Mohamed (Migration)

Mohamed (Migration) [2023] AATA 2149 (23 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ali Gibran Mohamed
CASE NUMBER:  2001437
HOME AFFAIRS REFERENCE(S):          BCC2019/4459356
MEMBER:Gabrielle Cullen
DATE:23 June 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 23 June 2023 at 10:49am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Ministerial Direction No.69 – study history – study gaps – unsatisfactory academic progress – hospital admission – future career plans – no attempt to gain experience in related field – close family ties in Australia – immigration history – length of time onshore – applied for permanent residency – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
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 Home Affairs on 16 January 2020 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 6 September 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The applicant is a 38 year old Maldives national born in 1985, who has resided in Australia for a significant portion of his life since 1989. In particular, he arrived on 27 February 1989 and departed on 31 December 1992. He then arrived on a Subclass 560 student visa on 13 July 1999 valid to 20 May 2003, which was extended to 31 July 2003, and departed Australia for numerous short trips. After his arrival back in Australia on 22 July 2001, he applied for a Subclass 573 visa and held Subclass 573 student visas to 20 January 2010, with a number of short visits outside Australia during this time. He departed Australia on 16 January 2010. On 4 January 2012 he last arrived in Australia on a Subclass 676 visitor visa valid to 4 April 2012, which was extended to 3 January 2013. He then applied for and was granted a Subclass 572 visa to 7 September 2019, and applied for the visa to which this decision relates on 6 September 2019.
Confirmations of Enrolment (CoEs) attached to the current application for the visa refer to the applicant studying a Diploma of Hospitality Management at Academia International from 23 July 2018 to 20 December 2020. He submitted three CoEs to study the same course with the same education provider, numbered A917B853, A917BE23 and AE5F5A98. There is no evidence before the Tribunal that he successfully completed any of these courses. The evidence indicates he was then not enrolled in a course of study until he enrolled in a Certificate IV in Commercial Cookery from 11 July 2022 to 30 April 2023, followed by a Diploma of Hospitality Management from 12 June 2023 to 10 December 2023; however these enrolments were cancelled for non-commencement of studies on 5 December 2022. Prior to the hearing he submitted CoEs to undertake a Certificate IV in Commercial Cookery from 11 December 2023 to 23 September 2024, followed by a Diploma of Hospitality Management from 14 October 2024 to 13 April 2025.[1] Following the hearing he submitted new CoEs issued on 21 April 2023 for a Certificate IV in Commercial Cookery from 11 July 2022 to 4 December 2022 and from 1 May 2023 to 24 September 2023, followed by a Diploma of Hospitality Management from 2 December 2023 to 31 March 2024. A Provider Registration and International Student Management System (PRISMS) check following receipt of these new CoEs after the hearing reflects these changes.
[1] As raised with the applicant via s 359AA at hearing.
The applicant last held a Subclass 572 visa, granted on 20 April 2017 and valid to 7 September 2019, to study a package of courses including Certificates III and IV in Commercial Cookery and a Diploma of Hospitality Management. The evidence indicates he completed the Certificate III in Commercial Cookery in 2018. An academic transcript dated 1 November 2019 indicates he completed 10 units towards the Diploma of Hospitality Management. The PRISMS record also indicates he was previously enrolled in a Diploma of Hospitality Management on numerous occasions from 16 December 2012 to April 2017 without successfully completing the course.[2] The evidence indicates he successfully completed a Bachelor of Arts (Mass Communication) at Curtin University in December 2009.
[2] As raised with the applicant via s 359AA at hearing.
Information contained within the application indicates he: is not married; has a sibling and parents in Australia; has previously completed study in Australia, including a Bachelor of Arts (Mass Communication) at Curtin University in December 2009; and has been an unemployed student since January 2010.
In addition to the aforementioned, the applicant provided a range of documents in support of his application that included: identity and relationship evidence (inclusive of a Republic of Maldives birth certificate); a Bupa Overseas Student Health Cover (OSHC) verification policy document; financial documents and letters of financial support from a business sponsor in the name of Orchid Holdings Pty Ltd; a revised study plan initiated by Academia International on 29 April 2019; a medical referral letter from his general health practitioner, Dr Aaron Howe, issued to attend St Vincent Hospital Emergency Department on 21 March 2019 because of shortness of breath; and a medical certificate from 21 March 2019 to 28 March 2019.
The applicant provided to the Department the following statement addressing the genuine temporary entrant criterion:
My reasons for choosing to study in Australia rather than in my home country or usual country of residence:
There is no equivalent hospitality course of such high standards being offered in the Maldives, so it is imperative that I obtain training in Australia if I want to pursue a career path in the food & beverage industry. This is particularly evident in the high number of foreign trained chefs and F&B managers currently working in the Maldives tourism industry. In some of the country’s top resorts many Australian trained chefs and F&B managers earn high salaries. Hospitality qualifications from Australia are highly recognised in the Maldives, where tourism is the main industry and is world class. There is a shortage of highly skilled local staff in the Maldives and as a result there are many expatriates working in the Maldivian hotels and resorts. I already have a job offer to go back to once I complete my studies and this is what I would like to do once I complete my training in Melbourne. I have chosen Melbourne because the course I found is very good value for money at $9200 a year and as I already have a living arrangement with my mother who is herself pursuing university studies here.
The relevance of the course(s) of study to my future career and/or educational plans.
My family has numerous ties to the tourism industry in the Maldives, both my mother and father being prominent people in the tourism industry there; so it would not be difficult for me to obtain employment in the Maldives, following the attainment of such a suitable qualification. I am passionate about studying in Melbourne, as I feel the food culture here is world-class and believe I would be getting world-class qualifications and training that would make me very employable in the Maldives. With the wide network of associates and colleagues of my family who are in the tourism industry, I truly believe my new skills will make me a sought after resource in the Maldives.”
Between 7 and 13 November 2019, the applicant responded to the further request for information and provided additional documents to support his application including: a revised statement of purpose; a partially completed academic transcript for his study in a Diploma of Hospitably Management, a statement of attainment in the Certificate III in Commercial cookery; an open offer letter of employment to work in a permanent position as a food and beverage member of Bandos Island Resort, Maldives (Orchard Holdings) that was issued on 2 November 2019, with no date of commencement; medical letter/hospital reports and discharge paper detailing the applicant’s medical condition and cardiac insufficiency on 21 March 2019; an amended BUPA Health insurance policy; completion certificates for the Diploma and Bachelor of Communications; evidence of the applicant attending Perth Modern School for his secondary education; and transcripts of the applicant’s academic achievements in Australia between 8 March 2002 and 5 February 2010.
The delegate’s decision[3] noted that on 19 November 2019, the applicant was sent an invitation to comment on adverse information, specifically in relation to PRISMS records that indicate that at that time he was enrolled in a Diploma of Hospitality Management course that commenced on 23 July 2018 and was scheduled to conclude on 20 December 2020. The letter noted that the PRISMS records also indicate the following enrolment and study history from 2003 to date:
[3] As attached to the Application for Review.
·Foundation Study Program (finished on 30 June 2004);
·Bachelor of Commerce (enrolment cancelled due to transfer to another provider);
·Diploma of Mass Communication (Extended) (finished on 31 January 2006);
·Bachelor of Communications (enrolment cancelled due to enrolment in another course);
·Diploma of Mass Communication (finished on 30 June 2006);
·Bachelor of Communications (enrolment cancelled due to enrolment in another course);
·Diploma of Commerce (enrolment cancelled);
·Diploma of Mass Communication (finished on 29 September 2006);
·Bachelor of Communications (finished on 20 November 2009);
·Diploma of Hospitality (four enrolments for the same course were cancelled in 2014 and 2015 due to changes to his enrolment details, non-commencement of studies, or the provider being unable to deliver the course);
·Certificate III in Commercial Cookery (finished on 8 July 2018);
·Certificate IV in Commercial Cookery;
·Diploma of Hospitality Management (two enrolments for this course were cancelled between February and April 2019 due to changes to enrolment and cessation of studies).
The letter noted that PRISMS records indicate study gaps between December 2009 and December 2012 and October 2014 and July 2017.
The letter also noted that Departmental movement records indicate that: he has been residing in Australia since 13 July 1999 and has not departed Australia since 4 January 2012; he applied for permanent residency in Australia on 7 May 2010 by applying for the Skilled Sponsored (Class VE) (Subclass 176) visa, with his application being sponsored by his sister, but the visa was refused on 22 September 2015 due to the cap and because his occupation (Journalists and Related Professionals) was no longer on the skills list.
The letter also noted that Departmental records indicate his parents and sister reside in Australia permanently.
The letter noted that the information detailed above relating to his study history, his immigration history and his family’s presence in Australia is relevant to the consideration of his application against the genuine temporary entrant criterion under cl 500.212 of the Migration Regulations 1994 (Cth) (the Regulations). It raised with him that the information indicates he is not a genuine student or genuine temporary entrant.
The applicant provided a response on 17 December 2019, and uploaded: email correspondence from his education provider outlining a new education schedule to complete the course on 20 December 2020; a revised employment contract offer letter from Bandos Island Resort, Maldives dated 15 December 2019, to commence around 1 July 2020 for a period of 12 months as a Food and Beverage Coordinator; and an additional medical summary report issued by Dr Chris Olszewski of Access Health on 5 December 2019.
The applicant, in an attached statement dated 14 December 2019, noted the following:
·On completion of his bachelor’s degree in Australia, he returned to the Maldives in July 2009 and worked at his father’s company, Faraway FM, as a program producer until his parents decided to send him to Australia to visit his sister in January 2012 due to the political difficulties in the Maldives, particularly as his mother was Minister for Tourism.
·Not long after he came to Australia, the situation escalated in the Maldives as the government was toppled on 7 February 2012.
·Not knowing whether it was safe to return, he decided to enrol in hospitality courses in line with his father’s career path and that is why there are four enrolments in the same course cancelled between 2014 and 2015. He claims these four enrolments were maintained while he waited for his visa to come through.
·While the application for the visa was made in December 2012, it became the subject of a lengthy Tribunal hearing and he was finally granted a visa on 2 February 2017.
·Due to the lengthy enrolment, he was only able to start his study in 2017.
·He submits there is no study gap between December 2009 and December 2012 as he returned to the Maldives.
·He claims the fact that it took four years for the student visa to be granted should not be construed as maintaining residence as he was in limbo at that time. Notwithstanding, due to the unstable political environment he was unable to return, and his mother had to flee, which impacted her well-being.
·As to his mother and sister residing in Australia permanently:
As referred to in 3(c) above it was necessary for my mother to leave Maldives in 2012. Her colleagues, the National Security Advisor, Minister of Home Affairs and the Minister of Defence were persecuted and prosecuted and the latter jailed in 2013, hence the fears for my mother were very real and imminent. My father was forced to resign from his job in 2013 under political pressure, and he came here in 2016. The political situation in the Maldives was reversed and rendered safe for us only recently on 17^th November 2018, once the authoritarian ruler was defeated in elections and it is only after 6 long years of living in self-exile that she is able to return home. Already my mother has made plans to build on her plot of land in the Maldives (inherited when her parents died), getting architectural drawings ready and she is in touch with the President and her political party Maldivian Democratic Party for a return to politics in the Maldives.
My sister is married to Mr Simon Birch, an Australian, who she met at University. She is a qualified Chemical Engineering/Management graduate and also a Masters graduate in Urban Planning. They are both in senior jobs and are responsible citizens of society. Simon flew to the Maldives to ask my father’s permission to marry my sister and as far my parents are concerned it does not matter to what nationality the person who Lisa chose to marry belonged: their only criteria was to love my sister. They have been together for over 10 years now and is now the proud parents of my nephew, 1 year old young Michael. As mentioned in 4(b) above, a very good part of my sister’s and my life have been spent in Australia, hence in context it is not unusual that she has met someone from here to spend her life with, in line with natural causes of events.
My mother’s aim in life when she arrived in Melbourne in 2012, under very dire circumstances was not to reside here permanently, but be here with her children in a time when she was totally broken. I say that people’s life-circumstances change from day to day; depending, very often, on where they live. Those who live in developed politically-stable countries may not realise the plight of people from backward poor societies where the future and even life itself is not guaranteed. Much is at the whim of political, ruling forces. My family’s decision to study in and to have commitments in Australia is driven by the need for self-preservation and the desire for a stable future; that we may return to Australia, when circumstances are rendered dire or even dangerous. We do love Australia that has given us so much, but our duty to and our future must be in our own country and society where our larger families still live and love us. Life is changing for the better there, but education, training and similar institutions will take considerable time to reach world standards. My request for an extension of my visa is to merely complete the course of study I am enrolled in.
He submits that the application is not a new application, but an extension required to complete the Diploma he is enrolled in, and not a variation. He notes:
It is comprised of some certificate III components and some diploma level management components culminating in the awarding of the Diploma of Hospitality Management. The intervention strategy is used by an Education Provider for when provider identifies a student at a risk of not making satisfactory course progress leading to the student being unable to complete the course within the expected duration and implements a plan to assist the student. This aims to assist identified students get their studies on track and complete within an allowable duration of the course or provide useful strategies to assist the student in developing a new and more appropriate study plan to complete their program. In my case, the intervention strategy was to issue Training Plan for me to complete my course. The Training Plan devised for me by Academia International on 28^th April is attached.
The delegate decided to refuse to grant the visa on 16 January 2020. The delegate decided to refuse to grant the visa because the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Regulations on the basis that he is not a genuine applicant for entry and stay as a student. The delegate was concerned that the applicant: had resided in Australia on an intermittent basis since June 1989; had not departed Australia since his arrival in 2012; had family (his parents and sister) residing in Australia; and first enrolled in the Diploma of Hospitality Management in 2012 and had demonstrated poor academic progress. The delegate was not satisfied the applicant had sufficient incentives to return to the Maldives, and was concerned that the Diploma of Hospitality Management was of less value than the Bachelor of Arts (Mass Communication) or would be of any added benefit to his employment in the Maldives. The delegate was concerned about the applicant’s study history and that he had not demonstrated any substantial ties to his homeland, and applied for a permanent visa in 2010.
The applicant applied to the Tribunal on 28 January 2020 and attached the decision of the Department.
On 5 August 2021, the Tribunal wrote the applicant a s 359(2) letter, which stated as follows:
As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:
· enrolled in a registered course of study; and
· a genuine applicant for entry and stay as a student.
Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information from which you can access by clicking on the link below.

The Tribunal also advised that in considering whether the applicant is a genuine applicant for entry and stay as a student it must have regard to Ministerial Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ and attached a copy.
On 19 August 2021, the Tribunal received a request for an extension of time and this was granted; the applicant was given until 16 September 2021 to provide the requested information. On 4 September 2021, further time to respond was requested and the applicant was given until 1 November 2021 to provide the information requested.
On 1 November 2021, the applicant provided a submission as follows:
1.     This Appeal is a very simple matter. I believe the Department’s decision to process my visa as a new application is unfair, when I have continued on in the same institution and as due to hospitalization my study was halted, I applied for an extension. I have simply asked the department for additional time to complete the units that I had left to complete my diploma.
2.     I had heart failure, was on a ventilator and was asked by my doctor to minimize stress as much as possible. Upon recovering I had discussed with my Education Provider as to a way forward and was granted an “intervention”. All documentation relating to my hospitalization and the intervention and new study plan given by my education provider was submitted to the Department.
3.     The intervention as I understand is allowable by the Education Services for Overseas Students (ESOS) Regulations 2019. I believe it is allowable to extend an existing visa to complete the diploma I am enrolled in as it is not a variation to the Diploma itself. The Diploma is comprised of some certificate III components and some diploma level management components culminating in the awarding of the Diploma of Hospitality Management, most units of which I have successfully completed.
4.     The intervention strategy is used by an Education Provider for when provider identifies a student at a risk of not making satisfactory course progress (for whatever reason; in my case my hospitalization) leading to the student being unable to complete the course within the expected duration, and allows providers to create a Training Plan to assist the student. Such Training Plans are allowed in order to assist identified ‘at-risk’ students get their studies on track and complete within an allowable duration of the course. Providers use intervention strategies to assist the student in developing a new and more appropriate study plan to complete their program successfully.
5.     In my case, the intervention strategy was to issue a new Training Plan for me to complete my course, in accordance with the medical advice I was given. Which is to take me off Commercial Cookery and associated units and divert to a different stream, while retaining the same award of the Diploma.
6.     I have been informed on 6th December 2019 by my Provider that they have made a mistake in calculating the dates in the Training Plan devised for me on 28th April 2019 and a correct Training Plan was provided to be in place (which was duly submitted to the Department). The result of which was that the first CoE was cancelled and a fresh CoE had to be issued by the provider. In my estimation I think this was the reason why the Department has considered my visa extension application as a new visa, i.e. the system generating a new CoE. I have attached communications from my Provider for Your Honour’s perusal.
7.     For the Diploma that I am doing, I have already been cleared for GTE and other criteria required for my student visa application, not to mention through a lengthy and harrowing Tribunal process. And to again be subjected to a new application process by the Department (for a new CoE which was generated due to an error on the provider’s part) with changed circumstances is unfair. I say that because my health circumstances changed while I was studying and my family’s situation also has changed and so a new set of considerations be assessed by the Department to complete the first Diploma that I was already cleared for, as a new case – new visa – is obviously incongruent.
8.     I was in hospital for almost 10 day with recurring visits to do more tests and am now I am on life long medication. Although my diagnosis was heart failure I suspect what I had could have had was an earlier strain of Covid 19. It was a few months prior to Covid 19 symptoms were known. I was put on a ventilator and treated for water on the lungs and this has affected my physical as well as mental well being permanently.
9.     Just immediately after I was able to get back on track Covid 19 pandemic was declared and online study mode was made available after a long period of school closure. I have for the remainder of the visa period, completed some units online and was given a statement of attainment for what I completed.
10. After lockdown was lifted I contacted my provider whether I could be allowed to continue and complete my Diploma. and they were reluctant to re-engage with me. They wanted to check my visa history since 2019 until and I was asked to provide the “reason for visa refusal from the Department that I got on 17/01/2020”. I believe they have been notified by the Department that my visa has been refused. To not let me complete is I say, unfair.
The applicant submitted a document showing his CoE to study the Department of Hospitality Management from 20 July 2020 to 20 December 2020 had been cancelled incorrectly, as well as documents from his education provider dated 10 December 2019 showing that his course was extended to 20 December 2020 due to an amended training plan.
On 17 December 2021, the applicant’s mother provided the following statement:
1.     My submission today is to emphasise the personal circumstances that befell this family ever since Ali was hospitalized with heart failure in 2019.
2.     I have accompanied Ali to the hospital emergency department on that day and was present by his side at the time when he fought for his life on a ventilator and witnessed a team of doctors physically doing everything they can to resuscitate him. When I was told that he very nearly made it (i.e he could have died), I broke down mentally. He stayed in intensive care for 4 days and in hospital for nearly 2 weeks before being released and put on a life long regime of medication and medical testing.
3.     While he was recuperating and attending hospital, I have contacted his educational establishment and informed them of Ali’s health and doctor’s advice. They have been advised that the practical component of his Diploma involving working in the kitchen and restaurant area can contribute to stress and therefore they charted a different training plan, and an allowable path to complete the same qualification but via a different path.
4.     Ali has been continuing on with a revised training plan when notification came from the department that his visa has to be applied for afresh and we were very surprised that we have to go through the entire process, as for a new application.
5.     I just want to say that for the department to reject the visa-extension has been very difficult for me emotionally and personally as well as for the family as a whole, at a time when Ali’s father himself had come to Australia with complicated medical and other problems. Ali’s father has had a massive business failure in the Maldives, losing everything including his job, faced persecution as a result of government change and had no choice but to join me here. (A submission from Ali’s father will be made separately to this Honourable Tribunal).
6.     I have always felt I have put the added pressure on Ali to succeed and he has disguised the pressure upto a point that he had been so stressed (without anyone around him knowing it) that he has to be taken ill and finally heart failure for us to realize it. And for the chance to be taken from him to discontinue from his studies and fail in the eyes of the family would not have been easy on him. I say that for the visa to be rejected which can be construed as not taking into account a predicament that a student may face in the ordinary course of his studies (to which Esos Regulations allow a remedy and which Ali’s educational institute duly provided as lawfully allowed) is a denial of natural justice, especially at a time when life has been so difficult for us as a family here in Australia.
7.     As has been explained in lengthy detail in previous tribunal hearings, I have come to be in Australia and stayed in Australia at a time when I had feared for my own life. As explained, I had gone through numerous hurdles (including psychological care) to come back to a normal life. At the time of Ali going through his own studies, I myself have gone through a very difficult time. Ali has been by my side watching helplessly, while I went through life, struggle after struggle. While Covid 19 has halted his studies at his education institute, he has to go through the added blow of not being able to continue when lockdown has lifted, which we plead is unfair.
8.     I wish to state here that life has given this family a lot of difficult circumstances beyond our control starting from when both Ali and myself have come to be Australia, he in 2011 and myself in 2012. I have had the lawful entitlement of becoming a citizen after I arrived here, and because at the time I did not have the opportunity to go home to a safe environment I have stayed back and made use of that lawful entitlement by becoming one. As explained in previous tribunal hearings in Ali’s matter before this tribunal I have come to Australia to be near my daughter (who is married to an Australian citizen) at a time of deep personal pain. And Ali has been here from that time. As time has gone by, my daughter has given us grandchildren and familial bonds have gotten very strong that I do intend to remain here now with them. I say this as a demonstration that life situations can change whereby we make decisions to accommodate those situations as best as we could. For Ali too, his heart failure has changed his entire life and it is vitally important that he be given the chance to complete what he started at the same time be with the only family he has known - myself, his sister and his father who is here now. To take those very circumstances into consideration as a bar to the grant of visa is a travesty of justice.
9.     The next step for Ali is to complete his education and get into meaningful employment.
The applicant’s mother provided evidence of her orthopaedic issues as the reason for delayed responses and that she has been placed on a waiting list for her orthopaedic procedure, as well as evidence that Mr Ibrahim Mohamed, the applicant’s father, attended day surgery for eye issues in February 2022. At her request, the applicant was given further time to comment, to 11 February 2022.
On 11 February 2022, the applicant’s mother requested further time to comment on the basis that the applicant’s father has dementia and is scheduled for eye surgery on 31 March 2022, and she noted that she is still awaiting surgery. She submitted that given their health conditions, they were unable to make submissions, and requested until 31 March 2022 to comment or respond. Further medical documents as to her and the applicant’s father’s health were attached.
On 15 February 2022, the Tribunal advised that it had considered the request for further time to comment but was refusing it. The Tribunal was of the view the applicant had been given sufficient time since the s 359(2) letter was sent in August 2021 to provide the information requested, taking into account the claimed difficulties facing his parents.
On 4 April 2022, the Tribunal sent the following s 359A letter to the applicant:
·     You applied for a Student visa on 6 September 2019 and attached Confirmation of Enrolments to study the Diploma of Hospitality Management from 3 February 2020 to 2 December 2020.
·     Information from the Australian Government’s PRISMS record system, which records Confirmation of Enrolments and start and end dates of each course you were enrolled in, indicates that you are not currently enrolled in a registered course of study and that enrolment ceased in the Diploma of Management on 5 July 2020.
·     The information from PRISM indicates you have not been enrolled in any course of study since that date.
This information is relevant because one of the criteria for the visa for which you have applied, regulation 500.211 provides that at the time of this decision you are enrolled in a course study: cl.500.211(a). You have not claimed to meet any of the alternative criteria in cl.500.211. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. The evidence from the PRISMS record indicates that you do not meet this requirement as you are not currently enrolled in a course of study. If the Tribunal is not satisfied that you meet this requirement, the Tribunal may find that you do not meet cl. 500.211. You may then not be entitled to be granted a Student visa for which you have applied.
The applicant was given until 19 April 2022 to comment or respond to the information.
On 13 April 2022 the applicant’s mother requested further time to respond as per the below:
We have requested Academia International to issue a CoE in order for him to be registered with PRISM.
Please communicate to the Honourable member that Academia may refuse to issue a CoE as they have indicated that "the Department has penalised them with demerit points as Ali's visa got cancelled". Our issue is that the Department has cancelled Ali's visa on the assumption that it was a new visa application when in fact it was a continuation of the same study. It was due to an error on the part of Academia International itself that an erroneous Training plan was issued and resulted in the visa being cancelled. All these explanations have been proffered to the Tribunal before and we would like the Honourable member to consider reverting the cancellation.
In the event that Academia refuses to issue a CoE we shall have to apply with a different college for the chance to complete the Diploma and therefore we request an extension of time.
Further as Ali's passport has expired we have commenced the process to renew his passport. We are having some difficulty accessing the Maldives immigration online from Australia and may need to use manual forms posted.
In view of all these difficulties I would request an extension of time of a further 6-8 weeks to secure a CoE and renew his passport. If these events occur earlier we shall inform the Tribunal accordingly.
The Tribunal granted the applicant an extension of time to respond to 10 May 2022.
On 2 May 2022 the applicant’s mother requested further time to provide a CoE as they were awaiting the applicant’s updated passport to obtain a CoE.
The Tribunal granted an extension of time to respond to 24 May 2022 and requested evidence the applicant had applied for a new passport.
On 24 May 2022 the applicant’s mother responded that the applicant’s passport had now been renewed and provided two CoEs to study a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management at Newtown College from 11 July 2022 to 10 December 2023.
On 31 May 2022 the applicant was invited to attend a hearing on 29 June 2022, which the member cancelled on 28 June 2022 for other reasons unrelated to the matter.
On 20 June 2022, a submission was received from the applicant’s mother:
For present purposes, Academia International, Ali’s original education provider has refused to issue a CoE as they have indicated that the Department has penalized them “with demerit points as Ali's visa got cancelled”. Our issue is that the Department has cancelled Ali's visa on the assumption that it was a new visa application when in fact it was a continuation of the same study. It was due to an error on the part of Academia International itself that an erroneous Training plan was issued and resulted in the visa being cancelled. All these explanations have been proffered to the Tribunal before and we would like the Honourable member to consider reverting the cancellation. Should you require, the email communications with Academia International can be forwarded, together with the Training Plan.
After Covid 19 lockdowns in Victoria were over, we reapplied to complete the remaining units with Academia and they have stated that given his visa refusal history/ visa cancellation, “it would be really hard for us to issue him a COE”. In view of this we have obtained a CoE from a different college to complete the remainder of the units and graduate with the Diploma he has originally enrolled in. We have also applied to Victoria University as well.
Further, in view of the Genuine Temporary Entrant criteria, I say as follows:
It is a travesty of justice that this family’s personal circumstances have to be considered in Tribunal hearings twice before the student visa for Ali was granted, and then for the same circumstances to be reconsidered a third time and based on grounds previously regarded as successfully considered by the Tribunal, to be rejected is like a triple jeopardy. The issue of whether his change in career therefore a change in his academic pursuit has been adjudicated and a favourable judgment made for Ali by this Honourable Tribunal. For the department to sit in judgement of the arguments for a visa to complete the same diploma for which a visa was approved by this Tribunal is a denial of natural justice.
Ali has never utilised the visa system to stay in Australia for purposes other than study. As can be demonstrated from his life circumstances he has not done anything other than attend Academia prior to his illness. With Covid 19 he has become an immunocompromised person therefore study was suspended. He now wishes to complete the remaining part of the Diploma and consider his options upon completion. We ask Your Honour to consider the case of Saini v Minister for Immigration and Border Protection (2015) 300 FLR 72, 76 [18] (Cameron J), that the visa applicant intends to stay in Australia and nothing else comes into play other than the purpose for which he entered. The department’s statement that that the applicant has not departed since their arrival in 2012 while true has only been circumstantial (in that Ali has gone through Tribunal hearings and decisions were made only in 2017). Hence in effect he has waited onshore for the student visa to be granted, as the application was made onshore.
As was heard in the case of Tothne Eros (Migration) [2019] AATA 1152, [3], [32] (Members Millbank and Wood), situations may change. Due regard has not been given to Ali’s circumstances (his illness and his subsequent immune-compromised status preventing him from either working or studying) which were changing while he was in waiting. Further, my own (and this family’s) circumstances in these uncertain times have been fluid. Firstly, Ali’s father’s circumstances have changed and he has to be hospitalized for dementia permanently. Our family’s circumstances are such that Ali is a source of constant support to me for my mental well-being as well, as he is helping out with family tasks before Ali’s father was hospitalized while providing me with love and emotional support. Although I am currently working in an educational establishment here it is always my intention to return to politics in the Maldives, in fact I am in negotiation with several political parties to enter into politics in 2023 (elections in the Maldives). Ali has every reason to accompany me back to the Maldives and serve in the tourism industry there. The tourism industry itself has suffered tremendously in the Maldives and is now picking up. For the Department to say that “the applicant has not demonstrated that they have sufficient incentives guaranteeing their return to Maldives at the end of their proposed study period” is a subjective statement without any substantiation.
As was stated in the Eros case, the criterion of genuineness to enter and stay as a student under the chapeau of clause 500.212 sets out ‘a whole idea or conception’ and should not be disconnected from the text, structure and purpose of the whole clause’- subclauses (a), (b) and (c), which ‘requires an appreciation of the relationship between the disaggregated elements’ and also demands separate attention to each element. In view of “any other relevant matters referred to in subclauses (a) (iv) and (c)” to be considered in relation to the other subclauses, we respectfully submit that (a) it is not Ali’s intention to, primarily reside in Australia as such, (b) circumstances have dictated that we remain in Australia (during the whole time there was political uncertainty in the Maldives, due regard of which was had by this Honourable Tribunal to those circumstances) and later on Covid 19 and Ali’s father being hospitalized permanently are facts that must taken under the chapeau of the case.
In Khanna (2015) 298 FLR 388, 394 [29] (Manousaridis J) it was decided that an applicant may concurrently have multiple intentions to study in Australia to reside permanently if qualified, or to leave without a further visa. These options must remain to Ali as a natural right also and we respectfully submit that for the Department to put a black-mark on his visa history as forever to be marked as a person for whom a visa was refused (especially after this Honourable Tribunal has decided his application was indeed worthy of the grant of a student visa) is unjust. The preamble of Direction Number 69 also clearly states that an applicant can be a GTE, ‘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 applicant again attached a statement as outlined above dated 1 November 2021 and the applicant’s mother’s statement dated 17 December 2021.
On 28 February 2023 the applicant was invited to attend a hearing on 12 April 2023.
On 11 April 2023, the applicant provided CoEs to study a Certificate IV in Commercial Cookery from 11 December 2023 to 29 September 2024 and a Diploma of Hospitality Management from 14 October 2024 to 13 April 2025 at Newton College, evidence of overseas health insurance to 15 September 2023 and two medical reports relating to the applicant’s medical condition. The first was previously submitted and is from Dr Chris Olszewski of Access Health dated 5 December 2019, in which he indicates that the applicant had an acute episode of non-ischaemic cardiomyopathy in February 2019, which required hospital admission in March 2019. Dr Olszewski suggested he reduce his load and consider a less strenuous program and that specialising in Commercial Cookery, a very stressful environment, may not be suited to his condition. Also attached was a letter from Dr Ameer Abud dated 21 February 2023 referring the applicant to a cardiologist as the applicant has cardiomyopathy.
The applicant appeared before the Tribunal by video on 11 April 2023 to give evidence and present arguments. His mother, Ms Mariyam Zulpha, sister, Ms Lisa Birch, and brother-in-law, Mr Simon Birch, also gave evidence.
The Tribunal noted that the issue before it is whether he meets the genuine temporary entrant criterion as per cl 500.212. It outlined these requirements and Direction No.69.
The applicant confirmed he completed his secondary schooling in Perth and then completed a Bachelor of Arts (Mass Communication) in December 2009 and a Certificate III in Commercial Cookery in July 2018. As to his progress in the Certificate IV in Commercial Cookery, he said after commencing his work placement he realised being a chef was not the career for him. He said after one week of the work placement he realised he did not want to be a chef. The Tribunal asked how many units he completed when he was studying this course from 23 July 2018 to December 2018; he said he had forgotten. He said he completed 10 units in the Diploma of Hospitality Management by the end of 2019, studied at Academia College, and said he received credits for the units completed when he transferred to Newton College. He said he has about seven units to go, being about six months of study, to successfully complete the Diploma of Hospitality Management.
The Tribunal raised a concern as to why he would enrol in a Certificate IV in Commercial Cookery from 11 July 2022 to 30 April 2023 and again submit a CoE to study this course from 11 December 2023 to 29 September 2024 when he had indicated he was not interested in being a chef, and queried whether he was trying to lengthen his time in Australia by enrolling twice in a course he was not interested in. The applicant’s mother said he had changed from this course and the Tribunal noted this was not the case on the evidence before it from the CoEs submitted. He said he wants to obtain the Diploma of Hospitality Management and he thinks that cookery is part of that.
The Tribunal asked the applicant why he wants to study hospitality management and he said tourism is the number one industry in the Maldives and there are so many jobs, and for someone with a western education the jobs are endless. As to where he wants to work when he returns to the Maldives, he said his parents have many contacts in the industry and he has a job offer ready to go. He said he has a job offer at Bandos Island Resort, and he said he was offered that job while his mother was the Minister for Tourism around 2012. The Tribunal raised as of concern that that was 11 years ago, and he said he is yet to obtain the diploma.
The Tribunal asked and he confirmed that it had always been his aim to return to the Maldives to work at Bandos Island Resort, since 2012 when the job offer was made. He said Mr Deen from Bandos Island Resort is known to the family and by working there he will make great connections and obtain good recommendations. He said the resort was built many years ago and it is the oldest resort in the Maldives. As to what he will do, he said he will follow in the footsteps of his father and first work in guest relations and then administration and work upwards, and maybe work in the Ministry for Tourism. He said prior to 2018 he was going to pursue cookery in the resort but because of his heart condition and the stress of being a chef he can no longer pursue that area.
The Tribunal asked whether he had ever planned to work elsewhere in the Maldives and he said he had not sought any other position and was waiting to complete his studies to return and work at Bandos Island Resort.
As to his work in Australia, he said he had not worked since his arrival in 2012. He confirmed that he had never sought work in the tourism or hospitality management area. When asked why, he referred to his health and heart condition and the difficulties he faced when he did his work placement. He said he did not need to work and wanted to save himself to study for his future. The Tribunal raised as of concern his claim he was in Australia to study to return to work in the Maldives in the hospitality industry but had not worked in the area or at all or sought any position in a related field in the last 11 years, approximately. It raised with him its concern that his lack of work in the area for the last 11 years undermines his claim it is his future aim to return to the Maldives to work in this area. He responded that his study has taken a lot of time, he has been studying for 11 years and wants it to be done. He said he is now 40 and wants to return to the Maldives for his career.
The Tribunal raised as of concern and as undermining his claim that he is in Australia temporarily to study and to finish the Diploma of Hospitality Management when he has not done so since the application for the current visa in September 2019. He said he still has heart issues and blood pressure problems and Academia rejected his enrolment, so he had to find a new College.
The Tribunal raised with him, via the process outlined in s 359AA, information as contained in the PRISMS record. It outlined the following information:
·He has not completed any course since he applied for the current visa and the last course he completed was the Certificate III in Commercial Cookery on 8 July 2018.
·CoEs attached to the current application for the visa refer to the applicant studying a Diploma of Hospitality Management at Academia International from 23 July 2018 to 20 December 2020. There is no evidence before the Tribunal that he successfully completed any of these courses. An academic transcript dated 1 November 2019 indicates he completed 10 units towards the Diploma of Hospitality at Academia. There is no information he has completed any further units towards this course since then.
·He was previously enrolled in a Diploma of Hospitality Management on numerous occasions from 16 December 2012 to April 2017 without successfully completing the course. Four enrolments for the same course were cancelled in 2014 and 2015 due to changes in his enrolment details, non-commencement of studies, or the provider being unable to deliver the course.
·He was not enrolled in a course of study from 20 December 2020[4] until he enrolled in a Certificate IV in Commercial Cookery from 11 July 2022 to 30 April 2023, followed by a Diploma of Hospitality Management from 12 June 2023 to 10 December 2023, at Newtown College. The evidence indicates these enrolments were cancelled for non-commencement of studies on 5 December 2022.
·There is no evidence of study, following the cancellation of enrolment on 5 December 2022 until the new CoEs to study at Newton College were submitted prior to the hearing.[5]
·There is no evidence he has studied or attended college since 20 December 2020 until the enrolment at Newton College.
·He is studying at a lower level than the qualifications he has achieved previously.
·He has known at least since the previous hearing in 2015, when he was advised by the previous member, that he could study while holding a bridging visa.
[4] While PRISMS refers to the cancellation of the CoE to study the Diploma of Hospitality Management from July 2020 to December 2020 was cancelled for non-commencement of studies, there is information from Academia on file that this was done incorrectly, which the Tribunal accepts.
[5] After the hearing he submitted new CoEs showing study from 1 May 2023 to 31 March 2024 of the Certificate IV in Commercial Cookery and Diploma of Hospitality Management and submitted enrolment was deferred on 5 December 2022. The PRISMS record was changed after the hearing to reflect a change in enrolment rather than a cancellation for non-commencement of studies on 5 December 2022 and to reflect the new enrolments.
The Tribunal outlined the relevance to the genuine temporary entrant criterion, including a lack of enrolment and a lack of course completion while applying for or holding a student visa. The applicant asked if he could respond in writing, and it was agreed that he would be given two weeks to 26 April 2023, but he also responded orally at hearing. He referred to the political situation in the Maldives and advised that it was initially not a good time to return but now that the situation has resolved, he can go back. The Tribunal questioned whether he is in Australia to study for the reason claimed and whether he is using the student visa program to maintain residence.
The Tribunal noted that the evidence shows that the applicant has not studied since December 2020. The applicant queried this, and the Tribunal advised that the evidence before it, that is the PRISMS records, indicates this. He was given to 26 April 2023 to provide evidence from Newton College showing that he did attend and submit assignments and had completed units. His mother also said he had been attending online and submitting work.
The Tribunal then discussed with the applicant his ties to Australia and in particular, his close family ties. The evidence from the applicant is that his mother is a citizen of Australia, his father is a permanent resident and his sister and brother-in-law are citizens of Australia and have two children. He said he has a large extended family in the Maldives, with 10 aunts and uncles on each side as well as cousins.
The Tribunal raised with the applicant, via s 359AA, the following, from the movement records:
·He has not departed Australia since last arriving on 4 January 2012 on a visitor visa and has spent the last 13 years continually in Australia.
·He was born in 1985 and since his first arrival in 1989 he has spent a substantial part of his life in Australia, having:
o   arrived on 27 February 1989 and departed on 31 December 1992.
o   arrived on 13 July 1999 on a Subclass 560 visa valid to 31 July 2003 and departed for short periods on numerous occasions in that time.
o   been granted a further Subclass 573 visa to 20 January 2010; in that time, he departed Australia from 15 May 2006 to 4 July 2006, from 1 October 2006 to 15 February 2007, from 21 June 2007 to 22 July 2007, from 5 July 2009 to 26 July 2009, and from 7 December 2009 to 12 January 2010. He then departed on 16 January 2010.
o   arrived on a Subclass 676 visa on 4 January 2012, which was extended to 3 January 2013.
o   been granted a Subclass 572 visa on 20 April 2017, valid to 7 September 2019.
The Tribunal outlined the relevance of the above information regarding his length of time in Australia to the genuine temporary entrant criterion, and questioned whether he is a temporary entrant, especially in light of his ties to Australia and his lack thereof to the Maldives. He said he has strong cultural ties to the Maldives and while he loves Australia and his family are here, and it was safer for his parents here and there is better health care (especially as his father is in a nursing home because of his dementia), it is not better for him. His mother added that: the applicant’s father lived in the Maldives until 2021; as the applicant was awaiting the Tribunal hearing he could not leave; Academia would not issue a further CoE; and they were awaiting the applicant’s new passport to be issued.
The Tribunal raised with the applicant that his length of time in Australia raised concern about whether he is a temporary entrant or whether he is using the student via program to stay in Australia. He responded that he is nearly 40 years old, and he wants to finish his course and return to the Maldives. He said he wants to move on in his life.
The Tribunal referred to him completing a Bachelor of Arts in Communication and asked why he has spent over 10 years attempting to complete courses in tourism at a lower level. He said he wanted employment in communications, but such jobs in the Maldives are hard to come by and even in Australia it is difficult as anyone can now blog and become a journalist. He said he went back to the Maldives after completing his degree but could not make a go of it and he reached the point where he realised that he had to make a career detour. He then, due to his health, realised he could not become a chef but he fully intends to finish his degree and return to the Maldives to work in the tourism industry.
The Tribunal raised with the applicant, via s 359AA, evidence he provided to the Tribunal (differently constituted) at hearing on 13 November 2015 and evidence provided by his father in a statutory declaration, as to why the applicant was studying a Diploma of Hospitality Management. It noted that the applicant said he would study and return to the Maldives to work in his father’s business in tourism. He had stated that his father’s company had been granted a tourism lease on Akirifushi Island, and a resort was to be bult in 2018/2019; the applicant would become a director of this company upon return. The Tribunal noted that the applicant said at the 2015 hearing that the resort was progressing and would be completed in 2017 or 2018 and the applicant would be the Food and Beverages manager and director of the company. The Tribunal raised the inconsistency with the evidence provided at the current hearing, where he stated that he always planned to study so that he could work on Bandos Island.
The applicant’s mother said that the applicant’s father was involved in a bad business deal and because of that and the politics in Maldives, he had lost everything and returned to Australia; as a result, circumstances had changed, and the situation had therefore changed for the applicant. She said the situation for the family was dire. She said the applicant was not to know, and the Tribunal noted that the issue is that he had provided inconsistent evidence. It again noted the inconsistency in the applicant’s evidence as to why he was studying the Diploma of Hospitality Management, and questioned why he did not refer to the earlier plans of studying to return to his father’s resort when asked earlier in the hearing if he was studying for the reasons he claims. This caused the Tribunal to question the credibility of his evidence.
The Tribunal asked if there were any civil or political reason why the applicant could not return to the Maldives; he said he had never been involved in politics and had not had issues. The Tribunal asked whether he had ever had issues returning to the Maldives and he said personally he had not.
He said he does not own any property, but his family does and referred to his mother owning property and living on the income from that property. Evidence was given that since the change in the political situation in 2018, both parents, who were involved in politics at a high level, could return, but then the applicant had heart failure.
He said he was not in a relationship in Australia and has not been in one for over 10 years.
The Tribunal referred to the applicant’s evidence about his medical issues, noting that there was only a report that indicated that in March 2019 he had an issue and that he may not be suited to commercial cookery; however, other than the evidence of his time in hospital in 2019, there was nothing to indicate that his health issues prevented him from studying or achieving course progress. It referred to the recent medical report and he said this was a referral to a cardiologist, which happened on a regular basis. He said the only time he had been hospitalised for his heart condition was in 2019. The Tribunal noted there was no medical evidence his heart condition prevented him from studying, other than during that short period (which also gave rise to the suggestion that he should not work in the commercial cookery area due to the stress involved). He said the heart condition and medical issues did not prevent him from studying but he realised during the cookery placement that becoming a chef was too difficult and stressful. He also referred to being scared of getting COVID-19 as a reason he did not study, and the Tribunal noted that since early 2022 COVID-19 had not been an issue. He said he was vaccinated.
The applicant said he had no military commitments in the Maldives.
The Tribunal raised, via s 359AA, information that he had applied for a permanent skilled visa in 2010, and outlined the relevance of this with regard to the genuine temporary entrant criterion. He said when he made the application he departed for the Maldives, and he did not even remember applying. He argued it should not be a factor as to whether he is a temporary entrant. He said he had not applied for permanent residency in any other country. The applicant said he lived in New Zealand in 1996/7 while his mother studied there, and he had been on family trips to Malaysia, India and Tanzania.
The Tribunal summarised its concerns as raised at hearing including: his length of time in and connection to Australia; his poor study record; his close family ties in Australia; his inconsistent evidence as to why he is studying; and his future career aim in light of the fact that he had never worked in the area in Australia.
Evidence was also provided that his mother was a Minister of Tourism in the Maldives in 2012 when that government was ousted by a military coup and his mother went through a terrible time. The applicant’s mother noted all that the family had gone through, including the applicant’s health situation, the political situation, the applicant’s father’s difficulties, and COVID-19 when the applicant could not return to the Maldives, and submitted that the applicant had not stayed other than to study. She referred to the case of Eros as outlined in her submission, and said she was in a powerful job in the Maldives in 2012 and never intended to return to Australia but was forced to come as her life was in danger. She stated she had feared for her life on return to the Maldives until the change of government in 2018. She said she stayed in Australia because of the applicant’s heart failure and because her daughter was pregnant.
The Tribunal asked whether any of those factors stopped him studying, including the political situation and his sister’s pregnancy, and he said no. He said maybe his father’s condition affected his ability to study, as he looked after him until he went into dementia care in October 2021.
The Tribunal noted the evidence indicates he had not completed any courses since 2018 and any units in a subject since 2019.
The applicant’s brother-in-law gave evidence that he had known the applicant since 2004 and said it had taken him time to work out his passion. He said he and the applicant’s sister had been to the Maldives many times, and that the applicant comes from a big family, and they are close to the applicant’s aunts and uncles. He noted the applicant had been in Australia a long time, but it would be a shame when he is so close to finishing if he could not pursue his career. He said the applicant’s father’s situation is not a tie to Australia as both brother-in-law and his wife are committed to caring for him.

106. Secondly, the Tribunal considers that his claim that he was and is in Australia to study to return to work in the Maldives in the hospitality industry is undermined by the fact that he has not worked in the area at all or sought any position in a related field in the last 11 years or so. When this concern was raised with him, he responded that the study has taken a lot of time, he has been studying for 11 years and wants to be done. He said he is now 40 and wants to return to the Maldives for a career. He said he has not needed to work to maintain himself and he has previously referred to the income his mother earns from her land and assets. In his post-hearing submission, he referred to his fear of returning to a kitchen or restaurant environment so soon after the pandemic and given his own heart related issues. He claims he has been told that if he does not look after his health death is a possibility, and that the pandemic is not over, and he takes six medications per day. He said he now feels it is time to find a job to contribute to the household. The Tribunal accepts that it may have been difficult for him to work around 2019, at the time of his heart failure, but there is no medical evidence he has been unable to work in the hospitality area, albeit not as a chef, since that time. It accepts COVID-19 lockdowns would have affected his ability to work, but is of the view that if he was in Australia to study for the reasons he claims, he would have worked in the area to gain experience since the beginning of 2022 when lockdowns ceased, and for the years before 2019 to gain valuable experience, even if he does not need to work to maintain himself. It views his extended period of not working in a related area, for approximately 11 years, adds to the finding that the applicant is not genuine in his claim that he is in Australia to study to gain knowledge so that he can return to the Maldives to work in the hospitality area.
107. In making this finding, the Tribunal accepts that completion of the courses will assist him to obtain employment or improve his employment prospects generally in hospitality management, however for the reasons above it does not accept he has enrolled in these courses for any of the reasons he claims.
108. In making this finding, the Tribunal has considered his knowledge of living in Australia, including having lived here continuously since 2012 and having previously completed his secondary education in Australia and a bachelor course in Australia in 2010, but as it accepts that he has family in the Maldives and returned to live there from 2009/2010 to 2012, it makes no adverse finding on this basis in considering whether he is a genuine temporary entrant.
109. In making this finding, it has considered that he only has six months to complete the Diploma of Hospitality Management but is of the view that based on his poor course progression and lack of enrolment, and for all the other reasons outlined above, he is not genuine in his claim to be studying for the reason he claims.
110. In making this finding, it has considered the claims that this is not a new visa application, but the continuation of a student visa to finish the course that Academia would not continue to enrol him in; however, it is of the view the assessment as to whether he meets the genuine temporary entrant criterion is based on his different circumstances, particularly his course progression in relation to the criterion, including Direction No.69, as occurred when the last student visa was granted in 2017 to study the same courses.
111. As to the applicant’s immigration history, there is evidence he applied for a permanent visa in 2010 but the Tribunal places no weight on this as it was over 13 years ago. It accepts he has travelled extensively elsewhere and lived in New Zealand in the 1990s, but as the permanent visa application was made over 13 years ago, the Tribunal does not consider it to be determinative of whether he is, at the time of this decision, a genuine temporary entrant. It has considered his length of time in Australia above.
112. In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness, and the fact that responses can differ depending on the nature of and manner in which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness as to his claims.
113. In making its decision, the Tribunal has considered all the evidence before it, including: that the applicant is currently enrolled and studying and says he will complete his courses; that he has family ties in the Maldives; that his mother has indicated she is considering returning to the Maldives; his evidence he will return home and is a temporary entrant; his claimed medical difficulties and the impact of COVID-19; his past study record prior to the application for the current visa; his claim that if he wanted to stay permanently he would have travelled more extensively in Australia. However, for the reasons outlined above, it does not accept he is undertaking the current study for the reasons he claims, but rather is using it as a pathway to maintain residence in Australia. The Tribunal is therefore not satisfied that he is a genuine applicant for entry and stay as a student, and is of the view that the student visa programme is only being used to maintain ongoing residence.
114. On the basis of the above, the Tribunal is therefore not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
115. 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.
116. 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
117. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Gabrielle Cullen
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 2149

23 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice