Ndoja (Migration)

Ndoja (Migration) [2021] AATA 4349 (22 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Diana Ndoja
Mr Arben Buhista
CASE NUMBER:  1935395
HOME AFFAIRS REFERENCE(S):          BCC2019/3919702
MEMBER:Michael Biviano
DATE:22 October 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 22 October 2021 at 5:30 pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – arrived in Australia on a Visitor visa – career change – plans to start a business in Italy – family ties in Australia – maintaining ongoing residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2 cl 500.212, 500.311
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 9 December 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 7 August 2019. At the time of application, Class TU contained 2 subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) for the reason that she was not a genuine applicant for entry and stay as a student because she did not intend to stay in Australia temporarily.
Further, as the applicant had not met the requirements of cl 500.212(a) of Schedule 2 to the Regulations, the delegate determined that her spouse and child, the secondary applicant, had not met the requirements of cl 500.311 of Schedule 2 to the Regulations and the secondary applicant did not meet the criteria for the grant of a Student visa.
The applicants appeared before the Tribunal on 28 June 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Italian and English languages.
The applicants were assisted in relation to the review.
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.
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 was 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.
The applicant is a 45-year-old Italian national who first came to Australia on 15 May 2019 pursuant to a Visitor visa.
The decision record of the Delegate of the Department of Home Affairs dated 9 December 2019, which was provided to the Tribunal by the applicant, confirms that the applicant made the current application for a student (Class TU Subclass 500) visa on 7 August 2019 (Decision Record). The Decision Record set out the reasons and the basis upon which the visa was refused.
At the time of the current visa application, the applicant was enrolled to undertake the following courses: General English 1 to 60 weeks; a Certificate III and Certificate IV in Commercial Cookery and a Diploma of Hospitality Management.
On 9 March 2021, prior to the hearing, the applicant filed with the Tribunal a response within time pursuant to an invitation to supply Student visa information about the courses she was studying and information about her entry and stay in Australia in accordance with s 359(2) of the Act (Response). In addition to the Response the applicant had filed a substantive amount of documentation in support of her application which comprised:
a.confirmation of enrolment (COE) No. ACF78D46 for the applicant to study a Certificate of General English 1 to 60 weeks at Bayside College with a course start date of 5 August 2019 and a course end date of 28 February 2020;
b.letter from Bayside College dated 12 December 2019 reporting on the applicant’s progress;
c.letter from Bayside College from Millicent Rees-Jones addressed ‘To Whom It May Concern’ in support of the applicant’s application;
d.COE No. AD25F064 for the applicant to study a Certificate III in Commercial Cookery at the Australian College of Trade (ACOT) from 2 March 2020 to 28 March 2021;
e.COE No. AD34BF70 for the applicant to study a Certificate IV in Commercial Cookery at ACOT with a course start date of 5 April 2021 and a course end date of 3 October 2021;
f.COE No. AD34C213 for the applicant to study a Diploma of Hospitality at ACOT commencing on 11 October 2021 and concluding on 10 April 2022;
g.COE No. B5791162 for the applicant to study a Certificate of General English 1 to 60 weeks with a course start date of 2 March 2020 and a course end date of 22 May 2020 at Bayside College;
h.COE No. B72ED611 for the applicant to study a Certificate IV in Commercial Cookery with a course start date of 19 July 2021 and a course end date of 16 January 2021;
i.COE No. B72EC245 for the applicant to study a Certificate III in Commercial Cookery from the Australian College of Trade with a commencement date of 15 June 2020 and a course end date of 11 July 2021;
j.COE No. B72F0468 for the applicant to study a Diploma of Hospitality Management at the Australian College of Trade with a commencement date of 24 January 2022 and a course end date of 24 July 2022;
k.submission filed by the applicant’s solicitor (Submission) with the following annexures:
l.COE No. B72F0468 and B72ED611 for the Diploma of Hospitality Management and the Certificate IV in Commercial Cookery at ACOT, which had already been provided to the Tribunal;
m.property deed for the applicant’s property in Vaiano together with translation dated 20 December 2004;
n.COE for completed English course at the Bayside College;
o.letter from Bayside College dated 2 March 2021 confirming her enrolments and completion of English at Upper Intermediate Level;
p.letter from ACOT dated 3 March 2021 confirming enrolment in Certificate III, Certificate IV of Commercial Cookery and Diploma of Hospitality Management;
q.bank account statement from Italy; and
r.letter to payroll officer from the applicant changing her bank account details to Commonwealth Bank of Australia.
Prior to the hearing on 28 June 2021 the applicant filed further material in support of her application including:
a.letter of completion from ACOT confirming that the applicant has completed the Certificate III in Commercial Cookery dated 25 June 2021;
b.COE No. B72EC245 being an amended COE for the applicant to study a Certificate III in Commercial Cookery at ACOT from 15 June 2020 to 11 July 2021; and
c.Certificate III in Commercial Cookery for the applicant from ACOT dated 25 June 2021.
On 5 July 2021 the applicant submitted updated COEs regarding her studies in the Certificate IV in Commercial Cookery and Diploma of Hospitality Management. The applicant submitted COE No. C5F2CA54 for the applicant to study a Certificate IV in Commercial Cookery at ACOT with a start date of 5 July 2021 and a course date ending on 3 January 2022 and COE No. C5F2CC16 for the applicant to study a Diploma of Hospitality Management at ACOT commencing on 10 January 2022 and concluding on 11 July 2022.
The applicant was born in Albania on 10 August 1976. The applicant grew up and completed her secondary schooling in Albania.
After finishing high school, she moved to Italy and gained employment undertaking various jobs. She originally worked as a textile apprentice for approximately a year and after the business closed down undertook work for a period of 15 years in various jobs in the textile industry. From September 2009 to April 2012 the applicant worked doing home duties and domestic work for which she was a part-time employee earning approximately €800 per calendar month. Between May 2012 and August 2013 she worked at Lavabianco 2000 SRL in an industrial laundry on a full-time basis earning approximately €1,650 per calendar month. From March 2014 to April 2019 the applicant worked at EDI FILATI SRL in a textile factory where she was earning approximately €1,500 to €1,700 per calendar month.
The applicant gave evidence her spouse worked initially in an asbestos factory earning between €1,500 and €1,700 per calendar month and subsequently gained employment in a textile factory earning €1,800 to €2,000 per calendar month.
The applicant gave evidence that in March 2019 she lost her job and was unemployed. Further at around this time her spouse had also lost his job in the textile business and they were both unemployed. She gave evidence that both she and her spouse have their own house in Vaiano, Italy and that she has lived there for the last 23 years.
The applicant claimed that in April 2018 at the time her spouse turned 50 she thought it was a good idea to give him a birthday present which comprised a holiday to Australia.
The applicant in the Statement of Purpose provided to the delegate claimed that she had visited Australia twice prior to 2019 to visit her sister who is an Australian citizen. Further the applicant in the Submission claimed that she had first come to Australia on 13 November 2016 on a Visitor visa and stayed for 6 days, returning on 19 November 2016. Further the applicant again visited Australia on 17 October 2018 and stayed for 46 days until 1 December 2018. The applicant then finally arrived in Australia on a Visitor visa on 15 May 2019 and has not returned home.
The applicant claimed that as they were both unemployed in early 2019 they decided that they deserved a holiday and obtained a 3 month tourist visa to come to Australia and take an opportunity to visit Australia and then determine what they were going to do with their lives. The applicant gave evidence they went to Melbourne, Sydney and visited a number of tourist locations.
Whilst in Australia the applicant observed that she liked Australia and came to the realisation that there was an opportunity to undertake studies in tourism and hospitality and improve her job prospects. The applicant gave evidence that Vaiano is located in Tuscany which has a number of opportunities in the tourism industry for people who have learnt English and have obtained an education which supports such roles.
The applicant gave evidence that Vaiano which is approximately 20 km to 25 km from Florence has many tourists in the agritourism industry and that there would be substantive advantages in being qualified as a chef. She claims that she has a cousin who has a pizzeria and that once she has completed her qualifications and learnt to be a chef she could obtain work with her cousin in establishing a business. That business would be in Prato which is the second largest city in Tuscany and has a large number of opportunities.
The applicant has enrolled and completed the Certificate in English and was scheduled to complete the Certificate III in Commercial Cookery on 11 July 2021.
The applicant is currently studying a Certificate IV in Commercial Cookery at ACOT which is expected to conclude in January 2022 and a Diploma of Hospitality Management which will then conclude in July 2022 bringing her stay in Australia to a period of 3 years and 2 months which is a very long period of time to be staying in Australia having arrived here on a Visitor visa.
The applicant gave evidence that upon completing her qualifications here she would return to Italy to work as a chef. The applicant in evidence stated that she believed the likely level of income that she would earn as a chef would be approximately AU$65,000 per annum which is a high level of wages. The applicant in the Response named a website, which referred to the average pay for a qualified chef. However the Tribunal notes that the applicant has no experience and one would expect that the level of income she would receive would be less than the AU$65,000 she has claimed. Further the Tribunal notes that the level of income the applicant has claimed she would receive is €36,000 per annum which equates to AU$56,000 per annum.
Compared to the applicant’s previous levels of income in previous roles that she has worked in Italy the Tribunal accepts that the qualifications she is seeking to complete will improve her employment prospects and level of remuneration back in Italy.
The applicant has not undertaken any further education since completing secondary schooling in 1994. The applicant is now seeking to undertake vocational education training which represents career progression having regard to studies that she had completed prior to coming to Australia.
The applicant is changing her career pathway from factory-based positions to seeking to obtain employment as a chef in a vocational role. The Tribunal recognises it is important to allow for reasonable changes to career and study pathways. However this is not the case where an applicant has merely decided to change careers through undertaking short vocational education training (VET) courses. The courses in which the applicant has enrolled in in Australia are all short VET courses. However the Tribunal accepts by reason of her previously completed studies that they do reveal progression in her course of studies. The Tribunal also accepts that the applicant is seeking to improve her qualifications for the purposes of obtaining employment back home.
The Tribunal notes the applicant has not provided any detailed information about the position that she would obtain back in Italy nor has she provided written documentation that would support her evidence about the level of salary if she returns to Italy.
In the Submissions the applicant stated as follows:
Further, the educational institutions in Australia are prestigious and the education completed in Australia has global recognition. As the applicant is making a significant change in her career, studying in a reputed college will give her an easier entry into the field and will open a wider array of employment opportunities in her home country. The average pay for a qualified chef in Italy is approximately AUD 65,000. The education the applicant receives in Australia will give her a head start to her future career prospects in her home country.
We refer to the above mentioned circumstances to make the submission that the applicant will be immensely advantaged by undertaking her proposed studies in Australia as compared to undertaking similar studies in Italy.
The applicant in evidence conceded that the likely income she could receive in Australia as a chef would be to her belief approximately A$1,000 a week but she was not sure. The Tribunal notes that if the applicant is able to remain in Australia on a full-time basis, then the minimum wage in Australia if she obtained full-time employment as at 1 July 2021 as set out by the Fair Work Commission is $772.60 per week which equates to A$40,175.20 per annum.[1] Ultimately the applicant accepted that Australia had a higher level of wages than Italy. The fact that Australia has a higher level of wages would provide the applicant with a substantial financial incentive to remain here rather than return home.
[1] National Minimum Wage Order 2021 – PR729671.
Further the applicant gave evidence that the economic conditions in Australia were better than those in Italy which would also provide a substantial financial incentive to remain in Australia rather than to return home. The applicant gave evidence that she and her spouse whilst in Australia have not been working due to visa restrictions. When questioned how she and her spouse were supporting themselves here in Australia the applicant stated that they were being supported in part by income they were receiving from Italy as a consequence of renting out their residence, they were receiving financial assistance from her sister who resides here in Australia and her daughter who had come to Australia with her and her spouse was studying commercial cookery also on a Student visa and had work rights. The applicant claims that her daughter will conclude her studies in 2022.
The fact that the applicant and her daughter are both here studying and she is here with her husband as they are unemployed and she seeks to establish a new career is more consistent with her coming to Australia with her family to establish a new life here and provide a substantial incentive to remain here rather than to return to Italy.

The applicant was questioned about whether she could undertake studies back in Italy to become a qualified chef. The applicant gave evidence that she had not previously studied in Italy and she did not believe there was an opportunity for her to study to be a chef as education in Italy centres on young people and not people at her age. Further she claimed she wanted to undertake her studies in English and improve her language skills.
The applicant in the Response extensively set out the reasons why she wanted to undertake her study in Australia. They were as follows:
Undertaking the proposed study in her home country will not give her many advantages of studying in an Australian college, such as the Australian College of Trade. The Educational system in Italy is centered around educating young personnel and are quite inflexible when it comes to older individuals looking for a change in their career. The opportunities for the applicant to enrol in similar studies in Italy is limited. The Italian educational system does not give the applicant an opportunity to gain relevant work experience during the course. As a person undertaking a change in career, the applicant will benefit from hands-on work experience that Australian colleges provide.
Also, Australia being an English speaking county, studying the proposed course here will be advantageous to the applicant to improve her English language skills. The applicant’s primary goal is to start her own business in the hospitality industry in her home country. With the high rate of tourist influx in Italy, knowledge of English will add value to the applicant's chosen career.
Further, the educational institutions in Australia are prestigious and the education
completed in Australia has global recognition.
Whilst these matters may have been the case, the Tribunal notes that the applicant could have undertaken studies in Italy in relation to food and hospitality and other countries in Europe. However having regard to the above matters the Tribunal accepts that the applicant did have a reasonable motive for undertaking the studies here in Australia.
The applicant if she completes the Diploma of Hospitality Management in July 2022, will have been in Australia for a period of 3 years and 2 months which is a very long period of time for someone who had come to this country on a tourist visa for the purposes of visiting this country.
The applicant has lived in Australia for the last 2 years and 5 months and she has a substantial degree of knowledge about living in Australia.
Further the applicant has studied at ACOT since June 2020 undertaking commercial cookery courses. Accordingly by reason of her time studying at the college and studying commercial cookery courses the Tribunal accepts she has a substantial degree of knowledge about both the course and the provider.
The applicant has given evidence that in relation to the residence in Italy that she and her spouse own, they are renting that premises out and the Tribunal notes having regard to the level of income she could earn in Australia together with the level of income they are receiving from the residence in Italy that it would not provide a substantial financial incentive for them to return back home to Italy.
The applicant’s spouse gave evidence that if his wife obtains her Student visa he would look to obtain employment here in Australia and also if possible study English. He claimed he had been studying online to improve his skills. The Tribunal notes that the applicant and her spouse have come to this country in circumstances where they had lost their employment and would appear to be looking at undertaking new ventures and developing a new life for themselves. This is further evidenced by their daughter who is with them also undertaking studies here in Australia.
The applicant has not returned home since her arrival in Australia. However for a substantial part of her stay there have been travel restrictions in place by reason of the COVID-19 pandemic. Consequently the Tribunal makes no adverse finding against her regarding the fact that she has not returned home.
The Tribunal also notes that the applicant has travelled obviously to Albania but also to Germany and to Montenegro. The applicant gave evidence that she has not had any prior visa refusals or cancellations and those matters do not raise any issues of concern. Further there is nothing before the Tribunal from the Delegate’s Decision Record to indicate the applicant has experienced any other visa refusals or immigration issues either in or outside of Australia.
The applicant both in the Response and in evidence did not have any concerns about returning to Italy and she had no concerns about military service commitments or political and civil unrest in her home country. The Tribunal finds they do not present as a significant incentive for the applicant not to return home.
The Tribunal finds that based on her evidence and the circumstances in her home country including the assets that she holds with her spouse, her level of education and support that she has from her family that relative to others in that country she is in a good position and it would not provide a significant incentive for her not to return home.
The Tribunal accepts that the applicant and her spouse have been married for a long period of time and they are not in a relationship of concern for a successful visa outcome.
The applicant has personal ties both in Australia and in Italy. The applicant claimed that she has family members in Italy and in Albania. Those family members include her mother and brother who is in Italy, who they used to go out with and they have friends in Italy. The applicant claims that she keeps in contact with them regularly. Whilst that ordinarily would provide a substantial incentive to return home it must be considered in light of her ties here to Australia. The applicant has been here for a period of 2 years and 5 months and intends staying here for a period of at least a further 10 months to complete her studies. The applicant and her spouse do not have employment back in Italy and appear to be re-starting their lives having both lost their employment back in Italy. Considering the economic circumstances in Australia together with a higher level of wages together with her circumstances here the Tribunal finds that her ties to Italy do not provide a significant incentive for her to return home.
The applicant has substantive ties to Australia. She has her sister-in-law and niece here in Australia who they remain in close contact with and were the reason for her coming to this country in the first place. They are assisting in supporting the applicant and her family financially. The applicant also has the opportunity to earn a higher level of wages and is here with not only her spouse but her daughter and they are making a home for themselves here in Australia. By reason of the duration and stability of her living arrangements they demonstrate strong ties to Australia. The Tribunal finds that such ties demonstrate that she has a strong incentive to remain here in Australia rather than to return home to Italy.
Based on the above matters the Tribunal is not satisfied the applicant has made this application to gain a Student visa to study temporarily and it considers that the primary objective of the application is to maintain ongoing residence here in Australia with a view to remain here permanently. The Tribunal considers the above circumstances are consistent with the applicant’s motivation to remain in Australia on a permanent basis and not on a temporary basis.
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).
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.
Further, as the applicant has not met the requirements of cl 500.212(a) of Schedule 2 to the Regulations, then the secondary applicant does not meet the requirements of cl 500.311 of Schedule 2 to the Regulations and does not meet the criteria for the grant of a Student visa.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Michael Biviano
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.

[2021] AATA 4349

22 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction