Manpreet Singh (Migration)

[2023] AATA 225

Manpreet Singh (Migration) [2023] AATA 225 (27 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manpreet Singh

REPRESENTATIVE:  Mr Manish Kumar Arora (MARN: 1678522)

CASE NUMBER:  2119376

HOME AFFAIRS REFERENCE(S):          BCC2020/1479644

MEMBER:Frank Russo

DATE:27 January 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 27 January 2023 at 2:02pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – lengthy stay in Australia – value of course to benefit future career – applicant changed to Vocational courses in diverse fields – course cancellations – maintaining ongoing residence in Australia – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359, 360, 499; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 December 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 4 May 2020. 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.

3. 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 (Cth) (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

4. The applicant is a 28-year-old Indian national. At the time he applied for the Student visa application under review, the applicant was enrolled in a Bachelor of Accounting. The applicant did not complete this qualification. At the time of the hearing the applicant was enrolled in an Advanced Diploma of Civil Construction Design, which commenced on 31 October 2022 and was due to end on 29 October 2023.

5. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant.

6. The applicant appeared before the Tribunal by telephone on 16 December 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

7. The applicant was assisted in relation to the review, although his registered migration agent did not attend the hearing.

8. At the hearing held on 16 December 2022, the Tribunal used the procedure set out in s.359AA of the Act to put to the applicant the particulars of information from his enrolment record in the Provider Registration International Student Management System (PRISMS), which the Tribunal considered would, subject to the applicant’s comments or response, be the reason or part of the reason for affirming the decision under review. After putting this information to the applicant, the Tribunal advised the applicant that it needed to adjourn the hearing to a date in 2023 to be advised, as the interpreter booked for the hearing advised that they were not available beyond the scheduled time of their booking.

9. Following the hearing, on 22 December 2022, the Tribunal also used the procedure set out in s.359A of the Act to put the same particulars of information from the applicant’s PRISMS enrolment record to the applicant in writing. The applicant was given four weeks, until 19 January 2023, to respond to this information in writing. Further details of the information and procedures used to put this information to the applicant under ss.359AA and 359A are set out in the reasons below.

10. In addition, on 22 December 2022, the Tribunal invited the applicant to attend a resumed hearing by telephone on 23 January 2023.

11. On 18 January 2023, the applicant provided a response to the hearing invitation to attend the resumed hearing, in which he advised that he would not participate in the hearing and that he consented to the Tribunal making a decision on the papers without taking further steps to allow him to appear. On the day of the scheduled resumed hearing, an officer of the Tribunal contacted the applicant’s representative, who confirmed the applicant’s intention not to participate in the hearing.

12. The Tribunal is satisfied that the necessary consent has been given under s.360(2)(b) of the Act and that, pursuant to s.360(3), the review applicant is no longer entitled to appear before it. The Tribunal may therefore determine this matter on the evidence available to it.

13. In addition, the applicant did not respond to the Tribunal’s s.359A letter of 22 December 2022 by 19 January 2023 and no response has been received to date.

14. Therefore, the applicant has not provided satisfactory comment or response to the adverse information put to him under s.359A of the Act before the time for giving such comments or response has passed. As a result of this, pursuant to s.359C(2) of the Act, there are grounds on which the Tribunal may make its decision without taking any further action to obtain the applicant’s views on the information.

15. The Tribunal has therefore determined this matter on the evidence available to it, including the evidence which the applicant gave at the hearing on 16 December 2022.

16. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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 is a genuine temporary applicant for entry and stay as a student.

18. In addition to the application form and copy of the delegate’s reasons for decision, on 12 August 2022 the applicant provided the Tribunal with a response to an invitation to provide information under s.359(2) of the Act, including the following documents:

    a.A completed ‘Request for Student Visa Information’ form;

    b.Confirmation of enrolment (CoE) for the Graduate Diploma of Management (Learning) issued by Richmond School of Business, starting on 3 October 2022 and ending on 1 October 2023;

    c.Award of the following qualifications by Apex Institute of Management (Apex), together with transcripts of academic results:

    i.Diploma of Management, awarded on 30 April 2015;

    ii.Advanced Diploma of Management, awarded on 4 May 2016; and

    iii.Advanced Diploma of Hospitality Management, awarded on 14 November 2017;

    d.Matriculation Examination Certificate from Punjab School Education Board, issued in June 2011, and Punjab School Education Board certificate, issued in March 2013;

    e.Australian bank account details; and

    f.The applicant’s mother’s Indian Government identity card.

19. The applicant also provided responses to the hearing invitations.

20. The Tribunal has had regard to these documents. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file, which include the applicant’s Indian passport, an undated genuine temporary entrant (GTE) statement, copies of the award of the Australian qualifications provided to the Tribunal, confirmation of a PTE Academic booking and test score, overseas student health cover, the applicant’s Indian Government identity card, account information for an Indian bank account, affidavit of the applicant’s father together with his Indian Government identity card and booking confirmation for a visa medical service appointment.

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

21. 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?

22. 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.

23. 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.

    Applicant’s evidence given at first hearing

24. At the hearing held on 16 December 2022, the applicant confirmed that he first arrived in Australia on 11 October 2013. He told the Tribunal that he has previously been granted three Student visa applications. He gave evidence that he first arrived in Australia for the purpose of studying Information Technology, but stated that he found this study challenging, so he instead enrolled in a Diploma of Management. He confirmed that he has completed a Diploma of Management, an Advanced Diploma of Management and an Advanced Diploma of Hospitality Management in Australia. He stated that he enrolled in a Certificate IV in Commercial Cookery but did not complete it. He stated that he then spoke to an agent who advised him to enrol in Accounting.

25. The applicant stated that at the time of the first hearing, he was enrolled in the Advanced Diploma of Civil Construction Design. When asked what his plans are after he completes this course, the applicant stated that he wants to return to India and look for a job there. He stated that he has more opportunities in India. When questioned why he chose to enrol in his current course, the applicant stated that there are many opportunities in this industry in India. The Tribunal noted that the applicant had not provided the Tribunal with any information regarding his enrolment in the Advanced Diploma of Civil Construction Design, nor his reasons for enrolling in this course, and therefore he needed to provide more specific information about his reasons for choosing this course. The applicant gave a general, non-specific and vague response, stating that the courses were a bit hard for him and that he chose to study the Bachelor of Accounting but it was hard for him. The Tribunal again asked the applicant to explain why he had enrolled in the Advanced Diploma of Civil Construction Design and how it will assist him with his future plans. The applicant again responded with a vague and generic response, stating that he is from Punjab and that when he returns there he can get a job.

26. The Tribunal adopted the procedure in s.359AA of the Act to put to the applicant the particulars of information from his enrolment records from the PRISMS database. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal.

27. The Tribunal put to the applicant that according to his PRISMS record he had completed certain courses in Australia, including a two-month Academic English course in 2013, a Diploma of Management in January 2015, and Advanced Diploma of Management in September 2015, an Advanced Diploma of Hospitality Management in October 2017 and a one-month English Language Programs course in December 2017. The Tribunal noted that the record indicates the applicant has otherwise been enrolled in a number of other courses where the enrolments have all been cancelled, other than his current enrolment in the Advanced Diploma of Civil Construction Design. The Tribunal noted the following enrolments:

    a.Diploma of Information Technology, which was cancelled in June 2014 due to the applicant notifying his education provider that he was ceasing his studies;

    b.Advanced Diploma of Hospitality Management and Advanced Diploma of Management (Human Resources), both of which were cancelled in October 2017;

    c.Bachelor of Tourism and Hospitality Management, which was cancelled in August 2018 due to the applicant notifying his education provider that he was ceasing his studies;

    d.Certificate IV in Commercial Cookery, which was cancelled in February 2019 due to non-payment of fees;

    e.Bachelor of Accounting, which started on 21 January 2019, which was cancelled on 29 September 2021 due to the applicant notifying his education provider that he was ceasing his studies;

    f.Graduate Certificate in Management (Learning), which commenced on 28 June 2021, which was cancelled on 30 March 2022 due to the applicant notifying his education provider that he was ceasing his studies. The applicant’s enrolment in the Graduate Diploma of Strategic Learning, which was due to commence in July 2022, was also cancelled on 30 March 2022 due to non-commencement of studies; and

    g.The applicant had a second enrolment in the Graduate Certificate in Management (Learning), which commenced on 3 October 2022 and which was cancelled on 18 November 2022 due to the applicant notifying his education provider that he was ceasing his studies.

    The Tribunal noted that the above information may be relevant to assessing whether the applicant is a genuine temporary entrant and noted in particular that the information indicates that since December 2017 the applicant has not successfully completed any courses of study despite approximately five years passing and his enrolment in a range of courses. The Tribunal also noted that the applicant’s enrolments in the Graduate Certificate in Management (Learning) and the Graduate Diploma of Strategic Learning, which were the subject of the Student visa application under review, were cancelled and he has now enrolled in a different course in a different field of study, for which he has provided no supporting evidence as to the value of this course to his future. The Tribunal also noted that the information may indicate that the applicant has enrolled in courses in a range of different fields including Information Technology, Management, Tourism and Hospitality Management, Commercial Cookery/Hospitality Management, Accounting, Strategic Leadership and now in Civil Construction, and that he may be enrolling in a range of courses in different fields of study to maintain ongoing residence in Australia.

28. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal noted that it would normally at this point have asked the applicant whether he wished to comment or respond to the information or if he required further time to respond to the information, but that on this occasion the Tribunal needed to adjourn the hearing because the interpreter indicated they were not available beyond the scheduled hearing booking. The Tribunal advised the applicant that it would therefore adjourn the hearing to a date to be set in 2023, which would also give the applicant an opportunity to consider his comments or response to the information which had been put to him. The Tribunal noted that due to the length of the applicant’s enrolment records, it would also put the information to the applicant in writing and give him an opportunity to respond in writing before the resumed hearing.

    Information put to the applicant under s.359A of the Act and invitation to resumed hearing

29. On 22 December 2022, the applicant wrote to the applicant using the procedure set out in s.359A of the Act, setting out in writing the above particulars of his enrolment as set out in his PRISMS record. The Tribunal noted in writing the relevance of this information to the issue before the Tribunal and noted the concerns it raised. The Tribunal also noted that the information may be relevant to its consideration of certain factors contained in Direction No.69, including clauses 11(c) (whether the Student visa is being used to maintain ongoing residence), 12 (value of the course to the applicant’s future) and 14(b)(iii) (the amount of time the applicant has spent in Australia and whether the 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). Due to the Christmas/holiday period, the applicant was given until 19 January 2023 to respond to the information. As noted above, the applicant did not provide a response by that date, nor has one been received by the Tribunal as at the date of this decision.

30. Also as noted above, on 22 December 2022 the Tribunal invited the applicant to attend a resumed hearing on 23 January 2023. The applicant responded in writing on 19 January 2023 to indicate that he would not be participating in the resumed hearing. The Tribunal has therefore proceeded to make its decision on the basis of the information and evidence which is before it, which includes the applicant’s oral evidence from the hearing held on 16 December 2022. The Tribunal notes that the applicant’s PRISMS record contains considerably more detail than that provided by the applicant in his oral evidence at the first hearing or in his s.359(2) response, and to the extent of any inconsistency, the Tribunal prefers the more detailed information contained in his PRISM record.

    Findings regarding the factors in Direction No.69

31. Having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account all the relevant information, the Tribunal is not satisfied that the applicant meets the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

    The applicant’s circumstances in his home country

32. The Tribunal did not hear detailed oral evidence from the applicant regarding his circumstances in his home country as he declined to attend the resumed hearing. At the first hearing the applicant gave very general and vague evidence about having greater opportunities in the construction industry in India, compared to those in Australia. He claimed that after he completes the Advanced Diploma of Civil Construction Design, he intends to return to India to look for a job. The Tribunal finds the applicant’s evidence in this regard to be and vague and therefore gives it little weight. When this concern was put to the applicant at the hearing, he again provided a general and vague response, stating that he is from Punjab and when he returns there he will get a job. The applicant gives similarly vague and general responses in his s.359(2) response regarding his future plans, stating that on completion of his studies he will look for job opportunities in his home country.

1. In his s.359(2) response, the applicant indicates that his parents live in India, however he has two sisters, one of whom lives in Italy, the other of whom lives in Greece. He indicates that he returned to India on two occasions for family visits since first arriving in Australia, once in 2017 and once in 2019. The applicant states, and the Tribunal accepts that he makes regular calls to his family in his home country. The applicant provided no information about community ties. The applicant provided no details about past employment in his home country in his s.359(2) response. He indicated that he has a family home in Punjab. I have also had regard to the Indian bank account statement of the applicant’s father and the applicant’s father’s affidavit provided to the Department. I accept that the applicant has some ties in India, including the presence of his parents and their family home and other assets, which may act as some incentive for the applicant to return to his home country, and I take these into account in assessing his circumstances as a whole.

2. The applicant has not provided any supporting documents regarding his enrolment in the Advanced Diploma of Civil Construction Design. He was not enrolled in this course at the time he provided his s.359(2) response and the applicant has not subsequently provided any further supporting documents other than his responses to the hearing invitations. The Tribunal did not have the opportunity to ask the applicant about his reasons for not undertaking the proposed course of study in his home country or whether he has done any research into whether similar courses are available there, as the applicant chose not to attend the resumed hearing. The applicant provided no response to the question in the ‘Request for Student Visa Information’ form (s.359(2) response) regarding whether similar courses are available in his home country and his reasons for not undertaking the proposed course in his home country. I have also had regard to the undated GTE statement which the applicant provided to the Department. This GTE statement was prepared in relation to the applicant’s enrolment at the time in the Bachelor of Accounting. While I have considered the information the applicant has provided in this statement about his reasons for choosing various courses in Australia, including his claim that he when he came to Australia he researched Australian qualifications and found they are recognised worldwide, the applicant has provided no evidence or information as to why he wishes to undertake the Advanced Diploma of Civil Construction Design in Australia rather than his home country, nor of any research into similar courses available in his home country. I am therefore not satisfied of that the applicant has established reasonable motives for wishing to undertake the proposed course in Australia.

3. I note that the applicant has provided some information regarding his family’s assets in India and of his employment in Australia, however the Tribunal considers that he has not provided a complete picture of his economic circumstances. The Tribunal makes no adverse findings regarding the applicant’s economic circumstances on this occasion.

4. In his s.359(2) response the applicant states that there are no military service commitments or civil or political issues that would act as an incentive for him to remain in Australia, and the Tribunal accepts this. There is insufficient evidence before the Tribunal regarding the applicant's circumstances in India, relative to others in that country, and the Tribunal makes no adverse findings in relation to these factors.

   The applicant’s potential circumstances in Australia

5. The applicant first arrived in Australia in October 2013, holding a Student visa. He was subsequently granted a further three Student visas and associated Bridging visas. Since that time he completed several qualifications until December 2017, including a Diploma of Management, an Advanced Diploma of Management and an Advanced Diploma of Hospitality Management, as well as two short ELICOS courses. Since December 2017 the applicant has been enrolled in a number of courses, including a Bachelor of Tourism and Hospitality Management, a Bachelor of Accounting, a Graduate Certificate in Management (Learning) and a Graduate Certificate in Strategic Learning, however all of these enrolments were cancelled and the applicant has not successfully completed any qualification in the proceeding five years. The applicant did not provide any supporting evidence to indicate that he had made any progress with his courses of study after December 2017. This includes no evidence of academic progress in the course of study which was the subject of the Student visa under review.

6. The applicant has now enrolled in a further course of study, the Advanced Diploma of Civil Construction Design, which would extend his stay until at least October 2023. This would bring the applicant’s stay in Australia on temporary Student and associated Bridging visas to approximately ten years, which is a lengthy period of time to remain on temporary visas and in itself raises significant concerns about the applicant’s stated intention of remaining in Australia only temporarily for the purpose of study.

7. The applicant has also provided no supporting information as to his reasons for now wishing to undertake the Advanced Diploma of Civil Construction Design or how this will assist his with his future plans. Given this lack of information and the applicant’s lack of academic progress since 2015 and the range of courses the applicant has enrolled in, the Tribunal is concerned that the applicant is using the Student visa programme to circumvent the intentions of the migration program and to maintain ongoing residence. The Tribunal put this concern to the applicant in writing using the procedure set out in s.359A of the Act, but the applicant did not respond or comment on the adverse information from his PRISMS enrolment record that put to him in writing.

8. There is no evidence that the applicant has any family ties in Australia. In his s.359(2) response, the applicant states that his community ties include visits to religious places and community programs, however the Tribunal makes no adverse findings regarding the applicant’s community ties and does not consider these would act as a strong incentive to remain in Australia. The applicant indicates in his s.359(2) response that he has worked as a truck driver since May 2018 and earns approximately $60,000 per year. The Tribunal considers this employment may provide some incentive for the applicant to remain in Australia on completion of his proposed study, and in this regard notes the applicant indicates he has been employed with the same company for over four-and-a-half years.

9. There is no evidence that the applicant is in a relationship or has entered a relationship of concern for a successful Student visa outcome, and the Tribunal makes no adverse findings regarding this factor.

10. The applicant has been living in Australia since October 2013 and therefore the Tribunal makes no adverse findings regarding his knowledge of living in Australia. The applicant has however provided no supporting evidence regarding his knowledge of his intended course or education provider, nor of any research undertaken into the proposed course of study. The applicant gave only vague and general responses to questions asked by the Tribunal at the first hearing regarding his reasons for enrolling in the Advanced Diploma of Civil Construction Design and he declined the invitation to attend the resumed hearing at which the Tribunal would have asked further questions about his reasons for choosing this course and his education provider. As noted already, the applicant’s s.359(2) response and his undated GTE statement were provided to the Tribunal and Department prior to his enrolment in the Advanced Diploma of Civil Construction Design and therefore provide no information regarding his knowledge of the proposed course or education provider, nor any details of research he undertook into his proposed course of study. The Tribunal is therefore not satisfied that the applicant has demonstrated realistic knowledge of his education provider or intended course of study, nor that he has undertaken any research into his proposed course of study.

    Value of the course to the applicant’s future

11. At the time of the hearing the applicant was enrolled in the Advanced Diploma of Civil Construction Design. As noted already, the applicant has provided no supporting documents or information regarding this enrolment. The s.359(2) response and the undated GTE statement which the applicant has provided to the Tribunal and Department respectively, were submitted prior to the applicant’s enrolment in his current course and contain no reference to this course. The applicant also gave only very general and vague evidence at the first hearing regarding how it will assist him with his future plans other than a generic claim about it helping him to get a job when he returns to Punjab. The Tribunal also notes that the information contained in the applicant’s s.359(2) response was similarly vague and general. The applicant indicated in this response that his future enrolment would be in the Graduate Diploma of Management (Learning), which was subsequently cancelled. The applicant states in this response that upon completing his studies he will look for job opportunities in his country and that he can earn a ‘handsome amount of salary’ with the knowledge and skills gained in Australia.

12. The Tribunal finds that the applicant has not provided an explanation for why he has changed his study plan from Accounting to Management/Strategic Learning and now to Civil Construction Design. The Tribunal also finds the applicant has provided very vague and generic information regarding his future employment plans and therefore is unable to be satisfied that the proposed course of study is of relevance to his future employment plans. The Tribunal also considers that the applicant has completed Advanced Diploma qualifications in Australia in both Management and Hospitality Management prior to December 2017 and there is no evidence that he has used either qualification in his career since then, with the only information provided about his employment being his work as a truck driver since May 2018. The Tribunal also considers that the applicant already has two Advanced Diploma qualifications obtained in Australia and is now enrolled in a third. There is insufficient information before the Tribunal regarding how this qualification will assist the applicant to obtain employment or improve his employment prospects in his home country, and the Tribunal considers that given his existing qualifications, this further vocational qualification may provide only incremental improvement to his employment prospects. There is also insufficient information regarding the remuneration the applicant could expect to receive in his home country or a third country, compared with Australia, using the qualification to be gained from the proposed course of study. Overall, the Tribunal is not satisfied with the value of the course to the applicant’s future. The Tribunal raised this concern with the applicant in its s.359A letter, however the applicant did not respond to the Tribunal’s letter and declined to attend the subsequent hearing.

    The applicant’s immigration history

13. As noted above, the applicant first arrived in Australia in October 2013. He has previously held four Student visas as well as associated Bridging visas. Since December 2017 he has not successfully completed any qualifications and he has provided no supporting information to indicate that he has made any academic progress with any of any courses despite having had enrolments in two Bachelor degrees, a Graduate Certificate and two Graduate Diploma courses. I have significant concerns with the applicant’s lack of course progress over the past four-and-a-half years. The applicant has also been enrolled in a range of courses in different and at times unrelated fields since arriving in Australia, including Information Technology, Management, Hospitality, Human Resources Management, Tourism and Hospitality Management, Accounting, Strategic Learning and now in Civil Construction Design. He has provided no supporting information regarding his enrolment in the Advanced Diploma of Civil Construction Design and provided only very general and vague evidence at the first hearing regarding his reasons for now wishing to undertake this course.

14. The length of the applicant’s proposed stay in Australia also raises concerns that he may be using the Student visa primarily to maintain ongoing residence. As noted, he arrived in Australia in October 2013. He now proposes remaining in Australia until December 2024. This would bring his proposed stay in Australia to approximately 11 years and 2 months, which is a significant period to remain in Australia on temporary Student and associated Bridging visas, particularly having regard to the applicant’s lack of academic progress since December 2017 and his enrolment in a range of courses in different fields during this period.

15. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. Given the length of time the applicant has now spent in Australia on Student and associated Bridging visas, the lack of successful completion of any qualifications over the past four-and-a-half years and the lack of supporting information regarding his reasons for undertaking his current course, the Tribunal is concerned that a further Student visa may be used primarily to maintain ongoing residence.

16. I do not make adverse findings regarding the remaining factors relating to the applicant’s immigration history. There is nothing to indicate that the applicant has previously had a visa application refused, a visa cancelled or considered for cancellation. There is nothing to indicate that he has an adverse visa or migration history to any other country. There is nothing to indicate that he has any other applications for a different class of visa which are yet to be finally determined. Although the delegate’s decision raises concern that the applicant may have breached Condition 8202 of his Student visas for various reasons, including breaching the enrolment condition, not maintaining enrolment in a registered course at the same AQF (Australian Qualifications Framework) or higher as that for which the Department granted the visa, and not maintaining satisfactory attendance, the Tribunal considers that it does not have all of this information before it. While some of this information may be capable of being inferred from the applicant’s PRISMS record, it did not have the opportunity to question the applicant about his enrolments, including his attendance and for what courses each of his Student visas were granted by the Department. The Tribunal therefore does not make any adverse findings regarding the factor at cl.14(b)(i) of Direction No.69.

17. However, for the reasons provided above, the Tribunal has significant concerns regarding the factor at clause 14(b)(iii) of Direction No.69. The Tribunal gives weight to the applicant’s circumstances that indicate that the Student visa is intended primarily for maintaining residence in Australia.

    Any other relevant matters and conclusion regarding findings

18. The Tribunal has also given regard to whether there are any other relevant matters and finds there are no other relevant matters to the assessment of the applicant's intentions to stay in Australia temporarily in addition to the matters covered above. The Tribunal has considered all the information provided by the applicant in support of the application.

19. 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).

20. 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.

21. 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

22. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Frank Russo
    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.