Mbotwa (Migration)

Mbotwa (Migration) [2019] AATA 3666 (1 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Nelson James Mbotwa
Ms Tamanya Hara
Miss Alexis James Mbotwa
Master Javier James Mbotwa
CASE NUMBER:  1712345
HOME AFFAIRS REFERENCE(S):           BCC2017/456953
MEMBER:David Thompson
DATE:1 July 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 01 July 2019 at 11:31am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 – hospitality studies – genuinely intends to stay temporarily in Australia – dependent on wife’s student visa for 4 years – wife intends to return to Malawi – significant incentives to return to Malawi – family – business – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 499
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 31 May 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 4 February 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he did not genuinely intend to stay temporarily in Australia.
The adult applicants, Mr Mbotwa and Ms Hara, appeared before the Tribunal on 3 April 2019 to give evidence and present arguments.
Mr Mbotwa was assisted in the preparation of his review by his Registered Migration Agent, Ms Pritima Ahluwalia, who did not appear at the hearing but prepared and lodged comprehensive written submissions on Mr Mbotwa’s behalf.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
INFORMATION AND CLAIMS
The primary applicant, Mr Mbotwa, is a citizen of the Republic of Malawi.
Mr Mbotwa first arrived in Australia on 1 January 2013, on a tourist visa granted in December 2012 and valid until March 2013. The purpose of his visit was to spend time with the applicant Ms Hara, who had entered Australia in 2007 on a student visa and was at that time studying in this country. Mr Mbotwa and Ms Hara were married at Hillarys, Western Australia, on 8 March 2013.
On 16 July 2013, having returned to his home country, Mr Mbotwa was granted a Subclass 573 student visa as a dependant on his wife’s student visa, and returned to Australia on 30 July 2013. Mr Mbotwa has since been granted two further Subclass 573 student visas and a subclass 485 temporary graduate visa, in each case dependent on his wife’s visas.
The applicant Master Javier James Mbotwa was born to Mr Mbotwa and Ms Hara on 9 December 2014, and the applicant Miss Alexis James Mbotwa on 3 September 2016. Mr Mbotwa and Ms Hara have had a third child, Te’Andre James Mbotwa, who was born on 14 November 2018, a date after the date of the Departmental decision the subject of this review application. Te’Andre is not listed as an applicant in this review application.
Mr Mbotwa’s subclass 485 temporary graduate visa was due to expire on 4 February 2017. On that same day, he lodged an application for a Sub-class TU-500 student visa naming himself as the primary applicant and Ms Hara and their children Javier and Alexis as secondary applicants.
Mr Mbotwa’s application was made to allow him to study for a Certificate IV and Diploma in Christian Ministry and Theology, and he enrolled in those courses at Kingston College. Mr Mbotwa stated his reasons for wishing to undertake those courses in his visa application. In summary, those reasons where that Mr Mbotwa’s father (now deceased) had been a minister of religion and as such a man of some importance in his community, acting as a counsellor and family advisor as well as ministering to his congregation. Inspired by his father’s example, Mr Mbotwa had conceived a desire to become a school chaplain, and had realised that before he could do so he would need to undertake some formal studies to lay a solid foundation for his religious knowledge.
Mr Mbotwa commenced studies for his Certificate IV in Christian Ministry and Theology on or about 13 March 2017, whilst waiting for a decision on his visa application.
The Department decision
Mr Mbotwa’s visa application was rejected by a delegate of the Minister for Home Affairs on 31 May 2017. The delegate’s decision, a copy of which Mr Mbotwa provided to the Tribunal, states that Mr Mbotwa’s application was refused because the delegate was not satisfied that Mbotwa genuinely intended to stay in Australia temporarily as a full-time student. The delegate noted the following issues that led him to that conclusion:
a.Mr Mbotwa had spent a significant time in Australia (4 years), and Ms Hara even longer (10 years);
b.Mr Mbotwa had rights to study during his time in Australia, but only enrolled in his course in Christian Ministry and Theology on 2 February 2017, 2 days before lodging his visa application; and
c.Mr Mbotwa had lodged his visa application on the very day his previous visa expired.
On these grounds, and having considered Mr Mbotwa’s circumstances in his home country, his circumstances in Australia, the value of his proposed course to his future, his immigration history, and all other relevant matters, the delegate formed the view that Mr Mbotwa had “commenced studying for the purposes of the visa application only in order to secure a further stay in Australia for [his] family rather than due to a general interest in [his] area of study” and that he appeared to be “using the Student visa program as a means of extending [his] and [his] family’s stay in Australia.”
As the delegate held that Mr Mbotwa did not meet the requirements of cl. 500.212 of Schedule 2 of the Migration Act 1958 (Act), held (as he was bound to) that the other applicants did not meet the requirements of cl.500.311 of Schedule 2 of the Act, and refused their applications also.
The Tribunal application
The applicants lodged their application for review of the delegate’s decision with the Tribunal on 10 June 2017. They have lodged documentary evidence in support of their application, being copies of:
a.the delegate’s decision, which reproduced in full a statement Mr Mbotwa made in support of his application addressing the genuine temporary entrant requirement of cl.500.212 (GTE Statement);
b.current Malawian passports for all applicants other than Te’Andre Mbotwa;
c.an expired Malawian passport for Ms Hara;
d.a certificate of registration dated 28 March 2017 and issued by the Government of Malawi for a business to be carried on by Ms Hara under the name “Bumps and Bambinos”, current to 27 March 2020;
e.a temporary church certificate issued on 29 February 2013 by the Rev. ADK Saka of the Kapita congregation of the Church of Central Africa Presbyterian, certifying Mr Mbotwa’s membership of that congregation;
f.a statement of attainment from Kingston International College dated 18 February 2019 certifying Mr Mbotwa’s completion of certain of the requirements for a Diploma in Christian Ministry and Theology;
g.a letter from Kingston International College dated 18 February 2019 addressing Mr Mbotwa’s change of enrolment;
h.confirmation of Enrolment certificates nos 89632B45, 9814E826, A4E7C322, A4E7EC24, and A4E80626;
i.a Western Australian birth extract for Te’Andre Mbotwa dated 2 January 2019;
j.a Western Australian marriage extract for Mr Mbotwa and Ms Hara dated 20 July 2015;
k.a certificate of marriage for Mr Mbotwa and Ms Hara dated 8 March 2013;
l.Malawian government birth certificate for Alexis Mbotwa, dated 21 September 2016, and an undated ABC Community Clinic Birth Certificate with respect to the same applicant;
m.a certificate of registration dated 30 August 2016 and issued by the Government of Malawi for a business to be carried on by Mrs Elly Mbotwa under the name “Twatasha Enterprises”, current to 30 August 2019; and
n.a certificate of completion dated 18 February 2019 and issued by Kingston International College to Mr Mbotwa, certifying completion of his Certificate IV in Christian Ministry and Theology.
The Tribunal has also received information from Mr Mbotwa in the form of a completed Request for Student Visa Information form, which was lodged with the Tribunal on 19 February 2019 (s.359(2) response).
Mr Mbotwa has also filed written submissions in support of the applicants’ application for review, prepared with assistance of his registered migration agent Pritima Ahluwalia of Australian Migration House.
Events subsequent to lodging the Tribunal application
On or about 9 March 2018, Mr Mbotwa successfully completed his Certificate IV in Christian Ministry and Theology. He was due to commence studies for his Diploma in Christian Ministry and Theology on 2 April 2018. However, before he could do so his college informed him that the Diploma course would no longer be taught at the college’s Perth campus, but rather was being relocated to its Bunbury campus. Mr Mbotwa was unable to relocate his family to Bunbury, and sought advice from his college as to (in the words of his written submissions, para. 4.5) “how he could stay in Perth and continue his studies.”
Kingston College’s marketing manager, a Mr Roger Jeong, advised him to change his enrolment and take up the college’s commercial cookery course. Accordingly, Mr Mbotwa enrolled in a package course consisting of Certificates III and IV in Commercial Cookery and a Diploma of Hospitality Management.
On 14 November 2018, Mr Mbotwa and Ms Hara’s third child, Alexis, was born as noted above.
At the date of this decision Mr Mbotwa is studying for his Certificate III in Commercial Cookery and would be due to finish his package course on or about 7 February 2021. It should be noted that Ms Hara has finished her studies, having received the degree of Bachelor of Health Science from Edith Cowan University, majoring in Nutrition with a minor in Health Promotion.
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 or not Mr Mbotwa, as the primary visa applicant, satisfies the requirements of cl.500.212 and genuinely intends to stay in Australia temporarily. The other applicants do not claim to satisfy those criteria, but rather the secondary criteria prescribed by cl.500.311. They cannot do so if Mr Mbotwa does not satisfy the criteria prescribed by cl.500.212.
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The primary applicant’s circumstances in his home country
Mr Mbotwa gave evidence at hearing, as did Ms Hara. Mr Mbotwa gave evidence first, and Ms Hara was not present when he did so.
As regards his family and background in Malawi, Mr Mbotwa’s evidence is that he comes from a well-established and close family whose livelihood comes from a family business, a soft drink distribution company established by his father in 2001. Mr Mbotwa’s father, who died in 2015, was also a minister of the Church of Central Africa Presbyterian. Mr Mbotwa’s evidence was that his father did not rely on his ministry for his livelihood, but rather on the family business which he continued to run whilst pursuing his religious calling. The family business is now run by his mother. Mr Mbotwa finished high school in Malawi and thereafter completed a Certificate of Business Administration at the Malawi College of Accountancy. After completing his studies in Malawi Mr Mbotwa worked in the family business as an assistant manager. Mr Mbotwa himself is the eldest son of the family, and has two sisters and two brothers. One of his brothers works in the family business. His other siblings are employed in different areas. Mr Mbotwa’s evidence was that he speaks with his mother frequently, and less frequently with his brothers and sisters. He has returned to Malawi twice since being granted his first student visa, once in 2013 for a wedding and once in 2015 after his father’s death. The Tribunal finds that these personal ties give Mr Mbotwa a significant incentive to return to Malawi.
There is no evidence that Mr Mbotwa owns any significant assets in Malawi. However, the evidence recited in the preceding paragraph also shows that Mr Mbotwa’s economic circumstances in Malawi have been, and could again be, quite comfortable. The Tribunal finds that this factor also gives Mr Mbotwa a significant incentive to return to Malawi.
Mr Mbotwa gave evidence that Malawi is stable politically, and that he would not be subject to any requirement that he perform compulsory military service or similar if he were to return there. The Tribunal accepts that evidence, and finds that these factors to not provide Mr Mbotwa with any incentive not to return to Malawi.
Mr Mbotwa gave evidence that he could have studied theology and Christian ministry in Malawi, but that he would probably have to attend an Anglican seminary in order to do so, and that doctrinal differences between the seminary and his denomination might cause some difficulties if he were to try to pursue the ministry in Malawi. Mr Mbotwa also gave evidence that he would not easily be able to study hospitality in Malawi. He stated that in Malawi it would be necessary to attend University to undertake such studies, and that even seeking entry as a mature age student it would be difficult to obtain one of the small number of places available. The Tribunal finds that in these circumstances it was reasonable for Mr Mbotwa to seek to pursue studies in Australia in the first place and, having been forced to change his course of studies, it is not unreasonable to seek to continue to do so.
Against these positive factors, it must be noted that Mr Mbotwa’s immediate family is resident with him in Australia. Of course, that residence depends at present on Mr Mbotwa’s visa application, and there is no reason to suppose or infer on the evidence before the Tribunal that Mr Mbotwa would seek to stay in Australia if his wife and children returned to Malawi. Indeed, the impression the Tribunal has formed hearing evidence in this case is that the opposite is true – Mr Mbotwa’s and Ms Hara’s marriage appears to be very strong, as do their relationships with their children. For these reasons, the Tribunal finds that the presence of Mr Mbotwa’s family with him in Australia does not weigh against his application to any appreciable extent. This is particularly so given Ms Hara’s evidence, which will be discussed below.
The primary applicant’s potential circumstances in Australia
On Mr Mbotwa’s evidence, he has formed ties with the local Malawian community and has acted as the public relations officer for a community group known as the Association of Malawians in Australia. In that role, he has welcomed Malawians newly arrived in Perth, helping them to settle into this country, providing advice on local conditions, and providing or arranging practical assistance. Mr Mbotwa also gave evidence that he has a cousin living in the Perth area, who is in this country studying, but that he does not see this cousin often.
There is no evidence that Mr Mbotwa has entered into a relationship of concern. To the contrary, he is married to another Malawian national, Ms Hara, and originally came to Australia to be with her. Ms Hara also gave evidence before the Tribunal, and her evidence will be discussed below.
As was noted above, Mr Mbotwa has resided in this country since July 2013. In those circumstances, and given his involvement with the Association of Malawians in Australia, Mr Mbotwa can be taken to have been fully versed in local conditions. The Tribunal accepts that Mr Mbotwa made appropriate investigations into the course of study he originally intended to study, namely Christian Ministry and Theology, before undertaking it. The Tribunal also accepts that he was sincere in his desire to study that course.
However, there is no evidence before the Tribunal that Mr Mbotwa researched hospitality studies or had any information regarding that course of studies before enrolling. To the contrary, it is clear that on Mr Mbotwa’s evidence that he had no intention of studying in that area at the time he applied for his student visa. It appears that the suggestion that he should do so was made to him by the marketing manager of his college once the course he had wished to study, the Diploma in Christian Ministry and Theology, became unavailable. Whilst Mr Mbotwa’s original course of study had a clear connection with his background and life in Malawi, his new are of study – hospitality – appears to have no connection with his previous studies or employment. Further, Mr Mbotwa’s evidence did not suggest that he undertook much research into his prospects in the hospitality area in Malawi before changing his enrolment. It appears that Mr Mbotwa was amenable to the suggestion that he study hospitality because cooking for family and friends was his hobby. In his response to the Tribunal’s request for information pursuant to s.359(2) of the Act Mr Mbotwa stated that he chose hospitality studies they would allow him” to continue to study at Kingston College, continue to stay in Perth City and study a course that is [his] hobby (cooking for family and friends at home).”

The Tribunal finds that the circumstances under which Mr Mbotwa came to enrol in hospitality studies strongly suggest that he is studying in order to maintain his and his family’s residence in Australia. That is so notwithstanding the fact that the circumstances under which Mr Mbotwa changed his course of study were beyond his control, and must weigh in the balance against other factors favourable to Mr Mbotwa’s application.
Value of the course to the primary applicant’s future
The course of study Mr Mbotwa is seeking to pursue is consistent with his current level of education, but represents a considerable departure from his previous occupation working for his family’s company. His current studies are clearly relevant to his stated ambition of finding work as a chef in a hotel, but Mr Mbotwa has placed no evidence before the Tribunal of the availability of such work in Malawi, either generally or for him personally. Nor has he placed any evidence before the Tribunal of any concrete plans he might have to obtain such work on his return to Malawi.
At hearing Mr Mbotwa was questioned as to his prospects working in hospitality in Malawi. His evidence was that if he were to obtain work as a chef he would probably earn the equivalent of approximately AUS$1,300 per month to begin with. He stated that he would try to obtain work in one of the better hotels, and if he were to do so his earnings would increase rapidly. Mr Mbotwa’s evidence was that he could earn considerably more working as a chef in Australia.
On this evidence, the Tribunal is unable to find that Mr Mbotwa’s current course of studies, as opposed to the studies he originally undertook in Christian Ministry and Theology, have any clear value for his future. This factor must weigh against Mr Mbotwa’s application.
The primary applicant’s immigration history
Mr Mbotwa gave evidence that he had travelled in Africa before coming to Australia, mostly to Tanzania, but also to other countries bordering Malawi. He also gave evidence that he returned to Malawi three times since he first arrived in Australia. There is no evidence that Mr Mbotwa has breached any immigration law of Australia or any other country, or has ever had a visa cancelled.
Mr Mbotwa has resided in this country since July 2013, apart from the short trips to Malawi mentioned above. This period of residence is relatively long, and that in itself suggests that Mr Mbotwa has been seeking to maintain residence in Australia. However, Mr Mbotwa has resided in Australia as a secondary visa holder, his wife having held student and temporary graduate visas until 4 February 2017, and the significance of his period of residence must be assessed in that context. Ms Hara was engaged in a serious course of study in health sciences (and particularly nutrition), which she successfully completed, and has worked in that field in Australia subsequently. The Tribunal finds that this negates any unfavourable inference that might be made against Mr Mbotwa on the basis of his period of residence alone. Further, there is no indication that Mr Mbotwa has enrolled in a series of short inexpensive courses in order to maintain residence, and nor is there any other indication that Mr Mbotwa has used the student visa system to maintain residence in Australia.
The Tribunal finds that these factors weigh relatively strongly in favour of Mr Mbotwa’s application.
Other relevant information
Ms Hara, Mr Mbotwa’s wife, also gave evidence at hearing. Her evidence was that she first met Mr Mbotwa when they were both in high school, but did not form a relationship with him until considerably later. Many members of Ms Hara’s immediate family, including her parents, are deceased, although she has a sister surviving. Her evidence was that she is extremely close to her sister, that they talk at length every day, and that since she first came to Australia to study she has visited her sister in Malawi, and her sister has visited Ms Hara in Australia, on numerous occasions. Ms Hara also gave evidence that she has a cousin resident in Australia, with whom she is close. Her cousin has been studying in Australia, and has been living with Ms Hara and her family, but has finished her courses and will be returning to Malawi soon.
Ms Hara’s evidence was that she had also been involved in Association of Malawians in Australia as a volunteer worker, although not to the same extent as Mr Mbotwa, and has formed some close relationships in the local Malawian community. However, she stated that she her principal ambition is to return to Malawi and put her knowledge of health sciences to work in combatting some of that country’s public health problems, especially those surrounding nutrition and infant mortality. She stated further that she thought she would be able to do so by gaining employment with an aid agency. She admitted very frankly that she could earn more working in this field in Australia, but that she has some inherited wealth and is in a position to undertake the work regardless. Ms Hara stated, again very frankly, that obtaining some further experience working in Australia would be of considerable use to her when she did return to Malawi, but also stated that she personally is ready to return there.
Ms Hara was an impressive witness and the Tribunal accepts her evidence.
Conclusion
As has been noted above, there are a number of factors in Mr Mbotwa’s circumstances that weigh against his application. However, the Tribunal finds that in the light of Ms Hara’s evidence, these factors are not ultimately such as to outweigh the strong factors favouring his application.
On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).
Does the applicant intend to comply with visa conditions?
For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed in some cases (cl.500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).
The primary applicant has undertaken in his visa application to comply with any conditions placed on his visa. There is no evidence before the Tribunal suggesting he will do otherwise.
On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).
Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?
For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).
The evidence before the Tribunal raises no other relevant matters.
Accordingly, the Tribunal is satisfied that the primary applicant, Mr Mbotwa, is a genuine applicant for entry and stay as a student as required by cl.500.212.
As the Tribunal has found that Mr Mbotwa has satisfied cl.500.212, the second to fourth named applicants, who have applied as members of Mr Mbotwa’s family unit, may also be eligible to be granted visas.
Given the above findings, the appropriate course is to remit each of the applications for visas to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
DECISION
The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.212 of Schedule 2 to the Regulations.
David Thompson
Member

Attachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton

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

[2019] AATA 3666

1 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal