Lotay (Migration)

Lotay (Migration) [2022] AATA 1885 (4 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gurnoor Singh Lotay
REPRESENTATIVE:  Mr Nitin Malik (MARN: 0956987)
CASE NUMBER:  2004108
HOME AFFAIRS REFERENCE(S):          BCC2019/6368318
MEMBER:Michael Biviano
DATE:4 February 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 4 February 2022 at 2:15 pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No. 69 – length of stay in Australia – long study gap – changes to career and study pathways – financial incentives to remain in Australia – 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 24 February 2020 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 29 November 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) for the reason that he was not a genuine applicant for entry and stay as a student because he did not intend to stay in Australia temporarily.
The applicant appeared before the Tribunal on 16 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was assisted in relation to the review.
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.
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 was a genuine applicant for entry and stay as a student.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The applicant is a 28 year old Indian National who first came to Australia on 10 July 2015 pursuant to a student visa.
The decision record of the delegate of the Department of Home Affairs dated 24 February 2020 which was provided to the Tribunal by the applicant confirms the applicant made his current application for a student (Class TU Subclass 500) visa on 29 November 2019 (Decision Record).
At the time of making his current application the applicant proposed undertaking the following courses of study:
a.Certificate III in Light Vehicle Mechanical Technology;
b.Certificate IV in Automotive Mechanical Diagnosis; and
c.Diploma of Automotive Technology (automotive courses).
On 8 October 2021, prior to the hearing, the applicant filed with the Tribunal a response within time pursuant to an invitation to supply student visa information about the courses he was studying and information about his entry and stay in Australia in accordance with s 359(2) of the Act (Response).
In addition to the Response the applicant filed supporting documents which comprised:
a.Extract of passport;
b.Confirmation of enrolment (COE) No. C852C369 for the applicant to study a Certificate IV in Automotive Mechanical Diagnosis at the Australian Health & Management Institute (AHMI) with a course start date of 11 October 2021 and a course end date of 25 April 2022 which was created on 22 September 2021;
c.COE No. C852F469 for the applicant to study a Diploma of Automotive Technology at AHMI commencing on 26 April 2022 with a course end date of 23 April 2023 which was created on 22 September 2021;
d.COE No. 8530014 for the applicant to study a Graduate Diploma of Management (Learning) at AHMI with a commencement date of 24 April 2023 and a course end date of 21 April 2025 which was also created on 22 September 2021.
Prior to the hearing the applicant submitted further documentation in support of his application. The documentation included some of the documents he had previously submitted but there were further documents which comprised:
a.COE No. 9FA94E18 for the applicant to study an Advanced Diploma of Accounting at Pacific College of Technology with a course start date of 1 October 2018 and a course end date of 29 September 2019 which was created on 12 September 2018;
b.Letter from Kent Institute dated 18 August 2016 which confirmed that the applicant had been enrolled in a Bachelor of Business for the period from 13 July 2015 to 11 August 2016 which revealed that he passed 1 of 8 units in that course;
c.Certificate III in Light Vehicle Mechanical Technology awarded to the applicant issued 25 May 2020 from Macallan College together with a record of results and statement confirming the applicant completing the course;
d.Diploma in Diesel Mechanics from the Indira Gandhi Council for Vocational Course dated 19 July 2015 together with a statement of results;
e.Statutory declaration of the applicant made 2 November 2021 (statutory declaration);
f.Subpoena to give evidence addressed to the applicant;
g.Article from website entitled Lead Education Institute Pty Ltd Impose Condition on Registration 28 August 2019;
h.Article from website entitled Lead Education Institute Pty Ltd Impose Condition on Registration 19 June 2019;
i.Death certificate of the applicant’s grandfather;
j.Documentation regarding land that is owned by the applicant’s family back in India;
k.A drawing of workshop layout prepared for the applicant’s future workshop;
l.Receipt from AHMI dated 6 December 2021.
The applicant prior to coming to Australia completed secondary schooling in India and then undertook a Diploma in Diesel Mechanics which was issued on 19 July 2015. The applicant in evidence claimed that the course that he had undertaken in India would be not the equivalent of a Certificate III course here in Australia and would be worth less than that. The course title was ITI in Diesel Mechanics, however, the documentation filed by the applicant from the College confirms that he in fact obtained a Diploma.
The applicant claimed that prior to obtaining the Diploma between 2012 and 2014 the applicant did not work and was at home and was being encouraged by his parents to undertake studies.
In July 2015 the applicant came to Australia on a student visa to undertake studies. The applicant has claimed in the Response that he enrolled to undertake a Bachelor of Business (Information Systems) at Kent Institute. The academic results provided in relation to that course by the applicant confirm that the course was a Bachelor of Business which he was enrolled in from 13 July 2015 to 11 August 2016 in which he studied 8 units and only successfully completed 1.
The applicant then claimed that in November 2016 he took admission in a Bachelor of Accounting at Elite College. The applicant in the Genuine Temporary Entrant statement which was submitted to the delegate stated as follows:
I was going very well and successfully completed my eight units there and while I was enrolled my college staff kept asking me to pay the fee for the subjects I had already done there. I spoke with my professor but he could not help me in this matter. Though, I paid off all my semesters fees on time. Later, they cancelled my COE without notifying me and I had left with nothing because they asked me to pay the full fee to get the transcript. Therefore I could not get the admission due to the major studies gap and having no records in my hands which I have done at Elite College.
The applicant had confirmed in evidence that there were rumours in August and September 2018 that Elite College was going to shut down by reason of not delivering courses to an appropriate standard. The applicant had lost his enrolment at Elite by reason of a dispute about fees and nothing to do with the College losing its ability to enrol further students pursuant to the articles provided to the Tribunal. The applicant claims that he then enrolled in an Advanced Diploma of Accounting at Pacific College of Technology. The applicant in the Response claimed that he enrolled in that course in October 2018. The applicant had studied 4 units in that course and passed none of the units that he had undertaken. He claimed that in early 2019 his grandfather and mentor became very ill and as a consequence of his illness he could not concentrate especially during the months of January and February of 2019 which resulted in him being unable to complete his studies.
In May 2019 he decided to change courses and undertake a Certificate III in Light Vehicle Mechanical Technology at Macallan College. It is important to note that as at May 2019 the applicant had been in this country for nearly 4 years on 2 student visas and had yet to complete a course.
Between May 2019 and May 2020 he studied the Certificate III in Light Vehicle Mechanical Technology at Macallan College which he completed. The applicant did not undertake studies from May 2020 through to October 2021. The applicant has now undertaken enrolments in a Certificate IV in Automotive Mechanical Diagnosis, a Diploma of Automotive Technology and a Graduate Diploma of Management (Learning) and if he completes all those courses in which he is enrolled in the applicant’s stay in Australia will be a total period of 9 years and 9 months which is a very long period of time and inconsistent with the stay being temporary.
Further of concern is that the applicant did not undertake studies from May 2020 to October 2021 which represents a gap of 1 year and 5 months which is a very long period of time and inconsistent with the purpose of a student visa. The purpose of a student visa is for an applicant to come to this country and undertake studies in a timely manner and return home after its completion. It is not to have gaps for long periods of time.
The applicant has claimed that there were a number of reasons why he could not study from May 2020 through to October 2021. It appears the reasons cited by the applicant are:
a.that the applicant’s grandfather passed away in November 2019;
b.secondly he moved in with a girlfriend and due to the COVID-19 pandemic and being in lockdown he became the victim of domestic violence from his girlfriend;
c.he claims that he separated from his girlfriend in November 2020 and that she was subsequently convicted by reason of that domestic violence;
d.he claimed he could not study from November 2020 because he was stressed and under pressure and that to get away from his girlfriend he locked himself and lived in a 20ft container and entered into a deep depression.
The Tribunal has carefully considered each of those reasons. The Tribunal notes that the applicant’s grandfather passed away while he was undertaking the Certificate III in Light Vehicle Mechanical Technology and he was able to complete those studies in May 2020. The Tribunal, while sympathetic with the applicant losing his grandfather, does not consider that it provides a proper reason for not undertaking studies.
Secondly it is unfortunate the applicant may have been the victim of domestic violence, however, as at November 2020 he was no longer the subject of such domestic violence and it is unclear why he could not study. The applicant’s statutory declaration provides as follows:
That I met my ex when I was already very low and upset because of my grandfather’s death.
That I moved in with my ex around April 2020.
That I completed my Certificate III in Automotive Engineering in May 2020.
That we started having massive and regular fights in relationship and in November 2020 we had a massive fight and I was a victim of domestic violence.
That after all that I started living by myself in a small 20ft container house.
That I continued to live in that container house for about 10 to 11 months.
The applicant had, after separating from his ex-girlfriend, the opportunity to commence studies in November 2020. It is important to note that the applicant in the Response confirmed that from January 2020 to May 2021 he worked as a truck driver at Largood Transport and was earning an annual salary of approximately A$40,000 per annum. The applicant in evidence confirmed that his domestic situation did not impact on his ability to work and he continued working during that time. He claimed that he only worked a little. However, the applicant has not provided any corroborating documents about the issues with his ex-girlfriend which would indicate that he was not in a position to obtain a future enrolment to study in due course and why the gap in studies was so long.
Further there was nothing preventing the applicant from undertaking studies from November 2020. The applicant, whilst claiming he was feeling somewhat low, has not presented any medical evidence or psychological reports or evidence that he obtained medication in regards to his condition. There is no corroborating evidence before the Tribunal to suggest that he had depression at the time and could not have studied or undertaken an enrolment. Further the applicant obtained a new position in employment in May 2021 to work as a truck driver for Aussie Tippers and obtained a pay increase where he was earning A$45,000 per annum. In such circumstances the Tribunal does not accept that he has a reasonable explanation for the duration of the gap in studies, being a total of 1 year and 5 months.
The applicant in the Response identified that upon completing the automotive courses and the Graduate Diploma of Management (Learning) he intends to return home to India and open his own mechanic workshop for light vehicles and he would be assisted by his father. He claimed that his parents have a property which would be suitable to use as a workshop and provided a plan of the premises for that business. The applicant did not provide a business plan for the proposed business but indicated he would be able to provide such plan if required. The applicant claimed he believed that the income the business would generate in the first year would be the equivalent of A$150,000. The Tribunal notes that such numbers are merely aspirational and are not based on actual amounts that are being earned or a position that is available for him to take up employment.
The Tribunal accepts that the applicant by undertaking the automotive courses and the Graduate Diploma of Management (Learning) coupled with his previous qualifications and employment here and in India would undoubtedly improve his employment prospects and level of remuneration back home in India. However, the degree of improvement would be limited as the applicant has already obtained qualifications in India by way of Diploma in Diesel Mechanics which would enable him to work as a mechanic in India in any event.
The applicant in the Response identified that he is undertaking the studies here in Australia by reason that education in India is based on the book knowledge of the educators whereas in Australia the teachers are not only professionals in teaching but actually professional in their particular line of work or trade as well. He claimed this was one of the main reasons why he chose to pursue this course in Australia. However, the applicant has completed a Diploma in Diesel Mechanics in India and there was nothing preventing him from undertaking such automotive courses and courses in relation to business and management back in India. Whilst there might be some differences in the way the courses are taught, the Tribunal does not accept that they provide a reasonable motive for the applicant undertaking those courses here in Australia.
The applicant has changed his career path initially from business to accounting to automotive repairs and has a future enrolment in management. The courses studied are not connected and not complementary to each other and do not lead to a career path or position in employment. The applicant has claimed they will assist him in operating his business, however, he does not require all such qualifications to operate an automotive repair business.

The Tribunal recognises that it is important to allow for reasonable changes to career and study pathways. However, this is not the case where an applicant has merely decided to change careers through undertaking short vocational education training (VET) courses for the purposes of maintaining residency here. The courses that the applicant has enrolled in in Australia are all short VET courses save for the Bachelor of Business and Bachelor of Accounting which he has not studied since 2018 and the future enrolment of the Graduate Diploma of Management (Learning) which he may not undertake. The automotive courses which he has studied and is studying and is enrolled to study in the future are all short VET courses and do not reveal progression in his course of study having regard to having completed a Diploma back in India in relation to automotive studies. Accordingly the Tribunal considers that his studies in the automotive courses do not reveal academic progression but accepts that the enrolment in the Graduate Diploma of Management (Learning) would represent academic progression and is consistent with his level of education. However, the Tribunal has concerns that he has enrolled in such a course for the purposes of maintaining a student visa to maintain permanent residency here. It is important to note that the applicant enrolled in the Certificate IV in Automotive Mechanical Diagnosis, the Diploma of Automotive Technology and the Graduate Diploma of Management (Learning) at AHMI on 23 September 2021 having received the Tribunal’s invitation on 10 September 2021 to provide information about his courses and study in Australia including information regarding the requirement of the visa for him to be enrolled in a registered course of study and being a genuine applicant for entry and stay as a student. It would appear that the applicant has enrolled merely for the purposes of the visa application rather than studying genuinely.
The applicant, if he completes the automotive courses and the Graduate Diploma of Management (Learning), will have remained in Australia for a period of 9 years and 9 months which is an extremely long period of time and inconsistent with the stay being on a temporary basis.
The applicant has lived in Australia for the last 6½ years and has a substantial degree of knowledge about living in Australia. He has undertaken automotive courses and commenced studying at AHMI in October 2021. The Tribunal is satisfied that the applicant has a substantial degree of knowledge about living in Australia and also substantial information and knowledge about the courses the applicant is studying and will study and its provider.
The applicant in the Response identified that he had been employed in Australia in various roles. Between August 2015 and September 2017 the applicant worked as a truck washerman at Thor Truck Wash earning approximately A$16,000 per annum. From January 2020 to May 2021 he worked as a truck driver at Largood Transport earning A$40,000 per annum and since May 2021 has worked as a truck driver at Aussie Tippers earning A$45,000 per annum which are very high levels of income. The applicant claims he is working in those roles only on a part time basis. However, the Tribunal considers that such a high level of wages provides the applicant with a substantial financial incentive to remain here rather than to return home. The applicant gave evidence that the average earnings of a mechanic in India equated to approximately 35,000 to 45,000 Indian rupees per calendar month which equates to between A$660 and A$880 per calendar month. When compared with the level of income that the applicant is earning currently here in Australia, the level of wages he earns here is substantially higher than those in India. The applicant in evidence accepted that the level of wages in Australia were substantially higher than those in India and the Tribunal considers that the high levels of income in Australia would provide the applicant with a substantial economic incentive to remain here rather than to return home.
The applicant in evidence claimed that the economic conditions in India were superior than those in Australia. The applicant gave evidence that the basis for such finding is that it was easier establishing a business in India by reason of its lower conditions and wages when compared to Australia. However, the Tribunal does not accept that those matters represent the total economic conditions of a country and when considered on balance the economic conditions in Australia are superior to those in India which would provide an incentive to remain here.
The applicant in the Response confirmed that he had not returned home to India since arriving here in Australia and that he had not travelled to any other country during the course of his stay here. Notwithstanding that there have been travel restrictions imposed by reason of the COVID-19 pandemic, considering the time that the applicant has not spent in India over the last 6½ years and that he has not returned home at all during that time, the Tribunal finds that his conduct is consistent with him wanting to remain in Australia permanently rather than to return home.
The applicant in the Response did not identify that he had any assets either here in Australia or in India. The applicant submitted documentation regarding property holdings held by his parents and the applicant gave evidence that his father had a property which they could convert to a garage for the purposes of establishing their automotive business for the purposes of expansion across India. However, having regard to the applicant’s asset position and the high level of income that he is able to earn in Australia, his asset position presents the applicant with a significant incentive to remain in Australia rather than to return home to India.
The applicant in the Response and in evidence did not have any concerns about returning to India and he had no concerns about military service commitments or political and civil unrest in his home country. Accordingly the Tribunal finds that they do not present as a significant incentive for him not to return home. The Tribunal finds that based on the applicant’s evidence and circumstances in his home country including his education, support from his family and his family’s asset position that relative to others in that country he is in a good position and it would not provide a significant incentive for him not to return home.
The applicant is single and is not in a relationship of concern.
The applicant has both personal ties in Australia and in India. The applicant gave evidence that he has his mother, father and brother who reside in India and that would ordinarily provide him with a substantial tie and incentive to return home. However, he has not seen them in person since July 2015 and whilst he remains in regular contact with them, his circumstances in Australia including that he has been here for a period of 6½ years and intends staying here for a further 3 years, indicates that such ties to his family are not all that strong. When considered in the light of his circumstances in Australia, in particular his employment earning a high level of income, it demonstrates his ties to India are not strong and do not provide a significant incentive for him to return home.
The applicant has substantial ties to Australia. While he claims he has no friends and relatives here, in evidence he confirmed in fact he was living with friends and gave evidence that they had assisted him after the break up with his girlfriend. Further the applicant is in relatively stable employment on a high level of income and intends staying here at least for a further period in excess of 3 years. Such arrangements demonstrate strong ties to Australia and that they provide him with a substantial incentive to remain here rather than to return home by reason of his ties here.
The applicant in his Response has not identified any visa refusals or cancellations in Australia or elsewhere. There is nothing before the Tribunal from the delegate’s Decision Record to indicate the applicant has experienced any other visa refusals or any immigration issues either in or outside of Australia.
The applicant has been in this country for a very long period of time, being 6½ years and has had adequate opportunity to complete studies in the disciplines that he wants to complete. The applicant has foreshadowed undertaking studies in the future for a period of another period in excess of 3 years. There is also a substantive gap in his studies from May 2020 to October 2021 where the applicant has not undertaken studies and could have substantially completed his automotive courses during that period of time. Instructively the applicant has been in high paid employment especially since January 2020 and that the high level of wages that he is earning would provide him with a substantial financial incentive to remain here rather than to return home to India. Considering the circumstances of the applicant’s enrolment in the courses at AHMI and its timing the Tribunal considers that the applicant is seeking to gain this student visa for the purposes of maintaining residency here and obtaining an economic benefit in Australia on a permanent basis rather than for the purposes of undertaking study on a temporary basis.
Based on the above matters the Tribunal is not satisfied the applicant has made this application to gain a student visa to study temporarily and that it considers that the primary objective is to maintain ongoing residence here and to remain here permanently for the purposes of gaining a high level of income.
On the basis of the above the Tribunal is not satisfied 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.
Michael Biviano
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 1885

4 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction