Malik (Migration)

Malik (Migration) [2020] AATA 2814 (22 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad Ibrahim Malik
CASE NUMBER:  1834775
HOME AFFAIRS REFERENCE(S):          BCC2018/3504176
MEMBER:David Thompson
DATE:22 May 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 22 May 2020 at 5:31pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine temporary entrant criterion not met– personal and economic ties with Australia– pattern of enrolment in relatively short, low-level courses–decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 November 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 14 September 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because she was not satisfied that the applicant genuinely intended a temporary stay in Australia as a student.
The applicant appeared before the Tribunal on 11 September 2019 to give evidence and present arguments.
The applicant was assisted in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant meets the requirements of cl.500.212.
Genuine applicant for entry and stay as a student (cl.500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
Background
The applicant is a citizen of the Islamic Republic of Pakistan. He first arrived in Australia on 9 July 2013, as the holder of a subclass TU-573 student visa for study in the higher education sector. At the time, he was enrolled in a package of courses leading to a Bachelor of Business degree. His initial student visa was valid until 15 September 2018. He applied for a subclass TU-500 student visa on the day before his original visa was due to expire. That application was refused, and the applicant has applied for a review of that decision.
As well as giving oral evidence at hearing, the applicant has provided the Tribunal with the following documentary evidence:
a.a copy of the delegate’s decision record dated 14 November 2018
b.a completed Request for Student Visa Information form, provided in response to a request for information made by the Tribunal pursuant to s.359(2) of the Act; and
c.Confirmation of Enrolment (CoE) AEC93932, with respect to the applicant’s enrolment in an Advanced Diploma of Leadership and Management course offered by Australian Professional Skills Institute between 14 October 2019 and 11 October 2020.
The Tribunal has also read the Department’s file in relation to the applicant’s visa application. That file contains the following relevant documents:
a.the applicant’s statement of purpose, undated;
b.a letter from Kinggdom Institute of Management (Kinggdom) dated 11 September 2018 verifying the applicant’s enrolment at the time, in a Certificate IV in Work Health and Safety course;
c.an affidavit of support made by the applicant’s father, Mr Zulfiqar Ali, on 13 September 2018;
d.a further letter from Kinggdom dated 11 September 2018, confirming the applicant’s enrolment and setting out the dates of his term break and his working rights during that period.
The Department’s file also contains a number of documents in relation to the applicant’s schooling and tertiary education in his home country before coming to Australia. There is no need to list them. Rather, the Tribunal will mention them as necessary in the body of these reasons.
The applicant also provided written submission to the Tribunal on the day of hearing. The Tribunal has taken those submissions and all of the evidence noted above into account in coming to its conclusion. Further, prior to hearing the Tribunal obtained a copy of the applicant’s record from the Provider Registration and International Student Registration System (PRISMS). The Tribunal has relied on the record to the extent stated below.
The applicant’s circumstances in his home country
The applicant gave evidence at hearing that his immediate family consists of his parents, three brothers, and a sister. All of those family members live in Pakistan, although at the date of hearing his eldest brother was studying in Sweden. The applicant said that he is very close to his family, and keeps in touch with them by text message and by Facetime video call. He said that he speaks with his father, who is busy with his work, about once a month, and with his mother every Sunday. The applicant is the second-eldest child of the family, and said that he feels particular responsibility to set a good example for his younger brothers. He stated that he had returned twice to Pakistan to see his family since his arrival in Australia. His first visit was in late June 2014 and lasted for 41 days, and his second visit was in February 2016 and lasted 32 days. The applicant gave evidence that he had no community involvements in Pakistan.
The applicant also gave evidence that he has no employment history and no assets in Pakistan. His family evidently has assets, most notably a factory that manufactures plastic bags, disposable cups and other items. The applicant said that that business has been in his family for 24 years, and that he expects to work in it when he returns to Pakistan. Further, he expects to to take ownership (or at least part-ownership) and control of the family business assets in due course. He also said that his parents want him to return home and do not think that he needs an Australian Bachelor’s degree in Business to take his place in the family business.
The Tribunal finds that the applicant has reasonably strong personal ties to his home country. The Tribunal also finds that he has some economic ties to his home country, but that they are somewhat weaker than his personal ties.
The applicant was asked whether he could have undertaken studies in Pakistan similar to the courses he has undertaken in Australia, and if he could have done why he had decided to study in Australia. His response was that the Australian courses are delivered at a much higher level than the courses available in Pakistan (thereby implicitly admitting that similar courses were available in Pakistan), and that unlike the Pakistani courses they are delivered with modern technology. He also said that he was inspired by the example of an acquaintance who had studied in Australia and had gone on to do very well in Pakistan. The Tribunal finds that these are reasonable motives for studying in Australia.
The applicant gave evidence that he has no military service obligations to fulfil upon his return to Pakistan, and no concerns regarding civil or political unrest. There is no evidence before the Tribunal to the contrary, and the Tribunal accepts the applicant’s evidence on these points.
Weighing these matters together, the Tribunal finds that the applicant’s circumstances in his home country give him some incentive to return there at the end of his studies, and no obvious disincentive.
The applicant’s potential circumstances in Australia
The applicant gave evidence that he has no family in Australia whatsoever. He has lived in shared housing since his arrival, with other students from Pakistan. He has had some light involvement in the local Pakistani community through an association known as Pakistan Association of Western Australia (PAWA). He attends PAWA events and meetings occasionally, once every two or three months. He also stated that he has a group of friends in Australia, who he sees at birthdays and religious holidays.
The applicant stated that he has no assets in Australia, and there is no evidence before the Tribunal to the contrary. He has some employment history in Australia, having worked in this country since shortly after his arrival here. For the first two years of his stay in Australia he worked as a kitchenhand. After that, he worked in security. In his last job, he earned approximately $30,000 per year. However, he has not worked at all since his security licence expired in or around the middle of 2019. The applicant confirmed at hearing that his employment had been of a part-time/casual nature, and that the wage figures he had given represented actual earnings, and not full-time equivalent earnings. It appears that the applicant is in a position to make a reasonably good living in Australia. The Tribunal finds that this set of circumstances amounts to an economic incentive to remain in Australia.
The applicant was asked by the Tribunal to provide information as to how he came to choose the providers of the courses for which he sought his visa. He did not do so. However, the Tribunal notes that the applicant had studied with one of the relevant education providers (Kinggdom) previously, and had at that point lived in Australia for some years, so that he may be presumed to have had good knowledge of that education provider and life in Australia generally at the time he applied for his visa. The applicant gave no evidence as to how he came to choose his current education provider, Australian Professional Skills Institute. These matters give the Tribunal no assistance in reaching its decision.
There is no evidence before the Tribunal suggesting that the applicant has entered into a relationship of concern, in the sense of a relationship contrived with a view to securing a better outcome for his visa application than might otherwise have been available. The applicant’s immigration record was taken by the delegate as evidence of an intention to use the student visa programme to maintain residence, and this will be discussed below. Otherwise, there is no evidence before the Tribunal (outside the circumstances discussed elsewhere in these reasons) suggesting that the applicant is using the student visa programme to maintain residence or otherwise circumvent the intentions of the Australian migration programme.
In light of all these matters, the Tribunal finds that the applicant has some personal and economic ties with Australia that provide him with some incentive to remain in this country at the end of his studies.
The value of the applicant’s course to his future
The applicant came to Australia having completed a Bachelor of Commerce degree in his home country. In his time in Australia, he has only ever completed vocational level courses. On the face of it, this is a regression in level of study. This was put to the applicant at hearing. His response was that his Bachelor of Commerce degree was a two-year degree and as such was on the same level as the courses he has undertaken in Australia. The Tribunal is prepared to accept that his degree was a two-year degree, especially as some of the documents the applicant provided to the Department appear to confirm this. There is, however, no evidence before the Tribunal corroborating the applicant’s statement that the course is a vocational level course notwithstanding its title. In any event, it would appear that at least some of the courses the applicant has undertaken in Australia (for instance, Certificate III in Accounts Administration, Certificate IV in Accounting, and Certificate IV in Business) are at an even lower level or cover material the applicant must have covered in his Bachelor of Commerce studies.
The applicant gave evidence at hearing that his plan upon finishing his studies in Australia is to return to his home country to take up a position in his father’s business. That business was mentioned above. In addition to the evidence recounted there, the applicant gave evidence that the business employs about 20 people. To the extent that the applicant’s courses have been in the area of commerce, they would appear to have a generic relevance to this business. Some of them, such as his various accounting courses, would appear to have a direct relevance. At least one course he states he has undertaken (a Diploma of Hospitality Management) has no obvious relevance. Many of his courses would appear to be only somewhat relevant to a manufacturing business employing approximately 20 workers. Those courses tend to be the courses the applicant has undertaken in the more recent part of his studies in Australia, and include the applicant’s current course, an Advanced Diploma of Leadership and Management.
The applicant gave evidence at hearing that he did not expect to be paid a salary as such for his work in his father’s business. Rather, he expects that all his needs and requirements will be taken care of using the profits of the business. There is no evidence before the Tribunal of any particular occupation the applicant’s studies would fit him for in Australia, nor any evidence of the salary he could make using his Australian qualifications in this country. It is impossible, on the evidence before the Tribunal, to make any meaningful comparison between the applicant’s likely income in his home country and his likely income in Australia. This factor does not assist the Tribunal in reaching its decision.
Taking these matters together, the Tribunal finds that the applicant’s studies have some value to his future, but not very great value. This gives a little support to his claim to be a genuine temporary entrant.
The applicant’s immigration record
The applicant has been resident in Australia for almost 7 years as at the date of this decision. That is a significant period in itself, and arguably indicative of an intention to remain in Australia. However, before reaching any such conclusion it is necessary to consider what the applicant has done in that period. On the basis of the evidence referred to above, but principally the information provided by the applicant in the document referred to in paragraph 12(b) above and his oral evidence at hearing, the Tribunal makes the following findings of fact:
a.Immediately prior to arriving in Australia the applicant held a Bachelor of Commerce degree from the University of the Punjab. This was his highest level of academic attainment at that date.
b.When the applicant arrived in Australia (on 9 July 2013) he was enrolled in a package of courses comprising Certificate III in Accounts Administration, Certificate IV in Accounting, a Diploma of Accounting, and an Advanced Diploma of Accounting at TAFE WA, and a Bachelor of Business course at Edith Cowan University.
c.The applicant commenced his first TAFE course (Certificate III in Accounts Administration) in July 2013 and finished the last of those courses in or about July 2015. He did not pass all of the units of any of those courses.
d.The applicant was originally scheduled to start his Bachelor of Business course in July 2015, but he did not do so.
e.In or about September 2015, the applicant enrolled in a Certificate IV in Business at Kinggdom Institute of Management (Kinggdom). At around the same time, or possibly a little later, he also enrolled in a Diploma of Management at Kinggdom and a Bachelor of Business (Management) at CIC Higher Education Pty Ltd.
f.The applicant studied for his Certificate IV in Business between 19 October 2015 and 20 April 2016. He completed that course.
g.The applicant studied for his Diploma of Management between 2 May 2016 and 3 November 2016. He completed that course.
h.The applicant was due to commence his Bachelor of Business studies on 24 October 2016. He did not do so, and his CoE was cancelled.
i.The applicant started studying for a Diploma of Human Resource Management at Kinggdom on 16 January 2017 and completed that course in November 2017.
j.In January 2018 the applicant enrolled in two more courses at Kinggdom, a Certificate IV in Work Health and Safety and a Diploma of Work Health and Safety.
k.The applicant’s Certificate IV in Work Health and Safety course began on 15 January 2018 and was due to end on 4 November 2018.
l.The applicant applied for his subclass TU-500 visa on 14 September 2018.
m.The applicant’s Diploma of Work Health and Safety was due to start on 12 November 2018.
n.The applicant’s visa application was refused on 14 November 2018.
o.The applicant did not complete his Diploma of Work Health and Safety.
p.The applicant applied for a place in an Advanced Diploma of Leadership and Management at some time in late August or early September 2019, and was issued a CoE for that course on 10 September 2019.
The applicant’s study history raises a number of issues that must be explained or discussed.

Firstly, at paragraph 30(c) above it is stated that the applicant finished all the courses mentioned but did not pass all the units of any of them. The applicant explained at hearing that in each instance, although he had not completed the requirements of the course, he was allowed to progress to the next in the series and to take catch-up units as well. Ultimately, the applicant could not manage this. The Tribunal accepts this evidence.
Secondly, at hearing and in his response (see paragraph 12(b) above) the applicant stated that he had been enrolled in and had completed a Diploma of Leadership and Management at an institution known as FMEdge between September 2016 and December 2016, and a Diploma of Hospitality Management at an institution known as Victoria College of Vocational Excellence between January 2017 and June 2017. There is no independent evidence of these enrolments (indeed, the applicant has provided very little independent evidence of any of his enrolments). In his written submissions, the applicant states that he undertook these courses at Kinggdom. At hearing, he stated that he took them online. When questioned at hearing as to why he undertook a Diploma of Hospitality Management, the applicant stated that it was because it involved staff workplace training, and this was a skill he thought he would need when he returned to work in his father’s business. The Tribunal’s own online researches reveal that disciplinary action was taken against both these course providers shortly after the period when the applicant says he studied with them. Some information can, however, be gleaned about FMEdge from the directory website known as The Good Universities Guide, which may be found at and which appears not to have been updated for some time. It seems that FMEdge did offer a Diploma of Leadership and Management, but there is no mention of it having been offered online. None of the applicant’s evidence on these points is satisfactory, and the Tribunal is not satisfied that he undertook these courses. However, the Tribunal also notes that the applicant was in fact studying other courses during the time he says he undertook these online courses, so there is no gap in study for the applicant to explain.
Thirdly, at hearing the applicant stated that he had enrolled in the Bachelor of Business course offered by CIC Higher Education Pty Ltd (see paragraph 30(e) above) because he knew that he had to remain enrolled at that level to satisfy the conditions of his subclass TU-573 student visa. Yet when the Tribunal put it to him at hearing that once that Bachelor of Business enrolment had been cancelled, he had fallen into a breach of his visa conditions until his visa expired, he claimed that he had not found another enrolment on that level because the student advisor at Kinggdom had told him that this could be left until later. This evidence, if it is not contradictory, sits very uneasily.
Fourthly, it will be noted (at paragraph 30(o) above) that the applicant did not complete his Certificate IV in Work Health and Safety. At hearing, he was asked why. He gave two reasons. Firstly, he stated that as of January 2018 his parents had been unable to send him any money to pay his course fees, so that he spent considerable time during 2018 fending off his college’s demands for payment. Secondly, he stated that it was also because his visa had been refused, and that this (and in particular the prospect of telling his parents of it) had caused him a great deal of stress and anxiety, such that he felt unable to continue studying. This is despite the fact that the course had only a few days to run when the applicant’s visa was refused.
Finally, the applicant produced at hearing a CoE for an Advanced Diploma of Leadership and Management (which course he appears currently to be studying) that had been issued the day before hearing. He did so in response to information taken by the Tribunal from his PRISMS record to the effect that at the date of hearing he was not enrolled in any course of study, and put to him pursuant to s.359AA of the Act. The Tribunal asked the applicant when he had applied for admission to this course. He stated that he had applied about three weeks before the hearing, but produced no independent evidence of this, such as a copy of his application form, or a copy of his letter of offer. Whether or not the applicant was telling the truth on this point, there was a gap of approximately 10 months between his abandoning his Certificate IV in Work Health and Safety and obtaining a new CoE. The applicant stated that he obtained that new CoE because his parents were once again in a position to pay his course fees, and because he wanted finally to finish his studies in Australia and return home. No corroborating evidence was provided to the Tribunal on the matter of the applicant’s course fees. The Tribunal does not accept his evidence on this point, and finds rather that the applicant enrolment was a last-minute attempt to put his affairs in order before his hearing. That is to say, his true motivation for this enrolment was to ensure that the Tribunal did not affirm the delegate’s decision on the ground that the applicant was not enrolled in a course of study at the time of decision.
Overall, the applicant’s study history shows a strong pattern of enrolment in relatively short, low-level courses, with no sign of any genuine attempt to progress to Bachelor’s degree level studies despite this being the applicant’s avowed purpose in coming to Australia. The applicant stated at hearing that he pursued these courses so that he could get exemptions from parts of his Bachelor’s degree course. That explanation may have been true in the earlier part of his stay in Australia, but it can only count as a credible motive for so long. The Tribunal certainly does not accept it for the period following cancellation of his enrolment at CIC Higher Education Pty Ltd (as to which, see paragraph 30(h) above). At that point, the Tribunal finds, the applicant had abandoned any of studying for a degree. The Tribunal finds that the applicant’s study history does not support his claim to be a genuine temporary entrant. Indeed, it strongly contradicts it.
There is no evidence before the Tribunal that the applicant has ever previously been refused a visa, or has ever had a visa cancelled, whether by Australia or any other country. The Tribunal gives these matters some weight in favour of the applicant. Nor is there any evidence that the applicant has breached the immigration laws of any other country. However, as the applicant gave evidence that he had never visited any foreign country other than Australia, the Tribunal gives this little weight in his favour. There is evidence that the applicant has breached a condition of his subclass TU-573 student visa – see paragraph 33 above. Overall, these matters do not overcome the effect of the applicant’s study history.
The Tribunal finds that the applicant’s immigration history weighs strongly against his claim to be a genuine temporary entrant, so strongly indeed that it outweighs such circumstances and factors as have been identified above as supporting that claim.
Conclusion
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
David Thompson
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;
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
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.

[2020] AATA 2814

22 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal