Nirmaan (Migration)

[2020] AATA 3472

Nirmaan (Migration) [2020] AATA 3472 (2 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Khushdeep Kaur Nirmaan

CASE NUMBER:  1923148

HOME AFFAIRS REFERENCE(S):          BCC2017/1025479

MEMBER:Meredith Jackson

DATE:2 July 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 02 July 2020 at 3:49pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not a genuine temporary entrant – Federal Circuit Court remittal – resided in Australia for six years – ceased studying in 2016 – changed from degree to vocational course – marital problems – no reasonable academic progress – no reasonable steps taken to address difficulties – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359(2), 499

Migration Regulations 1994, 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 13 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 15 March 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 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 temporarily in Australia.

4.    The matter is before the Tribunal because of an order of the Federal Circuit Court of Australia (FCCA) of 16 August 2019, which found the Tribunal, separately constituted, erred in finding that the applicant had not provided a response to its invitation for student visa information issued under s.359(2) of the Act, and did not take into account the applicant’s response, in circumstances where the applicant provided a response on 28 August 2018.

5.    The applicant appeared before the Tribunal on 27 May 2020 to give evidence and present arguments.

6.    The applicant was assisted in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

9. 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?

1. 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.

2. 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.

Case summary

1. The applicant is a 26 year-old citizen of India. She first came to Australia in 2013 on a visa issued for the higher education sector, to study a Bachelor of Commerce. She benefited from the streamlined visa processing arrangements at the time because of her higher education commitment. She completed an initial, short course of English and began to study towards the degree. Within seven months her course was cancelled for unsatisfactory progress. Three weeks later she enrolled in vocational level, certificate III and IV courses in commercial cookery. In June 2016 she ceased studying. A week before the hearing, in May 2020, she enrolled in a six-month course, a Diploma of Hospitality Management. The applicant attributes gaps in her study record to parental pressure, poor immigration advice, marital problems and depression. She is pursuing a divorce from her husband of six years. He is in India, having been refused a dependant visa. The applicant has been to India once since she arrived in Australia. She claims she has been offered a job in a large hotel in Amritsar, India as a chef and that she will go home in December 2020 when she completes her current course.

Written and oral evidence considered

1. The Tribunal has had regard to the following documents and evidence:

   a.Delegate’s decision record of 13 June 2017, provided by the applicant;

   b.The applicant’s record in the Provider Registration and International Student Management System (PRISMS);

   c.Confirmation of Enrolment (COE) provided by the applicant for a Diploma of Hospitality Management commencing on 8 June 2020 and ending 7 December 2020;

   d.Written submissions of 26 May 2020 from the applicant to the Tribunal including divorce document dated 24 May 2020, medical certificates dated 23 May 2020 for applicant, medical documents for Gurjant Singh; statement to Tribunal in support of applicant’s case; marriage certificate dated 22 May 2014; academic documents and records;

   e.Order of FCCA;

   f.Letter sent to applicant on 13 August 2018 under s.359(2) and response of 28 August 2018 (see paragraph [14], below);

   g.The Tribunal decision of 7 December 2018;

   h.Departmental and Tribunal files;

   i.Tribunal letter sent to applicant on 22 May 2020 attaching her PRISMS record.

   Submission received 28 August 2018

2. As described in paragraph [4] above, the Tribunal’s decision of 7 December 2018 was remitted by the FCCA because it did not take into account the applicant’s response to a letter sent under s.359(2) of the Act, in circumstances where the applicant provided a response on 28 August 2018.

3. The Tribunal has had regard to the response received by the Tribunal on 28 August 2018, which in the broad, submitted the following information in a letter and a completed form Request for Student Visa Information under s.359(2) of the Migration Act 1958. This response has been taken into account in this decision:

   a.The applicant did not know that switching from a Bachelor of Commerce to (a vocational certificate in) commercial cookery was not an eligible course for her visa arrangements;

   b.Her brother had passed away; she could not travel; this caused her distress while she was studying a Diploma of Hospitality;

   c.Outline of courses completed and not completed; paid and unpaid work in Australia at an Indian restaurant, as a waitress, and at an aged care home as a personal care assistant where she was still working in 2016 for $AUD 23,000 per annum;

   d.The applicant’s father was ill when she travelled home from 15 May 2014 to 1 June 2014; she has visited no other countries;

   e.Her living expenses total $AUD 1290 per month; she has no assets.

   f.She had a brother living in Australia (Mekhadeep Singh);

   g.She intended to study nursing: a Diploma of Nursing and Bachelor of Nursing which she planned to start in next coming intake.

The hearing

1. Prior to the hearing, on 22 May 2020, the Tribunal provided the applicant with information that it said may be raised at the hearing, being a copy of her record in the Provider Registration and International Student Management System (PRISMS).

2. At the hearing, the Tribunal, under section 359AA of the Act, referred the applicant to information about her held in PRISMS and explained its relevance to the review in that the information might be the reason, or part of the reason to affirm the delegate’s decision. The Tribunal outlined the information, which records chronologically the applicant’s academic history in Australia, that is, her enrolments, commencements, cancellations and finalisations. The Tribunal said it had not made up its mind about the information. The Tribunal asked questions about the information during the hearing and the applicant was invited to respond. The Tribunal stated the applicant had been sent a copy of the record prior to the hearing and asked the applicant if she had considered it sufficiently or wished to seek further time to consider it. The applicant said she was prepared to comment on the information and said she understood its significance and why it was relevant to her case.

3. The applicant stated the following at the hearing, which includes statements made in relation to her PRISMS record:

   a.She completed year 12 of senior secondary school in India;

   b.She was not able to study any higher in India because her parents forced her to study in Australia; when she came to Australia her parents enrolled her to study a Bachelor degree in commerce or business; she was only 19 years old at the time and she could not resist; once in Australia she found she was not interested in commerce but was interested in cookery;

   c.In India cookery is not seen as a good vocation, nobody wants to study hospitality in India because the education system; these days hospitality is more popular as new hotels have come online and there is more demand for chefs;

   d.Her parents were not happy with her change to cookery at first but now they are happy;

   e.When she finishes her Diploma of Hospitality Management in December 2020 she will go back to India to start a career; she does not want to stay in Australia because her parents are alone, and further, her divorce proceedings will soon commence, having been delayed by COVID-19; she and her husband are separated;

   f.Her mother and father live in India and she has no siblings; she has no family in Australia; she has a room in a shared house in Australia; her husband was refused a dependant visa after they were married in 2014; after that she did not go home because of her marriage problems; these were created by additional dowry demands for her husband’s business interests; she became depressed when her parents wanted her to stay in the marriage; it took her four years to convince her husband they should divorce;

   g.The Tribunal expressed a concern that in the current global pandemic her divorce may not be granted by the time she finished her study in December 2020 and this might deter her from going home; the applicant responded that her divorce will “101 per cent” be finalised by then; she is certain to go back in December 2020 because her father is not well as the medical reports she sent to the Tribunal indicate, and she wants to stay with him; she is an only child; she does not wish to return because of a visa refusal, she wants to complete her course and go; she intends to work as a chef in India;

   PRISMS record

   h.The applicant stated initially that her initial Bachelor of Commerce was cancelled for unsatisfactory progress that she attributes to her mental health issues and marriage problems;

   i.The Tribunal pointed out to the applicant that she had initially said she switched courses because she wanted to study cookery rather than commerce, but now she seemed to be saying her marriage problems disrupted her studies. The applicant said that the depression started around the time of her certificate courses in 2015, she was unable to study because of her marriage problems; she enrolled in a Diploma of Hospitality but it was cancelled, it happened because of her depression; she had earlier meant to say that she switched to cookery for career reasons but stopped studying in 2015 when she had difficulties in her marriage; the marital issues are also what caused her delay in completing a Certificate IV in Commercial Cookery; the Tribunal pointed out that PRISMS records that the course was cancelled for non-payment of fees; the applicant said she had not paid her fees because she was under pressure from her husband’s financial demands; and she did not have any work to support herself;

   j.She did not contact the Department or explain her study problems to anyone because at the time she was depressed; when she went back to study a second time in a Certificate IV in Commercial Cookery in April 2016 her father provided the funds; that allowed her to complete it June 2016;

   k.She enrolled in a Diploma of Hospitality Management starting in January 2017 to be followed by a Bachelor of Business for July 2017; these courses were cancelled after her visa was refused; her previous agent had told her that she had no rights to study on a bridging visa; she did not query that with the Department or anyone else;

   l.The Tribunal said it had noted that she had enrolled in a Diploma of Hospitality Management and a Bachelor of Business in January 2017, and it could be perceived that she had done so because she intended to apply for a visa in March 2017. The applicant was invited to comment;

   m.The applicant said after the visa was refused, she continued to experience “mental problems” and her previous representative told her she could not commence the Bachelor of Business she planned to start in 2017 because she did not have study rights;

   n.The Tribunal said it had noted she was enrolled to commence a Diploma of Hospitality Management in June 2020, and four years had passed since she last studied, which was in 2016; the Tribunal asked if she wished to comment; she responded by stating that she now has a new representative who told her she did have rights to study; so that is why she enrolled when she did;

   o.The Tribunal said because she had not studied since 2016, and then had enrolled a few days before the hearing, this might suggest she has enrolled for the purposes of the review rather from an ambition to study; the applicant said that is not the case, she had only recently contacted her representative which was when she learned she had the right to study;

   p.The Tribunal said it might have a concern that the applicant is using the student visa program to extend her stay because staying in Australia might keep her away from her marital issues in India, and this might constitute disincentives for her return home; the applicant said she is not interested in staying in Australia; she is not working here and has not done so for two years, she had been supported by her father since her arrival; her husband had not supported her at any time emotionally or financially; this is another reason to support her father now;

   q.The applicant said she has a job offer as a chef from a hotel named Taj Swarnk in Amritsar; but because of COVID-19 she did not have written evidence of the offer, but might be able to get something to the Tribunal in a few days; the offer had indicated she would be paid INR 35,000 a month in the job, which was approximately $AUD 900 a month by her estimate; the Tribunal said accepted that she had a job offer as it appreciated the difficulty of seeking information from overseas during COVID-19;

   r.Asked if she had worked in Australia, the applicant said she had worked for around two years, on and off; after extensive questioning, she claimed she worked in a factory; it was called Icon Plastic in Hallam, Victoria, where she worked 40 hours fortnightly for around $AUD 700; she could not recall when she started and left the job; she had not worked for a year;

   s.The Tribunal said she had claimed an abiding interest in cookery, and her statement said she had learned advanced hospitality skills in her studies, and yet she said in her statements at the hearing that she had not worked in hospitality in Australia; the applicant said she had applied for hospitality jobs but did not get an offer because she had not finished her studies; the Tribunal then raised a doubt about whether all potential employers had said they had no hospitality jobs for students; the applicant said this had been her experience, people wanted her to finish her studies first;

   t.The Tribunal raised that the delegate’s decision highlighted that she had had opportunities to seek deferral from her studies due to illness, or could have gone home to India to recover, yet she had remained onshore not complying with visa condition 8202; the applicant said in response that her depression and other problems meant she could not make decisions or approach her education providers about her problems;

   u.The Tribunal indicated that she had not provided clear supporting evidence that she had sought medical help for her claimed depressive condition, that her medical submissions were not specific; the applicant responded that her doctor visits were about her depression;

   v.The Tribunal asked why she had not attempted a Bachelor degree at any point since arrival despite that level being consistent with the grant of her initial higher education visa; the applicant responded that she only needed a Diploma of Hospitality, she did not need a degree, because she had a job in India now;

   w.The Tribunal asked how confident she was that she would still be able to rely on the employment offer on return given the impact of COVID-19; the applicant said she was certain, it was a big hotel and she would definitely go back to take up the role;

   x.She saw no circumstances in India that would prevent or dissuade her from going home; she was keen to take care of her father now and was committed to going home.

4. The applicant’s migration agent commented towards the end of the hearing that the applicant had been very young when she came to Australia, had had no background in commerce to prepare her for a Bachelor of Commerce, had married while young and her marriage had failed; these factors had disrupted her studies, but she was now getting a divorce and things would change for the better when she returns to India.

Conclusions and findings

The applicant’s circumstances in their home country

1. Direction 69 requires the Tribunal to consider the applicant’s circumstances in her home country.

2. The applicant claims she has a job in India in a hotel, as a chef. The Tribunal notes she has not provided evidence of the job but has accepted that she has been made an offer and that the salary she claims she will receive is reasonably consistent with entry level work in such a role, albeit the conversion is lower than her $AUD 900 a month estimate, at around $AUD 667 a month. The applicant claimed in a statement provided to the Tribunal on 26 May 2020 that:

   My AQF qualifications and related skills, matched with my expertise in

   hospitality sector will do wonders for my professional career in India.

   Hospitality sector is in the rise in India due to upcoming of various hospitality

   chains, hotels and industries. The increase in standard of living in Indian society

   has increased and thus, has fuelled such a rise in hospitality and eatery

   business in India. I will seek well rewarding employment opportunities in India

   after I complete the courses with good grades. It would add to my professional

   capabilities. My AQF qualifications will help me to reach unmatched

   professional heights and realize my true potential and help me to achieve my

   goals and aspirations.

3. The Tribunal considers the statement to be a broad summary of her employment prospects at 26 May 2020, notwithstanding that she had prior to hearing secured a position as a chef at a large hotel.

4. The applicant stated she has resolved her marital difficulties in that her husband has agreed to divorce and the legal process, delayed by the global pandemic, will commence soon and she is “101 per cent” certain the divorce will be granted.

5. The applicant claims she has responsibilities to her parents, especially now that her father is ill, and because she is an only child. (The Tribunal notes the applicant’s statement dated 27 August 2018 that her brother died).

6. The Tribunal affords the applicant’s circumstances in India some weight in her favour.

The applicant’s potential circumstances in Australia

1. The applicant claims she has been in Australia since 2013 entirely supported by her father, and it is clear that if this is the case, he has provided for her through periods of withdrawal, study disruption, family tragedy, cancelled enrolments and, by her own evidence, periods of no employment and an unsuccessful marriage. Remaining in Australia for more than six years and completing a two-month English certificate course and two near entry-level certificates in cookery for such a large investment of time and funds, is problematic for the Tribunal, because it suggests that the applicant has not progressed academically in a reasonable manner and provided a significant return on her study investment.

2. The applicant claims her studies in Australia since she gave up studying at higher education level have been primarily disrupted by her marital issues in India which have flowed on to financial issues. She claims this caused her to suffer a long depressive illness that affected her so much she could not seek academic or Departmental advice or make study decisions. The Tribunal notes the applicant provided limited evidence to support her claim that she has been chronically unable to function as a student for long periods in Australia: her medical certificates refer only to medical conditions and problems. Her account of when the depressive symptoms began to directly impact upon her studies varied within the hearing, ranging from soon after she started her degree course to the time of her certificate studies in 2015 when her marital issues emerged.

3. The Tribunal notes the applicant has studied for approximately half the time she has been in Australia and, on her evidence, has not sought to improve on that record by seeking support from her education providers or the Department in addressing the issues affecting her. Neither has she gone back for any extended period to India to recover from or address the issues within her family: she has remained in Australia, working, she claims, over an unspecified period in a plastics factory because she was unable contrary to her earlier evidence, to find work in hospitality here. The Tribunal notes the applicant’s submission of 28 August 2018 to the previous review claims she worked as a waitress in an Indian restaurant from January 2014 to 2016; and at an aged care home as a personal care assistant from March 2016 to the time of the document’s submission in August 2018.

4. The Tribunal put to the applicant that her study and non-study record suggests she may be using the student visa program to extend her stay in Australia. It was clear that she had not studied at the required level, had not studied for long periods including from June 2016 until June 2020, and had largely chosen relatively short and inexpensive courses at vocational level. The applicant states this is not the case; she has a plan and a duty to return to India when she completes her course. The Tribunal has considered the applicant’s claims, but is not satisfied the attraction of a hotel job provides incentive enough for her to return to India at the end of this year, even in the context of her claim she now wishes to support her father. Her record suggests she is not approaching her studies in a responsible manner, but is choosing her enrolments to suit her immigration needs. The Tribunal found her evidence at hearing regarding her study and employment records to be vague, varying and unconvincing. The Tribunal weighs this aspect of her case against the applicant.

Value of the course to the applicant’s future

1. The applicant’s current course is a Diploma of Hospitality Management. The applicant enrolled in it on 22 May 2020, five days before the hearing. It had a start date of 8 June 2020. The applicant claims she plans to do the course and return to India to work as a chef where she has a job offer from a large hotel. The Tribunal considers the Diploma to be a course relevant to a future in hospitality, however notes that the applicant has waited until just before the hearing to enrol in the course. Yet she has had ample time, since June 2016, in which to commence it, and her actions in enrolling close to the hearing suggest she has done so to satisfy the enrolment criterion of the regulations, in other words, for visa purposes, rather than having enrolled thoughtfully in the course as an important stepping stone to her chosen career.

2. The applicant has significantly changed academic direction as well as level, from commerce at degree level to cookery at certificate level and back to business at degree level and then diploma level in hospitality management since arriving in Australia. Some change, including major change in study direction may be reasonable for tertiary students, but the applicant’s actions over time demonstrate her approach displays a tendency to change her academic plan to suit her immigration circumstances, as described in paragraph [30] above. The Tribunal notes also that the applicant claimed she was working in a nursing home at the time of her response to the request for student information in August 2018, and flagged an intention to enrol in nursing.

3. The Tribunal asked the applicant in the hearing to explain why, in the period between June 2016 and May 2020 she did not study at all, and she responded that she had advice to the effect that she had no study rights and, at other points in the hearing, said she was suffering personal and health problems.

4. The Tribunal having considered the applicant’s circumstances in relation to her recent enrolment in the Diploma of Hospitality, and her past actions of having not studied since June 2016, and changed her study field and level several times over six years, finds her current course enrolment to have been entered into for immigration reasons, rather than for reasons of well thought out career reasons. The Tribunal weighs this aspect of her caseagainst the applicant.

The applicant’s immigration history

1. The applicant claims she has not applied for other visas nor travelled to other countries. The Tribunal observes that the delegate’s decision finds that the applicant, by studying a course not specified for her initial TU 573 student visa, and by not studying at all for a period between June 2016 and March 2017, while holding the student visa, had not abided by the conditions of her visa (namely condition 8202, to remain enrolled).

2. The Tribunal notes the applicant has claimed she suffered a range of adverse circumstances in the period in which she did not study. The Tribunal has taken this into account, but is not satisfied on the evidence before it, that the applicant took reasonable steps to address her difficulties at various junctures in order to ensure she could resume studying as required by the conditions of her visa and the intent of the student visa program. She simply ceased studying. The Tribunal weighs this aspect of her case against the applicant.

Overall conclusion

1. After considering the applicant’s claims separately and together in relation to the specifications of Direction 69, the Tribunal concludes that the applicant does not intend genuinely to stay temporarily in Australia. It has reached this conclusion because having examined and weighed the applicant’s circumstances individually and as a whole, the Tribunal concludes, on balance, that the applicant is using the student visa program to extend her stay in Australia.

2. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

3. 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

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

Meredith Jackson
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

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

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

3. 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

1. 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.

2. 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

1. 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

1. 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

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

2. 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

1. 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

1. 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.