Mattu (Migration)

Mattu (Migration) [2023] AATA 567 (22 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Poonam Kumari Mattu
REPRESENTATIVE:  Mr Surender Reddy Thimapuram (MARN: 1795597)
CASE NUMBER:  2200418
HOME AFFAIRS REFERENCE(S):          BCC2019/965947
MEMBER:Robert Cumming
DATE:22 February 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.

Statement made on 22 February 2023 at 11:19am
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine applicant for entry and stay in Australia as a student – excellent course progress – genuine interest in study – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, r 1.03, 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 now styled Minister for Immigration, Citizenship and Multicultural Affairs on 23 December 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 18 January 2020. At the time of application, Class TU contained 2 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 applicant appeared by telephone before the Tribunal on 31 January 2023 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone. This was because the Tribunal, as constituted, was sitting in Brisbane and the applicant was in Melbourne, Victoria. As such, a remote attendance was necessary. In any event, the applicant actively participated in the hearing by telephone and, when asked at the outset of the hearing, the applicant indicated that she agreed to and accepted the hearing to be undertaken by telephone. The Tribunal is satisfied, therefore, that the applicant was given a fair opportunity to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was assisted in relation to the review by her representative, Mr Surender Reddy Thimapuram, who attended the hearing by telephone.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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 intends genuinely to stay in Australia temporarily.
Genuine applicant for entry and stay as a student: cl 500.212
Clause 500.212 of the Regulations 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, a copy of which was provided to the applicant in the course of the application process by the Tribunal and another copy of which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist, but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Tribunal has had regard to all the information supplied to the Department with the visa application which is in the Departmental file provided to the Tribunal and all the information supplied to the Tribunal by the applicant. In particular, the Tribunal notes the application and supporting documents received by the Tribunal on 11 January 2022, the completed Request for Student Visa Information form (information form), submissions and supporting documents received by the Tribunal on 15 and 16 September 2022, the submissions and supporting documents received by the Tribunal on respectively 23 and 24 January 2023, and the further supporting documents the applicant was given leave by the Tribunal to provide after hearing and which were received by the Tribunal on 3 February 2023 and the oral evidence and submissions given by the applicant at the hearing.
The Tribunal notes that it has on its file, certain information which was not provided by the applicant. These were printouts from the Provider Registration and International Student Management System (PRISMS) and the Departmental movement record. Out of fairness, and in accordance with s 359AA of the Act, the applicant was sent these printouts prior to the hearing and the applicant had them available at hearing and was offered time to consider them.
The Tribunal asked the applicant whether she considered the information in the printouts to be accurate and the applicant responded that she considered the printouts were accurate. The Tribunal subsequently, in the hearing, asked the applicant questions about the history of the courses she had undertaken and was broadly satisfied with the applicant’s responses. Some further comments will be made later in this decision, however.
Based on all the information available to the Tribunal, most notably the material supplied by the applicant, the applicant’s circumstances may be summarised as follows.
(a)The applicant is a 39 year old citizen of India who first arrived in Australia on 18 October 2019 as the holder of a Subclass 600 Visitor visa.
(b)The applicant has links to her home country in the form of her father, mother and brother. The father is retired from work in a government job and her mother is a housewife. Her brother is set up in his own business.
(c)The applicant is in contact on a daily basis by telephone and online applications with her parents and probably 4-5 times per month in contact with her brother.
(d)At this stage the applicant owns no property of her own in India. As to her parents’ testamentary intentions, the applicant frankly stated that she did not know what would happen in relation to any family inheritance that may come her way or not.
(e)In view of her family’s situation, however, the applicant indicated she would not have financial difficulties if she had to return to live in India.
(f)In her completed information form, the applicant indicated that she had no concerns in respect of military service commitments or political or civil unrest in the area of India where her family lives.
(g)In Australia the applicant is by herself and has no wider family members. She has a small social cohort with whom she socialises and she dutifully attends the local Catholic church at Glen Waverley and sometimes also the Punjabi Church. Because of her visa conditions the applicant has not been able to work in Australia and relies entirely on her family to provide the financial resources for her to live and study in Australia.
(h)As far as the applicant’s education is concerned, she completed her Senior Secondary Examination through the Punjab School Education Board in 2005 but undertook no further study or work there in the interval between then and her arrival in Australia as a visitor in October 2019.
(i)The applicant made application to study in Australia on 18 January 2020 which was for the purposes of studying the English language in order to improve her overall confidence and career prospects by being able to communicate in English which is a major language for communication around the world.
(j)The applicant continued in her English studies until approximately February 2021 when there was an issue over the payment of fees and her Registered Training Organisation (RTO) cancelled her enrolment for nonpayment of fees. Shortly thereafter, the situation was regularised with the applicant obtaining funds from India. However, the applicant stated that the RTO would not re-enrol her in her English course but the applicant said that she received advice to undertake the suite of courses in Catering and Hospitality being the Certificate III in Commercial Cookery, the Certificate IV in Commercial Cookery, the Diploma of Hospitality Management and the Advanced Diploma of Hospitality Management. The applicant commenced those studies in April 2021 but by March 2022 the RTO had cancelled her enrolment on the basis of unsatisfactory course progress. The applicant stated this was due to the effects of lockdown and online study which did not suit her and overall the stress she was undergoing at the time being by herself in Australia during the COVID-19 pandemic.
(k)Nevertheless, the same RTO quickly re-enrolled the applicant in the same suite of courses commencing on 11 April 2022 and the applicant has now proceeded on that course and, at hearing, had completed 15 of the 25 units of competency required with the course to be completed in approximately a further 2 months’ time. Her RTO provided a letter confirming the applicant’s progress was satisfactory.
(l)In relation to the applicant’s future intention on completing her studies in January 2025, she states that it is her intention to return to India to start a small catering business and restaurant.
(m)Based on the information supplied by the applicant and as confirmed in relation to the movement records, the applicant initially arrived in Australia on 18 October 2019 and has not since departed Australia.
(n)In the material the applicant supplied to the Tribunal she was able to give sufficient evidence of her knowledge of living in Australia and her education provider but at hearing in her oral evidence there was some issues about her knowledge of her intended course of studies. More will be said of this later in the decision.
(o)As to previous visas, the applicant has previously been granted one Subclass 600 Visitor visa and one Bridging visa class A. In her completed information form, the applicant stated that apart from the current visa refusal, she has not otherwise had a visa in any country (including Australia) refused or cancelled and she has not made an application for any other class of visa for which she is still awaiting a decision. The applicant stated that she had been compliant with her visa conditions.
(p)The applicant says she has not travelled to any other country apart from her home country and Australia.
(q)Apart from dealing with issues of concern and explaining her situation regarding her studies in greater detail and her general statement of intention for her future career, which will be discussed later in this decision, the applicant did not suggest there were, or give evidence concerning, any other matters which may relate to her genuine temporary entrant status in Australia.
During the hearing, the Tribunal put to the applicant possible concerns it may have in respect of several issues.
The first major concern relates to the applicant being in Australia on a Visitor visa but not having since departed Australia. The object of a Visitor visa is to come for a short space of time, perhaps to visit friends or relatives or other tourism purposes, but the concept would not be for a long or prolonged stay on the basis of such a visa. The applicant says she was caught out by the COVID-19 pandemic and was not able to easily return to India. More will be said of this later in the decision.
A further concern related to why the applicant was studying in Australia and not at home in India. The applicant stated that she would be able to study in India but there would not get the level of experience and exposure to international cuisine that she could easily get by undertaking her studies in Australia. Her experience was that there were certainly Indian restaurants and Chinese restaurants that she was aware of in India but her situation would not necessarily allow her to get the hands on experience of the diverse range of cuisines that she can see and observe in Australia and learn about during her studies.
The applicant was asked to explain her course and there was some difficulty in her answers to the questions. Initially she nominated an incorrect number of competencies she was required to complete in her current course. The Tribunal is always concerned when applicants are unable to correctly identify details of their course structure and competencies. The Tribunal finds that genuine students do know how many units of competency they are required to obtain or what credit transfers they may obtain as this is very important to the way they study.
This situation was compounded by the fact that the applicant had supplied a statement prior to the hearing in writing where she had correctly gone into detail about her future course and studies, the number of competencies, the type of studies and why that would be useful for her future career. When that was dealt with by the Tribunal the applicant apologised for her incorrect answers and stated that she was entirely stressed by the whole application process and having to answer questions. This was readily evident to the Tribunal in her demeanor on the telephone and her lack of confidence in answering questions.
A further concern put to the applicant was about remuneration she might earn in Australia compared to India. The applicant answered that by suggesting that she would be the proprietor of the business she would earn more than she would in Australia. When it was suggested that she might be able to run a restaurant herself in Australia she denied this was the case and said that her English language competence and the need to pay high costs for business operations comparatively as compared to what she would experience in that regard back home in India meant that it was better for her to contemplate operating a business in her home country rather than in Australia and that was why on the remuneration aspects she felt more comfortable undertaking those in her home country.
As stated above, the key issue the Tribunal has to decide in this case is whether the applicant intends genuinely to stay in Australia temporarily. On that issue, the considerations set out in cl 500.212(a) of Schedule 2 to the Regulations govern the matters the Tribunal needs to consider.
In assessing whether an applicant meets the genuine temporary entrant criterion, the Tribunal must have regard to Direction No.69. As also noted above, that Direction is not to be used as a checklist but rather, it is intended to guide decision makers in considering the applicant’s circumstances as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
In adopting that process in this case and having considered all the factors in the Direction on the basis of which the Tribunal has made certain findings which are about to be set out, the Tribunal finds that some of those factors, and the findings based on those factors, are not of such significance, importance or materiality to its decision so as to tip the balance away from the view the Tribunal has taken of the applicant’s circumstances. This is not to suggest that those factors, and the findings based on those factors, have been overlooked. Rather, the Tribunal, in considering its decision has found these factors and findings of lesser weight in balancing all the factors and findings in coming to its decision overall on the merits of the review application.
Having had regard to the applicant’s evidence and submissions, including oral and written submissions, and particularly the applicant’s responses to the possible concerns raised by the Tribunal which have been discussed earlier in this decision, and giving consideration to all the factors specified in Direction No.69, the Tribunal makes the following findings:
(a)The first issue the Tribunal has concern with is whether the applicant has given reasonable reasons for studying in Australia rather than in her home country of India. In that regard the applicant has spoken to the diverse range of cuisine available in Australia and to her ability to be able to study that as opposed to her likely experience in India. While that explanation is self-serving and not supported by much in the way of corroborative evidence, nevertheless there is no strong countervailing evidence before the Tribunal that that situation is not the case.
(b)Where the concern arises is in relation to the applicant arriving here in Australia as a visitor, ostensibly only for a short period of time but then having that turned into a situation where the applicant has been able to so order her affairs that she has, having initially arrived for a short period on a Visitor visa, been able to maintain residence in Australia ever since and has not had the necessity of returning home to order her affairs to provide for extended residence outside of her home country.
(c)The Tribunal accepts that studying English in an English-speaking country is advantageous to persons such as the applicant. But the overriding concern remains as to the intentions of the applicant in seeking to study when she had arrived as a visitor. However, the Tribunal does note the onset almost contemporaneously with the applicant enrolling in studies of the COVID-19 pandemic in Australia. The Tribunal acknowledges that the applicant suffered as a result of the pandemic. The Tribunal also notes the travel bans which were put in place because of the COVID-19 pandemic which would have seemed very difficult to overcome in the circumstances by a person in the position and state of knowledge of the appklicant.
(d)While reasonable minds may differ, looking at the situation of the applicant, her desire to study and then her having to deal with the pandemic and the advantages she stated for studying in Australia, the Tribunal in this case is prepared not to make a negative finding in respect of whether the applicant has provided reasonable reasons for studying in Australia rather than in her home country of India.
(e)This leads in to the next issue for consideration by the Tribunal which relates to the incentive for the applicant to return to her home country. She does have links there in the form of her parents and a brother but owns no property and family inheritance issues are uncertain. It does seem, however, that the applicant is of a mature age as a student and is seeking to achieve international qualifications in Australia which would stand her in good stead in India and be a source of pride to her in showing her family and others that she can make something of her life. She is not able to work in Australia so it is a cost to her family to have her remaining in Australia but on gaining qualifications that will be an achievement for the applicant.
(f)Whether the applicant has proceeded satisfactory in her studies it is also an issue of concern. The applicant says that she completed approximately half her course in English during the first year of the pandemic and then had difficulties re-enrolling when the financial situation with her family was sorted out but it was suggested to her by the RTO that a trade qualification in catering would be useful for her. The applicant cites the effects of lockdown and that the pandemic affected her ability to undertake her studies. However, since the pandemic has moderated and since April 2022 the applicant, according to her RTO, is making satisfactory progress and has produced evidence stating that at the time of hearing she had completed 15 of the 25 required competencies.
(g)In a tight balancing exercising, and noting reasonable minds may differ, given that the applicant is now making academic progress, in weighing up the factors both for and against her, the Tribunal is prepared to find that the applicant does have a significant incentive to return to her home country.
(h)As to economic circumstances in the applicant’s home country, the Tribunal notes there will be family support if the applicant has to return. Accordingly, the Tribunal considers the economic circumstances of the applicant in her home country of India would not present a significant incentive for her not to return to her home country.
(i)There is no evidence of any requirements for military service commitments affecting the applicant which would present a significant incentive for her not to return to her home country.
(j)There is no evidence of any circumstances of political or civil unrest in the area of India where the applicant’s family are located which would present a significant incentive for her not to return to India.
(k)In considering the applicant’s circumstances in her own country relative to the circumstances of others in that country, the Tribunal finds that the applicant comes from a middle class family but otherwise does not make any findings in that regard which are other than entirely neutral towards the applicant.
(l)The applicant has ties in Australia, namely her studies. This is the only thing keeping her here as she is unable to work and has no wider family members other than the fact that she does have a small social cohort with whom she associates and also dutifully attends church. It is noted that earlier in the decision a close examination of the conduct of the applicant was undertaken and the Tribunal did err slightly on the side of finding in the applicant’s favour. So, it is the case that as far as the applicant is concerned the Tribunal is prepared to find that she is not using her Student visa for the purposes of circumventing the migration program.
(m)Similarly, the Tribunal is prepared to find, on the slightest balances, that the applicant is not using her Student visa for the maintenance of ongoing residence in Australia.
(n)As there is no secondary applicant, it is unnecessary for the Tribunal to consider whether the applicant has contrived to enter into a relationship for a successful Student visa outcome.
(o)As to the applicant’s knowledge of living in Australia and her education provider, the Tribunal was satisfied that the applicant did the minimum necessary to show that she had sufficient knowledge in this regard.
(p)There was a big issue as to the knowledge of her intended course of study that the applicant displayed in getting questions about course content incorrect during the oral hearing. However, it is the case that the applicant had submitted to the Tribunal entirely satisfactory written information in that regard. The applicant sought to downplay this factor due to stress brought on by the hearing. While the hearing was by telephone and the Tribunal, therefore, did not have the advantage of observing the demeanor of the applicant, certainly the impression that the Tribunal gained from the applicant hearing her on the telephone was that she was of a particularly nervous disposition. In those circumstances, and noting reasonable minds may differ, the Tribunal is prepared to have regard to the applicant’s written evidence in this instance and place less weight on her initially erroneous answers to questions which, when that issue was put to her again during the hearing, she did manage to correctly answer the questions.
(q)As to the current undertaking of studies, the Tribunal acknowledges that the applicant arrived only with high school qualifications and so her studies in the Vocational Education and Training (VET) sector is at the appropriate level. Moreover, given that the applicant has evinced an intention of operating a restaurant or catering business in her home country, the Tribunal is prepared to find that the course the applicant is undertaking will assist the applicant to obtain employment or improve her employment prospects in her home country.
(r)For similar reasons, the course of study is relevant to the applicant’s proposed future employment either in her home country or a third country.
(s)As to remuneration, the Tribunal notes the response that the applicant gave comparing herself as a proprietor in India as opposed to a proprietor in Australia which she gave reasons why she would not undertake that, pointing to language difficulties as well as cost. Accordingly, this is an issue where the Tribunal is prepared to make a neutral finding concerning the applicant in respect of this particular factor.
(t)At the hearing, the applicant had been in Australia for a period since initial arrival on 18 October 2019 for a period of 3 years 107 days. If the applicant stayed in Australia counting that time just to the last day of her enrolled studies as per the relevant Confirmation of Enrolment (CoE) being 5 January, 2025 the applicant will have been in Australia for a period of 5 years 82 days.
(u)As to previous visa applications of the applicant, but for the current application under review, the applicant has successfully been granted one Subclass 600 Visitor visa and one Bridging visa class A. There is no evidence to suggest that any other visas the applicant has applied for in any country (including Australia) have been cancelled or any other visas she has applied for in any country (including Australia), apart from the current visa under review, have been refused. There is no evidence to suggest that the applicant has applied for another class of visa for which a decision is still awaited.
(v)Similarly, there is no evidence before the Tribunal to suggest that the applicant has not been compliant with her visa conditions.
(w)As there is no evidence that the applicant has travelled to any other countries apart from her home country in Australia, it is unnecessary for the Tribunal to find whether the applicant has complied with the migration laws of any other countries.
(x)As noted, were the applicant to remain in Australia for the completion of her currently enrolled studies, just to the last day of those studies, she would have been in Australia for a period of 5 years 82 days. This is in circumstances where she will have undertaken at least half of her English language studies and then obtained 4 qualifications, namely a Certificate III, a Certificate IV, Diploma and Advanced Diploma. While her motive of arrival as a visitor and then seeking to remain in Australia is of concern, given the onset of the COVID-19 pandemic and the progress the applicant is making despite some hiccups along the way which the Tribunal can attribute to the ongoing COVID-19 pandemic then overall, and noting reasonable minds may reasonably differ, the Tribunal is not prepared to find that the applicant is using her Student visa for the purposes of maintaining ongoing residence in Australia.
(y)As there is no secondary applicant, let alone a secondary applicant who is an infant, it is unnecessary for the Tribunal to consider the intentions of a parent, guardian or spouse of an infant secondary applicant.
(z)There are no other relevant matters that bear upon the conduct of the review as to the applicant’s status as a genuine temporary entrant.

Balancing all of these findings, the Tribunal considers that the weight of the evidence points just slightly more to those factors and findings in favour of the applicant’s case than those factors which are negative or neutral to her case. No doubt there are factors which are adverse to the applicant’s case, namely her arrival as a visitor and her remaining in Australia ever since. However, in weighing up all of the evidence, the Tribunal places lesser weight on these particular aspects given the fact of recent academic achievement and her stated intention to return to India. The Tribunal is at pains to note that these factors have been considered at some length and very carefully by the Tribunal. The Tribunal acknowledges reasonable minds may differ, but this Tribunal has balanced the evidence very carefully and while it is a very close run thing, the Tribunal finds that the factors and circumstances it considers are applicable in this case do lead to the conclusion that the applicant is not using her Student visa to maintain ongoing residence in Australia.
Having had regard to all matters, including the Direction No.69 requirements, to which regard is required, the Tribunal is satisfied the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).
Given the findings in paragraph 24(v) and (z) that the applicant has been compliant with visa conditions and that there are no other relevant matters that bear upon a consideration of her status as a genuine temporary entrant, the Tribunal finds that the applicant meets cl 500.212(b) and (c) of the Migration Regulations.
Conclusion on cl.500.212
The Tribunal is 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 appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
DECISION
The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.
Robert Cumming
Member

Attachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton
Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
d.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

[2023] AATA 567

22 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies