Munish Kumar (Migration)

[2019] AATA 1580

Munish Kumar (Migration) [2019] AATA 1580 (10 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Munish Kumar

CASE NUMBER:  1713159

HOME AFFAIRS REFERENCE(S):           BCC2017/753544

MEMBER:Glenn O'Brien

DATE:10 May 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 10 May 2019 at 1:25pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – ties to home country – length of stay in Australia – absence of travel home – change in study and career paths – study gap – regression in level of study – value of proposed course – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 June 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 24 February 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.

3. The applicant provided the Tribunal with the Delegate’s decision and reasons on review. 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 intends genuinely to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 2 April 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

5. The applicant was assisted in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision 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 or not the applicant is a genuine applicant for entry and stay as a student.

8. 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?

9. 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 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.

10. 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.

11. Adopting the procedure in s.359AA of the Act, the Tribunal put to the applicant that it had on the Tribunal file a copy of the applicant’s enrolment records from the Provider Registration International Student Management System (PRISMS) database.  For completeness, the Tribunal provided the applicant with a copy of the PRISMS summary of enrolment.  The Tribunal explained to the applicant the relevance of the records to the review before the Tribunal. The Tribunal explained the consequences of it relying on the information and confirmed the applicant understood the consequences of the information being relied upon. The Tribunal offered the applicant an opportunity to seek an adjournment to consider the information and asked the applicant whether or not they wished to seek an adjournment or to comment on or respond to the information and the applicant elected to do so at the hearing.

12. The applicant arrived in Australia on a FA600 tourist visa on 29 November 2016 for the purposes of attending a hair care conference.  The applicant subsequently applied for a Student (Temporary) (Class TU) visa, the subject of this application, for the purpose of undertaking general English studies.  The applicant told the Tribunal that he liked it in Australia and decided he wanted to study to improve his English.  At the time of the visa application the applicant stated he wanted to undertake the course for business expansion plans and that “[I] wish to take my salon to the next level and cater to high profile clientele.” 

13. The Tribunal considered whether the applicant has reasonable reasons for not undertaking the proposed study in his home country if a similar course is already available there. The applicant stated there was no specific course in cookery as skills were learned on the job.

14. In considering the applicant’s circumstances in their home country, the Tribunal accepted that the applicant has personal ties to home through his family, which he told the Tribunal he spoke to two to three times a week via video and telephone.  The applicant stated that prior to travelling to Australia he donated blood regularly in India and did volunteer work for the Red Cross. 

15. The applicant told the Tribunal his mother, father and brother reside in India and an uncle resides in Europe.  The applicant stated the family has a home valued at approximately $100,000.  The applicant told the Tribunal that after discussion with his family he decided to enrol in the current course of study to obtain the skills and confidence to open a restaurant in India.  The applicant stated his family offered financial support to him during his study but also receives financial support from a friend in Australia.  The Tribunal questioned the applicant about his plans for the future.  In his application for a visa the applicant stated that (unedited):

    I have completed my Bachelors in Sports from Khalsa College, Yamuna Nagar. which is a part of Kurukshetra University. I run two salons back in India. My branch in Kaithal has 8 to 10 staff members and the one in Pehoa has 5 to 6 members. I have an experience of 4 years in this field no\. As I have decided to pursue English course from Cambridge Academy for a year. my business is being managed by my real brother and my cousin brother, who are handling the two branches of my salon, respectively. This will ensure that I can fund my education in Australia and take care of my living expenses as ell. I am financially sound and being supported by m family members too in this endeavour that I am undertaking. I am basically investing in my future by doing this course. After completing my course. I will go back to India and start orking on my business expansion plan of opening another branch of my salon in Yamuna Nagar. It is a place ith upcoming developments and the Unique Selling Proposition (USP) of the kind of branch I am trying to build ould be the new and westernised customer services. I am learning something ne every single day in Australia. With the help. support and guidance of all the people I have met so far. I am certain that I will accomplish all m dreams. I have been extremely lucky to have gotten this opportunity. I never imagined existed. All I require at this stage now is a visa grant to study and hereby, request you to do the needful and oblige. [sic]

16. The applicant initially told the Tribunal that his business was also run by his brother, but later in evidence stated that it was his brother who ran the business and he was working there so he was able to therefore start a restaurant. 

17. This concerned the Tribunal in two respects. First, the applicant’s initial intent to study to improve his English skills to enable him to expand his hair salon business has now been abandoned and replaced with plans to commence a new restaurant business.  Further, the applicant informed the Tribunal that he enrolled in the current course of study because he wanted to learn something.  Second, the applicant initially stated he owned the business but it was run by his brother, and then that his brother ran the business and he was only working there.   This caused the Tribunal to have concerns as to whether the applicant genuinely intends to stay temporarily in Australia as the stated purpose for study has changed and further the intended study is not, as originally suggested, connected with the applicant’s circumstances as a business owner, given it is his brother, not him, who is the business owner.

18. The applicant told the Tribunal he received approximately $20,000 per annum prior to leaving India and expected to earn approximately $4,000 per month in India on the basis that he would be employed by a hotel or restaurant.  Notably at the hearing the applicant gave evidence that it was now his intention to open his own restaurant.  The applicant informed the Tribunal he is not engaged in employment in Australia and his annual expenses were estimated at $21,600.

19. The applicant told the Tribunal he had not travelled to India since his arrival in Australia due to the restrictions of his Bridging A (Class WA) visa.  The applicant told the Tribunal that he requested his lawyer to vary the visa to allow him to travel but he did not apply to the Department to do so. 

20. The applicant stated he did not have military service commitments and there was no evidence before the Tribunal of any political or civil unrest in the applicant’s home country which may induce the applicant to obtain entry to Australia to remain indefinitely.

21. The Tribunal did not consider that the applicant’s personal circumstances in his home country were a significant incentive to return as the applicant told the Tribunal he did not intend to return to the hairdressing salon as his intention was to open a restaurant.  The applicant informed the Tribunal that he had spoken to a friend and maternal uncle about opening a restaurant but his evidence in this regard was vague and he had no apparent plan or concept about doing so, and indicated he would make those plans after completing his current course of study as it was his intention to first learn about hospitality.

22. In considering the applicant’s circumstances in their home country, on the basis of the evidence before the Tribunal, the Tribunal finds:

    a.The applicant provided reasonable reasons for not undertaking the proposed course of study in their home country.

    b.The applicant does have family ties to their home country and the family has assets in India, however given the length of time in Australia, the absence of travel home, the abandonment of the applicant’s hair salon business, and the uncertainty of any prospective employment upon their return the Tribunal finds these circumstances are not a significant incentive to return.

    c.The applicant has obtained some financial support during their study in Australia from family in their home country however told the Tribunal a friend in Australia provides financial support.  The applicant does not have significant personal assets in their home country or certainty of employment and the applicant’s estimate of earnings were on the basis of being an employee rather than opening his own business.  The applicant informed the Tribunal that he does not currently work in Australia but is able to meet estimated annual expenses of $21,600 which is more than the applicant earned prior to travelling to Australia.  For these reasons the Tribunal finds the applicant’s economic circumstances in their home country present as a significant incentive not to return home.

    d.The applicant does not have any military service commitments which would provide a significant incentive not to return home.

    e.There is no evidence before the Tribunal of political and civil unrest in the applicant’s home country of such a nature that may induce the applicant to apply for a student visa to obtain entry to Australia to remain indefinitely.

    f.There is no relevant evidence regarding the applicant’s circumstances in his home country relative to others in that country and the Tribunal makes no findings concerning the applicant in that respect.

23. The applicant told the Tribunal that although his visa was refused he “wanted to learn something” and decided to enrol in a Certificate IV in Commercial Cookery course.  The course is scheduled to be completed on 12 June 2020 and the applicant told the Tribunal he then intends to pursue a Diploma of Hospitality Management commencing on 13 July 2020 with anticipated completion on 8 January 2021.

24. The applicant stated to the Tribunal he has no family in Australia and lives with a friend who supports him financially.  The applicant stated that he does volunteer on weekends at the Sikh Temple in Logan. 

25. The applicant told the Tribunal he completed his general English courses on 2 February 2018 but did not enrol in the Certificate IV in Commercial Cookery until 11 February 2019.  The applicant told the Tribunal this was due to his bridging visa and that many colleges would not provide him entry.  The applicant also told the Tribunal that he was not offered a place due to his English language skills and issues with the New England College where he attempted for three to four months to obtain a confirmation of enrolment.  He told the Tribunal that over this period he sought many courses in “management”. 

26. Notably, the applicant’s visa status has not changed since completion of his general English courses and his enrolment in the Certificate IV in Commercial Cookery on 11 February 2019. The Tribunal accepts the applicant’s evidence that he had difficulties in obtaining enrolment in the New England College for some three to four months but does not accept that the applicant was unable to enrol in a full time course of study for some 12 months prior to being forwarded a letter by the Tribunal pursuant to s.359(2) of the Act.

27. The applicant stated that he visited Skills Institute Australia, the proposed service provider and demonstrated an understanding of the proposed courses in which he is enrolled.

28. In considering the applicant’s potential circumstances in Australia the Tribunal finds:

    a.Given the period of time the applicant has been in Australia, the Tribunal is satisfied the applicant has developed friendships in Australia through work and study and engagement with the local Sikh community and considers this social and emotional connection to Australia provides a strong incentive to remain.

    b.The applicant receives financial support from family, and from a friend in Australia.  His expenses are met without the necessity to work which provides a strong incentive to remain.

    c.Given the applicant’s change in study and career paths, and break in study, the applicant’s pattern of enrolment evidences the student visa programme is being used to circumvent the intentions of Australia’s migration programme.

    d.In considering the matters set out above, in particular, the applicant’s change in study and career pathways, the applicant’s period of non-enrolment, and the enrolment in a course of study after receiving the Tribunal’s letter pursuant to s.359(2) of the Act, the applicant is using his student visas primarily to maintain ongoing residence in Australia.

    e.Through both study and the time the applicant has been resident in Australia, the applicant has a good knowledge of living in Australia.  The applicant has a reasonable understanding of the proposed course of study, education provider and their current study and living arrangements in Australia.

29. The applicant has significant experience as a masseuse in India and has a Bachelor of Science (Physical Education, Health, Education, Sports).  The proposed course in vocational education is at a lower level than the bachelor level degree already held by the applicant.

30. The Tribunal recognises that it is important to allow for reasonable changes to career and study pathways.  Overall, however, the Tribunal found the applicant’s testimony inconsistent, vague, and unconvincing.  This is not simply a case where the applicant has decided to change careers through study in a VET course.  The applicant has been in Australia since 29 November 2016, when he travelled to Australia to attend a hair care course.  The applicant has since abandoned his career and hair salon in India notwithstanding his stated intention to study English was to expand that business.  The Tribunal is concerned the applicant, already a university graduate before coming to Australia, had chosen to study English to expand his hair salon business, and has now abandoned those plans to complete lower level qualifications in the VET sector in cookery and hospitality management without any clear plans other than a stated intention to open a restaurant upon his return to India. 

31. The proposed course of study has no relevance to the applicant’s previous employment in his home country, and the Tribunal is concerned the applicant’s stated future intention of opening a restaurant is proposed for the purpose of justifying the current course of study.  This concern is reinforced by the applicant’s evidence that plans to undertake that proposed business will not be made until after completion of the courses in January 2021.

32. The applicant’s oral evidence that he wished to return to India and open a restaurant varied from the applicant’s statement in his response to the Tribunal’s letter sent pursuant to s.359(2) of the Act in which he stated “I plan to work as a chef with some reputed hotel for few years, and later open my own restaurant or chain or restaurant.”

33. The Tribunal invited the applicant’s registered migration agent to make submission(s) if any.  The registered migration agent told the Tribunal:

    a.He also speaks Hindi and 50% of the applicant’s message is lost in translation. 

    b.That during the period after completing the general English courses, the applicant applied to many colleges for cookery and hospitality management courses but, in addition to the issues with New England College set out above, was not successful due to his poor English. 

1. Following these submissions the Tribunal confirmed with the interpreter that what was said by the applicant was translated into English.  The interpreter told the Tribunal she interpreted exactly what the applicant had said and did not add anything.

2. The registered migration agent was invited to give examples of where the translation may have been inaccurate and he told the Tribunal the applicant had lost some three to four months in dealing with the New England College and that during the period from 2 February 2018 to 11 February 2019 the applicant applied for hospitality management courses not just “management” courses.

3. This information was put to the applicant and he told the Tribunal that the New England College kept promising enrolment but he did not receive confirmation.  The applicant told the Tribunal that he applied for many hospitality management courses during the period February 2018 to February 2019.  When asked by the Tribunal how he made those applications the applicant told the Tribunal it was through his lawyer.

4. The Tribunal accepts that the applicant made some attempts to enrol in a course of study between 2 February 2018 and 11 February 2019 but was not enrolled in a full time course during this period.  The Tribunal accepts the applicant’s evidence that there was a delay as a result of the actions of the New England College of three to four months but this delay does not explain why the applicant did not engage in study for the entire period from February 2018 to February 2019.  The Tribunal considers that an applicant who is a genuine applicant for entry and stay as a student would not have remained unenrolled in a full time course of study for some 12 months.

5. In considering the applicant’s enrolments and pattern of study and the different reasons offered by the applicant for study, as well as the applicant’s inconsistent evidence in relation to his business, it appeared that the applicant’s evidence was tailored to fit with his current course selection in Australia.  Having studied English courses to undertake his now abandoned hair salon expansion, the Tribunal considered that if the applicant did have a plan to pursue a food and hospitality career outside of Australia, then he could have enrolled in those courses after completion of his English studies on 2 February 2018, accepting there was an explainable delay of some three to four months.  To enrol in the proposed course of study only after receiving a letter from the Tribunal sent pursuant to s.359(2) of the Act indicates that the applicant is enrolling for the purposes of obtaining a student visa to primarily maintain ongoing residence in Australia.

6. Notably, at the time of obtaining a confirmation of enrolment for the proposed course of study the applicant remained on the same bridging visa, which he told the Tribunal was one of the reasons that prevented him from obtaining a confirmation of enrolment from 2 February 2018 when his English studies were complete. 

7. In considering the value of the proposed course of study to the applicant’s future the Tribunal finds:

   a.The course is not consistent with the applicant’s current level of education and represents a regression from his already attained Bachelor of Science (Physical Education, Health, Education, Sports).

   b.Given the applicant’s previous history of employment and the qualifications already obtained, the Tribunal finds the current proposed course of study is of limited value to the applicant in relation to his stated future goals and aspirations.

   c.The course is not relevant to the applicant’s past employment in his home country. The Tribunal does not consider the change in career paths reasonable or relevant to the applicant’s past employment and experience.  While the course appears relevant to the applicant’s now stated career aspirations, the Tribunal finds that those aspirations have been formulated to justify the current course of study.

   d.The remuneration the applicant can expect in their home country is stated to be approximately $4,000 per month on the basis that the applicant is employed in a hotel or restaurant.  The applicant however told the Tribunal he intended to open his own restaurant.  There is no other evidence before the Tribunal in relation to the remuneration the applicant may receive in his home country on completion of his course of study and the Tribunal makes no findings in that regard.

8. The applicant first arrived in Australia in November 2016 and has not since returned home.

9. The applicant told the Tribunal he has not applied for visas in other countries and has disclosed no other travel to the Tribunal. 

10. The applicant has been in Australia since 2016 and completed courses in general English.  The applicant was not enrolled in a full time course of study from 2 February 2018 until 11 February 2019 (with the most current confirmation of enrolment being obtained on 11 February 2019).  The applicant’s proposed course of study is a regression from the Bachelor level qualification already held by the applicant.  In considering the matters set out above, the Tribunal was concerned that the applicant was enrolling in these courses for the primary purpose of maintaining his residence in Australia. 

11. In considering the applicant’s immigration history for the purposes of this application, the Tribunal finds:

    a.The applicant has not been in breach of visas to Australia or other countries.

    b.The applicant has not travelled to other countries from Australia or to Australia from other countries since arriving in 2016 and there is no evidence of visa cancellation or non-compliance with visa conditions and the Tribunal makes no such findings in that regard.   

    c.The applicant has spent a relatively long period of time in Australia undertaking a series of short and inexpensive general English courses, the last of which was completed in February 2018, and now proposes to study further VET courses in food and hospitality.    

    d.On the basis of the matters set out above, the applicant is utilising the student visa primarily to maintain ongoing residence in Australia.

12. The applicant is not a minor and it was not necessary to consider the intentions of the parent, legal guardian or spouse of the applicant.  There was no evidence before the Tribunal in relation to these matters and the Tribunal makes no such findings.

13. As required by Ministerial Direction No.69, the Tribunal invited the applicant to make submissions in relation to any other relevant matter for the purposes of assessing the application.  In response the applicant told the Tribunal that he desired to complete his intended course of study to return to India to open a restaurant and that he had discussed these plans with his family and maternal uncle.  He stated he would develop those plans after completing his study. 

14. The Tribunal considered those matters and finds that the applicant’s proposed course of study is not pursuant to genuine career progression or career change.  The vague intention of opening a restaurant appears to have been developed to fit with the proposed course of study enrolled in after the applicant received the Tribunal’s letter pursuant to s.359(2) of the Act primarily for the purpose of maintaining ongoing residence in Australia.

15. The Tribunal had regard to all the factors in Ministerial Direction No.69 in considering the applicant’s circumstances as a whole and in making its findings and is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

16. For cl.500.212 to be satisfied, subparagraphs (a), (b) and (c) must all be satisfied. Given the Tribunal has found that subparagraph (a) is not met, it is not necessary to consider subparagraphs (b) and (c). 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.

17. 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

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

    Glenn O'Brien
    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.