at hearing and in documentation provided by the applicant, indicates the following study history:
·Certificate IV in Commercial Cookery studied from 3 April 2017 to 28 September 2018 at Australian Institute of Business Technology (AIBT) which he successfully completed.
·General English course from 11 November 2019 to 27 December 2019 which he successfully completed.
·Diploma of Hospitality Management from 12 October 2020 to 9 April 2021 which he successfully completed.
·Advanced Diploma of Hospitality from 1 October 2018 to 29 March 2019, then to October 2019 and 26 April 2021 to 24 September 2021, the latter time at a different College which he has successfully completed.
[1] The Department’s decision was attached to the Application for Review.
In the application for the visa the applicant indicated that he would like to study the cooking and hospitality courses as these courses are of his interest and he believes they will provide him with knowledge and skills for his future. He also indicated that his parents are offshore.
The delegate decided to refuse to grant the visa on 16 June 2017. The delegate decided to refuse to grant the visa because the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) on the basis that he is not a genuine applicant for entry and stay as a student. The delegate was concerned as to the applicant’s length of time in Australia, having arrived in Australia on 9 July 2009 and not, at that time, having departed. The delegate was also concerned why he only decided to study after his spouse’s visa had expired and the lack of detail as to the value of the courses, he is enrolled in, to his future.
The applicant applied to the Tribunal (differently constituted) on 3 July 2017 and attached the decision of the Department.
On 5 December 2018 the applicant provided a written submission to the Tribunal. He confirmed he had arrived in Australia in 2009 as a dependant on his wife’s visa. The secondary applicant had studied Information Technology and an MBA and also held a temporary graduate visa. He said they were to return to Nepal but then decided he would complete the hospitality course as while he had experience in this area, he had a lack of detailed knowledge. As a result, he enrolled in a Certificate IV in Commercial Cookery and Advanced Diploma of Hospitality. The applicant advised he decided to study commercial cookery and hospitality because he had experience working part-time as a waiter, barman and barista in various restaurants and venues. He claimed he was keen to learn more about different cuisines and food items. He submitted that after he completes his studies, he will open his own western style restaurant with bar and function centre. He submitted that the current market for this type of industry is booming in Nepal and he believes there is a huge opportunity. He also outlined details about the course he is studying and its subjects. The applicant advised he has ongoing ties to Nepal as his parents continue to live there. He claimed his parents have acquired property in their home country for him together with his wife and he will continue to support both applicants financially. According to the applicant at that time he said he will complete his Advanced Diploma of Hospitality Management on 29 March 2019. The applicant claimed it was impossible for him to study while his wife was pursuing her education.
He also provided the following:
·Evidence he had successfully completed the Certificate IV in Commercial Cookery studied from 3 April 2017 to 23 September 2018.
·CoE indicating he was enrolled to study the Advanced Diploma of Hospitality Management from 1 October 2018 to 29 March 2019. A letter from his education provider dated 27 November 2018 indicated that he has been a good student and is enrolled in this course to 29 March 2019.
·Evidence he completed Years 10 and 12 in Nepal.
·IELTS results in the name of the applicant.
·Evidence of the secondary applicant’s studies in Australia.
·Evidence of land ownership and Nepal property valuation dated 3 December 2018.
·Family Relationship Certificates.
·Certificate of Overseas Student Health Cover.
·References from the applicant’s employers in Australia including that he worked at Waterview Convention Centre from 2008 to 2010 in the food and beverage area, with Fairfield RSL as a Food and Beverage Attendant from October 2013 to October 2016. A further letter from Fairfield RSL dated 6 December 2018 indicated he worked at the club from 7 April 2017 to the date of the letter as both a Food and Beverage Attendant as well as working in their restaurants.
The applicant attended a hearing at the Tribunal (differently constituted) on 10 December 2018. At the Tribunal hearing, the applicant confirmed he was enrolled in a Certificate IV in Commercial Cookery and also indicated that he will be undertaking an Advanced Diploma of Hospitality Management. The applicant said he has his mother and sister in Nepal while his wife’s sister lives in Australia. The applicant advised there was nothing preventing his return to Nepal and that he had intended to visit in December 2018 but was not given approval by his employer.
On 11 December 2018 he provided an additional CoE showing study in the Advanced Diploma of Hospitality Management from 3 December 2018 to 26 April 2019.
Following a request from the Tribunal on 25 Janaury 2019 AIBT advised that the applicant completed the Certificate IV in Commercial Cookery on 29 November 2018 and is working on completing the Advanced Diploma of Hospitality Management by 29 March 2019. The letter from AIBT also noted he was enrolled in the Certificate IV in Commercial Cookery from 3 April 2017 to 28 September 2018 and the Advanced Diploma of Hospitality Management from 1 October 2018 to 29 March 2019.
On 26 April 2019 he provided by way of a CoE evidence of enrolment in the Advanced Diploma of Hospitality Management from 29 April 2019 to 25 October 2019 with the same education provider.
On 24 June 2019 the Tribunal (differently constituted) affirmed the delegate’s decision.
On 15 April 2021 the Federal Circuit Court ordered that this matter be reconsidered as the Tribunal (differently constituted) failed to communicate to the applicant adverse information received subsequent to the hearing.
On 25 October 2021 the Tribunal wrote to the applicant via his representative and invited him to attend a hearing on 25 November 2021.
On 18 November 2021 the representative submitted an email containing the following:
·Letter from Binaya Pradhan dated 13 November 2021 indicating that he is a childhood friend of the applicant and that on completion of the applicant’s studies they are planning to run a long-term restaurant and party space in Nepal. He notes they are in regular contact and that the applicant wants to utilise his studies for their business. He notes western themes do well in Nepal and that they have a long-term business plan, however, due to COVID-19 the plan was delayed, and, in the meantime, the applicant is studying the Diploma of Event Management which will be beneficial to their future business. He submits that on completion of the course the applicant will use his knowledge and experience to run his own restaurant and party space business with him in Nepal.
·Emails between Binaya and the applicant from 17 May 2021 regarding starting a business together and including photos of pictures of restaurants from Pokhara. The applicant indicates in the emails that he wants to do something for the long-term once he finishes his studies in Australia and will come to Nepal to continue the business. He notes after that they can talk about a business plan. There is also an email exchange between the applicant and a third person about the sale of restaurants in Kathmandu and Pokhara with response regarding 2 or 3 being available but undergoing renovation with photos provided.
·Divorce Order dated 13 January 2021.
·Letter dated 27 November 2019 from AIBT to certify that the applicant was a student in the Certificate IV in Commercial Cookery from 3 April 2017 to 28 September 2018 and Advanced Diploma of Hospitality Management from 1 October 2018 to 29 March 2019.
·Certificate dated 20 September 2019 from AIBT to certify that the applicant has fulfilled the requirements for the Certificate IV in Commercial Cookery. A Transcript of Academic Record was included.
·Certificate issued on 27 December 2019 from International House Sydney to certify that the applicant has studied General English and obtained a level of upper intermediate. The course was from 11 November 2019 to 27 December 2019.
·Certificate issued on 8 October 2021 from the Australian International College to certify that the applicant has fulfilled the requirements for the Advanced Diploma of Hospitality Management (Commercial Cookery Specialisation) on 24 September 2021. A Record of Results was included.
·Certificate issued on 28 April 2021 from the Australian International College to certify that the applicant has fulfilled the requirements for the Diploma of Hospitality Management (Commercial Cookery) on 9 April 2021. A Record of Results was included.
·CoE indicating the applicant is enrolled in the Diploma of Event Management at Lonsdale Institute Pty Ltd for the period 3 January 2022 to 20 November 2022.
·CoE indicating the applicant is enrolled in the course PTE-A Exam Preparation Course at QIBA Pty Ltd for the period 15 November 2021 to 17 December 2021.
·Contract of Employment dated 13 June 2021 from The Watershed Kitchen, Drummoyne providing employment for the position of Food and Beverage Manager with a salary of $65,000 to the applicant.
·Letter dated 5 October 2016 from Fairfield RSL stating the applicant was employed by the City of Fairfield RSL Memorial Club from 25 October 2013 to 17 October 2016. The applicant worked as the Assistant Restaurant Co-ordinator.
·Letter dated 6 December 2018 from Fairfield RSL stating the applicant has been employed by the City of Fairfield RSL Memorial Club from 7 April 2017 to the date of the letter as a part-time Food and Beverage Attendant.
·Letter dated 29 December 2010 from Waterview Convention Centre stating the applicant has been employed there since October 2008 as a Casual Food and Beverage Attendant in the function department and then worked at the Food and Beverage department.
·Family Relationship Certificate dated 14 November 2018 from Kathmandu Metropolitan City.
·Property Valuation Report dated 17 November 2021 prepared by SB Engineering Consultants with property estimated to be at a total value of up to $288,160.53. A land valuation is included.
·Land Ownership Documents.
·AHM Overseas Student Cover for the applicant for the period 9 November 2021 to 15 March 2023.
·Letter dated 15 November 2021 by the applicant’s mother who notes the following:
I arranged for my son, to obtain higher education in Australia. On completion of his higher education from Australia, he will use his knowledge and experience he has gained to run his own restaurant and party palace business in Nepal. On completion of his studies, I am looking forward to support financially to start his business with his childhood friend. Also, since he is the youngest son, he is responsible to take care of our ancestors’ family properties, farmland and family. Also, on completion of his studies, he will settle in Nepal.
The applicant also submitted a statement as follows:
I have completed my High School from Padmodaya Mavi, Kathmandu in 2005 and my Higher Secondary from Pasang Lhamu Sherpa Memorial High S School, Kathmandu in 2007. Looking into family background I am from nuclear family with mother, sister, brother and me. My divorce with my wife was finalised on 14 February 2021. My family is always very supportive to my future studies and carrier
Immigration History
I came to Australia with my wife my ex-wife on 9^th July 2009. She was the main applicant at that time and I was on her dependent. She completed Diploma of IT from Central College and then bachelor’s degree in Information Technology (Business Analyst) from University of Ballarat. After her Temporary graduate visa, she completed Masters of Business Administration in Nov 2016. She has always been a good student and completed all her studies that she had enrolled for. We have always complied with our visa conditions. While she was studying, I supported her in all aspects like physically, mentally, financially and emotionally. Initially, we decided to return back to Nepal after completion of her studies. However, later with consultation of parents, friends and us, we decided that I would also complete hospitality course as I had some experience in the hospitality filed but I lacked formal education in field. So, prior to returning back to Nepal, I choose to complete my studies. So in order to purse my course that I am passionate about, I enrolled to study CIV of Commercial Cookery and Advance Diploma of Hospitality Management Course. I completed my Certificate IV in Commercial Cookery from AIBT. I was enrolled in AIBT school until October 2019, but could not complete the course on time. It was due to college problem. College was unable to deliver the course on time. During the study period we had few new teachers. All the new students were put in the same class due to which I had to study some subjects twice. Later in October 2019, after completing the CIV in Commercial Cookery units, I decided to change my college. Meantime, to bridge the gap I enrolled at International House Sydney for 7 weeks. At the same time my relationship with my ex-wife was not going well. We had plans to return back to Nepal after completion of my studies. As per the COE, I should have finished the course by late 2019, but due to college issues like coe cancellation without informing, unable to deliver course on time, visa refusal, AAT unsuccessful result, Federal Court, we had only experience failures and spend so much money and time, delaying in family plan, we were stuck and our relationship was weakening day after day. We end up fighting over things, thing was not going well at all and one day she left and never came back and later she filed a divorce. I was left broken, alone, depressed after failure of my long-term marriage. I lose so much weight at that time. Due to my situation and added up with covid lock down, loss of job, I was all alone by myself and I could not focus on my studies and thus did not enroll until October 2020. Slowly after taking to my family and friends I recovered, speaking to my mother I realized my family responsibility and career and reason I was in Australia. I have realized that it is important to invest on ourselves and make ourselves better.
Later, to resume my study I enrolled at Australian International College to study Diploma and Advanced Diploma of Hospitality Management from October 2020. I had to change the provider as AIBT did not deliver the course on time. Without any interruption I completed my course on 24 September 2021. I am glad that I chose Australian International College.
To further elaborate my skills and knowledge, I have enrolled in Diploma of Event Management course at Lonsdale Institute and 5 weeks English course to bridge the gap of my study
Reason for Choosing Certificate IV in Commercial Cookery, Diploma and Advanced Diploma in Hospitality Management and now Diploma of Event Management
After I came to Australia I had opportunity to experience part time work as waiter, barman, barista, function venues and various restaurants. I have employment letters from my previous employers. I was keen to learn more about different cuisines and food items. I was always interested to cook different items myself. After working in Hospitality industry, I had developed passion for it. Me, my ex-wife, my friend Binay Pradhan and family had discussed that after I complete my studies in Australia we will open our own Western Style restaurants or cuisines with bar and function centre. Our country is politically stable and is developing. So, there is a huge opportunity back in my country. Due to the beautiful landscapes, mountains, culture, rivers millions of tourists come to our country. Current market for this industry in booming due to implied new change in government rules and regulation. Since I am divorced now me and my friend Binay will open the business in Nepal. I have attached email conversation with my friend Binay as an evidence. I believe there is a huge opportunity in this sector. Earlier since my ex-wife was studying, it was bit impossible for both of us to study together. For a relationship to last it is important to support each other. So, I supported her so that she could complete her study. But later after she had completed her Master’s degree we decided that I would start doing my hospitality studies. Thus, I applied for student visa as a main applicant and until now I have completed Certificate IV in Commercial cookery, Diploma of Hospitality Management and Advanced Diploma of Hospitality Management. I feel really glad to have achieved professional qualification in Certificate IV in Commercial Cookery, Diploma and Advance Diploma of Hospitality Management in Australia. During the covid the Hospitality industry was hit hard, we lost jobs. However, After completion of my Diploma of Hospitality Management I got a job at The Watershed Kitchen as a Manger. I am glad that now I am able to apply my formal education to practical environment. Due to Covid for past two years, hospitality industry had been hit hard, and after discussion with my friend I have decided to upskill myself with Diploma of Event Management before returning to Nepal. While working at Burwood Hotel and The watershed Kitchen I have realised the importance of having event managing skills.
This skill is further useful to expand the business providing event and function services to the guest. People nowadays prefer to hire a function venue to organise any kind of party or function rather than doing at house. This course will further upskill my knowledge. I believe this is best way to utilise this covid time and prepare myself for the future. Further. This course will increase my employability after I return back to Nepal.
After studying this course, I will have a broad range of event-related skills and knowledge of event management processes to coordinate event operations.
Since events are diverse in nature this qualification will provide a pathway to work for event or exhibition organisations operating in a range of industries, including the tourism and travel, hospitality, sport, cultural, and community sectors. Possible roles include event or exhibition planner and coordinator positions in the areas of conferencing, event sales, functions, in-house meetings, staging and venues.
(he outlines the units he will study in the Diploma fo Event Management)
Reason for choosing Australia as education destination
Australia has become preferred destination for education among international students. Currently, this "land of kangaroos" attracts the third largest number of international students in the English-speaking world after the US and the UK. There are various reasons of choosing Australia as my first preference to pursue my further studies. Degrees from Australian institutes are recognized all over the world. Graduates from Australian institutes are highly sought after by both Australian and international employers. This is due to the impressive international reputation of the Australian education system (Global Recognition). Moreover, the diverse and multicultural environment of Australia teaches the students how to deal with different people in the real world. Also, I am already in Australia and I know this place. So, it is easy for me to navigate.
Reasons for choosing Australia and not home as education destination
Vocational education is not very popular back home and very few institutes provide these types of courses. And there are few event managements short course in Nepal. These courses are not recognised. They are very generic and traditional. Also, the knowledge provided is very limited and restricted. The variety of courses available in Australia is huge. Australia is one of the multicultural countries in the world, which is an advantage of studying in Australia. Also, the quality of education is much better in Australia as compared to Nepal. Colleges and Universities are in worlds’ top ranking and degree is highly considered all over the world. I will have higher Employability compared to local graduates. There are higher chances for me to be accepted by 5-star hotels or resorts or luxuries hotels compared to local graduates. Big hotels or resorts give higher emphasise to applicant having experience and knowledge from western countries.
Reason or choosing Lonsdale College
After carefully examining the available options for colleges, I came across some colleges in Australia that provide the course Diploma of Event Management like TAFE, AIBT (Australian Institute of Business and Technology), Greenwich English College and others. See the details of school below from CRICOS.
(he outlines the Colleges who offer Event Management )
With my research I have found that Lonsdale Institute course structure is excellent. Lonsdale College offers broad range of courses. Among all the courses Hospitality is well known. Lonsdale college provides us the up-to-date skills and professional insight we need to develop a long-lasting career. The facilities provided is high class and well equipped, and tuition fee is affordable. The Lonsdale College Hospitality department has a focus on quality, friendly, holistic Hospitality education. It has a structured system to help students through experienced trainers, support services, IT team and counselling professionals.
Career and Future plan
After completing my studies, I will return back to Nepal. Having an Australian degree can provide me certain advantage than local student. As mentioned 5 star hotels, Resorts in my country now offer a great value for overseas degree. I would expect to get salary of at least Nrs 80,000 per month which is subject to increase yearly basis. If I completed relevant degree in my own country, then my salary would be Nrs 20,000-30,000 per month. By considering the above estimated calculation I would definitely conclude that studying in Australia is a good investment for my future.
Also, Nepal is developing, we have beautiful tourist place, Nepal attracts millions of tourists every year. In any hotel, resort or restaurant Efficient and effective hospitality workers are required. Since I want to open my own restaurant with bar and function center with a friend (email from friend attached). The skills and knowledge I am getting from study and experience in Australia will help to conduct the business with international level and thus I believe studying in Australia is a good investment for me and my future.
Family and financial ties
I have sufficient fund to finish my education degree. My parents supported for my ex-wife’s studies and now they are supporting me for full tuition fees, living, travel and other expenses till my stay in Australia.
My Parents have acquired property and land in Nepal for me. I am responsible to take care of them. I am very close to my family. As youngest son, I am responsible to take care of family and family properties. I am socially attached with all family members, our festivals as well as family function we are celebrating to gather. I regularly contact my family through phone calls and other social platforms such as viber etc. Though I have visited my family in Nepal only once from 21 May to 4 June 2018 but we talk to each other on regular basis. My family is happy to support me for my passion.

He also provides evidence as to meeting the conditions of the student visa.
The applicant appeared before the Tribunal by telephone on 25 November 2021 to give evidence and present arguments. His representative attended the hearing.
The Tribunal noted that the issue before it is whether he meets the genuine temporary entrant criteria as per cl 500.212. It outlined these requirements and Direction No.69.
The Tribunal discussed with the applicant the courses he had studied, and he confirmed he successfully completed the Certificate IV in Commercial Cookery studied from 3 April 2017 to 28 September 2018. As to the Advanced Diploma of Hospitality studied after at AIBT, he indicated he completed 4 to 5 units of that course or maybe 4, 5 or 6. He referred to them having poor teaching and wasting his time.
The Tribunal raised with him via the process outlined in s 359AA information as contained in the PRISMS record. It outlined the following information:
·He was enrolled in the Certificate IV in Commercial Cookery studied from 3 April 2017 to 28 September 2018 at AIBT and while the PRISMS record indicates he did not commence studies and enrolment was cancelled on 15 July 2017, the Tribunal indicated that it accepts from his evidence this is an error and that he successfully completed the course and the PRISMS record is not correct in this instance.
·He was enrolled in the Advanced Diploma of Hospitality from 1 October 2018 to 29 March 2019. The Tribunal noted that the PRISMS record indicated enrolment was cancelled for non-commencement of studies on 12 July 2017 but accepted his evidence that this was not the case and noted the PRISMS record is not accurate in this instance. It raised with him it accepted he was enrolled in this course from 1 October 2018 until 25 October 2019 after 2 extensions.
·He was then enrolled in a General English course from 11 November 2019 to 27 December 2019 which he successfully completed.
·There was a gap of no enrolment or study from December 2019 to 12 October 2020.
·He then enrolled in the Diploma of Hospitality Management from 12 October 2020 to 9 April 2021 and successfully completed the course.
·He was enrolled in the Advanced Diploma of Hospitality Management from 26 April 2021 to 24 September 2021 and successfully completed the course.
·He is currently studying a PTE-A Exam Preparation course and a Diploma of Event Management.
The Tribunal outlined the relevance with regard to the genuine temporary entrant criteria, including a lack of enrolment from December 2019 to October 2020 and why when having spent a year studying the Advanced Diploma course, he would then study at a lower level.
The Tribunal noted the adverse information in the PRISMS record as to the Certificate IV in Commercial Cookery and Advanced Diploma of Hospitality being cancelled but indicated that it accepted that was an administrative error and that the applicant had successfully completed the Certificate IV in Commercial Cookery and his enrolment in the Advanced Diploma of Hospitality had not been cancelled on 12 July 2017, rather he had been enrolled in this course from 1 October 2018 to October 2019 and completed units in this course.
The applicant chose to respond orally at hearing. He said he did not study in 2019/20 because of the divorce, and there were many issues with his wife. He said he was very upset because of the separation and divorce and was mentally sick. He said his wife asked him for a divorce and they were fighting. As to when they separated; he responded that they filed for the divorce on 31 August 2019 with the Court and from then she started living with a friend. He said they had been married for 10 years and he was very upset. He said after that his CoE was cancelled and his visa was refused, and his case was before the Court.
The Tribunal asked whether at any time he saw a Doctor or any medical professional because of the stress he was facing which he claims rendered him unable to study. He said he talked to his mother and friends who supported him. The Tribunal referred to the email from his workplace from May 2021 which indicates he was working during this period. He said he worked at the Fairfield RSL 20 hours a week and had been working there since around 2018.
The Tribunal raised with him that it was difficult to understand how he was able to work from December 2019 to October 2020 but was not able to study. He said he had to work for his living, his rent and he needed money to live. He said his Mum sent him money, but he works 20 hours a week. It raised with him that the 10-month gap in study seems odd when he is claiming that he is in Australia to study.
The Tribunal noted he has been studying the Advanced Diploma in Hospitality for a year in 2018/2019 and questioned why he then studied the Diploma of Hospitality at a lower level from October 2020 to September 2021. He referred to his work in the restaurant and café industry since coming to Australia and he said he wants to work in the hotel restaurant industry and wants to work in an area where he has the skills; and that’s why he chose those courses.
The Tribunal again noted he had spent a year studying the Advanced Diploma course in 2018/2019 and he completed 4 to 5 subjects although there is no documentary evidence submitted to the Tribunal, then started 10 months later and downgraded his study to a Diploma course in 2020/2021 and then studied the Advanced Diploma course. The Tribunal asked why he had downgraded and restudied. He said the Diploma and Advanced Diploma is similar and he said he had credit and can finish the Advanced Diploma course in a short time. The Tribunal asked whether he received credit from studying the Advanced Diploma course in 2018/2019 and he said he did. The Tribunal asked for evidence as to what he passed in the 2018/2019 period and the Tribunal noted that it did not appear to have any such evidence on file.
The Tribunal raised as of concern as to whether he is a temporary entrant, that he has been in Australia since 2009 and he wishes to stay until November 2022 when his Diploma course finishes; a period of 13 years and he has only departed on one occasion to Nepal in 2018. It raised with him that his length of time in Australia questions whether he is a temporary entrant. The applicant responded that when he came in 2009 with his wife as the main applicant he had to cook and look after his wife, work hard for rent and food, and had to support his wife mentally. He said it was his intention to go back and he talks and communicates to his Mum and friends every day including via Facebook. He said as a husband he had to look after his wife, and he had to listen to his wife.
The Tribunal raised with him by s 359AA evidence from the Movement Records that indicate he held a student dependant visas from 2009 to 15 March 2014 , then was applying or holding a dependant Subclass 485 visa to 24 October 2015, then held or was applying as a dependant for a further student visa to 15 March 2017. It raised with him that he had departed on one occasion from 21 May 2018 to 4 June 2018. It raised with him the relevance of his length of time in Australia only departing on one occasion and questioned why he had not studied while holding the dependant visa. He said during that time his wife was doing classes as well. He said for him at that time he was not thinking of study as he was thinking of returning and he was working full-time and saving money for her MBA. He said she was planning to study the MBA course and he had to work hard.
The Tribunal asked when he decided he wanted to return to Nepal and open a restaurant or work in the hospitality industry. He said for so many years, he kept talking to his wife and when he started working in fine dining he was always thinking and talking to his wife about opening something similar in Nepal. He said when she left him, he had nothing and he said he has to go back to his country, start a new life and get married, as he is 35/36 and he has to look after his future.
The Tribunal asked when he decided he wanted to study in Australia and to return to Nepal to open a restaurant or work in the area and he said around 2016.
The Tribunal asked why he is studying in the hospitality area; he said he loves food, and he wants to learn so many techniques about the food, how to sell and talk to customers. He said he is working in fine dining, making coffees and cocktails and that is his passion. He said he has always worked in this area in Australia. The Tribunal noted that he said in 2016 he decided he wanted to study for his future career aim and the Tribunal asked what that aim is and he said he wanted to open a nice fine dining restaurant and is thinking to open an events place for functions and weddings. The Tribunal asked when he had the idea for events and he said presently he is working in a place that does events, such as christenings, weddings and birthdays. He said he could do the set menu and events.
The Tribunal asked the value of the courses he is enrolled in to his future. He said Australia is one of the top countries in the world and he said when he returns to his country he could be a Duty Manager in a 5-star hotel. He said in Nepal they need people who can deal with foreign customers and who can talk in English.
The Tribunal noted he said he was studying for his future and asked whether he was studying to work as a Duty Manager at a 5-star hotel or whether there is anything else. He said he wants to open his own restaurant or event centre. He said he is talking to his friend in Nepal, and he is looking for a place and he said with his friend when he returns, they will start doing business, to have a business and function centre and utilise all skills learnt in Australia.
The Tribunal asked how he can both work as a Duty Manager in a 5-star hotel and open a restaurant and he said if he does not want to open a restaurant he can apply and easily obtain a job in a 5-star restaurant. He said his aim is to open the restaurant and event centre, but he said those certificates can help him get a job easily as a Duty Manager in a hotel when he returns to his country.
The applicant confirmed he has been studying to open a restaurant in Nepal since 2017 when he initially applied for the visa. The Tribunal raised as of concern that he had spent 5 years studying in Australia and questioned the credibility of spending 5 years studying in Australia with high costs and living expenses to open a restaurant in Nepal. He said a lot was going on, and then AIBT cancelled his CoE without information. He confirmed that he did in any event complete the Certificate IV in Commercial Cookery in time even if they cancelled it and he said he did not have a proper teacher and he had to do each unit 2 or 3 times. The Tribunal questioned why he stayed enrolled with that Institute from 2017 to October 2019 if it was so bad. He said he was doing cookery and he thought they were going to hire teachers; he said he did not know what was going on with Australian education and then he had to study the same unit 2 or 3 times and he said he did not know what to do. He said the College misled the students. He said as a student if you ask too many questions, you are scared they might do something.
The Tribunal asked him about the plan for the restaurant he is going to open with his friend Binaya and asked him when he made that plan. He said he was studying a Diploma and Advanced Diploma and he was talking to his friend and that there are some nice locations and he asked him to send a photo and he is thinking he would go back to his country as soon as possible.
The Tribunal asked about the plans; he said he wants to finish the event management course and then go back to Nepal and start a business.
The Tribunal asked about these plans when he goes back; he said he doesn’t have any plans and he said a family member would help him out. He confirmed that he would sort out the plans when he returned home.
The Tribunal referred to the photos he had submitted and asked the relevance of these photos; he said his friend sent them where the renovation is happening, and the restaurant is for sale. He said he has not bought it. He said he is looking and if a person wants to open a restaurant you need a place with a nice location. He confirmed that the photos are just an example of places they may purchase.
He said he was not in a relationship in Australia. He said he had not applied for a permanent visa. He said he wants to finish hs study and return to look after his mother and the business, then referred to land they owned.
The applicant was able to provide information as to the Diploma of Event Management at Lonsdale College he is enrolled in consistent with independent information on the education provider’s website.
As to his family, he said his mother and sister are in Nepal and his brother is in Dubai.
He said he owns property in Nepal and once he returns, they will have to decide about the property because of the divorce.
The Tribunal asked whether there are any civil or political reasons why he cannot return and he referred to the high number of COVID-19 cases in Nepal. He said that is only a temporary matter. He said he has no military commitments which would act as a disincentive to return.
The Tribunal asked whether there is anything else which would show he has an incentive to return; he said he is living by himself, and he was looking after his wife and all he has is his Certificate from Australia and work experience. He said when he finishes his study, he will return to Nepal as he is 36 and he will need to get married.
The Tribunal noted its concerns being his length of time in Australia, that he has studied only at the vocational level since 2017, he has had a gap in his enrolment, spent much time and money studying in Australia to open a restaurant but his future plans seem vague and lacking in detail and he said he would look at it when he returns. He responded that his intention is not to stay in Australia by himself. The Tribunal noted that having only departed on one occasion may indicate a lack of connection to his country and he said he was listening to his wife. He said returning to Nepal costs much money.
The Tribunal asked why when he applied for the visa in March 2017, he was very vague, and the applicant said in 2017 he was working making coffees and cocktails and if he goes back to his country, he did not have any skills.
The applicant’s representative asked for further time to provide the transcript from the previous College with regard to the Advanced Diploma course.
The representative noted that the applicant has not agreed with the Tribunal that he had a vague plan as to his business plan on return; however, agreed that he had said he would develop the plan on his return.
The applicant was given until 3 December 2021 to provide further documents.
On 6 December 2021 the applicant’s representative provided the following additional documents:
·A Statement of Attainment indicating the applicant achieved 8 units, being partial completion of the course while studying the Advanced Diploma of Hospitality Management at AIBT.
·Evidence indicating he successfully completed the Certificate IV in Commercial Cookery.
·News item to students dated 27 September 2019 noting AIBT’s registration was cancelled on 2 September 2019 to come into effect on 7 October 2019 but that it can seek review.
·Evidence the applicant’s former wife completed a Professional year in Information, Communication and Technology dated 24 Janaury 2015.
The applicant also provided the following further statement to the additional information summarised as follows:
·The applicant was nervous on the day of the hearing.
·As to why he did not enrol after his wife completed her Bachelor’s degree and while she was applying for the temporary graduate visa; he said his wife was enrolled in her Professional year studying at ECA College. He claimed this cost between $12,000 and $13,000. He said after this she was interested in completing an MBA and she applied for a further student visa. He claims while she was studying, he supported her in all aspects of their life; physically and mentally as well as financially and emotionally. He claims initially they decided to return back to Nepal after completion of the studies, however, after consultation with their parents and friends they decided that he would complete the hospitality course as he had experience in that field, and he wanted some formal education; so he enrolled in the commercial cookery and hospitality course.
·As to his study from October 2018 to October 2019, he claims he was enrolled in the AIBT school from October 2018 to October 2019 and in that time, he completed the Certificate IV in Commercial Cookery in December 2018. He claims he had difficulties with the College including with the teaching and was only able to obtain the transcript for the Advanced Diploma of Hospitality Management on the day of the statement despite repeated requests.
·As to the gap in studying between December 2019 and October 2020; he said at that time his relationship was not going well and they had plans to return to Nepal; there were also College issues, he had a visa refusal, his appeal to the AAT was unsuccessful and he had to go to the Federal Court. He claims the relationship was stuck and they were fighting, and she left him and he was left broken, alone, depressed and he lost weight. He said he could not focus on his studies and did not enrol until October 2020. He claims after speaking to his mother and friends he realised his family responsibility and career was the reason he was in Australia and he decided to resume his studies. He then studied at the Australian International College the Diploma and Advanced Diploma of Hospitality Management from October 2020. He claims he had to change the provider as AIBT, where he studied previously, did not deliver the course on time, and without any interruption he completed the Diploma on 24 September 2021.
·He said the Member asked if he was working at that time and he said he was very nervous and stressed. He said he lost his job in the beginning of the pandemic and did not work until late July 2020 and slowly after talking to his family and friends he started to work 20 hours a week from the end of July 2020.
·As to why he studied at a lower level; referring to the Diploma course he said he studied a packaged course and the higher course was the Advanced Diploma of Hospitality Management.
·As to his reason for choosing hospitality management and his future career plan, he said after he came to Australia, he had the opportunity to experience part-time work as a waiter, barman, barista at function venues and various restaurants and he referred to the employment letters he has provided. He claims he was keen to learn about many different cuisines of food items and was always interested in cooking different items himself. He claims he developed a passion for it and he, his ex-wife and his friend Binaya and family had discussed that after he completes his studies in Australia he will open a western style restaurant for cuisines with bar and function centre. He submits that his country is politically stable and developing and there is a huge opportunity back in his country. He refers to the beautiful landscapes and the current market for this industry is booming due to new changes in government rules and regulations. He claims he and Binaya will open the business in Nepal and he refers to previous conversations by email with his friend Binaya. He claims his mother will also support him financially to open the restaurant with bar and function centre in Nepal. He submits that since they have farming land, they have thought to use organic ingredients from their own farm in the restaurant and they have spoken to local people who can provide organic meats and chickens for the restaurant. He submits that while the Member asked him during the hearing, he was unable to answer in detail about his career plan as he was nervous and forgot to say the important details.
·During COVID-19 he submits that the hospitality industry was hit hard but after the completion of his Diploma he was able to obtain a job at the Watershed Kitchen as a Manager and he is glad that he is able to apply his formal education to the practical environment.
·Due to COVID-19 he submits the hospitality industry has been hit hard and he has decided to up-skill himself with the Diploma of Event Management before returning to Nepal and he realised while working in the Watershed Kitchen the importance of having event management skills. He claims the skills will be further useful to expand his business to provide event and function services to guests as people nowadays prefer to hire a function venue to organise any kind of party or functions such as a birthday, marriage, engagement, naming ceremony, baby shower, anniversary and many other celebrations.
·He claims on completion of the event management course he will open his own business in Nepal and sees himself running his own restaurant and party palace.
·He declares he will return to Nepal on completion of his studies.

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 he meets 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.
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.
Having considered the applicant’s claims against all the factors specified in Direction No. 69, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.
As to the applicant’s circumstances in his home country, no evidence has been presented that the applicant’s economic circumstances would present as a significant incentive for the applicant not to return to Nepal. There is no evidence before the Tribunal that political and civil unrest would result in the applicant choosing to remain in Australia indefinitely. There is no evidence before the Tribunal of military commitments that would present as a significant motive not to return. It accepts his evidence as to why he chose and chooses to study in Australia and not Nepal, and the benefits of an Australian education on return to Nepal. The Tribunal accepts that he has close family ties in Nepal, including his parents who are becoming old and who he has the responsibility to take care of. It also accepts he has a sister in Nepal. It accepts he is in regular contact with his family and friends in Nepal via social media. It accepts his brother is in Dubai. It accepts while his ex-wife’s sister is in Australia, as he has now divorced his wife, this indicates no family connection to Australia for him. The Tribunal therefore accepts he has closer family ties in Nepal than in Australia and these indicate an incentive to return. It accepts he owns property in Nepal although notes his evidence at hearing that this will need to be sorted with his now ex-wife. It has considered his claim that he wishes to return to Nepal as he is now in his mid-30s and it is time to remarry and think of having a family. The Tribunal accepts that these circumstances in Nepal are indicative of a person who is only a temporary entrant who has an incentive to return to Nepal.
The Tribunal also accepts that the applicant was enrolled to study a PTE-A Exam Preparation Course from 15 November 2021 to 17 December 2021, and a Diploma of Event Management from 3 January 2022 to 20 November 2022. It accepts that while at the hearing he was studying the above-mentioned exam preparation course and that he has now, at the time of this decision, successfully completed that course and is now studying the Diploma of Event Management. The Tribunal notes that at hearing he was able to provide information as to the Diploma of Event Management consistent with that provided by the education provider on its website. It accepts he previously successfully completed the Certificate IV in Commercial Cookery studied from 3 April 2017 to 28 September 2018, a General English course studied from 11 November 2019 to 27 December 2019, a Diploma of Hospitality Management studied from 12 October 2020 to 9 April 2021 and an Advanced Diploma of Hospitality studied from 1 October 2018 to October 2019 where he partially completed the course and again studied this same course at a different College from 26 April 2021 to 24 September 2021 where he successfully completed this course. However, the successful completion of courses and enrolment in the periods above are two of many considerations relevant to the assessment of whether the applicant, in regard to the current visa application, intends genuinely to stay in Australia temporarily.
While the Tribunal notes the PRISMS record raised with the applicant via s 359AA indicates enrolment in the Advanced Diploma of Hospitality studied in 2018/2019 and the Certificate IV in Commercial Cookery were cancelled, the Tribunal finds the PRISMS record is not an accurate recording in this instance, that an administrative error was made with regard to these two courses and accepts the applicant’s evidence as to his achievement in these courses. It draws no adverse inference from the incorrect PRISMS record as to the applicant’s study record with regard to these courses; rather it accepts and places weight on his successful completion of the Certificate IV in Commercial Cookery and that he was enrolled in the Advanced Diploma of Hospitality Management at AIBT from October 2018 to October 2019 completing the subjects as claimed.
The above information indicates the applicant has been in Australia since 9 June 2009 when he arrived on a dependant student visa with his then wife as the primary applicant and held further student visas and a Subclass 485 visa as a dependant to 14 March 2017. As raised with him via s 359AA the evidence indicates he has departed Australia on one occasion from 21 May 2018 to 4 June 2018. The Tribunal views his extended stay in Australia from June 2009 and wanting to remain until November 2022, being a period of over 13 years in total, and 12 years 9 months as at the date of this decision, having only returned to Nepal on one occasion to be of significant concern as to whether he is a temporary entrant. While the Tribunal accepts that he has had a matter before the Tribunal/Federal Court, the Tribunal views his extended length of stay in Australia as indicative of a person who does not intend to genuinely stay in Australia temporarily and is using the student visa program to maintain ongoing residence. It also views his length of time in Australia as undermining his claim as to his circumstances in Nepal being a motivation to return. While it accepts that he was in Australia from 2009 to 2017 to support his wife’s study, the Tribunal views his length of time with limited trips to return as of concern as to whether he is in Australia temporarily.
The Tribunal also views as of significant concern that since the application for the visa in March 2017 he has only enrolled in and studied courses at the vocational level since he indicated his wish to stay in Australia as the primary applicant and study for his future. It also views as of concern that he is now enrolled in a further vocational course, the Diploma of Event Management, extending his time in Australia to November 2022. While there may be good reason for it, the Tribunal, for the reasons below, is not satisfied on the evidence before it that he is studying for any value to his future. His evidence to the Tribunal in 2017 as to why he has been studying in Australia was that in 2016/2017 he realised having worked in the hospitality restaurant that he wanted to open a western style restaurant with bar and function centre. In 2021 he advised that he now wishes to study the event management course as he realised through his work the importance of having event management skills that would assist him with his business. He submitted that after studying these courses he will have a broad range of event and function service experience. He believed it to be a good way to spend his time during COVID-19. He also refers to the possibility of working in 5-star hotels. However, despite having this aim of opening a restaurant on return since 2017, the Tribunal views his evidence as vague and lacking in detail as to his plans, particularly his evidence given at hearing with regard to his future plans. In this regard the Tribunal asked him about the plan for the restaurant he is going to open with his friend Binaya and asked him when he made that plan; he said he was studying a Diploma and Advanced Diploma and he was talking to his friend and that there are some nice locations and he asked him to send a photo and he is thinking he would go back to his country as soon as possible. The Tribunal asked about the plans; he said he wants to finish the event management course and then go back to Nepal and start the business. The Tribunal asked again about these plans when he goes back to Nepal; he said he doesn’t have any plans and he said a family member would help him out. He confirmed that he would sort out the plans when he returned home. Considering the time and expense the applicant has spent studying in Australia to open a restaurant, the Tribunal is of the view if he was and is studying in Australia for the reasons he claims he would have been able to provide more detailed evidence at hearing when asked than he could. The Tribunal notes the further evidence provided after the hearing as to why he is studying these courses including his plans and that the lack of detail was due to nerves; but is of the view, even if nervous he would have been able to provide more detailed evidence at hearing than he did if he was studying for the reasons he claims to open a restaurant, particularly as the Tribunal asked him repeatedly about his plans for the future. The Tribunal has considered the photos submitted of a restaurant but notes his evidence they are an example of the type of restaurant he is looking to operate on return. It also has considered the exchange of emails and evidence between him and his friend Binaya, as well as the evidence from the applicant’s mother that she will finance the restaurant and as to the applicant’s plans but is of the view it does not overcome his evidence as to his future provided at hearing, including that he will plan this on return. This is particularly so as the applicant claims he has had this idea since 2016 /2017.
The Tribunal also views as of concern that despite claiming that he is in Australia to study, as raised with him via s 359AA and as also accepted by the applicant, he was not enrolled in any course of study from December 2019 to October 2020. His reason is that he separated and then divorced from his wife and he was very upset. In this regard there is no medical evidence that he was so distressed that he was unable to study which the Tribunal may expect if that was the case. Also, his evidence at hearing was he worked throughout this period, although in the post-hearing submission he indicated he did not work from March 2020 to July 2020 due to COVID-19. While the Tribunal accepts the separation from his wife would have been upsetting, it does not accept he was unable to study from December 2019 to October 2020 as a result but would have been able to work as claimed. It has considered his claim when it was raised with him that he had to work for his living, his rent and he needed money to live but is of the view if he was in Australia to study he would have done so as a priority if he is a genuine student, particularly as he gave evidence his mother is supporting him. The Tribunal is also of the view that as he is in Australia to study, he would have sought medical help if he was so mentally affected that he could not study.
The Tribunal also views as of concern, as raised with him at hearing, that he did not study from 2009 to 2017 when he was able to. His response was that he was looking after his wife emotionally, physically, financially as she was studying. The Tribunal has difficulty accepting that if he was working in the area since 2010 that only when his wife stopped studying and her visa ceased that he then decided to study. While not solely determinative it adds to the finding he is using the student visa to maintain migration and not as a genuine student.
It has also considered his claim that he extended his enrolment from March 2019 to October 2019 and ultimately did not complete the Advanced Diploma course at AIBT due to poor teaching and problems with the College. He has provided evidence that he partially completed the course, obtaining 8 units. Having obtained 8 units in the Advanced Diploma course the Tribunal questions why he would then enrol in a Diploma of Hospitality Management , spending 6 months from October 2020 to April 2021 studying at a lower level. He indicated that it was a packaged course, but the Tribunal is of the view studying at a lower level rather than completing the Advanced Diploma course indicates he was seeking to extend his time in Australia and is using the student visa program to maintain migration.
The Tribunal is therefore of the view that the applicant is using the student visa program to maintain migration and is using the student visa process to maintain residence and is not a genuine applicant for entry and stay as a student.
As to the applicant’s immigration history, there is no evidence before the Tribunal he has previously travelled to Australia or anywhere else before 2009 or applied for a permanent visa or other visa to Australia or other countries, other than applying to Australia for student visas. In this regard, it has above considered his length of time in Australia.
In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness, and the manner in which responses can differ depending on the nature of and manner in which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness as to these claims.
In making the decision the Tribunal has considered all the evidence before it, including that he is currently enrolled, has completed the courses he claims, has stronger family ties in Nepal than in Australia, his evidence he will return home after the completion of his course, he owns property in Nepal, he wants to return home and marry, the evidence of his friend and mother, that AIBT had poor teaching methods and his knowledge of the Diploma of Event Management and all the other evidence he has submitted; however, for the reasons outlined above does not accept he is undertaking the current study for the reasons he claims, but rather using it as a pathway to maintain residence in Australia. The Tribunal is therefore not satisfied that he is a genuine applicant for entry and stay as a student and is of the view that the student visa program is only being used to maintain ongoing residence.
On the basis of the above, the Tribunal is therefore 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.
Gabrielle Cullen
Member

Attachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton

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

[2022] AATA 1646

22 March 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction