Maharjan (Migration)

Maharjan (Migration) [2023] AATA 924 (31 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Sabina Maharjan
Mr Suchindra Maharjan
REPRESENTATIVE:  Mr Nishant Sharma (MARN: 1568498)
CASE NUMBER:  2209234
HOME AFFAIRS REFERENCE(S):          BCC2017/3567651
MEMBER:Penelope Hunter
DATE:31 March 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 31 March 2023 at 3:34pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–– applicant had recommenced study for the purposes of maintaining ongoing residence – applicant was not a genuine applicant for entry and stay as a student – ongoing enrolment at the diploma level – the regression of her studies – lack of demonstrated value of the proposed courses to the applicant’s future – lack of genuine study –in Australia for a long period time – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, Schedule 2, cls 500.212, 500.311
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 1 December 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 29 September 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas 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 in Australia temporarily as a student.
The applicant lodged an application for review with the Tribunal on 4 December 2017. With the consent of the applicant, the matter as determined on the papers and the Tribunal (differently constituted) found that the applicant was not enrolled in a course of study and proceeded to affirm the decision on the basis that the applicant did not satisfy cl 500.211 of Schedule 2 to the Regulations.
The applicant appealed the decision of the first Tribunal to the Federal Circuit and Family Court of Australia and the decision was set aside on 19 May 2022, and remitted back to the Tribunal for reconsideration.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CLAIMS AND EVIDENCE
Department application
The applicant is a 37-year-old citizen of Nepal, who first arrived in Australia on a student visa on 8 April 2008. She applied for the visa in order to undertake study in a Master of Business Administration at Holmes Institute, concluding in December 2018. The applicant is married to the second named applicant, Mr Suchindra Maharajan, who applied for the visa on the basis of being a member of the applicant’s family unit.
At the time of application, the applicants submitted copies of their marriage certificate, identity documents, evidence of Overseas Student Health Insurance and copies of the applicant’s previous course completions including a Master of Professional Accounting (2015), Advanced Diploma of Business (2013), Diploma of Business (2012), Certificate III in Business (2012), Advanced Diploma of Accounting (2011), Diploma of Accounting (2010), Certificate III in Accounting (2010), Bachelor’s degree in Business Studies (Tribhuvan University Nepal) (2006) and a statement in support of the application. In her statement, the applicant set out the following relevant information:
i.She was currently the holder of a Subclass 485 visa. She had been in Australia since 2009 and chose to come because of the quality of the education system. ‘She had completed an Advanced Diploma of Business Management and an Advanced Diploma of Accounting and a Master’s of Professional Accounting.
ii.Her family members were involved in the education sector and had opened an educational institute in Nepal. She had visited the institute and decided to join it. At the time, her level of qualification was not sufficient and she decided to gain some knowledge of business administration. As she had already completed the Advanced Diploma of Business Management, this was a chance for more opportunities for her long term.
iii.The applicant considered that the Holmes Institute provided high quality education with friendly staff and highly qualified teachers.
The delegate, in their decision record, a copy of which the applicant has provided to the Tribunal, found the following:
i.The applicant arrived in Australia in 2009, and since her arrival had held either a student visa, temporary graduate visa or associated bridging visa. Her proposed study would extend her time onshore to nine years.
ii.The applicant was previously granted a visa to enable her to achieve her goal, as the temporary graduate visa, granted from 5 April 2016 to 5 October 2017, allowed her to live, work and study in Australia temporarily and would have facilitated her further study in her desired field. She did not undertake study during this period and instead lodged a further application for a student visa shortly before her temporary graduate visa expired. It appeared that the applicant had recommenced study for the purposes of maintaining ongoing residence.
iii.They were not satisfied that the applicant had a significant incentive to return to Nepal. She had not demonstrated substantial personal ties. The delegate also considered that the applicant had not demonstrated any clear and substantial improvement that would arise from her proposed study that would outweigh the time and monetary expense her course would require.
iv.The time that the applicant had spent in Australia indicated that her family ties in Nepal were not a significant incentive for her to return. It was noted that the applicant had spent 3,027 days in Australia and 117 days offshore since her arrival.
Tribunal application
In response to a request for information pursuant to s 359(2) of the Act, the applicant provided to the Tribunal, on 27 September 2019, a completed Student Information Form. In the form, the applicant disclosed that she had completed the Master’s of Business Administration, and since August 2018 had been studying a Diploma of Leadership and Management. In Nepal she had worked as an administrative assistant between 2003 and 2009, while in Australia she had worked for Hungry Jack’s from 2012 to 2014, and then as a table hand at Sydney Book Binding since 2010. In a statement that accompanied the form, the applicant also set out the following relevant information:
i.She had a big dream to start her career as a senior administrative staff member at a leading organisation in her own country.
ii.After completing her Master’s of Business Administration, she found that there was something lacking in her education and that a short leadership course would add to her knowledge and profile. She decided on further studies to enhance her skills. She had undertaken 80% of her course, which was due for completion in two months. The applicant provided a copy of her Confirmation of Enrolment (CoE) and evidence of her coursework.
iii.She decided on a vocational college as the environment is good; students can get proper attention from their teachers as the classroom size is small.
iv.Despite having qualifications in accounting and administration, she thought she was ‘behind’ as she lacked leadership skills. She enrolled in the course to provide career focused development, as with too many degrees and no leadership knowledge ‘it was useless’. The course would give her techniques to deal with people in work scenarios and help her achieve corporate goals. She could apply the knowledge she acquired to a range of careers in business and accounting. She also had a desire to establish her own firm.
v.Her family will support her studies. After her studies, she will return to her country and live a happy and satisfied life with her family. Her parents are getting old and she has a responsibility to support them. She had already spent a long time in Australia and after she obtained a degree in her desired course, she would go back to her country.
The matter was remitted back to the Tribunal which, on 29 November 2022, invited the applicants to attend a hearing on 15 December 2022 via MS Teams to give evidence and present arguments.
On 12 December 2022, the applicant’s representative provided a letter of submission and the following additional documents:
i.Statement of the applicant.
ii.CoE in a Diploma of Community Services, at Lead College Pty Ltd, with course dates from 10 October 2022 to 6 October 2024, created on 25 August 2022.
iii.Course progress report from Lead College Pty Ltd in the Diploma of Community Services, dated 12 December 2022.
iv.Certificate of completion from Central College of the Certificate IV in Accounting, dated 8 July 2010, and academic transcript.
v.Certificate of completion from Central College of the Diploma of Accounting, dated 17 December 2010, and academic transcript.
vi.Letter of completion from Central College of the Advanced Diploma of Accounting, finished 18 April 2011, and academic transcript.
vii.Letter from King’s Own Institute confirming the applicant completed the requirements for a Master of Professional Accounting on 6 November 2015, and academic record.
viii.Letter from Holmes Institute confirming the applicant met the course requirement for the Master of Business Administration, dated 27 August 2018, and academic transcript.
ix.Certificate of completion of the Diploma of Leadership and Management issued 26 November 2019, and academic transcript.
x.Birth certificate for the son of the applicant and Mr Maharjan, with a date of birth of 30 July 2022.
In her statement to the Tribunal, the applicant provided the following further relevant information:
i.She completed studies in accounting between 2009 and 2015 and then obtained a Subclass 485 visa. After this, she was looking for further opportunities in the business sector and applied for the visa under review. Even though the visa was refused, she went ahead with her studies and completed the Master of Business Administration and then undertook a Diploma of Leadership and Management between 2018 and 2019. Then she enrolled in a Diploma of Banking Services Management at Western Sydney University. As the first Tribunal had affirmed the visa refusal, without a substantive visa she was unable to continue this course.
ii.She did not wish to depart Australia on a bad note, and while awaiting further review she enrolled in the Diploma of Community Services at Lead College and she had already completed a Certificate III in Individual Support.
iii.While in Australia she has had many ups and downs and four miscarriages. After undergoing treatment, she had a successful pregnancy in 2022. If she departs Australia with a bad reputation, her future will be affected as will her child’s.
iv.Her course completion would bring her a bright future. She has decided to utilise her knowledge in the education sector when she returns to Nepal. The Diploma of Community Service ‘perfectly blends’ her motives of progressing her career by continuing her employment in established colleges and serving the community. Her cousins are involved in the education sector and she was employed at DAV college before coming to Australia; she had a very good rapport with the management and they have encouraged her to pursue a managerial position at the college. She has plenty of professional ties that will help her continue to progress professionally.
v.She had a strong reason to return to Nepal as in her culture it was the responsibility of children to take care of parents in their old age. She also wished to raise her child in the community she grew up in with her people in Nepal. She could not stay in Australia longer even though she wanted to because her parents are getting older and they need her.
The applicant appeared at the Tribunal hearing on 15 December 2022 via video to give evidence and present arguments. Mr Maharjan did not attend and their representative did not attend. The hearing was conducted with the assistance of an interpreter in the English and Nepali languages.
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 satisfies cl 500.212 of Schedule 2 to the Regulations.
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 Tribunal accepts that there are several factors favourable to the visa grant. It is accepted that the applicant has completed the Master of Business Administration course for which she sought the visa, and then went on to complete a Diploma of Leadership and Management. It is also accepted that the applicant has successfully completed other qualifications in Australia. In addition, the Tribunal accepts the claim by her representative that community services is an emerging sector in Nepal, and a better quality education in Australia would provide a strong foundation. There may be reasonable reasons for the applicant seeking to study the course in Australia if she genuinely proposed a career in this field.
It is also accepted that the applicant has her parents and sister in her home country, as well as her extended family, including her cousins. The applicant has submitted that her parents are becoming older and are in need of assistance. It is also accepted that Mr Maharjan has his parents in Nepal. The Tribunal must weigh these factors against the evidence of the applicant that her sister lives with or close by her parents and provides them with assistance. The applicant has not returned to her home country since 2016, and she told the Tribunal at the hearing that before their marriage, Mr Maharjan had worked for 13 years as a chef in Dubai. She conceded that he had not lived in Nepal for over 20 years. In these particular circumstances, the Tribunal is careful of the weight it can place on the applicant’s family ties in her home country.
As to her economic ties, the applicant claimed that her husband had purchased some land before their marriage with funds he had obtained working in Dubai. There is no evidence of this asset before the Tribunal. It was the evidence of the applicant that it remained vacant land; it was not leased or currently an asset for which they were deriving any income. She did not maintain that they intended to live on the property in the future. While the Tribunal accepts that this asset may exist, the evidence before the Tribunal is that it does not require any active management or maintenance from the applicant or Mr Maharjan. The applicant confirmed that her parents live in their own home. They are now retired and derive income from another property that they rent. While it may be the case that the applicant has a future interest in her parents’ assets, it is not demonstrated, as submitted by the representative for the applicants, that her parents’ potential estate requires her attention in Nepal. The applicant has provided submissions about cousins operating an education institute; however, there is no evidence before the Tribunal of any the existence of such a business or offer of employment, and she did not assert at the hearing that it was her intention on return to Nepal to work for this business. It is not demonstrated that the applicant has strong personal, economic or employment ties to her home country. It is acknowledged that her family appear to enjoy a comfortable standard of living, owning their own properties, and these economic circumstances would not present a significant incentive for the applicant not to return.
There is no evidence of any political or civil unrest that would induce the applicant to apply for a student visa as a means of maintaining residence in Australia indefinitely. The applicant claimed that she had no fears of returning to Nepal. She also confirmed that Mr Maharjan had no outstanding military service obligations.
As to the applicant’s circumstances in Australia, she currently lives in a rental unit in a suburb of Melbourne with her husband and son. The Tribunal takes note of the fact that her immediate family is with her in Australia. The applicant said that she worked for a cleaning company from around 2019, but she is not currently working. Her husband is a chef by profession but is also currently working for the same cleaning company. The applicant told the Tribunal that prior to 2019, she worked for a long time in a factory. The Tribunal then questioned the applicant about her employment while she was on her Subclass 485 visa, and she advised that she did not obtain any employment in business or accounting relevant to her studies; instead she had continued to work in the factory. When questioned why she could not have undertaken the Master of Business Administration during this period if she intended further study and was not working in in business or accounting, the applicant replied that she did not consider studying during this period. The Tribunal noted her long period of residency in Australia already and that she was now proposing a further two years of study. The applicant was invited to comment on whether this suggested that she considered Australia as not just a place to study temporarily and obtain academic qualifications but the place where she wanted to make a home with her family. The applicant told the Tribunal that she had considered returning to Nepal on the completion of her Master’s of Business Administration, however, she had fertility issues and several unsuccessful pregnancies and was pursuing treatment in Australia. She discussed this with her sister who had told her that better treatment was available in Australia than in Nepal. She now has a son and considered that she was correct to pursue treatment in Australia. The Tribunal maintains its concerns that the applicant has an incentive to remain in Australia given that her partner and child are with her, she does not appear to be motivated to use her qualifications to expand on her employment and experience, and she seems to have a desire to build her family in Australia.

The Tribunal questioned the applicant as to the value of her study and she was asked why she desired the additional qualification in community services. The applicant’s response to this question was that now that she had commenced the course, she wanted to finish it. It appeared to the Tribunal that by enrolling at the diploma level, the applicant was not advancing her level of study, having completed two master’s level qualifications. It is noted that the proposed diploma will be the fourth diploma level qualification undertaken by the applicant. The applicant stated that she wished to give back to her community in Nepal and this was a new subject so she had to start at a new level. The Tribunal then asked the applicant if she still proposed future employment at an education institution, in particular the one operated by her cousin which featured in her submissions, and the applicant responded that it was on the suggestion of her cousin that she had pursued the Master’s of Business Administration and appeared to avoid the question of her employment intentions. The applicant confirmed that she had not undertaken any studies between the completion of her Diploma of Leadership and Management in 2019 and her current enrolment in October 2022. The applicant offered no further evidence as to her career intentions, how she wished to utilise her accounting qualifications or how her Diploma of Leadership and Management had improved her employment prospects. She did not elaborate on her corporate goals or her aspirations for a career in senior administration. She did not make any assertions regarding the development of her own firm as per submissions provided. The Tribunal had doubts that the applicant was continuing to study for career progression and was unsure what career she proposed. When asked about her submissions relating to an enrolment in a Diploma of Banking, the applicant informed the Tribunal that she only obtained an offer in this course and did not proceed to enrolment. As for her Certificate III in Individual Support, the applicant confirmed that she had completed the course in 2018 but claimed it was not a CRICOS[1] registered course and she also did not obtain a CoE. She enrolled in the course because she was thinking of undertaking studies in nursing and when she enquired, she was informed that she did not have a relevant academic background and she had thought this course might assist. She did not, however, pursue studies in nursing, as she had done some placements in aged care and this made her miss her family. It appeared to the Tribunal that not only was the applicant regressing in her study level, but that her choice of courses was demonstrating a lack of career pathway without reasonable explanation.
[1] Commonwealth Register of Institutions and Courses for Overseas Students
The Tribunal questioned the applicant as to how her proposed course would assist her in her potential career or improve her employment prospects. The applicant stated that there were many communities not doing well in her home country and she thought that she could do some good; she thought that she could do a not for profit or something. The Tribunal then asked the applicant if it was her intention to use the qualification to undertake volunteer work and the applicant responded in the affirmative. The applicant, under questioning, advised that she had not previously volunteered for her community in Nepal; she also advised that she had not joined any community organisations in Australia. It was put to the applicant for comment that she already had some qualifications that would enable her to volunteer some assistance to community organisations, and she could offer this assistance immediately rather than incurring the time and additional expense of study in Australia. The Tribunal did not accept the applicant’s response that now she had started her course she wanted to continue to learn it. When questioned as to whether she was using the ongoing enrolment at the Vocational Education and Training level for the purposes of extending her stay in Australia, the applicant stated that she believed that she could complete the qualification and get a little bit more of an idea about community; her knowledge was currently only at the general level. The Tribunal is not satisfied on the evidence of the applicant that her proposed studies are relevant for any proposed future employment. As the applicant intends to use her studies for volunteer work, it also follows that the Tribunal is not satisfied that it would assist with the remuneration that she could expect to receive in her home country. The Tribunal was not persuaded as to the value of the proposed qualification for the applicant.
If the applicant is granted the visa, it will extend her period of stay in Australia to approximately 15 years. Other than the length of time the applicant has already spent and is now proposing to spend in Australia, the Tribunal has no other concerns about the immigration history of the applicant. It is accepted that she has not previously applied for a permanent visa and there is no evidence that the applicant has been refused or had a visa considered for refusal in Australia or elsewhere. It is acknowledged that a visa refusal may impact on the ability of the applicant to return to Australia in the future, in that she may be subject to a ban on applying for a future visa under s 48 of the Act for approximately three years. As to the applicant’s child, he was not born when she applied for the visa and he is not included in the review application. He has not been and will not be the subject of any visa refusal.
Regarding other matters, the Tribunal had before it a copy of the applicant’s Provider Registration and International Student Management System records. These were discussed with the applicant at hearing. The Tribunal does not consider that they contain any information adverse to her application. It is noted that they do not record enrolments in her Diploma of Banking or the Certificate III in Individual Support. The applicant has explained the reasons for their omission and the Tribunal accepts the status of these is as she has claimed.
The Tribunal accepts that the applicant has family ties in Nepal, a stated regard for her home country and some other personal circumstances favourable to the granting of the visa. On balance, the Tribunal is not satisfied that these personal circumstances in her home country offer a significant incentive for her to return. It places greater weight on her circumstances in Australia, the length of her past and proposed stay, concerns relating to her career pathway, her ongoing enrolment at the diploma level, the regression of her studies and the lack of demonstrated value of the proposed courses to the applicant’s future. Having considered the evidence provided of the applicant’s circumstances overall, and other matters the Tribunal considers relevant, including those in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student. This is because the Tribunal is not satisfied that she intends to genuinely stay in Australia temporarily.
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.
As Mr Maharjan has applied for the visa as a member of the family unit of a person who satisfies the primary visa criteria and the Tribunal has found that the applicant does not satisfy one of the primary criteria, it follows that the Tribunal is also not satisfied that Mr Maharjan meets the secondary criteria in cl 500.311 of Schedule 2 to the Regulations.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met for either the applicant or Mr Maharjan. 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 decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Penelope Hunter
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.

[2023] AATA 924

31 March 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction