Leiner (Migration)

Leiner (Migration) [2022] AATA 4962 (26 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Andre Luis Leiner
CASE NUMBER:  2116231
HOME AFFAIRS REFERENCE(S):          BCC2021/338725
MEMBER:Frank Russo
DATE:26 July 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 26 July 2022 at 5:33pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No 69 – study history – PRISMS record – adverse information – unsatisfactory academic progress – presence of girlfriend in Australia – value of the course – immigration history – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 October 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 8 March 2021. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.
The applicant is a 33-year-old with dual German and Brazilian citizenship. He first arrived in Australia holding a Working Holiday visa in March 2019, following which he was granted a second Working Holiday visa. The Student visa under review is his first application for a Student visa. The Student visa application was in respect of the applicant’s enrolments in a Certificate III in Business and a Certificate IV in Entrepreneurship and New Business.
In accordance with special measures introduced by the Tribunal in response to the COVID-19 pandemic[1], the Tribunal invited the applicant to attend a telephone hearing on 22 June 2022. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
[1] COVID-19 Special Measures Practice Direction – Migration and Refugee Division, 2 March 2021.
The applicant appeared before the Tribunal by telephone on 22 June 2022 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary applicant for entry and stay as a student.
In addition to the application form and copy of the delegate’s reasons for decision, the applicant provided the Tribunal with a completed ‘Request for Student Visa Information’ form (s.359(2) response) on 19 April 2022, as well as a response to the hearing invitation. The Tribunal has had regard to these documents.
On 7 July 2022 the Tribunal invited the applicant to comment or respond to adverse information contained in a letter from Lexis Training (including attachments). The applicant did not respond to the invitation. The details of the adverse information contained in the letter and the attachments are set out in the reasons below.
The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file, in particular the applicant’s visa application form and the genuine temporary entrant (GTE) statement he provided to the Department.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
Evidence provided at the hearing
The applicant confirmed at the hearing that he is a dual German and Brazilian national and that he was born in Brazil and lived there his entire life prior to arriving in Australia. The applicant confirmed that he first arrived in Australia holding a Working Holiday visa on 11 March 2019, following which he was granted a second Working Holiday visa, which was valid until 11 March 2021. He confirmed that he applied for the Student visa on 8 March 2021, which was in respect of his enrolments in a Certificate III in Business and a Certificate IV in Entrepreneurship and New Business.
The applicant gave evidence that he was doing well with his studies in the beginning and was obtaining good grades, but then he received the delegate’s decision, which he was surprised with. He stated that the information which the agency which had been representing him contained some errors, including not providing complete information about his employment history. The applicant claimed that following the delegate’s decision he kept going with his studies, but he did not do the assessments. He gave evidence that this was because the assessments were extremely complicated and very long, and with the job he was doing at the time it was almost impossible for him to do the assessments, because he needed to be working in an office environment in order to complete the assessments, as he needed to consider things such as how he could save the organisation money. The Tribunal questioned whether he could have used his previous employment as an example, to which he responded that he tried to use his previous employment and did everything he could do.
The applicant also gave evidence that when his visa application was rejected, he preferred to make money and to keep going with his life. The applicant claimed that he completed the Certificate III in Business, but did not receive a copy of the certificate. When asked why this was the case, the applicant at first stated that he did not know why, but then stated that it was probably because he did not finish all of the assessments. The Tribunal questioned the applicant as to whether he was aware of the need to complete all course requirements in order to obtain the qualifications in which he was enrolled and questioned why he would continue to attend classes but not complete any assessments. The applicant responded that he did not know.
Asked when he stopped completing assessments for his courses, the applicant stated that it was around the time of the delegate’s decision. The Tribunal noted that the delegate’s decision was made in October 2021, and questioned whether it was around that time. The applicant stated that he thinks it was a bit before that. When asked if he is in contact with his college, the applicant responded that he watches the classes. When asked how he has maintained enrolment if he has not completing assessments, the applicant responded that he did not know. He claimed that he is still paying his course fees.
When questioned about the last unit he completed in his course, the applicant stated that he would need to check. Following a long pause, he stated that he thought it was Marketing and Promotion. When asked what he learned in this unit, he responded it was about marketing opportunities, then stated it was about marketing and how to set up marketing campaigns. When questioned further, he stated it was basically about marketing and doing campaigns for marketing brands, marketing plans and about communication marketing.
The Tribunal questioned the applicant as to when he is planning to complete his studies in Australia. He stated that he is planning to keep going and to finish all of his courses, and then he intends to apply for the ‘5 and 6’. The Tribunal questioned whether he was referring to a Certificate V and Certificate VI and noted that undergraduate certificates usually only go up to a Certificate IV and then progress to a Diploma. The applicant stated that he was not sure of the correct name of the course.
When questioned about his plans after he completes his studies, the applicant stated that his plan is to finish all of the assessments and then to ‘keep going’. When questioned further, the applicant stated that his plan is to return to his home country to use the certificates in his job.
When questioned why he chose his current courses of study, the applicant stated it is because his father owns a law firm in Brazil. He stated that his intention was not to remain in Australia after completing the Working Holiday visa, but then he met a woman in Perth and decided to stay a bit more. He stated that he wished to improve his skills and to return to work in his father’s law firm. He stated that when he previously worked in the law firm he had what he described as a ‘regular job’, but with a Diploma he will have better opportunities.
The applicant gave evidence that the highest level of education he had completed in Brazil was the equivalent of Year 12 high school. He stated that he studies a Law degree for two years in Brazil, but he did not complete it. He studied Architecture for a few months, but did not complete the course. He commenced a course in Information Systems, but did not complete this course either. He confirmed that he did not completed any tertiary or university courses in Brazil or elsewhere.
When asked why he has chosen to study his intended courses in Australia rather than his home country or elsewhere, the applicant stated that international diplomas are worth a lot in Brazil and have a lot of value. When asked how it will be of value, he stated that you can get better jobs and opportunities and earn more money.
When questioned further about how his proposed studies will assist him to find employment or improve his employment opportunities, the applicant stated that just by being international diplomas this will help him and be of better value to him. He stated that he will have a better chance of securing a job than someone without an international qualification. When questioned about the income he could expect to obtain in his home country as a result of obtaining the qualifications from his proposed studies, the applicant stated that they will give him more experience. He stated that he has not done any research, but he knows that with a degree he will have a better job, and with that will come a better salary.
When asked why he has chosen to study at Lexis Training, the applicant responded it was because he discovered it is a good school. He stated that a lot of people told him it is one of the best schools.
As to his personal circumstances, the applicant confirmed that his parents and four siblings all live in Brazil. He gave evidence that he has no relatives in Australia. He stated that he is in a relationship with a French national, whom he met almost three years before, and whom he described as holding a ‘COVID visa’. He stated that her plan is to go to New Zealand next year. He stated that they lived together for about one year, but then separated and although they are back in a relationship, they live separately. He stated that he lives with some people whom he met through Uber delivery. He stated that he had a Brazilian friend living in Australia and his best friend lives in Australia.
As to any assets, the applicant stated that his parents own their house. The Tribunal noted that the applicant’s visa application and GTE statement refer to his family having a ‘small business’. The applicant confirmed that this was a reference to the law firm, but then clarified that the business is owned by three people and his father is one of the associates of the law firm.
The applicant stated that his first job in Brazil was in retail, following which he worked in his father’s law firm in administrative roles for more than 9 years. He gave evidence that he currently works as a delivery driver. He stated that he does not know what he earns as he does not know how much he is going to make in a week, but he can earn over $1000 per week.
The applicant gave evidence that he has never breached any conditions of his visas, that he has not previously been refused a visa and he does not have any outstanding applications for other visas yet to be determined. When questioned whether there was anything else he wished to say about the delegate’s decision, he stated that he thinks the ‘letter’ provided with his visa application was the biggest problem. He confirmed that there was no other relevant information which he wished the Tribunal to take into account.
The Tribunal raised a number of potential concerns with the applicant regarding his evidence and gave him the opportunity to comment or respond to each as a matter of procedural fairness. Some of the concerns raised are as follows. The Tribunal put to him the concern that he had been granted two Working Holiday visas and may now have applied for the Student visa to extend his stay in Australia, rather than because of a genuine interest in studying in Australia and obtaining qualifications. The applicant stated that his intention was never to live in Australia, but to stay here for three years and then return to his home country, but then he met a woman and has had some changes. He stated that he has no intention of staying in Australia ‘for too long’ and he does not wish to live here forever.
The Tribunal put to the applicant that his failure to complete course assignments is of concern and also suggests that he is not a genuine student. The applicant responded that it is true that he did not want to study in Australia, but he considered that under the circumstances he thought it was a good idea to leave Australia with a qualification as he just has his high school certificate from Brazil.
The Tribunal put to the applicant that his reasons for wishing to undertake his proposed courses of study, and the relevance of these courses to his proposed plan to work again at his father’s law firm, were vague and general. The applicant responded that the business is an administrative office. He stated that he may have given vague answers because he doesn’t ‘know how to do it yet.’ When asked what he has learned in his courses, the applicant responded that he learned lots of things, such as how to save money, increasing fees, turning off lights, saving money with paper and bills. He then stated that he hasn’t yet learned much, but he will.
The Tribunal put to the applicant that he has ties to Australia which may act as an incentive to remain here, in particular his girlfriend, who is from a different country, as well as his employment. The applicant responded that because of his girlfriend he intended to study in Australia and stay some more.
The Tribunal raised concern that the applicant had provided no supporting documents to show how he has done in his studies in Australia. The applicant responded that he did not send such documents to the Tribunal because he did not have a ‘conclusion certificate’ for his first course. He stated that he would send an email to his college to ask for documents. The Tribunal indicated that it would give the applicant 14 days to provide any additional information, following which it would make its decision. The Tribunal informed the applicant that it would also write to Lexis Training to seek information on the applicant’s progress with his courses.
Applicant’s PRISMS record
I note that the Tribunal file contains a copy of the applicant’s enrolment record obtained from a search of the Provider Registration International Student Management System (PRISMS) database on 25 May 2022. This record indicates that the applicant’s enrolment in the Certificate III in Business is ‘Finished’ and that he is currently ‘Studying’ the Certificate IV in Entrepreneurship and New Business. It does not record any course cancellations.
The evidence the applicant gave at the hearing regarding his studies raised concerns that the applicant’s PRISMS record may not be an up-to-date reflection of his studies. The applicant’s evidence about not being awarded the Certificate III in Business raised concerns about whether he had completed the requirements for that course. When questioned further, the applicant stated he may not have completed all of the assessments required for that course. The applicant’s evidence that he has not completed any assessments since October 2021 or earlier also raises concerns about the accuracy of the information about him ‘studying’ the Certificate IV in Entrepreneurship and New Business. As a result of these concerns, the Tribunal sought further information from the applicant’s education provider, Lexis Training.
Adverse information put to the applicant in writing
On 7 July 2022 the Tribunal wrote to the applicant using the procedure set out in s.359A of the Act to invite him to comment or respond to certain information which it considered would, subject to his comments or response, be the reason, or part of the reason, for affirming the decision under review. The particulars of the information were a letter from Lexis Training, dated 1 July 2022, responding to a request for information from the Tribunal, which also attached copies of emails sent between the applicant’s agent and Lexis Training between 2 November 2021 and 7 January 2022, and a record of the applicant’s logins into Lexis Training’s Online Learning Portal. Copies of the Lexis Training’s letter and the attachments were provided to the applicant.

The Tribunal noted that the letter from Lexis Training contains the following information about the applicant’s progress in the Certificate III in Business:
Mr Leiner has not completed all of the requirements for this course and has not been awarded this qualification. Of the 13 Units of Competency, Mr Leiner has submitted assessments and been deemed competent for only 3 Units.
The Tribunal also noted that the letter from Lexis Training indicates the college was informed by the applicant’s agent that the applicant would log in and complete the assessments for the Certificate III in Business before commencing the Certificate IV in Entrepreneurship and New Business, and that the college accepted his enrolment in the Certificate IV on this basis. The letter also indicates that the applicant was provided with access to Lexis Training’s Online Learning Portal, but despite the applicant commencing the Certificate IV course in January 2022, his first login to the Portal was in June 2022. This means that the applicant has not submitted any assessments for the Certificate IV course.
The Tribunal explained the relevance of this information and the consequences of the Tribunal relying upon it and gave the applicant until 21 July 2022 to provide comments or a response. To date no comments or response has been provided by the applicant and he has not requested an extension of time to comment or respond to the information.
Findings
Having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account all the relevant information, the Tribunal is not satisfied that the applicant meets the genuine temporary entrant criterion. This finding is based on several factors as set out below.
The applicant’s circumstances in his home country
I accept that the applicant has personal ties in Brazil, which would serve as a significant incentive for him to return to that country. These ties include the applicant’s parents and his four siblings. I accept the claim made in his s.359(2) response that he makes telephone or Skype calls to his family, generally once a week. I also accept that the applicant was employed for approximately 9 years in an administrative capacity in the law firm which is partly owned by his father, or of which his father is a partner or associate. I accept that the applicant may have opportunities to be re-employed in this law firm upon return to Brazil. I also accept that the applicant’s parents own their family home. I have taken these personal ties into account in assessing the applicant’s circumstances as a whole.
The applicant claimed in his evidence that he has chosen to study the proposed courses in Australia because an international diploma will provide him with better job opportunities and the ability to earn more money. He claimed that having an international diploma is valuable. The applicant makes similar claims in his s.359(2) response, where he claims that he wants an international degree in order to get a better job and salary when he returns to his home country. I have also had regard to the claims the applicant has made in his GTE statement to the Department, including his claim that he wishes to improve his English fluency because his father’s business is doing business with international companies and a high level of English fluency is mandatory. I have also considered his claims in this statement that he decided to study in Australia due to its quality of education, infrastructure, support for international students in mixing theory and practice, as well as his claim that the same course in Brazil would cost him three times as much and would not have the same quality. I am prepared to accept that the applicant has provided reasonable reasons for not undertaking the study in his home country.
I have considered the evidence the applicant has provided about his economic circumstances, including his father’s business and the applicant’s previous employment in this business. I have also considered the applicant’s economic circumstances in Australia, where he currently works as a delivery driver. I have considered his evidence that he might earn $1000 in a week, which may provide some incentive to remain in Australia compared to the salary he earned in Brazil (as set out in the applicant’s s.359(2) response), however overall I make no adverse findings about the applicant’s economic circumstances.
There is no evidence of any civil or political issues that would act as an incentive for the applicant to remain in Australia. There is no evidence of any military service requirements. There is insufficient evidence before the Tribunal regarding the applicant's circumstances in Brazil, relative to others in that country, and the Tribunal makes no adverse findings in relation to these factors.
The applicant’s potential circumstances in Australia
As noted above, the applicant first arrived in Australia in March 2019, holding a Working Holiday visa. He was granted a second Working Holiday visa, and three days before that visa was due to expire, he applied for the Student visa under review. The applicant’s Student visa application was in respect of his enrolments in a Certificate III in Business, which commenced on 1 March 2021 and was due to end on 5 November 2021, and a Certificate IV in Entrepreneurship and New Business, which commenced on 17 January 2022 and is due to end on 12 May 2023. While the applicant’s PRISMS record indicates that the applicant’s enrolment in the Certificate III course has ‘finished’ and he is currently ‘studying’ the Certificate IV course, this information is not supported by the applicant’s own evidence, as well as the information from Lexis Training in their letter dated 1 July 2022. I find that the applicant’s PRISMS enrolment record is not an up-to-date reflection of his progress with his studies and I therefore do not rely on it.
According to the information provided by Lexis Training, the applicant completed only 3 of the 13 units for the Certificate III in Business and he has therefore not met the requirements for this course or been awarded the qualification. His continued enrolment in the Certificate IV in Entrepreneurship and New Business was allowed by Lexis Training on the basis that the applicant agreed to log in to the college’s online training portal and complete the remaining assessments for the Certificate III course, but this has not occurred. The applicant claimed in his evidence that he has been logging into the online learning portal and attending classes for the Certificate IV course, however this is not supported by the information provided by Lexis Training, which includes a copy of the applicant’s login activity, which shows that he did not log into the portal between 28 October 2021 and 13 June 2022. As noted above, the Tribunal put the particulars of this information to the applicant in writing, and gave him the opportunity to comment or respond to it by 21 July 2022, however the applicant has to date not responded to this information.
On the evidence as a whole, I find that the applicant has not made sufficient progress with his proposed courses of study in Australia and that he attempted to mislead the Tribunal about his continued attendance of his courses of study. I find that the applicant’s lack of progress with his studies, particularly in light of the opportunity afforded to him by Lexis Training to complete the requirements for the Certificate III in Business, is not consistent with the behaviour to be expected of a genuine Student wishing to complete qualifications and progress academically. I find on the evidence as a whole that the applicant is attempting to use the Student visa to circumvent the intentions of the migration programme and to maintain ongoing residence.
I also find the applicant’s stated future plans to be of further concern. The applicant stated that after he completes his current courses he intends to ‘keep going’ with his studies and to complete the ‘5 and 6’. The applicant was unable to name his intended future courses of study, other than stating that he would do ‘the next one’. This raises further concerns that the applicant does not intend to remain in Australia temporarily, but intends to further use the Student visa programme to extend his stay in Australia, with only a vague plan for future study.
I also find that the presence of the applicant’s girlfriend or partner in Australia would present as a strong incentive for the applicant to remain in Australia. When this concern was put to the applicant, he conceded that his plans changed after he met his girlfriend or partner. I have taken into account his claims that his girlfriend or partner intends to go to New Zealand next year, as well as his claim that he does not wish to remain in Australia for ‘too long’, but nevertheless find that his girlfriend/partner’s presence in Australia has acted as an incentive for the applicant to change his plans and apply for the Student visa and may continue to act as a strong incentive in the future.
I accept that the applicant has no family in Australia and there is no evidence of strong community ties, and take this into account in assessing his circumstances as a whole.
There is nothing to suggest that the applicant has entered into a relationship of concern for a successful Student visa outcome, and I make no adverse findings about this factor.
In terms of the factors at clause 11(e) of Direction No. 69, I accept that the applicant has been living in Australia since 2019, and is therefore likely to have knowledge of living in Australia. I accept that the applicant has sufficient knowledge of his education provider. The applicant’s evidence at the hearing of his current course of study was of some concern. He struggled to remember the most recent unit of study that he undertook and struggled to tell the Tribunal what he had learned about the unit Marketing and Promotion, other than repeating references to marketing on a number of occasions. When questioned further about what he has learned in his course, the applicant was unable to provide a convincing level of detail, stating that he had learned lots of things, and then gave examples of such things, such as saving money, increasing fees and turning off lights. He stated that he has not learned much yet, but he will do so in the future. I do not find that the applicant has demonstrated a realistic level of knowledge of his course of study considering his courses commenced in March 2021. The applicant’s very general knowledge of his courses of study reflect the evidence that he did not log into the online portal for a period of over 6 months and he has completed only 3 of the 13 units for the Certificate III course, despite that course finishing in November 2021.
Value of the course to the applicant’s future
The Tribunal accepts that the applicant has not completed any qualifications other than the equivalent of year 12 in Brazil. I am therefore prepared to accept that having a vocational qualification may provide some assistance to the applicant in obtaining employment or improve his employment prospects in his home country. I also take into account the applicant’s claim that having an ‘international’ qualification may put him ahead of other job applicants who do not have such a qualification.
I note however that the applicant was unable to explain how his course of study is relevant to his proposed career plans, other than very general statements about his previous work in Brazil being in administration and how the qualifications could assist him in administering a law office. At the hearing the applicant gave only vague and general evidence about the income he could expect to receive with the qualifications he would earn from his current courses of study, stating that with more experience and with a degree he will obtain a better job and therefore obtain a better salary. The applicant also conceded that he had not done any research into the potential remuneration he could receive. I also note that the applicant has previously enrolled in three degree courses at universities in Brazil, and his current enrolments at the vocational level are at a lower level. While there are some potential concerns with the applicant’s evidence regarding the value of the proposed courses of study to his future, overall I accept that his highest qualification achieved to date is completing high school, and therefore accept that the courses of study may assist the applicant to obtain employment or improve his employment prospects, and therefore do not make any adverse findings in relation to the factors at clause 12 of Direction No. 69.
Applicant’s immigration history
The applicant’s immigration history refers to both his travel and visa history. The applicant first arrived in Australia in March 2019, holding a Working Holiday visa. He was granted a second Working Holiday visa, and three days prior to the expiry of that visa, he applied for the Student visa under review. The applicant has been in Australia for just over three years, which is not a particularly lengthy visa history. There is no evidence that he has previously been refused a visa to Australia or elsewhere. There is also no evidence that he has had a visa cancelled or considered for cancellation. There is nothing to suggest he has applied for other visas to Australia which are yet to be finally determined. There is also nothing to suggest that he has breached the conditions of his visas in Australia or elsewhere. I make no adverse findings in relation to these factors.
However, after considering the evidence as a whole, including the applicant’s oral evidence and the information put to him from the letter from Lexis Training, I find that the applicant is attempting to use the Student visa primarily to maintain ongoing residence. The applicant has previously enrolled in three university courses in Brazil from 2010 to 2015, although he did not complete any of them. The applicant has now enrolled in two vocational courses at the Certificate III and IV levels. The information provided in the letter from Lexis Training indicates that the applicant has not made sufficient progress with the Certificate III course and he did not log into the online portal for a period of over 6 months, despite access being provided to him to allow him to complete the Certificate III course and to commence the Certificate IV course. I find the applicant was not entirely truthful in the evidence he gave about his course progress and I do not accept that evidence, but rather prefer to accept the information provided by Lexis Training. I find that the applicant does not have a genuine interest in completing the courses of study in which he is enrolled and obtaining the qualifications, but has enrolled in relatively short and inexpensive vocational courses to maintain his stay in Australia.
This finding is also supported by the applicant’s evidence about his change of circumstances following his relationship with his girlfriend/partner. I find that the applicant is attempting to use the Student visa primarily to maintain ongoing residence.
Other relevant matters and conclusion
The Tribunal has also given regard to whether there are any other relevant matters and finds there are no other relevant matters to the assessment of the applicant's intentions to stay in Australia temporarily in addition to the matters covered above. The Tribunal has considered all the information provided by the applicant in support of the application.
Having considered the applicant’s circumstances in his home country, his potential circumstances in Australia, his immigration history and the value of the proposed course of study to his future, as well as any other relevant matters, the Tribunal is concerned the applicant has enrolled in his current courses of study primarily to maintain ongoing residence in Australia, and does not have a genuine interest in these courses of study.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Frank Russo
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 4962

26 July 2022

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Immigration

Administrative Law

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