Mohammed (Migration)

[2023] AATA 1886

Mohammed (Migration) [2023] AATA 1886 (21 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Masiuddin Mohammed

REPRESENTATIVE:  Mr Mohammed Ismail Saud (MARN: 1909826)

CASE NUMBER:  2120060

HOME AFFAIRS REFERENCE(S):          BCC2021/1702408

MEMBER:Frank Russo

DATE:21 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 21 June 2023 at 4:20pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – multiple course cancellations – applicant changed to diploma level courses – family bereavements – family ties in home country – maintaining ongoing residence in Australia – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 56, 65, 359, 499; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212; Schedule 2, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 December 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 31 August 2021. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

4. The applicant appeared before the Tribunal by telephone on 3 February 2023 to give evidence and present arguments.

5. The applicant was assisted in relation to the review and his representative also attended the hearing by telephone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary applicant for entry and stay as a student.

8. In addition to the application form and copy of the delegate’s reasons for decision, the applicant provided the Tribunal with a response to a s.359(2) invitation on 20 September 2022, which included a completed ‘Request for Student Visa Information’ form and confirmations of enrolment (CoE) for the following two courses with Global Training Academy (GTA):

   a.Certificate IV in Commercial Cookery from 29 November 2021 to 29 May 2023; and

   b.Advanced Diploma of Business from 19 June 2023 to 16 December 2024.

9. The applicant provided a response to the hearing invitation, to which he attached copies of the CoEs which he had already provided.

10. Following the hearing, on 23 February 2023, the applicant provided a Statement of Attainment from GTA in the Certificate IV in Commercial Cookery, dated 22 February 2023, together with a further copy of the CoE for this course.

11. The Tribunal has had regard to these documents. The Tribunal also has a copy of the Department’s file, which includes copies of the applicant’s Indian passport, intermediate education and secondary school certificates, overseas student health cover, a bank letter containing account balance information, copy of a certificate for the Advanced Diploma of Leadership and Management awarded by Fox Training Academy on 21 January 2020, together with an academic transcript and the applicant’s response to a s.56 request from the Department. The Tribunal has had regard to the documents on that file.

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

12. 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?

13. 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.

14. 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.

    Oral evidence at the hearing

15. The applicant confirmed he first arrived in Australia on 13 February 2018, holding a Student visa. He was granted a second Student visa in June 2020, which was valid until 4 September 2021. He confirmed that he first arrived in Australia to undertake a Master of Information Technology, but told the Tribunal that when he arrived in Australia, he was homesick and depressed. He stated that he did not commence the Master of Information Technology and that after six months his enrolment was cancelled. The applicant stated that in January 2019 he enrolled in an Advanced Diploma of Leadership and Management, which he completed in January 2020. The applicant’s representative clarified that the Advanced Diploma of Leadership and Management which the applicant enrolled in was not a CRICOS course and therefore he did not receive a confirmation of enrolment (CoE), although he completed the course and obtained a certificate.

16. The applicant told the Tribunal that he then enrolled in a Graduate Diploma of Leadership and Management at Harvard College, however his enrolment was cancelled prior to the end of the course because he had not been attending the college. He stated that this occurred during the COVID-19 pandemic and that he lost both his grandmother and grandfather to COVID.

17. The applicant confirmed that, at the time of the hearing, he had not yet successfully completed any courses in Australia, although he stated that he was due to complete the Certificate IV in Commercial Cookery in May 2023. He stated that after this course he is enrolled to start the Advanced Diploma of Business, which he will complete in December 2024.

18. The applicant stated that after completing his proposed course he plans to return to India to open a business in his home city of Hyderabad in hotel management and cookery. He stated that there are many new hotels opening up in his city. When questioned how the Advanced Diploma of Business would assist him with these plans, he stated that when he returns to India, he will try to find a job in a hotel. He stated he will get a job on the basis of the certificate courses he obtains in Australia. He stated that he will open his own business in the hotel industry after this, and that he can learn to prepare food from different cuisines for western tourists.

19. As to why he has chosen to study in Australia rather than in India, the applicant stated that there are cookery courses in India, though in these courses, 80-90 per cent of the focus is on Indian cuisine. He stated that he wants to learn to make foods of different nationalities so he can find jobs in international hotels. The applicant confirmed he had completed a Bachelor of Technology in India from 2013 to 2016. He did not work after he completed this course until arriving in Australia in 2018, stating that he was applying for jobs but found it difficult to find one without having work experience.

20. The applicant stated he is currently enrolled at the Global Training Academy, which he chose because one of his friends completed a course there and recommended it. He stated that the college is close to his home and the staff are good. The applicant stated that at the time of the hearing he had completed approximately 65 per cent of the Certificate IV in Commercial Cookery. He stated that he has completed 20 units and submitted a further 6 assignments, for which he hoped to receive results within the next fortnight. He stated that he still had 33 units to complete. The Tribunal questioned why the applicant had not provided a transcript of his studies to date and noted that he had provided no evidence of progress with any of his courses of study since arriving in Australia. The applicant stated that he had requested an interim transcript two days before the hearing. He stated that he had provided a letter from education provider, which confirmed his enrolment and the units he has completed.

21. The applicant confirmed that he has been working as an access taxi driver since June 2020 and earns approximately $800 to $1,000 per week. He stated that he believes he can earn $65,000 per year as a chef in India. When questioned about the basis for this, he stated that he has been searching the internet for head chef roles, and he could earn this in 5-star hotels and mentioned he had looked at kitchen management roles on websites such as that for Meriton. The Tribunal put to the applicant that his employment in Australia may act as an incentive to remain in Australia after he completes his proposed studies, particularly given he has no prior work experience in India. The applicant responded that he will be going back to India on completion of his courses of study. The Tribunal also put to the applicant that there is no evidence that he has worked in the hospitality industry or has a genuine interest in it, to which the applicant did not respond.

22. The applicant gave evidence that his personal ties to India include the presence of his parents and brother. He stated that he has no family in Australia and is not in a relationship. The applicant stated that his assets in India include the family home and agricultural land which is in his name.

23. The applicant confirmed he has not previously had a visa application refused and has no outstanding applications for other classes of visas. He confirmed that he has returned to India on three occasions since first arriving in Australia, the most recent occasion being in 2022 for approximately three months.

24. The Tribunal adopted the procedure in s.359AA of the Act to put to the applicant the particulars of information from his enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal put to the applicant that his PRISMS record indicates he has had the following enrolments:

    a.He was enrolled in the Master of Information Technology from 26 February 2018 to 15 January 2020, however his enrolment was cancelled on 22 March 2018 due to non-commencement of studies;

    b.He had an enrolment in an Advanced Diploma of Leadership and Management from 13 August 2018 to 7 February 2020, however this course is listed as ‘Inactive’;

    c.There was a delay in over 6 months before the applicant commenced another registered course after his Masters enrolment was cancelled. He was next enrolled in a Diploma of Leadership and Management from 8 October 2018 to 13 September 2019 and an Advanced Diploma of Leadership and Management from 7 October 2019 to 18 September 2020. His enrolment in the Diploma course was cancelled on 21 May 2019 because ‘Student Notifies Cessation of Studies’. His enrolment in the Advanced Diploma was also cancelled the same day;

    d.The applicant was next enrolled in a Diploma of Business from 11 November 2019 to 8 November 2020, however this enrolment was cancelled on 3 December 2019 due to non-commencement of studies;

    e.The applicant then enrolled in a Graduate Diploma of Management (Learning) from 13 April 2020 to 11 April 2021, however that enrolment was cancelled on 11 May 2020 due to non-commencement of studies;

    f.The applicant was enrolled a second time in the Graduate Diploma of Management (Learning), this time from 6 July 2020 to 4 July 2021, however that enrolment was cancelled on 15 April 2021 because ‘Student left provider – transferred to course at another provider’;

    g.The applicant has a third enrolment listed for the Graduate Diploma of Management (Learning) from 16 November 2020 to 14 November 2021, however that enrolment is recorded as cancelled on 13 March 2020, prior to the course start date;

    h.The applicant then enrolled in the Certificate IV in Commercial Cookery from 29 November 2021 to 29 May 2023, and was recorded as studying at the time of the hearing; and

    i.The applicant had two enrolments for an Advanced Diploma of Business, the first of which was cancelled prior to the start date because the provider was unable to deliver the course. He has an enrolment in this course from 10 July 2023 to 5 January 2025, which is recorded as ‘Approved’.

25. The Tribunal explained that this information was relevant because it may indicate that he did not commence the Masters course when he arrived in Australia and did not commence studying a course until 8 October 2018, almost 9 months after his arrival in Australia. It indicates that while he then commenced the Diploma of Leadership and Management on 8 October 2018, he ceased his studies in this course on 21 May 2019 and did not commence another course of study until 6 July 2020. This is a period of over 13 months during which the applicant did not study. The Tribunal noted that the applicant was holding a Student visa until 15 March 2020, and therefore did not study for a period of over 9 months while holding a Student visa. Although the applicant commenced the Graduate Diploma of Management (Learning) on 6 July 2020, he ceased studying that course on 15 April 2021 when he transferred to a course with another provider. The applicant did not recommence his studies until he commenced the Certificate IV in Commercial Cookery on 29 November 2021, a further gap of over 7 months in his studies.

26. This information may indicate that since arriving in Australia in February 2018 and holding Student visas and associated Bridging visas, the applicant was not studying in a registered course of study for periods totalling more than 28 months, or for over two years and four months. The Tribunal also put to the applicant concern that his enrolment record indicates that he arrived in Australia for the purpose of completing a Masters-level degree, and while he has since held enrolments in a Graduate Diploma course, he is currently proposing to study at the vocational level. He has also enrolled in courses in a range of unrelated fields, including Information Technology, Leadership and Management, Business and Commercial Cookery, which may suggest he is enrolling in a range of courses to maintain residence in Australia.

27. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records and advised that he may be granted time to comment on or respond to the information if needed. The applicant indicated that he wished to respond to the information at the hearing. He stated that he has made lots of mistakes, though he has been studying his most recent course for one-and-a-half years and is now a good student and is completing his assignments on time. When asked whether there were any other reasons why he did not commence the Master of Information Technology, he stated no, then stated that he was depressed. When asked if there were any other reasons why he did not enrol in another registered course until October 2018, the applicant again stated that it was his mistake, and he apologises for it. The applicant clarified that he was enrolled in the Advanced Diploma of Leadership and Management from January 2019 to January 2020, however it was a non-CRICOS course. When questioned why he did not complete the Graduate Diploma of Management (Learning), the applicant stated that during COVID-19 he lost both of his grandparents and he could not return to India because the borders were closed. He stated that his grandfather passed away in August 2020 and his grandmother passed away seven months later in early 2021. The applicant did not provide reasons for the gap in his studies from April 2021 to November 2021.

28. The Tribunal put to the applicant that he had provided no documents in support of his claims that he was performing well in the Certificate IV in Commercial Cookery. The applicant’s representative submitted that the applicant had requested a transcript from his education provider, but they would need more time and requested an extension of three weeks. He submitted that the applicant has made a lot of mistakes but has been studying for one-and-a-half years and will finish his course, and once the applicant obtains a transcript, they will provide it to the Tribunal. The Tribunal granted the applicant until 24 February 2023 to provide a transcript of his studies towards the Certificate IV in Commercial Cookery.

    Findings regarding the factors in Direction No.69

29. Having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account all the relevant information, the Tribunal is not satisfied that the applicant meets the genuine temporary entrant criterion.

    The applicant’s circumstances in his home country

30. I accept that the applicant’s personal ties to India include the presence of his parents and his brother. Although the applicant has not provided evidence of assets in India, I accept his claims that he has agricultural land in his name, as well as his family’s home in India. I also accept that the applicant has returned to India on three occasions since arriving in Australia in February 2018, the most recent of which was for over three months from March to July 2022. The applicant gave evidence that he was unemployed in India after he completed a Bachelor of Technology in June 2016, and there is no evidence of any employment ties to India. I accept however that the applicant’s personal family ties would serve as a significant incentive for him to return to his home country and I take this into account in considering his circumstances as a whole.

1. As to the applicant’s economic circumstances, I have accepted that he has assets in India. As noted, he gave evidence that he was unemployed for over 18 months prior to arriving in Australia. The applicant gave evidence that he has been self-employed as a taxi driver since June 2020, and that he has been earning approximately $24,000 per year. He claims that he could earn the equivalent of AUD $65,000 as a chef in India. Although I have some concerns about the applicant’s previous unemployment in India and his regular work as a taxi driver since June 2020, for which he is only earning approximately $24,000 per year, and so on this occasion I do not make any adverse findings regarding the applicant’s economic circumstances, nor do I find that they would present as a significant incentive for the applicant not to return to his home country.

2. I have considered the applicant’s stated reasons for wishing to undertake the proposed courses of study in Australia rather than India, including the reasons provided in his s.359(2) response, and make no adverse findings regarding this factor.

3. There is no evidence of any military service requirements or of any civil or political issues which would act as an incentive for the applicant to remain in Australia. There is no adverse evidence before the Tribunal regarding the applicant's circumstances in India, relative to others in that country, and the Tribunal makes no adverse findings in relation to these factors.

   The applicant’s potential circumstances in Australia

4. The applicant first arrived in Australia in February 2018, holding a Student visa. He was granted a second Student visa in June 2020, which was due to cease on 4 September 2021. The applicant first arrived in Australia to undertake a Master of Information Technology, but he did not commence the course. He did not commence a registered course of study until 8 October 2018, when he commenced the Diploma of Leadership and Management. His enrolment in that course was however cancelled on 21 May 2019 due to the applicant notifying his education provider that he was ceasing his studies. The applicant then did not commence a registered course of study until he commenced the Graduate Diploma of Management (Learning) on 6 July 2020. The applicant’s enrolment in the Graduate Diploma was cancelled on 15 April 2021. The applicant was then unenrolled until he commenced the Certificate IV in Commercial Cookery on 29 November 2021. The applicant claims that he has been doing well with the Certificate IV in Commercial Cookery, which he was due to complete on 29 May 2023, after which he intends to undertake the Advanced Diploma of Business, which according to his PRISMS enrolment record, he is now scheduled to complete on 5 January 2025. If the Student visa were granted, this would bring the applicant’s stay in Australia to approximately seven years, which is a relatively lengthy period of time considering the applicant’s academic record to date.

5. The applicant provided a statement of attainment for the Certificate IV in Commercial Cookery after the hearing, which indicates that as at 22 February 2023 he had completed 15 units of this course. I accept that the applicant appears to have been performing well in the Certificate IV in Commercial Cookery and give this weight in considering his circumstances in Australia. While I have considered the applicant’s stated reasons for not making greater academic progress since arriving in Australia on a Student visa in February 2018, I do not consider that he has provided a sufficient explanation. As noted above, the applicant did not commence the Masters course which he arrived in Australia to undertake, and then remained unenrolled for a period of over 7 months before then enrolling in a vocational course at the Diploma level. While I have considered the applicant’s stated reasons for not commencing the Master of Information Technology, including his claims of depression and feeling homesick, the applicant has not provided any evidence to support these claims, such as any evidence that he sought medical treatment for a mental health condition. I am not satisfied with the applicant’s explanation given his failure to commence the Masters course, the delay in enrolling in a further course and his subsequent enrolment in a course in a different field of study at a vocational level.

6. I am also not satisfied with the applicant’s explanation for why he did not complete the Diploma of Leadership and Management or the Graduate Diploma of Management (Learning), nor for the other significant gaps in his study of a registered course. These gaps total more than 28 months since the applicant’s arrival in Australia in February 2018. While I have taken into account the applicant’s completion of an Advanced Diploma of Leadership and Management with Fox Training Academy in January 2020, the applicant’s representative confirmed that this was not a registered course of study and will therefore not appear on the applicant’s PRISMS record. The Tribunal notes that the applicant was granted two Student visas for the purpose of undertaking registered courses of study. While holding those visas, the applicant did not successfully complete any registered courses of study. Nor has he provided any evidence of course progress which he made while holding those Student visas. I consider that the applicant has been provided with sufficient opportunities to obtain qualifications from registered course providers and have concerns that the Student visa may be used to maintain ongoing residence and to circumvent the intentions of the migration programme.

7. I note that I have also taken into account the applicant’s claims at the hearing regarding the difficulties which the COVID-19 pandemic had on his studies, including his information about the deaths of two of his grandparents. I have also noted the response the applicant provided to a s.56 request from the Department in relation to concerns about his enrolment history. In that response the applicant cited concerns about COVID-related lockdowns and fears that he would get infected and die, as well as his claim that he spoke to an agent, who told him it would be ok to take a break from his studies. He claims that he was young and was not aware of rules and regulations, such as breaching Condition 8202 of his Student visa. While I accept that the COVID-19 pandemic would have caused some disruption to the applicant’s studies and he may have had fears associated with the pandemic, I do not find these explanations to be sufficient explanations for the applicant’s lack of academic progress in registered courses of study while holding two Student visas. I also note that the applicant has indicated in his s.359(2) response that he worked as a taxi driver from June 2020, and he confirmed at the hearing that he was still working in this role, and the applicant continued to work despite not being enrolled in a registered course of study from 15 April 2021 to 29 November 2021, a period of over 7 months. I also consider that it was the applicant’s responsibility to ensure that he was aware of the conditions attached to his visas.

8. I make no adverse findings regarding the applicant’s ties with Australia. There is no evidence before the Tribunal to suggest that he has any family ties or strong community ties to Australia. There is nothing to suggest that he has entered a relationship of concern. I also make no adverse findings regarding the applicant’s knowledge of living in Australia, nor of his education provider or course of study, given he has provided evidence of progress in completing units for the Certificate IV in Commercial Cookery.

   Value of the course to the applicant’s future

9. The applicant claims that the proposed courses of study will assist him to find work in India within the hospitality industry as a chef. He claimed at the hearing that he can earn the equivalent of AUD $65,000 per year as a chef in India. He claims in his s.359(2) response that executive chefs make between 1 to 2 lakhs per month, and that the salary of those who work for luxury and deluxe hotels may be higher still. He claims that in addition to hotels and restaurants, he can find work in bars, night clubs and the food service sector.

10. The applicant possesses a Bachelor of Technology which he was awarded in India in 2016. While this is a higher qualification than the vocational level courses which he is proposing, I note that the applicant was unemployed in India for over 18 months after completing this qualification. While the applicant already has a higher qualification from his home country, on this occasion I make no adverse findings in relation to this factor given the applicant did not find employment in his home country with his existing Bachelor degree.

11. The Certificate IV in Commercial Cookery is relevant to the applicant’s stated career as a chef and to roles within the hospitality industry generally. Given the applicant’s previous employment history, I am prepared to accept that his proposed qualifications in Commercial Cookery and Business may assist the applicant to obtain employment or improve his employment prospects in his home country. Overall, I make no adverse findings regarding the value of the course to the applicant’s future.

    The applicant’s immigration history

12. As noted above, the applicant arrived in Australia in February 2018. He has previously held two Student visas, and currently holds an associated Bridging visa. While the applicant held his two previous Student visas, he did not successfully complete any registered courses of study, although I accept that he completed an Advanced Diploma of Leadership and Management in January 2020, a copy of which he has provided to the Tribunal. The applicant’s representative confirmed this was a non-CRICOS course, for which the applicant did not receive a CoE. The applicant’s enrolment in that course is not listed on his PRISMS record. While his PRISMS record does include an enrolment for an Advanced Diploma of Leadership and Management commencing in October 2019, that enrolment was cancelled in May 2019, prior to the course commencing.

13. The applicant did not commence the Master of Information Technology, which was the subject of his first Student visa, and his enrolment in this course was cancelled on 22 March 2018. He remained unenrolled until he commenced a Diploma-level course on 8 October 2018. This is a period of over 6 months that he remained unenrolled, in breach of the enrolment requirement in Condition 8202 of his visa. The applicant did not study in a registered course of study from 21 May 2019 to 6 July 2020, a period of over 13 months, despite holding a Student via which was valid until 15 March 2020. This was a breach of the course attendance requirement in Condition 8020 of over 8 months. The applicant also did not complete the Graduate Diploma of Management (Learning) which was the subject of his second Student visa. He ceased studying on 15 April 2021 when his enrolment in this course was cancelled, despite holding a Student visa which was valid until 4 September 2021. This is a further breach of the enrolment requirement of over four months.

14. The applicant did not commence the Certificate IV in Commercial Cookery until 29 November 2021, and the Tribunal has concerns that given the applicant’s enrolment history as a whole, including the gaps in enrolments in registered courses of study and in the applicant actually commencing some of his courses, the applicant may have enrolled in this course primarily to maintain ongoing residence. I also have concerns that the applicant has breached the enrolment, course attendance and course progress requirements of Condition 8202 of his Student visas on more than one occasion, and for period of time which are substantial when totalled together.

15. While I have taken into account and given weight to the applicant’s current progress with the Certificate IV in Commercial Cookery, which he was on track to complete by 29 May 2023, I have concerns with the applicant’s poor enrolment history for the two Student visas which he has previously held. As noted above, while I have considered the applicant’s stated reasons for not making greater academic progress while holding these two Student visas, including the explanations set out in his s.359(2) response and in his response to the s.56 request from the Department, I do not consider these explanations sufficient to explain the significant gaps in enrolment and course attendance and his failure to complete any registered courses of study while holding these two Student visas.

16. Given the amount of time the applicant has now spent in Australia and his enrolment history as set out in his PRISMS record, I have concerns that a further Student visa would be used primarily to maintain ongoing residence. The Tribunal gives weight to the applicant’s circumstances that indicate that the Student visa is intended primarily for maintaining residence in Australia.

17. I do not make adverse findings regarding the remaining factors relevant to the applicant’s immigration history. There is nothing to indicate that he has an adverse visa or migration history to any other country. There is nothing to suggest that he has previously been refused a visa application or had a visa cancelled or considered for cancellation. There is nothing to indicate that he has any other applications for a different class of visa which are yet to be finally determined. However, for the reasons provided above, the Tribunal has concerns regarding the factors at clauses 14(b)(i) and (iii) of Direction No.69.

    Any other relevant matters and conclusion regarding findings

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

19. For the reasons set out above, I have significant concerns regarding a number of factors set out in Direction No. 69, including factors relevant to the applicant’s potential circumstances in Australia and his immigration history. While I have taken into account other circumstances which work in the applicant’s favour, such as his circumstances in his home country and the value of the proposed courses of study, on the basis of the above and after weighing up the applicant’s circumstances as a whole, I am not satisfied that the applicant intends genuinely to stay in Australia temporarily.

20. Accordingly, the applicant does not meet cl 500.212(a).

21. 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.

22. 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

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

    Frank Russo
    Member

    
    

    Attachment – Direction No.69

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

    This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

    c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    d.any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

    2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

    3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; and

    d.apparent inconsistencies in information provided by the applicant in their Student visa application.

    5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

    6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

    7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

    The applicant’s circumstances in their home country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    d.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

    13.An applicant’s immigration history refers both to their visa and travel history.

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.