Majai (Migration)

[2023] AATA 4345

Majai (Migration) [2023] AATA 4345 (17 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Jeerapa Majai
Mr Jakkpran YODKAEW

CASE NUMBER:  2209892

HOME AFFAIRS REFERENCE(S):           BCC2020/1786840

MEMBER:T. Quinn

DATE:17 December 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants a Student (Temporary) (Class TU) visas.

Statement made on 17 December 2023 at 11:24am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – lengthy stay in Australia – diploma level courses in unrelated fields – return visits to Thailand – family ties in home country – maintaining ongoing residence in Australia – decision under review affirmed          

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 359, 363, 499; Direction No 69
Migration Regulations 1994, Schedule 2 cls 500.211, 500.212, 500.311

CASES

Baker v Minister for Immigration and Citizenship [2012] FCAFC 145
Chen v Minister for Immigration and Border Protection [2017] FCA 46
Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345
FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482
Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Khan v Minister for Immigration & Another [2019] FCCA 565
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Tshering v Minister for Home Affairs [2019] FCCA 2667
Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112  

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 23 June 2020, the applicants applied for Student visas (the visa) with the first named applicant proposing to undertake study in Australia as the primary visa holder and the second named applicant as secondary visa holder (‘the application’).[1]

   [1]Specifically, a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).  At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The primary applicant applied for the former and neither of the applicants claim to meet Subclass 590 (Student Guardian) visa criteria.

2. On 24 June 2022, a delegate of the Minister for Home Affairs (‘the delegate’) refused to grant the application on the basis that the primary applicant did not satisfy the genuine temporary entrant requirements in relation to student visas.[2]  Therefore, the second applicant’s application necessarily also failed.

   [2]See clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) which requires that student visa applicants be genuine applicants for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicants’ review application

3. On 7 July 2022, the applicants applied to this Tribunal for a review of the delegate’s decision.[3]

   [3] Pursuant to sections 338(2) and 347 of the Act.

4. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed since making their application. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information for the purposes of determining the outcome of their application for review. To this end, on 4 October 2023, the Tribunal wrote to the applicants, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’). The s359(2) letter requests that a questionnaire (‘the questionnaire’) be completed by the applicant.

5. The applicant sought and was refused an extension of time to respond to the s359(2) letter as the request was made after the prescribed time set out in the s359(2) letter for same.

6. The applicant responded to the s359(2) letter, including filing the completed questionnaire, on 20 October 2023 which was not within the prescribed timeframe set out in the s359(2) letter.

7. Where an applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action.[4] 

   [4] Pursuant to section 359C(1) of the Act.

8. I find that the applicant did not provide further information within the prescribed period as requested. In these circumstances, section 359C of the Act applies and pursuant to section 360(3) of the Act the applicants are not entitled to appear before the Tribunal. The effect of section 363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear.[5]

   [5]           Hasran v MIAC [2010] FCAFC 40.

9. I have considered whether, in the circumstances of this case, information that the applicant meets the requirements of the Act and Regulations is likely to be forthcoming and whether the applicant has had a fair opportunity to provide relevant information already.

10. I have considered whether I should adjourn the review under section 363(1)(b) of the Act to allow the applicants additional time in which to provide further evidence to support the review application. In doing so, I have had regard to decisions where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.[6]  I have also had regard to other case law relevant in these situations.[7]

    [6]See Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2001] FMCA 28.

    [7]See Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013) regarding reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (4 February 2014) which considered analogous issues, as well as the decision of Kaur v Minister for Immigration and Border Protection [2014] FCA 915 (28 August 2014).

11. I consider that the applicants have a fair opportunity to provide relevant information and elect not to exercise my discretion[8] to adjourn the review any further to allow the applicants more time. In these circumstances, I make my decision having regard to the information before me, including the information previously provided by the applicants to the Department and the Tribunal but without taking further steps to obtain the additional information sought by this Tribunal under section 359(2) of the Act.

    [8]under section 363(1)(b) of the Act.

12. It is for the applicants to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant(s), in as much detail as necessary to enable the decision maker to properly consider the case that is being put.

13. For the following reasons, the decisions under review are affirmed in this case.  In reaching this decision, I have had regard to:

    a.all written material filed by or on behalf of the applicants; and

    b.other relevant documents on the Tribunal and Department files.

    Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in my reasons as set out below. The reasons incorporate reference only to that information that I have found to be fundamental or materially significant to the determination of the issues in the case.[9]

    [9]In this regard, please see Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (24 February 2020) at [82] and [96].

    STATUTORY FRAMEWORK

14. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant. Information in relation to Clauses 500.211 and 500.212 is attached to this decision.

    Does the applicant intend genuinely to stay in Australia temporarily?

15. In considering whether the applicant satisfies clause 500.212(a), I must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (‘the Direction’), made under section 499 of the Act. The Direction is attached in full to this decision but broadly it requires Tribunal Members 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.

16. 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.

17. The Direction is a lawful direction of the Minister.[10]  I am therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[11]  Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before me.  However, I recognise that the Tribunal is an independent statutory body.  I must therefore reach my own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate.  In this regard, I note well established case authority as to the proper approach by decision makers to guidelines such as the Direction[12] and McNab J’s view that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.[13] 

    [10] In accordance with section 499 of the Act.

    [11]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].

    [12]Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]), Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) and Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]).

    [13]Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47] per McNab J).

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The primary applicant is a 38-year-old female Thai citizen who is the partner of the secondary applicant (aged 40 years).[14]  She first arrived in Australia in September 2014 and has remained onshore since that time, save for four brief return trips to Thailand.[15] 

    [14]See delegate’s decision and the questionnaire.

    [15]See the questionnaire.

19. Prior to coming to Australia, the applicant completed an Advanced Vocational Certificate in Accounting in 2006 in Thailand.[16]  She worked as Accounting staff from June 2009-January 2014 earning AUD6,545 equivalent per annum in Thailand.[17]

    [16]See the questionnaire.

    [17]See the questionnaire.

20. The applicant’s application which is the subject of this review was initially to complete a Certificate IV in Business and a Diploma and Advanced Diploma in Leadership and Management with cumulative course dates from July 2020-April 2025.[18]  Due to delays in this matter coming before me, the applicant submits that she has now completed her Certificate IV in Business and her Diploma of Leadership and Management course and is currently studying a new course: a Certificate IV in Kitchen Management.  However, she has not provided corroborating materials from her course provider in relation to any of her course progress or course completion, save for a transcript that confirms she has completed nine units in her Certificate IV in Kitchen Management since April 2023.  This troubles me. 

    [18]See Department file.

21. The applicant claims in the questionnaire that she has completed with the following courses in Australia:

    a.General English from May-November 2014;

    b.An Advanced Diploma of Travel and Tourism from May 2015-December 2016;

    c.A Certificate IV in Marketing and Communication from January-October 2017;

    d.A Diploma of Marketing and Communication from October 2017-October 2018;

    e.An Advanced Diploma of Marketing and Communication from October 2018- May 2020;

    f.The Certificate IV in Business (which she originally proposed to the Department) from July 2020-July 2021;

    g.The Diploma of Leadership and Management (which she originally proposed to the Department) from August 2021-February 2023.[19]

    [19]See the questionnaire.

22. The applicant has not provided the Department or Tribunal with any corroborating certificates for completion of any of these courses.  I am very concerned by the fact that the applicant has not filed any evidence of any academic progress for the period since her arrival until April 2023.  This is not what one would expect of a genuine student.

23. The applicant has now been onshore for over nine years. It is very difficult to reconcile that length of time with the meaning of ‘temporary’ as required by the Act and Regulations in relation to student visas. This period also raises serious concerns about the true nature of the applicant’s intentions onshore and whether she can be considered a genuine temporary entrant. 

24. The applicant’s submissions to the Department claimed that she planned to secure a higher Management position in the Marketing industry using her qualifications from Australia.[20]  She claims to have now completed her Certificate IV in Business and a Diploma of Leadership and Management but remains onshore.[21]  She has now enrolled in any entirely new package of courses: a Certificate IV in Kitchen Management and a Diploma of Hospitality Management from April 2023-March 2025 (cumulatively).[22]  I am very troubled by this.  Since May 2015, the applicant has engaged with study in the field of marketing and communication, business, leadership and management, tourism and now hospitality – all at the vocational level.  I am very troubled by this history.  It raises concerns about an applicant’s true intentions in residing onshore when they engage with relatively low level, inexpensive courses in a range of fields of study.  I allow for reasonable changes to study and career pathways but am concerned that the applicant is using the student visa migration programme to maintain residence, in circumvention of the intentions of the migration program.

    [20]See the genuine temporary entrant statement in the Department file and page 14 of the applicant’s application form in the Department file.

    [21]See the questionnaire.

    [22]See the questionnaire.

25. I am concerned that the applicant has not progressed her level of education beyond the vocational sector in over eight years of study in Australia.

26. The applicant now claims that she plans to use her new hospitality qualifications from Australia to secure work as a chef in an international hotel and that her income may start at BHT20,000 per month but is likely to progress to over BHT100,000 per month with her international qualifications.[23]  I allow for reasonable changes to study and career pathways but am very troubled by the many and varied fields of study the applicant has engaged in onshore and the fact that she has not provided evidence to the Tribunal or Department of having completed any of these courses, save for nine units in one Certificate IV course.  I accept that study in kitchen management and hospital may be relevant to and assist and improve an individual’s job prospects as a chef.

    [23]See the questionnaire.

27. The applicant has left blank the section of the questionnaire which asks directly about community ties in Australia.  The applicant is living onshore with her immediate family unit: her spouse.[24]  The applicant is working onshore.[25]  The applicant has been living in Australia for over nine years.[26]  The length of the applicant’s stay in Australia of over nine years, along with her application to extend this stay, indicates that the applicant has a preference to remain onshore.  It is reasonable to conclude that after over nine years onshore the applicant has cultivated a satisfactory life and established strong ties to the Australian community acting as a strong incentive for her to remain onshore.  As each day passes, those ties strengthen.

    [24]See the questionnaire.

    [25]See the questionnaire.

    [26]          See page 13 of the applicant’s application in the Department file.

28. The applicant has here parents, sister and 11-year-old son all living together in Thailand and she speaks to them every day.[27]  She claims to have a very strong bond to her family and a responsibility to care for her parents.[28]  The applicant has returned to Thailand four times since her arrival for one month on each occasion, all to visit family, in: 2016, 2017, 2019 and 2023.[29]  The COVID19 Pandemic and associated restrictions have made international travel virtually impossible from early 2020 to early 2022 and I place no weight against the applicant in relation to that period.  The applicant claims that she will go back to Thailand upon completion of her study.[30]  I accept that the applicant may have personal ties to Thailand acting as an incentive for her to return to her home country, but I do not consider the evidence supports a finding that those ties are acting as a significant incentive for her to return.  The applicant’s ties to Thailand appear to be outweighed by her incentives and desires to remain onshore given her extended residence.

    [27]See the questionnaire.

    [28]See the questionnaire.

    [29]See the questionnaire.

    [30]See the questionnaire.

29. The has made very detailed and persuasive submissions regarding her reasons for studying in Australia rather than her home country or region.[31]  I accept these submissions and consider that the applicant has provided reasonable reasons for undertaking her study in Australia rather than her home country or region.

    [31]See the questionnaire.

1. The applicant has been working onshore: as a cleaner from November 2018-September 2023 earning AUD33,000 per annum; and as a chef from September 2023-present earning AUD26,000 per annum.[32]  The applicant has filed evidence of the second applicant holding over AUD40,000 in an Australian bank account.  I consider it likely the second applicant is also working onshore.  The applicant holds assets worth AUD800,000 equivalent in Thailand and has provided corroborating evidence in this regard.[33]  The applicant’s application form in the Department file states that she holds AUD72,601 funds in an Australian bank account.[34]  The applicant has expenses onshore of AUD39,048 per annum.  Taking the evidence as a whole, I am concerned that the applicant’s economic circumstances may be acting as a strong incentive for her to remain onshore but do not consider I have sufficient information before me to form any firm conclusions in this regard.

   [32]See the questionnaire and letter from the applicant’s employer dated 12 October 2023 in the Tribunal file.

   [33]See the questionnaire and Tribunal file.

   [34]          See page 11 of the applicant’s application in the Department file.

2. There is no evidence that the applicant has had any travel, visa or immigration issues in the past.[35]  The applicant does not have any potential military service obligations or political or civil unrest concerns in Thailand.[36]

   [35]See the questionnaire.

   [36]See the questionnaire.

3. A PRISMS search was conducted in relation to the applicant on 19 October 2023 to confirm she remains enrolled which she does (and therefore continues to meet the requirements of clause 500.211 of Schedule 2 of the Regulations). I have not placed any weight against the applicant in relation to that search.

4. Taken as a whole, the information provided by the applicant in relation to their application raises questions about the applicant’s true intentions in residing in Australia.  I am particularly concerned about the length of time the applicant has now been onshore for and consider that the visa is being sought primarily to maintain residence in Australia.  An applicant for a student visa must not just be a genuine student, they must also be a genuine temporary entrant.  I have considered the applicant’s submissions in this regard, but I am concerned that the applicant is using the student visa migration programme as a means to maintain residence and I am not satisfied she is a genuine temporary entrant.

5. The applicant does not meet clause 500.212 and I am not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by clause 500.212.

6. 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. Therefore, the decision under review must be affirmed.

7. Consequently, as the decision in relation primary applicant’s review has been affirmed, I cannot be satisfied that clause 500.311 in Schedule 2 of the Regulations is met by the second or third applicants as it requires that they be a member of the family unit of a person who satisfies, or has satisfied, the relevant primary criteria.

8. Therefore, the criteria for the grant of a Student visa are not met by the second or third applicants and the decisions in relation to their applications must also be affirmed.

   DECISION

9. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

   T. Quinn
   Member

   Attachment – Clauses 500.211, 500.212 and 500.312 of Schedule 2 of the Regulations

   Enrolment (clause 500.211)

   ·Clause 500.211 requires that, at the time of decision, the student visa application in question be founded on evidence that the applicant is enrolled in a course of study.[37]

   [37]Clause 500.211(a) of Schedule 2 to the Regulations.

   ·‘Course of study’ is defined as a ‘full-time registered course’ and a ‘registered course’ is a course provided by an institution which has been registered under the Education Services for Overseas Students Act2000 (Cth) (‘the ESOS Act’) to provide that course to overseas students.[38]

   [38]Regulation 1.03 of the Regulations.

   ·All registered courses and course providers are listed in the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’), an online register kept in accordance with the requirements of the ESOS Act.[39]  Details of courses listed in CRICOS are integrated into the Provider Registration and International Student Management System (‘PRISMS’), a database maintained by the Australian government.[40] The PRISMS database is the principal means by which registered course providers comply with legislative requirements relating to the monitoring of international students studying in Australia. Upon enrolling an international student into a registered course of study, the course provider enters the details of that enrolment into the PRISMS database. The database then records a Confirmation of Enrolment (‘COE’) for the student. The COE functions as a record of the student’s enrolment status in the course and as proof of enrolment for the purposes of clause 500.211 of Schedule 2 of the Regulations.

   [39]Section 10 of the ESOS Act.

   [40]See generally, Department of Education and Training, Provider Registration International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018).

   Genuine Temporary Entrant (clause 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.

   Genuine Temporary Entrant (clause 500.312)

   Clause 500.312 requires that any secondary applicant(s):

   is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa, having satisfied the primary criteria for that visa 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.

   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.