Pogaku (Migration)

Pogaku (Migration) [2021] AATA 3205 (2 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Naveen Kumar Pogaku
CASE NUMBER:  1933971
HOME AFFAIRS REFERENCE(S):          BCC2019/4838480
MEMBER:Robert Cumming
DATE:2 August 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa.

Statement made on 02 August 2021 at 3:42pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – poor academic record – not a genuine temporary entrant –applicant failed to complete course –use the student migration program to maintain ongoing residence– decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, Schedule 2, cl 500.212
CASES
Zhao (Migration) [2019] AATA 1885
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the now Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs on 9 November 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa under s 65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 26 September 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis 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 the applicant intended genuinely to stay in Australia temporarily.
The applicant appeared before the Tribunal on 22 July 2021 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. However, the more practical reason for holding the hearing by telephone was that the Tribunal, as constituted, was sitting in Brisbane and the applicant was resident in Sydney, New South Wales. As such, a remote attendance would have been necessary anyway, even though it is the fact that face-to-face hearings have largely been put on hold because of the pandemic. In any event, the applicant agreed to and participated in the hearing by telephone and accordingly the Tribunal is satisfied, therefore, that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was assisted in relation to the review by his registered migration agent.
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 intends genuinely to stay in Australia temporarily.
Genuine applicant for entry and stay as a student – cl 500.212
Clause 500.212 of the Regulations 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, a copy of which was provided to the applicant in the course of the application process by the Tribunal and a further copy of 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 Tribunal has had regard to all the information supplied to the Department with the visa application which is on the Departmental file provided to the Tribunal and all the information supplied to the Tribunal by the applicant. In particular, the Tribunal notes: the completed Request for Student Visa Information form (information form) and supporting documents received by the Tribunal on 17 March 2021, the further supporting document received by the Tribunal on 23 July 2021 after hearing, the Tribunal having given the applicant leave to submit the document after hearing, and the oral evidence and submissions given by and on behalf of the applicant at the hearing.
The Tribunal notes that it has on its files certain information which was not provided by the applicant. These were print-outs from the Provider Registration and International Student Management System (PRISMS) and the Departmental movement records. Accordingly, out of fairness and in accordance with the provisions of s 359AA of the Act, the Tribunal arranged for copies of these print-outs to be sent to the applicant and his registered migration agent prior to the hearing and the applicant had them available at the hearing and was given time to consider the material and comment upon it.
In this regard, the Tribunal put to the applicant certain concerns it had concerning lack of academic progress, his arrival on a visitor visa and his continued residence in Australia after that, which may be the reason or part of the reason why the Tribunal may affirm the decision on the grounds that the applicant does not meet cl 500.212 of Schedule 2 to the Regulations.
The applicant took the time to answer those concerns and his response will be considered later in this decision.
At the conclusion of his submissions, the applicant was asked whether he required any additional time to comment upon the material and he indicated that he did not seek any additional time to respond to the information in the print-outs or the inferences that may be drawn which were put to him by the Tribunal. Notably, the applicant did not challenge the accuracy of the information in the print-outs.
Based on all the information available to the Tribunal, most notably the material supplied by the applicant, the applicant’s circumstances may be summarised as follows:
(a)The applicant is a 26-year-old citizen of India who first arrived in Australia on 12 September 2019 as the holder of a Subclass 600 Visitor visa.
(b)The applicant has links to his home country in the form of his parents and a brother and a sister. The applicant says he keeps in contact daily with his family via telephone, text messaging and video calls, spending sometimes one to 2 hours per day in that contact. His family own a deal of property in India and operate a brick manufacturing business.
(c)The applicant says that his family would be regarded as an upper middle-class family and he would not suffer financially if he had to return home to India, in that his family had the wherewithal to provide financially for him.
(d)At this stage, the applicant has no property of his own in India.
(e)In his completed information form, the applicant stated that he has no concerns in respect to military service commitments or political and civil unrest in the area of India where his family lives.
(f)In Australia, the applicant does not have any family members, but he does have some study friends and has been living in a share house. In non-COVID-19 pandemic lockdown times, the applicant would go to movies, dinner and outings with his friends and he dutifully attends the Temple for prayer.
(g)The applicant’s visa conditions prevent him working. He says he has been compliant with that condition. As a result, he relies on his family to provide him with the funds for living and studying in Australia. In the information form he estimated his annual expenses at $23,400 per annum. The applicant says his family sends him money regularly, usually on a monthly or two-monthly basis.
(h)As far as the applicant’s education is concerned, he completed his Bachelor of Technology in Electrical and Electronics Engineering at the Jawaharlal Nehru Technological University in Hyderabad in April 2017. When the applicant came to Australia he enrolled in a Diploma of Leadership and Management, which he did not commence. However, he quickly substituted those studies for an English language course, English Preparation for Academic Studies Program 2, which he duly completed in the period 21 October 2019 to 29 December 2019. The applicant has supplied the Tribunal with a Certificate from the relevant Registered Training Organisation (RTO), Salford College, confirming that the applicant duly completed those studies.
(i)The applicant subsequently enrolled again in a Diploma of Leadership and Management to be undertaken between 10 February 2020 and 8 August 2021. However, on 25 March 2021, the applicant had that particular Confirmation of Enrolment (CoE) cancelled for unsatisfactory student progress. By that time, however, the applicant had enrolled in a Diploma of Project Management which was to be conducted in the period 15 March 2021 to 14 March 2022. Thereafter, the applicant has an enrolment in an Advanced Diploma of Business to be conducted in the period 28 March 2022 to 25 September 2023. The document provided by the applicant after the hearing was a Certificate confirming the applicant has completed 3 of the competencies in the Diploma of Project Management course.
(j)In regard to the applicant’s future intentions, the applicant spoke in general terms of returning to his home country to gain employment in an electronics type business. He specifically mentioned Samsung as an organisation for which he would like to work. The applicant stated in evidence that he checks job advertisements at home in India from time to time and notes that organisations such as the one he mentioned are regularly hiring for positions of a kind for which he would seek to apply.
(k)Based on the information supplied to the Tribunal by the applicant and as confirmed with regard to the movement records, since the applicant’s initial arrival in Australia on 12 September 2019, he has not since departed Australia.
(l)In the material the applicant supplied to the Tribunal and his submissions in oral evidence, the applicant was able to give sufficient evidence of his knowledge of living in Australia and his associated education provider. Having had the opportunity to refresh his memory from his course notes and the online portal for the RTO which he is attending, he was able to give sufficient details of the course of study in which he was currently enrolled.
(m)As for previous visas, the applicant has been granted one Subclass 600 Visitor visa and thereafter a Bridging visa A, which remains current.
(n)In the information form, the applicant stated that he had not applied for any other Australian visa where a decision on that application has not yet been made. The applicant also stated in the information form that, other than the current student visa application, he has not been refused a visa in any country, including Australia, or had a visa cancelled in any country, including Australia.
(o)The applicant gave evidence of his travel to Greece in June 2019 before arrival in Australia for a period of 3 months for study purposes. The applicant said he had no difficulties with immigration matters during that stay in Greece.
(p)Apart from dealing with issues of concern explaining his situation regarding his studies in greater detail and his general statement of his intention for his future career, which will be discussed later in this decision, the applicant did not suggest there were, or give evidence concerning, any other matters which relate to his genuine temporary entrant status in Australia.
During the hearing, the Tribunal put to the applicant possible concerns it may have in respect to several issues.
In no particular order, one issue related to the reason the applicant was studying in Australia rather than at home in India. The applicant pointed to the advantage studying in an English speaking country would give him for his longer term career, especially having stated his intentions to work for large international companies. He said he had limited experience learning English in his home country and his attempt to study in Greece was not so successful for him. He said he struggled with the Greek language and also there was not much of an Indian community in Greece. By contrast, he could learn English in Australia and there was also a much larger Indian community in Australia. The applicant pointed to the higher quality of Australian qualifications compared to Indian qualifications, although no particular evidence other than that bald statement was provided by the applicant. The applicant also highlighted the fact that in Australia he would gain much greater exposure to multicultural activities than he would in India. The applicant suggested the cost of living in Australia was cheaper than in the United States of America, the United Kingdom or Canada. However, the applicant did not address the comparative cost of living between Australia and India in his response to this particular issue.
The next issue of concern related to the actual course the applicant was undertaking. The applicant explained this by suggesting that with his engineering experience he had technical knowledge; however, as far as progressing in a firm, he needed a broader level of qualifications on the management side to assist him get better employment opportunities. He explained the study of a Diploma of Project Management by suggesting that the large organisations in which he would seek employment have lots of projects to work on and thus he needed to have skills in that regard. As far as the following course in which he was enrolled, namely an Advanced Diploma of Business, the applicant stated this would help him in a business sense in learning how to sell more products. The applicant was pressed on a number of occasions to explain what particular skills and knowledge he would gain from his particular courses in which he was enrolled and how those skills would relate to future employment. However, the summary above is the highest that his answers could be put, that is learning project management and how to sell more products.
A further issue of concern put to the applicant related to his non-completion of his Diploma of Leadership and Management studies, notably initially on arrival and then earlier this year. The applicant stated that initially he thought he could undertake the particular studies but then determined that it was necessary to have some English language studies which he undertook and duly completed. He then re-enrolled in the Diploma of Leadership and Management but the onset of the COVID-19 pandemic caused difficulties with studies for him. Much of the training was conducted online via Zoom conferencing and the like, and the applicant said that he struggled to learn by that methodology. As a result, he did not persevere with those studies. However, noting his comments earlier regarding larger corporations doing projects, he then decided to enrol in March of this year in the Diploma of Project Management course. As noted, he provided immediately after hearing evidence that he had completed 3 of the 12 competencies he is required to complete for qualification in that course.
As stated above, the key issue the Tribunal has to decide in this case is whether the applicant intends genuinely to stay in Australia temporarily. On that issue, the considerations set out in cl 500.212(a) of Schedule 2 to the Regulations govern the matters the Tribunal needs to consider.
In assessing whether an applicant meets the genuine temporary entrant criterion the Tribunal must have regard to Direction No. 69. As also noted above, that Direction is not to be used as a checklist, but rather is intended to guide decision makers in considering the applicant’s circumstances as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
In adopting that process in this case, and having considered all the factors in the Direction, on the basis on which the Tribunal has made certain findings which are about to be set out, the Tribunal finds that some of those factors and the findings based on those factors are not of such significance, importance or materiality to its decision so as to tip the balance away from the view the Tribunal has taken of the applicant’s circumstances. This is not to suggest that those factors and the findings based on those factors have been overlooked. Rather, the Tribunal, in considering its decision, has found these factors and findings of lesser weight in balancing all the factors and findings and coming to its decision overall on the merits of the review application.
Having had regard to the applicant’s evidence and submissions, including submissions given on his behalf by his registered migration agent, and the applicant’s responses to the possible concerns raised by the Tribunal, which have been discussed above, and giving consideration to all the factors specified in Direction No. 69, the Tribunal makes the following findings:
(a)The Tribunal has concerns about the reasons the applicant came to be studying in Australia. The Tribunal accepts that improving one’s English language skills in an English-speaking country is advantageous to persons such as the applicant. His scheme of arriving here as a visitor, ostensibly only for a short period of time, has then been turned into a situation where the applicant has been able to so order his affairs that he has, having initially arrived for a short period of time on a Visitor visa, been able to maintain residence in Australia ever since and has not had the necessity of returning home to order his affairs to provide for extended residence outside of his home country.
(b)The Tribunal has previously considered the decision of Zhao (Migration) [2019] AATA 1885, a decision of 10 June 2019, of Member Quinn. This was cited to the Tribunal in the context of an applicant who had arrived in Australia as a visitor and then transitioned to the status of a student without returning to the applicant’s home country in the interval. The Tribunal respectfully adopts what the learned Member in that instance said, at paragraph 22:
The Tribunal is concerned about the way in which the applicant arrived onshore on a tourist visa and only then applied for a student visa. It is difficult for the Tribunal to accept that in such a short space of time, having arrived on a tourist visa, the applicant promptly researched all study and living options and decided to remain onshore for a further two year period. The Tribunal accepts that it is possible that an applicant may seek a change in plans or to further their skills for employment reasons and remuneration opportunities, but the Tribunal is puzzled when an applicant arrives on a visitor visa and then makes sudden changes to their plans within a short period of time after arriving. It seems unlikely to the Tribunal that a person travelling as a tourist would make such a significant change from their initial intentions to visit. Such a significant change would necessarily include a greater level of planning and preparation before arriving in Australia considering the length of time (two years) that the applicant proposed to spend in Australia.
(c)In that instance, however, because the applicant had only some 3 months’ study before completing their course of study and would be returning to their particular home country, the Member considered it was a closely balanced exercise because of the short period of time before study would be completed. In that case, the Tribunal was prepared to give the benefit of the doubt to the applicant.
(d)In this case, however, the applicant, on the basis of his enrolled studies, will not be completing his studies until 25 September 2023, noting that this is the last date of the particular course as disclosed in the CoE for that course that the applicant has supplied to the Tribunal. Accordingly, the Tribunal would distinguish this case from the Zhao case, which is on point with this case as to the issue of applicants arriving in Australia as visitors and then transitioning to the status of a student.
(e)Moreover, when it comes to the situation of explaining the studies the applicant is undertaking and whether such studies could be undertaken in India, the explanation given by the applicant was that the quality of courses in India is inferior to that of Australia. The applicant also states that universities in India conduct written entrance examinations and there is high competition for places. He also speaks of reservation of places where he would not be in such a category but rather would be a general category applicant. Other than the bald statements as to the quality of education and the competitiveness of entry, there was no specific evidence provided as to the quality of the education or lack of the applicant’s ability to be competitive in any examinations. This makes it difficult for the Tribunal to accept the reasons given by the applicant for not studying in India. At worst, the applicant would not have satisfactorily explained why he was not studying in his home country and at best, the issue would be one where the Tribunal would take a neutral view of the explanations given by the applicant. Overall, the Tribunal considers the lack of evidence given to support the bald assertions as to the superior nature of qualifications gained in Australia and the competitiveness for gaining places in India is not sufficient for the applicant in this case to be regarded by the Tribunal as having provided reasonable reasons for the applicant not undertaking his study in his home country.
(f)The applicant has links in his home country in the form of his parents, a brother and a sister with whom he is in contact with regularly via telephone and online communications on a daily basis. However, it is the case that the applicant has not travelled back to his home country since his initial arrival on 12 September 2019. The Tribunal, however, does accept that since March 2020 travel has been severely impacted by reason of the onset of the COVID-19 pandemic.
(g)Otherwise, it appears that the applicant is making slow progress towards completion of his study and it also seems to be the case that he can keep in very good contact with his parents and family from here in Australia, and also be the recipient of funds provided by them regularly to cover the costs of him living and studying in Australia. Moreover, there is no evidence before the Tribunal that the applicant has any assets or business links in his home country at this time. His plans for the future are at best very generalised. Overall, therefore, the Tribunal finds that the applicant presents as a person who has set himself up in Australia and does not have a significant incentive to return to his home country, India.
(h)As to economic circumstances in his home country, the Tribunal notes that there would be family support if the applicant had to return home. Accordingly, the Tribunal considers the economic circumstance of the applicant in his home country, India, would not present a significant incentive for him not to return to his home country.
(i)There is no evidence of any requirements for military service commitments affecting the applicant which would present a significant incentive for him not to return to his home country.
(j)There is no evidence of any circumstances of political and civil unrest in the area where the applicant’s family are located in his home country, India, which would present a significant incentive for him not to return to India.
(k)In considering the circumstances in his home country relative to the circumstances of others in that country, the Tribunal finds that the applicant comes from an upper middle-class business and property owning family, but otherwise does not make any findings in that regard which are other than entirely neutral towards the applicant.
(l)The applicant’s ties in Australia are related to his study and also the fact that he has a group of associates with whom he can socialise (in non-COVID-19 pandemic restricted times). He has also had the wherewithal to remain in Australia and looks likely to remain in Australia for at least another 2 years with, as already noted above in the findings in this decision, not a significant incentive to return to his home country. When the factor of the actual studies the applicant is undertaking are considered, and these will be considered in more detail later in this decision, the whole situation of the applicant in Australia is one which the Tribunal considers all of the circumstances taken together paint a picture of someone who has made a life for himself in Australia and does not have a significant incentive to return home. Rather, the incentive is to remain in Australia. Accordingly, the Tribunal concludes the student visa program is being used by the applicant to circumvent the intentions of the migration program.
(m)For those reasons also, the Tribunal considers that the applicant is using the student visa to maintain ongoing residence in Australia.
(n)As there is no secondary applicant, it is unnecessary for the Tribunal to consider whether the applicant has contrived to enter into a relationship for a successful student visa outcome.
(o)As to the applicant’s knowledge of living in Australia, his associated education provider and the particulars of his study, the Tribunal finds that the applicant was, by refreshing his memory from his notes and the RTO portal, able to demonstrate sufficient knowledge of these matters.
(p)As to the current undertaking of studies, the Tribunal has difficulty in accepting the explanations given by the applicant, however. Once again, the applicant has given broad and very general explanations for his studies. His explanation is that large organisations conduct projects and therefore he needs to undertake project management studies. He then suggests that studying his next course of an Advanced Diploma of Business will help him in his role in any large organisation in being able to increase sales of products. The course outline for the Advanced Diploma of Business, BSB60120 as set out on the Australian Government Training Australia website ( which lists course content of that particular course and which is not specifically referable to the applicant as such but is of general application to all students, does not list any subjects on that particular course that relate to marketing. The tenor of the subjects is in relation to management and strategic planning, business risk, workforce planning, innovation and improvement, industrial relations, corporate governance, ethical procurement, communications, stakeholder engagement and so on. As such, the course does not seem to gel with the applicant’s desire to undertake studies to increase the ability to sell products, that is to say, develop marketing strategies, policies and the like.
(q)It is understood that previous iterations of the course content of the Advanced Diploma of Business may well have included marketing content. When the applicant was asked to explain the lack of marketing content in the current iteration of the course, he did not seek to suggest he would be studying an older version of the course or otherwise point to subjects on marketing in which he would be enrolled in the Advanced Diploma of Business.
(r)Accordingly, for those reasons, the Tribunal is concerned as to the consistency of studies and how those studies will relate to employment opportunities for the applicant. The applicant has qualifications at the Bachelor level but now is undertaking studies at a lower level, namely the Vocational Education and Training (VET) level. Given the applicant’s answer focusing on sales and his broad indication merely only of working in a large international corporation, then the Tribunal struggles to find the relevance of the particular studies the applicant is undertaking and what assistance that will give him given his answers are extremely broad and do not really explain how the applicant identified the particular courses of study he would undertake and how it would give him, the necessary skills, knowledge and attitudes for his future employment, other than to suggest a particular focus generically on projects and on marketing. As noted, the Tribunal has been unable to locate an emphasis on marketing in the Advanced Diploma of Business course that the applicant intends undertaking at the conclusion of his current Diploma of Project Management studies.
(s)As to remuneration, the applicant indicated he considered he would earn in the range of the equivalent of AU$80,000 through to AU$100,000 and, accordingly, there would be no appreciable difference between salary levels in Australia and India. Once again, no particular evidence was given of this; however, given the nature of the answer, the Tribunal is prepared to view this in a neutral fashion as far as the applicant is concerned in regard to this particular factor.
(t)At the date of hearing, the applicant had been in Australia for a period of one year, 315 days, during which he had not returned to his home country. Were the applicant to remain to the conclusion of his proposed studies, counting just to the last day of the course as set out in the relevant CoE, which is 25 September 2023, he will have been in Australia for a period of 4 years, 15 days.
(u)As to previous visa applications, but for the current visa application under review, the applicant has successfully been granted one Subclass 600 Visitor visa and one Bridging visa A.
(v)There is no evidence before the Tribunal to suggest that, but for the current visa application under review, any other visas the applicant has applied for in any country, including Australia, have been cancelled or that any other visas he has applied for in any country, including Australia, have been refused. Similarly, there is no evidence currently before the Tribunal as to any visa applications which are still pending and for which a decision has not yet been made.
(w)As to compliance with visa conditions, similarly there is no evidence before the Tribunal to suggest the applicant has failed to comply with these conditions.
(x)There is evidence that the applicant has travelled to Greece prior to his arrival in Australia, but there is no evidence before the Tribunal to suggest that the applicant failed to comply with the migration laws of that country.
(y)As noted, were the applicant to remain in Australia until the completion of his currently enrolled studies, taking that to the last day of the course as per the relevant CoE, the applicant will have been in Australia for 4 years, 15 days. This is in circumstances where the Tribunal is concerned by the conduct of the applicant. That conduct is of a person who arrived as a visitor and then transitioned to a student, but has not at any time returned to his home country, and as at the date of the decision, the applicant has gained English language qualifications but no substantive qualifications in his enrolled area of VET education. This is coupled with the fact that the applicant can remain in Australia and keep in contact with his family on a daily basis. Moreover, the applicant has failed to convince the Tribunal of the necessity of the particular studies he has enrolled in. He has made broad generalised statements and indeed has spoken to a type of knowledge to be gained which, on the face of it, would not be the sort of study he would undertake in his Advanced Diploma of Business studies. This is the conduct of a person who, in the view of the Tribunal, has set himself up in Australia with limited desire or intention to return to his home country. Rather, these are the actions of a person who is using the student visa for maintenance of ongoing residence in Australia.
(z)As there is no secondary applicant, let alone a secondary applicant who is an infant, it becomes unnecessary for the Tribunal to make any findings about the intentions of the parents, guardians or spouse of an infant applicant.
(aa)There are no other relevant matters that bear upon the conduct of the review as to the applicant’s status as a genuine temporary entrant.

Balancing all of these findings, the Tribunal considers the weight of the evidence points more to those facts and findings not favouring the applicant’s case than those factors which are supportive of or neutral to his case. No doubt, there are reasons that might point to an intention on the part of the applicant to return to his home country. There is the generalised statement of his intention to do so and a broad generalised statement that he would seek employment in the electronics industry. On the other hand, there is the situation of the applicant coming to Australia, ostensibly as a visitor, and then setting himself up as a student. The applicant has completed a 2 month English language course and, it would appear, has gained 3 competencies out of 12 in his currently enrolled Diploma of Project Management studies. Further studies envisaged by the applicant and the lack of the applicant’s ability to explain exactly the skills and knowledge he will gain from that course and why that will be relevant for his future employment has already been mentioned in this decision. The weight of all of those factors weigh more heavily in assessing all that evidence, in the view of the Tribunal, and which speaks to an intention on the part of the applicant of not having a significant incentive to return to India. The Tribunal considers the weight of the evidence shows rather that the student visa is being used to maintain ongoing residence in Australia.
While it is undoubtedly a balancing exercise in assessing the evidence and in which reasonable minds may differ, as well as the fact that the applicant has certainly not been in Australia for a very extended period of time, and has stated a generalised intention to return to India, nevertheless, the view the Tribunal takes of the conduct of the applicant when the Tribunal exercised its discretion and weighed up all the evidence, both favourable and unfavourable as far as the applicant is concerned, is that the applicant is a person who does not intend to stay in Australia only temporarily.
Having had regard to all matters, including the Direction No. 69 requirements, to which regard is required, the Tribunal is not satisfied the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
Conclusion on cl 500.212
The Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student, as required by cl 500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa.
Robert Cumming
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.

[2021] AATA 3205

2 August 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction