Mohamed Nazar (Migration)

Mohamed Nazar (Migration) [2020] AATA 1836 (11 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Rihas Mohamed Nazar
CASE NUMBER:  1810599
HOME AFFAIRS REFERENCE(S):          BCC2017/3354826
MEMBER:Genevieve Cleary
DATE:11 March 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 11 March 2020 at 9:00am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – subclass 500 (Student) – genuine temporary entrant criterion not met – no financial ties to home country – use the student migration program to maintain ongoing residence – only enrolled when received tribunal letter – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 500.211, 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 28 March 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 14 September 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant is a genuine applicant for entry and stay as a student.
The applicant appeared before the Tribunal on 1 July 2019 to give evidence and present arguments.
Prior to the hearing the applicant provided to the Tribunal:
·The Decision Record of the Delegate
·A response to a Request for Student Visa information, and
·A letter of offer from Lead College dated 21 May 2019 for a Graduate Diploma of Management.
The Tribunal has also had regard to the Department file. It is noted that the applicant sent to the Department, among other items:
·Certificates and transcripts for:
o The Diploma of Leadership and Management and
o His studies in India;
·Financial documents, and
·A statement of purpose, undated, and an ‘Additional Statement for Genuine Temporary Entrant,’ unsigned and undated.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student.
Genuine applicant for entry and stay as a student (cl.500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
In these circumstances, the Tribunal has proceeded to make a decision having regard to all the information before it provided by the applicant, however, as is set out below, there was significant information lacking, or inconsistent, in the material provided by the applicant to the Tribunal, which was not resolved by the applicant at the hearing before the Tribunal.

The applicant’s circumstances in his own country

The applicant completed a Bachelor in Aeronautical Engineering in 2012 in India, his home country. He had also been employed at a car accessories store as an administrative assistant between 2012 and May 2015.
In March 2015 his father passed away. His father ran an automotive car parts business. The applicant said that it was not large but it did well. He had thought that he would come to Australia to gain some qualifications to assist his father in running the shop, however, when his father died, the shop was sold. The applicant at first told the Tribunal at the hearing that, upon coming to Australia, he still felt that he would like to gain qualifications which would enable him to return to India and buy another such shop and run it like his father.
The number of siblings the applicant has is not clear. In his response to the Request for Student Visa Information form, the applicant has given the details of one brother, who he says lives in India. However, at the hearing before the Tribunal, the applicant told the Tribunal that he has two brothers, both of whom are studying overseas. In his original application for the visa, the refusal of which is subject to this review, he said he has 2 brothers, both of whom were, at least at that stage, in the United Arab Emirates. He said at the Tribunal hearing that his mother remains in India alone. While the Tribunal does not place any weight on this confusion, as it does not affect the determinations the Tribunal must make, the conflicting information has made it difficult for the Tribunal to assess the applicant’s family circumstances.
Whether he has brothers in India or not, the Tribunal accepts that the applicant will have some responsibilities towards his mother as a son, however, there is nothing before the Tribunal which sets out in any detail the responsibilities taken on by the applicant’s brothers or other relatives or the expectations on him. Given that he has been in Australia, at the time of the hearing, for four years, and he intends to stay for longer to continue studying, it appears that his mother does not require urgent or immediate support from him. The applicant is not married and does not have any other obligations or responsibilities in India. The applicant told the Tribunal that his mother is looking for someone for him to marry, however he has not liked any of her suggestions so far, and he wants to sort his career out first. The applicant’s family have land and a house, however that currently belongs to his mother, and she is in good health. The Tribunal is not satisfied that the applicant’s ties to India are such that he has a significant incentive to return to India, however the Tribunal accepts that the applicant does have some ties generally to India, and gives those ties a little weight in his favour.
The applicant is not subject to national service and there is no political or civil unrest that would be cause for the applicant not to return to India, or provide an incentive for him not to return, and the Tribunal gives these factors some weight in his favour. While there appear to be no specific economic factors that would give the applicant reason not to return to India, the applicant’s economic circumstances, and the weight they are to be given, are discussed in more detail elsewhere in these reasons.

The reasons for the applicant coming to Australia and his course of study in Australia

The applicant arrived in Australia on 11 July 2015. His Visa was granted on 30 June 2015 and was due to expire on 15 September 2017. The applicant came to Australia on a student (class TU subclass 573) visa for him to undertake study in the higher education sector.
He enrolled in a Masters of Business Administration International at Edith Cowan University. He enrolled in that course because he was interested in the management sector, but had only performed research on the Internet about it. He had found it difficult in his home country to obtain a job with the bachelor degree and he thought that the MBA would enhance his prospects, particularly in the job market in India and in the Middle East.
Before he could leave to come to Australia his father passed away. Therefore, once he got to Australia and having spoken to other students and the university’s student services about the Masters of Business Administration, he felt that he would not be mentally up to such a challenging course. He had also spoken to his mother about this before he left. He told the Tribunal at the hearing that as the applicant’s two brothers were also away, he was worried about his mother being left alone. His mother, however, urged him to maintain his enrolment and come to Australia. The applicant told the Tribunal at the hearing that in reality his interest was in management.
His discussions with other students confirmed that the Masters course did not suit him and so he changed to a Masters of Mechanical Engineering. He commenced the engineering course in August 2015 but did not complete it. Once he had begun, he felt this course did not suit him either and he struggled with the study, and mentally.
The applicant failed some subjects and after the first semester he realised that he could not complete the course. He told his mother that he was not interested in completing an engineering qualification in Australia. He then did some more research about available courses and found a leadership and management course. He found reference to this course on the Institute of Engineers Australia website and so he enrolled in the course at Cambridge College.
He enrolled in a packaged course in May 2016, commencing with a Diploma in Leadership and Management, and to be completed with a Bachelor course. He commenced the Diploma course soon after he enrolled and completed that course in April 2017. He then went on to start the Advanced Diploma in Leadership and Management, completing that in April 2018.
His visa expiring in September 2017, he applied for a further Student visa on 14 September 2017, while he was studying the Advanced Diploma of Leadership and Management, and he was still enrolled in the Bachelor of Business (Management) at Cambridge International College.
The applicant told the Tribunal that given that 1.5 million engineers graduate each year in India it is difficult to obtain employment in that field. The applicant felt that a leadership and management course would assist him in gaining an advantage over other prospective job seekers and that it would provide more opportunities in administration and managerial positions in engineering firms. He pointed to the fact that the Institute of Engineers Australia is promoting courses with leadership skills, suggesting that this must be something desirable worldwide.
While the applicant told the Tribunal that the majority of his family members are in the Middle East and that a diploma would open up a pathway for a successful career in the Middle East, he did not provide any further information to the Tribunal about what countries he would like to work in in the Middle East, what business, companies or industries he would like to work in or the steps he has already taken to enquire about or secure employment. He told the Department in his statements to them that the Middle East is a top destination for jobseekers in the world, and that it would be easy for him to find a job there with “a different educational background.” He has not explained in any more detail how he knows that the Middle East is a top destination for jobseekers, how he is or intends to search for employment there, where in the Middle East he intends to look, or in what types of positions or industries. He also told the Department in his Statement of Purpose, as he said at the hearing at the Tribunal, that he may also return to India to look for work.
The applicant has provided contradictory information to the Tribunal about his circumstances, work prospects and his intentions. While the form he completed as a response to the Request for Student Visa Information says that his mother and brother remain in India, he told the Tribunal that his brother lives in Dubai and he’s a supervisor in a labour supply company there. He also told the Tribunal that he wanted to open shop in the Middle East but he also just wanted to be the manager in a shop. He also, at one point, said that he wanted to open an automotive car parts shop, like his father had, in India. This was in addition to his evidence that he wanted to go to the Middle East for work.
The Tribunal accepts that having brothers or other family members in another country may be an incentive to leave Australia and work with them when he has finished his education. The Tribunal places a small amount of weight on those plans in favour of the applicant. The Tribunal also accepts that the applicant is entitled to keep options open in deciding whether he wishes to return to India to seek work or travel to another country to do so, and the Tribunal does not place any weight against the applicant for him wanting to do so. However, the Tribunal is not satisfied that the applicant, having completed his Advanced Diploma in Leadership and Management, has made any inquiries as to the whether he can obtain employment and, if so, where and how. He told the Department that if he embarks on the bachelor course he would be entitled to exemptions and he would complete the course in two years. Being relatively close to completion of his intended studies, the applicant has not satisfied the Tribunal that he has taken any steps towards ensuring he is able to take any of the paths to employment he intends, or whether in fact the courses he has already completed or wishes to remain in Australia to complete will in any way assist on those paths, or advance his prospects over his current qualifications.
No matter what the applicant’s actual intentions, the applicant did not provide to the Tribunal any further information about his prospects, his intentions in relation to future employment or running a business, or where that would be. The Tribunal does not have before it anything that indicates that the applicant has made any inquiries or performed any research on his ability to work in the Middle East or given any indication of practically how he intends to go about opening up a shop anywhere or obtaining employment anywhere. The applicant’s goals for the future were vague and unspecific. If the Tribunal can be satisfied that the course being undertaken, or proposed, has value or relevance to an applicant’s past or proposed future employment, either in their home country or a third country, the Tribunal can attribute weight in favour of the applicant that they are a genuine temporary entrant for study. In the present case, as has been set out, the Tribunal cannot be satisfied that any leadership or management course has any relevance or value to the applicant’s proposed future employment, or his running a business, in any country. Accordingly, the Tribunal can give no weight in favour of the applicant to this factor.
On the contrary, the lack of any real planned progression to employment in these circumstances suggests that the applicant is using the Student visa regime to maintain ongoing residence in Australia, and this weighs against him being granted a Student visa.
The applicant has not provided any information to the Tribunal by which it can make a comparison between the applicant’s potential circumstances in India should he return with any qualifications from Australia, or his potential circumstances in the Middle East, should he go there with qualifications from Australia. While the Tribunal accepts that any qualification from an Australian university or college may assist a person in India gaining employment, without anything further in relation to the applicant’s intended prospects of employment, whether he does in fact intend to open his own business and where, or a comparison of likely salaries and conditions, the Tribunal can place no weight on the applicant having any reason to complete a further qualification in Australia, other than a very small amount of weight on a general finding that a qualification for anyone from India obtained in Australia will have a general benefit when they return home.
The Tribunal is not satisfied that the applicant has strong incentive to return to India because of his family ties, as has been set out above, and, from the lack of information provided by the applicant and the lack of ability to make any comparison, neither is the Tribunal satisfied that the applicant has strong incentive to travel to the Middle East to obtain employment there. The Tribunal is therefore not satisfied that the applicant’s incentive to return to India or travel to the Middle East outweigh any incentive he may have to remain in Australia and to continue working here. Because the applicant has not provided any information on expected salaries in the Middle East or India, or financial expectations in relation to starting a business in either of those places, the Tribunal cannot make a direct comparison with the applicant’s current income in Australia, and therefore the Tribunal cannot be satisfied that the applicant has a financial incentive to return to India or to travel to the Middle East. It would appear that upon return to India, his father’s business having been sold upon his death, the applicant does not have any prospective employment. Having regard to the applicant’s current circumstances in Australia, including his employment, compared to his little potential in India or the Middle East, the Tribunal is satisfied that the applicant has strong incentive to remain in Australia and gives this some weight against him being a genuine temporary entrant.

The applicant has also provided inconsistent information in relation to the courses in which he has been previously enrolled. In his response to the Request for Student Visa Information form, the applicant has only nominated three courses in which he has been enrolled, being the Masters in Mechanical Engineering, which he started but did not complete, the Diploma in Leadership and Management, which he completed in April 2017 and the Advanced Diploma in Leadership and Management which he completed in April 2018.
However, the applicant agreed at the hearing before the Tribunal that he had in fact been enrolled in a number of other courses while he had been in Australia, in addition to the original Masters of Business Administration in which he had been enrolled when granted his original visa. The applicant agreed that, as the delegate pointed out in the Decision Record, he had also been enrolled in a Certificate IV in Frontline Management, the Master of Business Administration, a Diploma of Management and a Bachelor of Business (Management). The applicant did not commence any of these courses.
The applicant also told the Tribunal that he completed a general English course at the suggestion of a migration agent. It appears from the information provided to the Tribunal by the applicant that he enrolled in the Bachelor of Business (Management) on 26 April 2017. Therefore, it appears that the applicant enrolled in this course upon completion of his Diploma in Leadership and Management. He told the Tribunal that he had also enrolled at some stage at Cambridge College in the Certificate IV in Frontline Management. However, he had made some inquiries and decided that that course would not suit him either. It was at that time that he decided to do the English course.
The Bachelor of Business (Management) through Cambridge International College was to be completed in Melbourne. It was in the middle of the advanced diploma course, however, that the applicant heard that his visa application was to be declined, and although he finished the advanced diploma course, he decided he did not wish to take up the bachelor course as he did not want to have to move to Melbourne, pay the fees and then risk not being able to complete the course because of the visa being refused. He told the Tribunal at the hearing that he therefore decided to stay in Perth and work.
The consequences of that were that the applicant was not enrolled in any course after he completed the advanced diploma course in April 2018. While he provided to the Tribunal a letter of offer from Lead College 21 May 2019, the applicant agreed that until then he had not made inquiries as to any enrolments. He agreed that this would be a breach of the Student visa requirement.
The applicant did not take the opportunity to return to India, having already completed two courses in leadership and management, when he found out his Student visa application had been refused and he had completed the advanced diploma course. He said he spoke to an agent who told him that he should remain in Australia and await the outcome of the Tribunal review. He took up this advice because ultimately, he said at one point in the hearing at the Tribunal, he wishes to complete the bachelors program. The applicant told the Tribunal at the hearing that because he was not willing to risk wasting the fees for the bachelor program, he allowed the enrolment to lapse and did not enrol in anything further. He says that when he received notification of his review from the Tribunal he noted that he was asked whether he had current enrolment. He understood this to mean that if he was enrolled he had a better chance of winning the review and accordingly he looked around for a course to enrol in. That is the reason he enquired about enrolment in the Graduate Diploma of Management (Learning). The Tribunal notes that rather than enrol in a bachelor level course, the applicant has sought to enrol in a course at a level lower than the courses for which he originally came to Australia. The applicant told the Tribunal at the hearing at one point that once he completes the graduate diploma, that will see him well equipped and he will return to India. This is inconsistent with the other evidence before the Tribunal from the applicant that he intends to seek employment or a business in the Middle East, or that he had always intended to complete a Bachelor in Business. In addition, there is nothing before the Tribunal that explains why the applicant has enrolled in a Diploma of Management with a focus on learning as opposed to his original stream, being business.
When asked to explain the reason for enrolling in the graduate diploma course, the applicant told the Tribunal that he felt that this level of education was not sufficient and he decided that he wished to remain in Australia and complete a graduate diploma in management. Despite the graduate diploma being in a different stream, the applicant told the Tribunal that he felt that that diploma would teach him more about managing his own business, financial management and managing employees. He said that the original diploma and advanced diploma only taught him the basics of budgeting “and all” and some managerial qualities but he feels there is much more he can learn.
At the time of the hearing, the applicant had not paid the $14,000 tuition fee for the graduate diploma course. At first he told the Tribunal that he had accepted the letter of offer, however, when pressed, he agreed that he had not in fact signed anything nor sent the letter back accepting enrolment. He agreed that, therefore, at the time of the hearing, he was not yet enrolled in that or any other course. He also agreed that while he had received the letter of offer in May, and it requests that he sign it and return it immediately, he had not done so.
While the Tribunal accepts that enrolling in courses is expensive and the applicant risked losing his tuition fee, the Tribunal notes that the letter of offer of enrolment shows that the applicant was expected to commence the course on 8 July 2019, a week after the hearing, and that the applicant was only required to pay a fee of $2950 prior to commencement of the course, with a payment plan set out in the letter of offer. The Tribunal is not satisfied that the applicant had any genuine intention of commencing this course. There was nothing before the Tribunal from the applicant that showed that the course would progress his learning in the area, or will be a necessary course to undertake to expand his prospects of employment or running any planned business. While the Tribunal accepts the applicant may not have wanted to risk funds, by the time of the hearing at the Tribunal, the applicant had not been studying, and therefore not been paying fees for over 12 months, but had been working as he was allowed to do by his Bridging visa. The applicant has said that his brothers are funding his education.
By his own evidence to the Tribunal, he decided to stay to continue working when his visa was declined. According to information provided to the Tribunal by the applicant, the applicant has been working as a crowd controller since October 2018. His Bridging visa gave him full rights to study, however he only decided to enrol in a further course when he received the information from the Tribunal asking him if he had maintained enrolment, and he appears to have enrolled in a course of which he had little knowledge of its content and its value to his future.
The Tribunal is satisfied that the enrolment in the Graduate Diploma of Management was not a genuine attempt at enrolling in a course which would add value to the applicant’s future; on the contrary, and given the gap in studying prior to that enrolment the Tribunal is satisfied that the applicant intends to use the Student visa regime to prolong and maintain ongoing residence in Australia, and that he is not a genuine student, and this is to be given significant weight against him being granted a further Student visa.

The applicant’s travel and visa history

The applicant has not had a visa refused or cancelled elsewhere, and there is no evidence before the Tribunal to suggest that he has not complied with visa conditions either in Australia or elsewhere. There are no other outstanding visa applications yet to be finally determined. There is no evidence that any of his family have an immigration or visa history of concern. The Tribunal gives the applicant some weight in his favour for those factors.
However, the applicant first came to Australia having been granted a Higher Education Sector (subclass 573) visa to undertake a Masters of Business Administration. He did not commence that course, and instead enrolled in another Masters level course. He did not complete that course, and since that time has enrolled in and completed lower level courses. While he did enrol in a Bachelor of Business, being at a higher education level, that Bachelors course was still at a lower level than that for which he originally came to Australia, and only at the same level of the qualification he came to Australia with. In any event, he did not commence the Bachelor’s course, and instead later enrolled in a lower level course, being the Graduate Diploma. The applicant has not shown progression in his studies, and proposes to study at a lower level to his Indian qualifications, and at a lower level to the level for which he came to Australia. This adds weight to the finding that he has no real career plans for either India or the Middle East, and is not seeking to become skilled for employment or to run a business. Rather, it adds weight to a finding that the applicant is using the Student visa regime to maintain ongoing residence in Australia, and significant weight is to be given to this finding against him being a genuine temporary entrant for study.
There is no evidence that the applicant has entered into a relationship of concern, and there is no evidence that he is in a relationship at all in Australia, or that the applicant has other family or community ties to Australia, and the Tribunal gives these factors limited weight in his favour.
The applicant has travelled twice to India while he has been in Australia for family reasons. The Tribunal accepts that this illustrates that he has maintained some ties to his family in India, and this is to be given a little weight in his favour. However, as has been expressed elsewhere in these reasons, the Tribunal is not satisfied that the applicant has such ties to his family, community or employment in his home country that he has significant incentive to return. Neither, as has been expressed elsewhere in these reasons, is the Tribunal satisfied that he has significant incentive to travel elsewhere to seek employment or be with other members of his family, and these factors outweigh his ties to India, and weigh against him being a genuine temporary entrant.
Having regard to the applicant’s visa and travel history, weighed with the other factors discussed, the Tribunal is satisfied that the applicant is using the Student visa to maintain ongoing residence or circumvent the intentions of Australia’s migration program.

Any other relevant matters

The Tribunal is satisfied that there are no other relevant matters for consideration in relation to this applicant.

Whether the applicant is a minor

The applicant is not a minor and therefore the intentions of a parent, legal guardian or spouse of the applicant are not a relevant factor.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
Conclusion on cl.500.212
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Genevieve Cleary
Member

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

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

[2020] AATA 1836

11 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction