MAHARJAN (Migration)

[2020] AATA 3879

MAHARJAN (Migration) [2020] AATA 3879 (4 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Sujita MAHARJAN
Mr Ratna Kaji Maharjan

CASE NUMBER:  1802478

HOME AFFAIRS REFERENCE(S):          BCC2017/4166785

MEMBER:Peter Newton

DATE:4 September 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212(a) of Schedule 2 to the Regulations.

Statement made on 4 September 2020 at 4:35pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study and work history – incentives to remain or return – family, economic and cultural ties to home country – work and established friendships in Australia – satisfactory course progress – intention to work in home country – relevance of study to current and future work – member of family unit – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 500.212, 500.311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.    This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 January 2018 (Department’s Decision) to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (Act).

2.    The applicants applied for the visas on 8 November 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (who unless otherwise stated, I will refer to as the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

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

4.    The applicant appeared before the Tribunal on 22 April 2020 by telephone to give evidence and present arguments. The applicants were assisted in relation to the review by their registered migration agent (Mr Chahal).  Mr Chahal attended the hearing by telephone and made submissions. 

5.    The Tribunal exercised its discretion to hold the hearing by telephone.  The hearing was held during the COVID-19 pandemic.  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.  During the hearing the Tribunal was satisfied that the applicant heard and understood the outline given to her at the commencement of the hearing as to how the hearing would proceed and the questions asked during the hearing which she answered.  The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

6.    Prior to the hearing the applicant provided to the Tribunal a completed Request for Student Visa Information (Request), written submissions signed by Mr Chahal dated 14 April 2020 (Written Submissions) together with the documents attached to the Written Submissions including an overseas Student Confirmation of Enrolment (COE) for an Advanced Diploma of Leadership and Management course at Australian Capital College with a course start date of 4 November 2019 and end date of 2 November 2020, a printout of an article obtained from titled “BEST PAYING JOBS IN NEPAL [TOP 15 JOBS IN NEPAL]” and a three page resume of the applicant.

7.    The Tribunal has read the documents provided by the applicant to the Tribunal and considered applicant’s evidence and submissions.  After weighing up the evidence and submissions against the factors specified in the Direction (referred to below), for the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

8.    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 satisfies the genuine temporary entrant criterion.

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

9.    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?

1. 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 (Direction). The 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.

2. 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.

3. In relation to paragraph 9(a) of the Direction, the applicant’s home country is Nepal. The applicant is currently studying the Advanced Diploma of Leadership and Management course at Australian Capital College.  The course start date was 4 November 2019 and the course end date is 2 November 2020.  In this decision, I refer to the Advanced Diploma of Leadership and Management course as the applicant’s current course of study.  The applicant says she has completed five units and has 7 units of study remaining in her current course of study.

4. During the hearing, the applicant accepted that there are similar courses to the applicant’s current course of study available in her home country or region.  In the Request, the applicant provided the following information:

1. During the hearing, when I asked the applicant about enquiries she had made in relation to similar courses available in her home country or region, the applicant said she had not looked into studying in her home country.  Mr Chahal intervened and said the applicant did not understand the question and required an interpreter. Throughout the hearing, the applicant spoke in English.  The applicant’s four-page resume states that her language skills are Nepalese, English and Hindi.  Throughout the hearing the applicant answered questions and I was satisfied that the applicant understood all questions she answered.  At the time, I did not consider that there was any proper basis for Mr Chahal’s intervention, and I considered that the applicant did not require an interpreter.  The applicant did not personally request an interpreter and I declined to adjourn the hearing for the purpose of obtaining an interpreter for the applicant.

2. During the hearing the applicant also said she did “not really make” enquiries in relation to the availability of similar courses in her home country.  She said that after completing her current course of study she wants to work in a multinational company in her home country.

3. The applicant first came to Australia on 25 July 2013 as the holder of an Offshore Class TU subclass 572 Vocational Education Student visa.  The applicant applied for the Student visa for the purpose of studying a Diploma of Leadership and Management course.  She completed that course in October 2018.  The current course of study is a progression or advancement from that course.  The applicant has been in Australia for some time, is now familiar with the Australian study environment.  She says that upon completing her current course of study, she intends to return to her home country to pursue work opportunities.  Having regard to these circumstances and the evidence I have referred to above, I am satisfied that the applicant has reasonable reasons for not undertaking the study in her home country or region if a similar course is already available there.  On the evaluative exercise I am required to undertake I give this factor weight in favour of the applicant.

4. In relation to paragraph 9(b) of the Direction, during the hearing, the applicant said that her mother, one of her two sisters and brother live in Nepal.  She said one of her sister’s came to Australia in May 2018.  She indicated that this sister remains in Australia and is currently studying in Melbourne. 

5. The applicant said her family owns land in Nepal where her mother, brother and one of her sisters reside.  She said she does not personally own land in her home country.  The applicant says she has some savings in Nepal but did not disclose how much.  In the Request the applicant disclosed she has gold assets in Nepal.

6. In the Request, the applicant stated that she “is a proud Nepalese and very well connected with her culture.  She aims to complete her qualifications from Australia and seek employment in Nepal.  She intends to live in Nepal in the future as well.”

7. The evidence establishes that the applicant’s personal ties to her home country comprise her mother, sister, brother, the family property, some savings and gold assets and her cultural ties.   Having regard to the period of time the applicant has been in Australia, as there is no evidence the applicant’s family in Nepal are dependent on her, as there is no evidence that the applicant’s savings and gold assets in Nepal require her to return to Nepal to maintain or preserve those assets, I am not satisfied that the applicant’s personal ties to her home country would serve as a significant incentive for the applicant to return to her home country.  On the evaluative exercise I am required to undertake, I give the factor specified in paragraph 9(b) of the Direction, some weight against the applicant.

8. In relation to paragraph 9(c) of the Direction, in the Request, in the part that requests information about work experience before arriving in Australia, the applicant did not disclose any work experience. There is no evidence that the applicant has any work ties or connections in Nepal.   In the Request and during the hearing, the applicant disclosed that from September 2016 to October 2017 she worked as a personal care assistant for Essedon Aged Care and since February 2018 she has worked as a carer for Baptist Care Aged Care.  During the hearing, the applicant accepted that her economic circumstances in Australia are better than in Nepal.  Having regard to this evidence, I find that the economic circumstances of the applicant would present as a significant incentive for the applicant not to return to her home country.   On the evaluative exercise I am required to undertake, I give this factor weight against the applicant.

9. In relation to paragraph 9(d) of the Direction, in the Request the applicant disclosed that she has no concerns about military service commitments.  I do not consider this would provide an incentive to remain in Australia or a deterrent to returning to her home country.  On the evaluative exercise I am required to undertake, I assess this factor as neutral.

10. In relation to paragraph 9(e) of the Direction, in the Request the applicant disclosed that she has no concerns about political and civil unrest in her home country.  I do not consider this would provide an incentive to remain in Australia or a deterrent to returning to her home country.  On the evaluative exercise I am required to undertake, I assess this factor as neutral.

11. In relation to paragraph 10 of the Direction, the evidence does not allow me to assess the applicant’s circumstances in his home country relative to the circumstances of others in his home country. 

12. In relation to paragraph 11(a) of the Direction, the applicant first came to Australia on 25 July 2013.  Since first arriving, she said she has returned to her home country once in January 2020 for about four weeks to visit her family.  She lives in Australia with her husband who is the dependant visa applicant.  As the husband’s stay in Australia is dependent upon the applicant, I do not consider that the applicant’s husband comprises a tie to Australia.  During the hearing, the applicant indicated that one of her sisters is currently in Australia on a Student visa.  As Student visas are granted for the purpose of allowing persons who are not Australian citizens or Australian permanent residents to undertake study in Australia and to remain temporarily in Australia for the purpose of study, I do not consider that the applicant’s sister in Australia comprises a personal tie to Australia.  The evidence establishes that the applicant has had continuity of work since first arriving in Australia and has been working as a carer for Baptist Aged Care since February 2018.  During the hearing, the applicant said she has established friendships in Australia. 

13. The evidence establishes that the applicant’s ties with Australia are her work and friends.  I consider that these ties would present as an incentive for the applicant to remain in Australia.  However, I am not satisfied that these ties would present as a strong incentive for the applicant to remain in Australia.  On the evaluative exercise I am required to undertake, I assess this factor as neutral.

14. In relation to paragraph 11(b) of the Direction, the applicant applied for a student visa on 8 November 2017 for the purpose of studying the Diploma of Leadership and Management course.  She completed that course in October 2018.  The applicant subsequently enrolled in the Advanced Diploma of Leadership and Management course.    At the time of the hearing, the applicant has completed five of the twelve units of study for her current course of study.  During the hearing, she identified the five units of study she completed.  The evidence does not establish that the student visa program is being used to circumvent the intentions of the migration program.  On the evaluative exercise I am required to undertake, I give this factor weight in favour of the applicant.

15. In relation to paragraph 11(c) of the Direction, the applicant has applied for but has never been granted a student visa.  I consider whether the student visa the applicant has applied for may be used primarily for maintaining ongoing residence in relation to paragraph 14(b)(iii) below.  On this basis, I assess the factor specified in 11(c) as neutral.  

16. In relation to paragraph 11(d) of the Direction, there is no evidence that the applicant has entered a relationship of concern for a successful student visa outcome.  I do not think the applicant should be given credit for not contriving a relationship for a successful student visa outcome.  Accordingly, on the evaluative exercise I am required to undertake, I assess this factor is neutral.

17. In relation to paragraph 11(e) of the Direction, the applicant has lived in Australia continuously since 25 July 2013 save for a period of four weeks when the applicant returned to her home country to visit her family.  I find the applicant has a sound knowledge of living in Australia and established living arrangements. 

18. The applicant commenced studying her current course of study at Australian Capital College in November 2019. As stated, at the time of hearing, she has completed five of the twelve units of study for that course.  She indicated she attends College once a week for the purpose of study.  The evidence establishes that the applicant has a sound knowledge of her course of study and the associated education provider. 

19. Overall, on the evaluative exercise I am required to undertake I give the factors specified in 11(e) of the Direction, weight in favour of the applicant.

20. In relation to paragraph 12(a) of the Direction, I consider that the applicant’s current course of study is consistent with and a progression from the Diploma of Leadership and Management course she says she completed in October 2018. 

21. During the hearing, the applicant indicated that upon completing her current course of study, she intends to return to her home country for purse work in a management team with a multinational company.  The Written Submissions state:

    “The sole purpose to study the enrolled courses in is to obtain the qualifications required for availing employment opportunities such as Sales executives, Business managers, Executive Assistants at some of the biggest private sector companies in Nepal. Some of the prominent multinational companies where she wishes to build her career in future include Chaudhary Group, Coca Cola, Unilever etc. Majority of these multinational companies, expects its employees to have competencies in the business management and team management skills. Some of the key competencies are as follows:

    ·Team building, leadership

    ·Adapt with transitional culture to manage overseas clients se Number: 1802478

    ·Good written & verbal Communication.

    The courses of leadership and management are specially designed to build competencies in these specific skills. The courses in the enrolled program covers all aspects including effective business management practices, team management and good communication skills. Courses such as Lead team management effectiveness, manage quality customer service, manage operational plan etc. are the courses included in the courses specially designed to build business management and team management competencies, essential for business managers in today’s era. Also being short and specific, the leadership management
    diploma courses are an ideal choice for certain students who wish to build strength in more relevant field. This is more effective than completing an extensive degree program which would include some nonessential courses as part of its curriculum. Therefore, the Leadership management programs have a direct relevance to the applicant’s future career goals.”

22. During the hearing, the applicant indicated that she obtained information from her sister about obtaining work in her home country using the qualifications to be gained from her current course of study.  The applicant provided to the Tribunal a printout titled ‘BEST PAYING JOBS IN NEPAL [TOP 15 JOBS IN NEPAL].  The article provided what it describes as a “sneak peak into the best paying jobs I Nepal in descending order.”

1. The above submissions and evidence do not enable me to make an informed assessment of whether the applicant’s current course of study will assist her to obtain employment or improve her employment prospects in her home country.   

2. In relation to the question of whether the applicant’s current course of study will assist the applicant to obtain employment or improve employment prospects in her home country, I am not satisfied that the applicant’s current course of study will assist her to obtain employment or improve employment prospects in her home country or region.

3. Overall, on the evaluative exercise I am required to undertake, I give the factors specified in 12(a) of the Direction some but no significant weight against the applicant. 

4. In relation to paragraph 12(b) of the Direction, the applicant provided no evidence of work experience in her home country.  Since arriving in Australia, she has worked as a carer.  The applicant’s current course of study does not appear to be relevant to her past employment in Australia.

5. As regards future employment, the applicant indicated her goal is to complete her current course of study and return to her home country to seek work in a multinational company as a manager.  The applicant’s evidence and Written Submissions made general statements about the applicant’s proposed future employment.  During the hearing the applicant made general statements about team building, leadership and management skills she expects to acquire from her current course of study.  At a very general level, the applicant’s evidence and the Written Submissions indicate the applicant’s current course of study has some relevance to her proposed future employment.

6. Overall, on the evaluative exercise I am required to undertake, I assess the factors specified in 12(b) of the Direction as neutral.

7. In relation to paragraph 12(c) of the Direction, in the Request, the applicant stated the average entry level managers earn is around 50,000 NPR per month in Nepal.  The Written Submissions state:

   “In terms of salary, Sales Managers and other General Managers in Nepal earns much as about 66000-67000 rupees salary on a monthly basis and is among the highest paid professions in the country. Working conditions in these private sector companies are amongst the best in the world. This is highly motivating factor for Ms. Maharjan to build a career in this industry.”

8. The evidence does not however enable me to make an informed assessment of the remuneration the applicant could expect to receive in her home country or a third country, compared with Australia, using the qualifications to be gained from her past and current courses study.

9. In relation to paragraph 14(a) (i) of the Direction, the Department’s Decision records the applicant was previously been granted a Dependant student visa (TU-572 Vocational Education) visa.  In the Request the applicant disclosed she was granted a Temporary Graduate visa in May 2016 which ceased in November 2017.  The applicant disclosed that she has not applied for any other Australian visa where a decision on that application has not yet been made and other than the application for the Student visa which is the subject of this application, she has not been refused a visa to any country including Australia.   On the evaluative exercise I am required to undertake, assess this visa application history as neutral.

10. In relation to paragraph 14(a)(ii) of the Direction, in the Request the applicant disclosed that she has never been refused a visa to other countries.  On the evaluative exercise I am required to undertake, I assess this factor as neutral.

11. In relation to paragraph 14(b)(i) of the Direction, there is no evidence that the applicant has not complied with the conditions of the Australian visas that have been granted to her.  I would expect all visa holders to comply with the conditions of visas.  It is what is required.  Nevertheless, on the evaluative exercise I am required to undertake, I give the factor specified in paragraph 14(a)(ii) some weight in favour of the applicant.

12. In relation to paragraph 14(b)(ii) of the Direction, in the Request the applicant indicated that she has never held a visa to any country that was cancelled.  On the evaluative exercise I am required to undertake, I assess this factor as neutral.

13. In relation to paragraph 14(b)(iii) of the Direction, the applicant first came to Australia on 25 July 2013 as a dependant visa holder.  She applied for a Student visa on 8 November 2017 for the purpose of undertaking a Diploma of Leadership and Management course.  She has completed that course and since enrolled in and partially completed the Advanced Diploma of Leadership and Management course. At the time of hearing, she has completed five of the twelve units of study in her current course of study.  She says upon completing her current course of study she will return to her home country to pursue work.

14. Having regard to the evidence, I am satisfied that if the student visa the applicant has applied for if granted, it will not be used primarily for maintaining ongoing residence and will be used to enable the applicant to complete her current course of study.  On the evaluative exercise I am required to undertake, I give this factor significant weight in favour of the applicant.

15. In relation to paragraph 14(b)(iv) of the Direction, there is no evidence that the applicant has travelled to countries other than Australia.  On the evaluative exercise I am required to undertake I assess this factor is neutral.

16. In relation to paragraph 15 of the Direction, the applicant is not a minor.  Accordingly, the considerations of the intentions of a parent, legal guardian or spouse are not relevant to my determination.

17. In relation to paragraph 16 of the Direction, I consider that the restrictions on travel caused by the COVID-19 pandemic and the health risks associated by the COVID -19 Pandemic particularly when travelling, provide further reasons to allow the applicant to remain in Australia for the purpose of completing her current course of study which the evidence indicates will be completed on 2 November 2020.    

Conclusion cl. 500.212(a)

1. Overall, having regard to the evidence and submissions which I have considered against the factors specified in the Direction, I am satisfied that the applicant is a genuine temporary entrant for a Student visa.  Accordingly, the applicant meets cl.500.212(a).

Cl. 500.212(b) - Does the applicant intend to comply with visa conditions?

1. For the applicant to meet cl.500.212 (b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

2. The material contained in the files, the evidence and submissions are not directed to this requirement and do not enable me to make findings in relation to this requirement.  Accordingly, cl. 500.212 (b) remains for consideration by the Minister.

Cl. 500.212(c) - Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

1. For the applicant to meet cl.500.212 (c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212 (a) and (b)).

2. The material contained in the files, the evidence and submissions are not directed to this requirement and do not enable me to make findings in relation to this requirement.  Accordingly, cl. 500.212 (c) remains for consideration by the Minister.

Conclusion on cl.500.212

1. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

The Application by the dependant applicant – Ratna Kaji Maharjan

1. Ratna Kaji Maharjan is a dependant applicant.  The delegate found that as the primary applicant did not meet cluae500.212 for a Student visa, the dependant applicant did not satisfy clause 500.311 of Schedule 2 of the Regulations and no further assessment was undertaken.

2. As I have found that the primary applicant has satisfied clause 500.212 (a) of the Schedule and I will direct that her application be remitted for reconsideration with a direction in relation to cl. 500.212 (a), the application of Ratna Kaji Maharjan should also be remitted for reconsideration with the primary application.    

DECISION

1. The Tribunal remits the applications for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the primary applicant meets the following criteria for a Subclass 500 (Student) visa:

   ·cl.500.212 (a) of Schedule 2 to the Regulations.

Peter Newton
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

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

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

3. 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

1. 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.

2. 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

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

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

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

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

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

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

Value of the course to the applicant’s future

1. 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

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

2. 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

1. 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

1. 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.