Lama (Migration)

[2019] AATA 4821

Lama (Migration) [2019] AATA 4821 (16 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rinzin Dorjee Lama

CASE NUMBER:  1732423

HOME AFFAIRS REFERENCE(S):             BCC2017/3373001

MEMBER:Genevieve Cleary

DATE:16 October 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 16 October 2019 at 1:15pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa –genuine temporary entrant criterion not met– unsatisfactory course progress –using student visa to maintain ongoing residence – long period of non-enrolment – lack of any evidence of completion of any other courses –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.111, 500.211, 500.212, 500.311
Education Services for Overseas Students Act 2000

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 30 November 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2.       The applicant applied for the visa on 15 September 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

4.       The applicant was assisted in relation to the review by their registered migration agent.

5.       With his application for review the applicant sent the following to the Tribunal:

·      Certificate from Phoenix Academy for the completion of the English for Academic Purposes course, dated 19 December 2014, showing that the course was conducted between May and December 2014;

·      Offer of study for Phoenix Academy – Certificate IV in Business to commence 6 January 2014 and Diploma of Business, to commence 7 July 2014;

·      Certificate of Enrolment, Certificate III Commercial Cookery, Cambridge International College, the course to commence on  9 May 2016, to be completed on 30 April 2017;

·      Certificate of Enrolment, Diploma of Hospitality,  Cambridge International College, the course to commence on  23 October  2017, to be completed on 6 May 2018;

·      Certificate of Enrolment, Bachelor of Business (Management), Cambridge International College, the course to commence on  4 June 2018, to be completed on 17 May 2020;

·      Letter of Offer, unsigned, and associated documents from New England College dated 18 December 2017 for Certificate IV in Commercial Cookery commencing 18 December 2017, ending 25 February 2018;

·      A copy of the Visa Grant Notice dated 13 March 2014 showing the grant of the Student (Class TU) Higher Education Sector (Subclass 573) Visa;

·      The decision record of the delegate, and

· The Response to Request for Visa Information form sent pursuant to s 359(2) of the Act.

6. On 26 March 2019 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information about the courses he was undertaking and his entry and stay in Australia as a student in writing. The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by 11 April 2019 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. The applicant responded to the invitation within time.

7. In their response, the review applicant indicated that he consented to the Tribunal reviewing the decision without a hearing. The Tribunal is satisfied that the necessary consent has been given under s. 0(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.

8.       Before making a decision, the Tribunal sought further information about the applicant’s enrolment. A review of the Provider Registration and International Student Management System (PRISMS) indicated that as of 23 September 2019 the applicant was not enrolled in a course of study. The record showed that the enrolment for the following courses was cancelled as follows:

·Diploma of Hospitality Management, cancelled on 21 April 2017 for non-commencement of studies.

·Bachelor of Business, cancelled on 21 April 2017 for non-commencement of studies;

·Diploma of Hospitality Management, cancelled on 12 September 2017 for non-commencement of studies.

·Diploma of Hospitality Management, cancelled on 5 December 2017 for non-commencement of studies.

·Advanced Diploma of Business, cancelled 5 December 2017 for non-commencement of studies.

9.       The PRISMS record showed no subsequent enrolments.

10.       The Tribunal acknowledges that the PRISMS record also shows that the applicant has completed, between September 2014 and July 2015, two Certificate IV in Business courses and a Diploma of Business in addition to the English course, and a Certificate IV in Commercial Cookery, which he studied between May 2017 and October 2017.

11. On 25 September 2019 the Tribunal wrote to the applicant pursuant to s 359A of the Act, explaining that the PRISMS record showed that he was, on that date, not enrolled in a course of study. The letter told the applicant that the Tribunal considered that that information would, subject to his comments or response, be the reason, or part of the reason, for affirming the decision under review. The applicant was told in the invitation that if the Tribunal did not receive his comments or response within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain his views on the information. The applicant was also told in the letter that he would lose any entitlement he might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give any further evidence and present arguments.

12.       The applicant was asked to send his comments or response to the Tribunal by 9 October 2019.

13.       The applicant responded, within time, providing to the Tribunal:

·Letter of Offer dated 7 October 2019 from Australian Technical College for the courses: Certificate IV in Business, Diploma of Business and Advanced Diploma of Leadership and Management and associated Confirmations of Enrolment;

·A relationship certificate certifying that Chakka Baahadur Lama is the applicant’s father;

·A document the applicant has called “Father’s Business Registration” which is not in English, and

·A document entitled ‘Submissions,’ which will be referred to more fully later in these reasons.

14.       It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

15.       In these circumstances, the Tribunal has proceeded to make a decision having regard to all the information before it provided by the applicant, including the information previously provided by the applicant to the Department.

16.       For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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 applicant for entry and stay as a student.

Genuine applicant for entry and stay as a student (cl.500.212)

18. 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?

19. 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.

20.       The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

The applicant’s personal circumstances in his home country

21.       In his submission to the Tribunal dated 9 October 2019 the applicant says that he has no family in Australia; they are all in Nepal. His parents are approaching old age and want to retire soon and that it is his responsibility to care for his parents in their old age.  He refers to the document he has said shows his father’s the business registration, and says that his father owns a business. The applicant has offered to have that document translated.  The Tribunal is satisfied, without seeing a translation, that the applicant’s father has a business.  The Tribunal is also satisfied that the applicant’s father is funding his studies, and that his business is doing well. The Tribunal is satisfied that the applicant has family and family responsibilities in Nepal, and that means that he has some incentive to return to Nepal. The Tribunal gives this a little weight in his favour.

22.       There is no other evidence before the Tribunal that shows that the applicant has other community or personal ties to the community in his home country such that he has a significant incentive to return and the Tribunal gives this lack of other ties a little weight against him having an incentive to return.   The applicant is not subject to national service and there is no political or civil unrest or economic reasons that would be cause for the applicant not to return to Nepal, or provide an incentive for him not to return, and the Tribunal gives these factors some weight in his favour.

The applicant’s reasons for travel to Australia and his education in Australia

23.       The applicant finished high school in 2012. He originally applied for, and was granted, a visa to study in the higher education sector. That visa expired in September 2017.  The Tribunal acknowledges the Confirmations of Enrolment and letters of offers sent by the applicant to the Tribunal. A review of the Department file shows that he has also held Confirmations of Enrolment for:

a.A Diploma of Hospitality Management, New England College, to commence 6 November 2017 and to be completed on 4 November 2018, and

b.An Advanced Diploma of Business, New England College, to commence on 5 November 2018 and to be completed on 2 June 2019.

24. From the response to the request for information sent to the applicant under s 359(2) of the Act, it appears that the only course the applicant has studied and actually completed since he arrived in Australia in 2014 is English for Academic Purposes, having completed that course at Phoenix Academy in December 2014. That is the only course that he has provided details of in that form. Although the applicant sent a number of Confirmations of Enrolment to the Tribunal in April 2019, he has not provided to the Tribunal any evidence that he has completed any of those courses. The Tribunal can only be satisfied therefore that the applicant has completed the English course, two Certificate IV in Business courses and a Diploma of Business, all prior to July 2015, and the Certificate IV in Commercial Cookery in October 2017. It appears that he partly completed a Diploma of Business at Phoenix Academy, with an ‘Interim’ Statement of Academic Record having been provided to the Department. From that record it appears that he failed 2 units and passed one in 2015.

25.       There is therefore no evidence from the applicant that he has completed any other courses, and the Tribunal cannot be satisfied that he has completed any other courses between July 2015 and commencing the Commercial Cookery class in May 2017, and then between October 2017 and at the time of this decision.  The lack of any evidence of completion of any other courses, there therefore being relatively significant gaps in time between those completions, weighs against the Tribunal finding that the applicant is continuing his stay here for the purposes of study, and weighs against a finding that he is a genuine student. 

26.       In a statement provided to the Department dated 15 September 2017 the applicant says that he came to Australia to study a Bachelor of Business at Edith Cowan University.  He took 12 months to complete the original English course he had enrolled in and struggled with being alone in a large city such as Sydney.  He continued to struggle with the Diploma in Business, which appears to be reflected in the Interim Statement of Academic Record. He says that the college, after consultation, released him from the Diploma course.

27.       Rather than return to his family in Nepal he worked in a restaurant and found, he says in that statement, an interest in hospitality. He then appears to have commenced courses at Cambridge College, however he says in that statement that he commenced there to do “3 years of Hospitality business degree.”  He says that he “almost” completed a Certificate III course, however he does not say what in.  He said that Cambridge did not serve him well. He then moved to New England College and completed the course, although, again, he does not say what in.  The Tribunal assumes from PRISMS that he means the Certificate IV in Commercial Cookery.

28.       The Tribunal accepts that young students may struggle being away from home, and attempting tertiary studies in a foreign language.  The Tribunal also accepts that young students do not always know what they really want to study when they leave school, and may have a change in direction.  Changes to courses and course providers, and some failures in units, are reasonable in those circumstances.  The Tribunal does not place any weight against the applicant for the struggles he had in completing the English course, or the change in direction from his original course of study in business to hospitality.

29.       However, from the papers provided by the applicant to both the Tribunal and the Department, the applicant was not enrolled in a course in 2016 or between June 2019 and October 2019.

30.       In his statement to the Department in 2017 the applicant said that he had almost completed  75% of his Hospitality course, and that he would like to be able to complete the courses before he returned to Nepal. His statement to the Department suggests that once he finishes the Diploma of Hospitality he would return home to Nepal.  This appears to be inconsistent with the fact that he submitted to the Department a Confirmation of Enrolment for the Advanced Diploma of Business course, to be completed in June 2019.   This inconsistency causes the Tribunal some concern, as it suggests that the applicant said he was going to leave after he had finished the Hospitality course in November 2018, whereas he actually intended to stay until at least mid – 2019. 

31.       Further, given the applicant wrote this in September 2017, it is not clear to the Tribunal how he could have been 75% completed, when, according to the Confirmations of Enrolment he submitted to the Department, he still had just under 2 years to go to complete the courses for which he was enrolled. On a mathematical calculation, that would mean that the total number of years the course was to take was about 8 years. If he had only 1 quarter of the course to go, that meant that he had to have started the course in about 2011, which he clearly did not.

32. In addition, the applicant has not provided any information to the Tribunal to show that he completed the Diploma of Hospitality Management, nor that he commenced or completed the Advanced Diploma of Business. A review of the PRISMS record which was sent to the applicant on 25 September 2019 for comment and response shows that the enrolment in both the Diploma of Hospitality Management and the Advanced Diploma of Business were cancelled in December 2017 for non-commencement of studies. The applicant has confirmed in his s359(2) response that he was not enrolled in any course when that form was sent to the Tribunal on 11 April 2019, by him saying “no” to the question “Does the main Applicant have a current Confirmation of Enrolment (CoE) in a registered course of study?” He has therefore confirmed that he was not enrolled in, or studying, the Advanced Diploma of Business, the Confirmation of Enrolment for which he sent the Department in support of his application for the Student visa in 2017.

33.       The history the Tribunal has been able to discern of the applicant’s studies in Australia show that he has been in Australia for study since 2014.  Since that time, he has:

a.Completed two Certificates IV in Business, in 2014 and 2015;

b.Completed a Diploma of Business in 2015;

c.Completed a 5 month course in Certificate IV in Commercial Cookery in 2017.

34.       Otherwise he has spent amounts of time not studying, and, in some instances, not enrolled.  While his statement to the Department may have explained the early changes in courses and direction and his struggles when he was first here, he has not provided any further explanation as to why he, after applying for the Student visa he required to complete the hospitality courses he said he wanted to complete, was not enrolled from at least April 2019. While he took the opportunity to write a submission to the Tribunal upon being sent notification of the contents of the PRISMS record, he has not addressed why, at the time of the invitation to comment  being sent to him, he was not enrolled. In fact, all he said in that response in regards to his enrolment was that he “now” wanted to complete his studies.

35.       His statement to the Department that he wanted to complete his studies in hospitality and return home, and his current and very recent enrolments in leadership, management and further business courses show an inconsistency that has not been explained by the applicant.  That inconsistency and lack of explanation means the Tribunal is unable to be satisfied of the reasons for the changes in direction, the reasons for the gaps in studies and that the applicant is a genuine student.  These factors weigh heavily against the applicant obtaining his Student visa.

36.       The course of study, as a whole shows little if any progression over 5 years.  This suggests that the applicant is now using the Student visa regime to maintain ongoing residence in Australia, and this weighs against the applicant being granted a Student visa.

37.       Of more concern, however, is the fact that the applicant was not enrolled in April 2019 when he provided information to the Tribunal in response to its request for information, and continued to not be enrolled until the Tribunal wrote to him again in September 2019.  After that letter, it appears that he has sought enrolment.  The inference available to the Tribunal is that he has sought enrolment to satisfy the Tribunal, the Tribunal having specifically asked about enrolment, rather than because he is a genuine student. This weighs heavily against the applicant, and strongly suggests that he is using the Student visa regime to prolong his residence in Australia.

38.       The applicant has provided limited information about feedback he received from other students about his current education provider, and has said the college in which he is currently enrolled is most suitable for what he wants to achieve. However, as is explained elsewhere in these reasons, the Tribunal is not satisfied that it is clear what he wants to achieve, and therefore the Tribunal only places a very limited amount of weight in his favour on this information. The applicant has also said that the education is better in Australia than Nepal.  The Tribunal accepts that this may be the case, however with such limited information, it is difficult to discern why, in the applicant’s case, that is a benefit to him, and the Tribunal gives this factor very limited weight in his favour.

The value of the applicant’s course to his future  

39.       In his statement to the Department dated 15 September 2017 the applicant said that his father ran a herbal medicine business, and that his father had been thinking of starting a family restaurant business on a block of land the family own.  The applicant was, at that time, undertaking hospitality courses in preparation for that restaurant. In contrast, in the submissions dated 9 October 2019, which were the response to the invitation to comment in relation to his lack of enrolment, he says  that he now wants to complete his studies to up skill himself so that he can manage his father’s business on his return.  He says that that is the reason he has chosen to study Business and Leadership and Management.  It is a concern to the Tribunal that the applicant needs to study, again, a qualification in Business, when it appears that he has successfully done so in the past.

40.       There is no mention of the applicant or his family wanting to open a restaurant in the submissions dated 9 October 2019. Given the change in direction in his studies, from business, to hospitality and back to business, and the fact that the applicant has already studied courses in business, it is difficult to see the value of the applicant’s current courses to his future.  Other than the registration certificate (untranslated), the applicant has not provided any details of his father’s business, such as its size, its customers, details of what he would be expected to do in that business, and how the courses will benefit that business or those tasks. The applicant’s plans for the future appear vague and changeable. The Tribunal cannot place any weight in his favour on the course he is currently enrolled in as having any value to his future.

41. The applicant says in his response to the invitation for information pursuant to s 359(2) that he expects to earn approximately $50,000 having completed his current courses. He does not say how. There is no comparison provided in relation to what he would have earned without completing his current courses, and the Tribunal can place no weight on that estimated expected income.

The applicant’s personal circumstances in Australia

42. The applicant has been employed, according to his response to the s359(2) invitation for information, while in Australia between March 2015 and April 2016 as a cleaner, and March 2018 and February 2019 as a cook. He also said in his statement to the Department in September 2017 that he had worked in a restaurant in Perth, which must have been prior to September 2017, and therefore not the employment he refers to in his response to the s359(2) invitation. In any event, the Tribunal accepts that it appears that there is no information that suggests that he has built significant ties to the Australian community through work, such that there is an incentive for him to remain in Australia, and the Tribunal gives this some weight in his favour.

43.       There is no evidence that the applicant has entered into a relationship of concern, and there is no evidence that he is in a relationship at all in Australia, and the Tribunal gives this limited weight in his favour. 

44.       There is no other information before the Tribunal to suggest that the applicant has strong ties in Australia such that he has an incentive to remain and the Tribunal gives this a little weight in his favour.

45.       However, there is also little information provided by the applicant which enables the Tribunal to compare the applicant’s circumstances in Australia to his circumstances in Nepal, should he return there.  The applicant has provided limited information on the salary or income he would expect to gain in Nepal having studied courses in Australia. The Tribunal is left with the limited information that his father has a lucrative business,  and that he expects one day to take over the running of that business, however with unclear information about how that will benefit the applicant upon his return, or what ‘lucrative’ means in real terms.  The Tribunal therefore can put no weight on the applicant’s circumstances in Nepal compared with his circumstances in Australia, despite the fact that his father has a lucrative business.

The applicant’s immigration and travel history

46.       There are no other outstanding visa applications yet to be finally determined.  There is no evidence that any of the applicant’s family have an immigration or visa history of concern.  The applicant has not travelled to any other country and has therefore not had a visa refused elsewhere or considered for cancelation anywhere. The Tribunal gives the applicant some weight in his favour for those factors.

47.       However, the applicant first came to Australia in March 2014 having been granted a Higher Education Sector (subclass 573) visa to complete a Bachelor of Business.

48.       As was noted by the delegate, the applicant was initially granted a Higher Education Sector visa based on his intention to study a Bachelors degree. The applicant did not, it appears, commence the Bachelors course, and still has not progressed to that level of course.   When he applied for the visa the refusal for which is the subject of this review, he applied for a Vocational Education and Training level Student visa instead.

49.       The applicant has therefore not abided by the visa originally granted to him; neither can the Tribunal be confident that, as a result, he will comply with any visa conditions in the future. The Tribunal places weight on these factors in favour of the applicant not being granted a Student visa.

50.       Further, there is no evidence before the Tribunal that suggests that the applicant contacted  the Department to alert it to the changes in his courses or make an effort prior to his visa expiring to change his visa criteria. The Tribunal also places weight on this factor, as it suggests he does not have a desire to improve his education standards, but rather that he has a desire to maintain ongoing residence in Australia in any way possible.

51.       The applicant has remained in Australia from 2014, having completed only Diploma level courses.  He now wishes to extend his time here to 2022, to complete a course to Advanced Diploma level.  That is a significant amount of time to progress in a limited manner, and below the level the for which the applicant originally entered Australia, and this adds to weight to the inference that he is using the Student visa regime to maintain ongoing residence in Australia.  This weighs heavily against him obtaining a Student visa.

52. The applicant returned to Nepal to visit his family in, he says in his response to the s 359(2) invitation, 2005. The tribunal assumes he means 2015. He stayed for 2 weeks. There is no information before the Tribunal to explain why, in 5 years, he has only returned home for 2 weeks. There is no evidence before the Tribunal that his family have come to Australia to visit him.

53.       He has therefore only returned once to see his family, and the Tribunal is satisfied that this is evidence that he does not have such close personal ties to his family or home country that he has significant incentive to return to them, and the Tribunal gives this factor weight against the applicant being granted a Student visa. 

Any other relevant matters

54.       The Tribunal is satisfied that there are no other relevant matters for consideration in relation to this applicant.

Whether the applicant is a minor

55.       The applicant is not a minor and therefore the intentions of a parent, legal guardian or spouse of the applicant are not a relevant factor.

56.       Having regard to the applicant’s visa and travel history, weighed with the other factors discussed, the Tribunal is satisfied that the applicant is using the Student visa to maintain ongoing residence or circumvent the intentions of Australia’s migration program.

57. 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).

58. 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.

59.       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

60.       The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Genevieve Cleary
Member

Attachment – Direction No.69

DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

(Section 499)

I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

Dated: 18 April 2016

Peter Dutton

Minister for Immigration and Border Protection

Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

Part 1 of Direction No. 69 - Preliminary

Name of Direction

This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

It may be cited as Direction No. 69.

Commencement

This Direction commences on 1 July 2016.

Interpretation

Act means the Migration Act 1958.

Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

Regulations mean the Migration Regulations 1994.

Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

Spouse has the same meaning as the definition of the term in section 5F of the Act.

Student visa means a Subclass 500 (Student) visa

Student Guardian visa means a Subclass 590 (Student Guardian) visa.

Application

This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

Preamble

The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

a.the applicant’s circumstances; and

b.the applicant’s immigration history; and

c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

d.any other relevant matter.

This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

Part 2 of Direction No. 69 - Directions

Assessing the genuine temporary entrant criterion

1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

a.considering the applicant against all factors specified in this Direction; and

b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

4.Circumstances where further scrutiny may be appropriate include but are not limited to:

a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

c.the applicant intends to study in a field unrelated to their previous studies or employment; and

d.apparent inconsistencies in information provided by the applicant in their Student visa application.

5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

The applicant’s circumstances

6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

The applicant’s circumstances in their home country

9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

The applicant’s potential circumstances in Australia

11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

Value of the course to the applicant’s future

12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

The applicant's immigration history

13.An applicant’s immigration history refers both to their visa and travel history.

14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

a.Previous visa applications for Australia or other countries, including:

i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

b.Previous travels to Australia or other countries, including:

i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

Any other relevant matters

16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.