RACHMAWATI (Migration)

RACHMAWATI (Migration) [2020] AATA 1079 (16 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Dewi Rachmawati
CASE NUMBER:  1727832
HOME AFFAIRS REFERENCE(S):          BCC2017/2954770
MEMBER:Frank Russo
DATE:16 April 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 16 April 2020 at 8:00pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa –study is not relevant to the applicant’s previous employment –genuine temporary entrant criterion not met – a series of low level courses – using student visa to maintain ongoing residence ––decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 25 October 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 17 August 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.
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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant is a genuine applicant for entry and stay as a student.
The applicant is a 43-year-old Indonesian national. She first arrived in Australia on 15 December 2007. Her visa application which is the subject of this review was made in respect of enrolments in a Diploma of Human Resources Management and an Advanced Diploma of Management (Human Resources). At the date of the hearing the applicant had completed both of these courses and obtained the qualifications. At the date of the hearing she was enrolled in a Diploma of Leadership and Management which commenced on 12 August 2019 and was due to end on 7 February 2021.
The applicant appeared before the Tribunal on 4 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
The applicant was assisted in relation to the review.
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 is a genuine temporary applicant for entry and stay as a student.
Genuine applicant for entry and stay as a student (cl.500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
In addition to the application form, the applicant provided the Tribunal with a copy of the delegate’s decision and the following other documents:
a.Copy of the applicant’s passport;
b.Section 359(2) response received by the Tribunal on 22 May 2019;
c.Confirmation of enrolment (CoE) for the Diploma of Leadership and Management at Queen Anne Business College from 12 August 2019 to 7 February 2021, created on 25 July 2019;
d.Certificate of Attendance, Sydney English Language Academy, issued 11 April 2008;
e.The following documents issued by Sydney Business and Travel Academy (SBTA):
i.Diploma of Hospitality Management, issued 28 May 2010, and Certificate Transcript;
ii.Statement of Attainment for the Diploma of Tourism, issued 20 June 2012, as well as a Certificate Transcript for this course;
iii.Diploma of Management, issued 3 September 2013, and Certificate Transcript;
iv.Statement of Attainment for the Advanced Diploma of Marketing, issued 16 July 2014, and Record of Results;
f.Diploma of Accounting, Bridge Business College, issued 12 July 2017, together with Student Transcript;
g.Letter from PT Dinamika Aneka Niaga Real Estate Agency (PT Dinamika), confirming offer of position of Branch Manager to the applicant upon her completion of the Diploma of Leadership and Management, dated 1 August 2019; and
h.Documents in Indonesian relating to property ownership.
The Tribunal has had regard to these documents. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file.
Having considered the applicant's claims against all the factors specified in Direction 69, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.
The applicant told the Tribunal that she first came to Australia in December 2007 for the purpose of looking around Australia before studying here. Prior to arriving in Australia the applicant had a Bachelor of Accounting, which she had obtained in Indonesia. She enrolled in General English in February 2008, and then in a Diploma of Hospitality at Sydney Business and Travel Academy (SBTA), which she studied for two years and completed.
The applicant told the Tribunal that after this she studied Tourism and then Business Management, both at SBTA. She stated that she then enrolled in Accounting at Bridge Business College, and then in Human Resources and Leadership and Management at Queen Anne College. At the time of the hearing the applicant was enrolled in the Diploma of Leadership and Management, which she had commenced on 12 August 2019 and was due to complete on 7 February 2021.
The applicant told the Tribunal that the Diploma of Leadership and Management will be the last course which she studies in Australia, as she has been offered a job as a real estate agent. She stated that the real estate agency wants her to have a background in leadership and that she will need this qualification to lead people.
Adopting the procedure in s.359AA of the Act, the Tribunal put to the applicant that it had on file a copy of her enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal provided the applicant with a copy of her PRISMS enrolment records. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal explained to the applicant the consequences of relying upon the information, namely that the information may be the reason or part of the reason for affirming the Delegate’s decision. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether she had any comments or wished to respond in relation to the information contained in his PRISMS enrolment records and advised that she may be granted time to comment on or respond to the information if needed.
The applicant confirmed that her PRISMS record was correct. According to her PRISMS record, she has been enrolled in the following courses:
a.General English, which she was enrolled in from 4 February 2008 to 11 April 2008 and finished;
b.Diploma of Hospitality Management, which she was enrolled in from 21 April 2008 to 9 April 2010 and finished;
c.Diploma of Tourism, which she was enrolled in from 24 May 2010 to 18 May 2012 and finished;
d.Diploma of Management, which she was enrolled in from 16 July 2012 to 28 June 2013 and finished;
e.Advanced Diploma of Marketing, which she was enrolled in from 22 July 2013 to 27 June 2014 and finished;
f.Certificate II in Financial Services, Certificate III in Accounts Administration, Certificate IV in Accounting and Diploma of Accounting, which were completed between 11 August 2018 and 24 June 2017;
g.Diploma of Human Resources Management, from 14 August 2017 to 22 July 2018 and finished;
h.Advanced Diploma of Management (Human Resources) from 30 July 2018 to 7 July 2019; and
i.Diploma of Leadership and Management, from 12 August 2019 to 7 February 2021, which the applicant is studying.
The applicant confirmed that she had completed the Advanced Diploma of Marketing and obtained the certificate, even though she had not mentioned this course in her earlier evidence.
The Tribunal noted that the applicant’s visa application was in respect of her enrolments in the Diploma of Human Resources Management and the Advanced Diploma of Management (Human Resources), which the applicant had completed prior to the hearing. The applicant indicated that she has now enrolled in the Diploma of Leadership and Management because just before she finished her Human Resources courses she went to Indonesia and met with the director of a company, who gave her a job offer, even though she did not have a certificate in Leadership. She stated that the company would hold the job for her for two years and after she has completed her study she will be able to take up the job opportunity.
The Tribunal questioned the applicant as to the value a Diploma of Leadership and Management would provide to her future when she has already obtained an Advanced Diploma of Management (Human Resources). She responded that the courses are not too different , but her current course has more of a focus on how to lead people, how to organise people and how to make decisions. She stated that it will give her more in-depth skills in how to lead, how to motivate people, in how to be a good employee and how to work.
Towards the end of the hearing the Tribunal raised concern that on the information provided there may be insufficient evidence for the Tribunal to find that her current studies in Leadership and Management will add value to her future. The Tribunal gave the applicant an opportunity to comment or respond. She responded that Leadership is important to her future so she can manage people and so she can help companies to grow. She stated that the course is useful to her future because everything is computerised now.
The Tribunal questioned the applicant as to why she had enrolled in Leadership and Management at the Diploma level when she had already obtained two Advanced Diplomas, which are a higher level qualification. The applicant responded that she has enrolled in the course because it will provide her with a certificate and to get other jobs she will need a certificate.
The Tribunal questioned the applicant about the job offer she has received in Indonesia. She stated that she was offered the role with a real estate agency when she last travelled to Indonesia.
The Tribunal raised concern with the applicant that in her GTE statement provided to the Department in 2017 she stated that when she completes the courses which were the subject of her visa application she would return to Indonesia to work in her cousin’s company. The Tribunal questioned whether this was the case and gave the applicant the opportunity to comment or respond. The applicant stated that the job offer with her cousin’s company was no longer current as when she last went back to Indonesia she was told by the company that they had given the job to someone else.
Towards the end of the hearing the Tribunal raised concerns with the applicant that she had completed the Diploma and Advanced Diploma courses which were the subject of her visa application and she has now enrolled in a further course of study at the Diploma level, which may suggest that she has enrolled in a further course of study in a relatively short and inexpensive course to extend her stay in Australia. The Tribunal gave the applicant the opportunity to provide comments or respond. The applicant stated in response that if you apply for jobs in Indonesia you need a certificate. She stated that without a certificate your grade will be under someone else’s. She stated that she needs a certificate to be offered a job.
The applicant told the Tribunal that the company which had offered her a job had given her the choice of studying either in Australia or Indonesia. She stated that the company had given her some funds and had financed her studies in Sydney. When asked what financial support the company had provided, she stated that it had paid her about $1,000 AUD, which was to cover part of her course fees.
In terms of her academic progress, the applicant told the Tribunal that she was not confident progressing to study a Bachelor degree as her English was not good enough still and she needed to improve further.
The applicant told the Tribunal that with the qualification she would obtain from her current studies, she expects that she would be able to earn 10 to 15 million rupiah per month.
As to why she chose to study at Queen Anne College, the applicant stated that she had enrolled there before and she knew how to manage her studies there.
The Tribunal notes that in the over 12 years that the applicant has resided in Australia she has completed over 8 qualifications in a range of fields, including a Certificate in English, Diploma of Hospitality Management, Diploma of Tourism, Diploma of Management, Advanced Diploma of Marketing, Diploma of Accounting (including associated certificates), Diploma of Human Resources Management, Advanced Diploma of Management (Human Resources). Her two most recently completed qualifications were the subject of her current visa application. The applicant has now enrolled in a further course to obtain a Diploma of Leadership and Management. The applicant has studied courses exclusively within the ELICOS and vocational sectors. The highest level of qualification she has obtained is at the Advanced Diploma level, including existing qualifications in Management. This is despite her evidence that she holds a Bachelor of Accounting from Indonesia.
The Tribunal did not find the applicant’s evidence as to why she has now enrolled in a course in Leadership and Management convincing and considers that her responses regarding the value of the course to her future were generic. The Tribunal also did not find the applicant’s claims that she needed a certificate in Leadership to find a job convincing, given the range of qualifications which she possesses in a range of fields.
The applicant has not demonstrated any clear and substantial improvements arising from her proposed study, but is outlaying significant time and monetary commitment that this course will require. Therefore, the Tribunal is not satisfied that the applicant has demonstrated the value of the applicant’s proposed course, to the applicant’s future.
The Tribunal has had regard to the letter from PT Dinamika, which stated that the company has offered the applicant the position of Branch Manager upon her completion of the Diploma of Leadership and Management. The Tribunal notes that the letter is not a letter of offer, but has been prepared for the purpose of the applicant’s visa application. The letter is addressed ‘To Whom it May Concern’ and stated that the applicant has accepted the offer subject to the completion of her study. The letter states that ‘The company will support and fund her study in Australia until completion.’ It also states, ‘This letter is written for the sole purpose of supporting the Student visa application …’
The Tribunal gives little weight to this letter given it states it has been prepared solely for the purpose of supporting the applicant’s Student visa application. The applicant did not provide the Tribunal with an offer letter or a letter of acceptance or any other binding documents which would support her claim that this is a genuine job offer. The letter states that the company will support and fund the applicant’s study in Australia until completion, however when the applicant was asked what funding the company had provided, she indicated it had paid $1,000 in tuition fees. The position is offered after the applicant completes her current course, which she is enrolled in until 7 February 2021, a period of over 18 months. The Tribunal notes that as part of her visa application the applicant indicated that after she completed the courses which were the subject of her visa application, she would return to Indonesia to take up a position with her cousin’s company. At the hearing she indicated that role was no longer available as it had been given to someone else. The Tribunal considers this a further reason as to why little weight should be given to this job offer.
The Tribunal does not consider the applicant’s evidence as to the remuneration she would receive using the qualification to be gained from the proposed course of study to be convincing. In particular, there was little to indicate how the current course of study would assist the applicant over and above the existing five Diplomas and two Advanced Diplomas she has obtained in Australia, some of which are in related fields, as well as her Bachelor degree from Indonesia.
As to her personal ties in Indonesia, the applicant stated that her mother, brother and sister live there. She stated that in Australia she has a brother and an aunt. She stated that she previously had two brothers in Australia, but only one of them remains in Australia. She stated that he holds a Student visa which has been granted until 2021. She told the Tribunal that she is single and lives alone.

The applicant gave evidence that she has worked in a warehouse with Oz Sale for approximately 9 years. She stated that her role involves sorting items on a computer, but stated that it is not an administration role. She stated that prior to arriving in Australia she worked in a data entry role in Indonesia.
The applicant stated that her family owns a small shop in Indonesia, which she believes may be in her brother’s name, and her mother has given her a house which is rented out. She stated that this house was given to her in about 2000, before she came to Australia.
Insofar as the applicant’s circumstances in her home country are concerned, the Tribunal accepts that the applicant has family and some financial ties to her home country which may provide an incentive to return to Indonesia at the conclusion of the proposed study.
When asked at the hearing whether she had returned to Indonesia, she stated that she had returned to Indonesia almost yearly. The Tribunal notes that according to the applicant’s movement record she departed from Australia in 2011, twice in 2013, in 2014, twice in 2015, and once each in 2016, 2017 and 2019. She stated that she keeps in contact with her family in Indonesia through Whatsapp and Skype. Given the applicant’s approximately yearly travel to Indonesia the Tribunal makes no adverse findings regarding her travel to her home country, although it notes that the majority of these trips were for periods of under two weeks.
Insofar as the applicant’s potential circumstances in Australia are concerned, the Tribunal notes that the applicant first arrived in December 2007 and has since that time held either a Student visa or an associated Bridging visa. In the over 12 years that the applicant has resided in Australia she has completed over 8 qualifications in a range of fields, including a Certificate in English, Diploma of Hospitality Management, Diploma of Tourism, Diploma of Management, Advanced Diploma of Marketing, Diploma of Accounting (including associated certificates), Diploma of Human Resources Management, Advanced Diploma of Management (Human Resources), the two most recent of which were the subject of her current visa application and which she has now completed and obtained the relevant qualifications. In her over 12 years of study in Australia the applicant has studied courses exclusively within the ELICOS and Vocational Education and Training (VET) sectors. Rather than returning to her home country following the completion of the courses which were the subject of her visa application, the applicant has now enrolled in a further course at the Diploma level, despite already holding two Advanced Diplomas and five Diplomas.
Although the applicant has performed academically well in the sense that she has completed all of the courses which she has been enrolled in (other than the current one she is enrolled in), the Tribunal does not consider the applicant’s recent enrolment history to be consistent with the conduct of a genuine student who wishes to remain in Australia temporarily for the purpose of study.
While the applicant has stable employment with Oz Sale, which she has maintained for 9 years, the Tribunal has also considered her economic ties to Indonesia, and overall makes no adverse findings regarding her economic circumstances.
There is no evidence of any military service or civil or political unrest that would act as an incentive for the applicant to remain in Australia. There is no evidence that the applicant has entered into a relationship of concern. There is insufficient evidence before the Tribunal regarding the applicant's circumstances in Indonesia, relative to others in that country, and the Tribunal makes no adverse findings in that regard.
The Tribunal makes no adverse findings regarding the factors contained in clauses 9(a) and 11(e) of Direction No.69.
The applicant’s immigration history refers to both her travel and visa history. The applicant first arrived in Australia in December 2007 and has held five previous Student visas, as well as associated Bridging visas. The applicant gave evidence that she has not previously had a visa application refused or a visa cancelled. She confirmed that she had no outstanding applications for other classes of visa.
Whilst the applicant clearly wishes to stay and continue to study in Australia, as well as complete all of the courses in which she has enrolled, it is noted that the applicant has previously been granted five Student visas specifically to enable the applicant to achieve her study goals. The applicant has completed five Diploma-level courses and two Advanced Diploma-level courses, including the courses which were the subject of her visa application, and has now enrolled in a further Diploma. The Tribunal has concerns that the applicant has already completed qualifications in fields related to her current course of study, including a Diploma of Management, Diploma of Hospitality Management, Diploma of Human Resources Management and Advanced Diploma of Management (Human Resources) and is not progressing academically by undertaking further studies in Australia at the vocational level.
The Tribunal therefore considers that the applicant has enrolled in her current course of study, at a level below her existing qualifications, primarily for the purposes of the visa application, in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study or in obtaining the qualification for her stated reasons.
The Tribunal considers that an applicant, who is a genuine temporary entrant, will have circumstances which support a genuine intention to remain in Australia, temporarily, recognising the possibility that this may change over time, to utilise lawful means to remain in Australia. Given the amount of time the applicant has now spent in Australia, the Tribunal is concerned the student visa may be used primarily for maintaining ongoing residence.
The Tribunal considers this raises issues regarding the factors contained in clauses 14(b)(iii) and 11(b) and (c) of Direction No.69. The Tribunal gives weight to the applicant’s circumstances that indicate that the Student visa is intended primarily for maintaining residence in Australia.
For the avoidance of doubt, the Tribunal confirms that it makes no adverse findings regarding the following matters relating to the applicant’s immigration history: clauses 14(a)(i) and (ii) and 14(b)(i), (ii) and (iv).
The Tribunal has also given regard as to whether there is any other relevant matter, and finds there to be no other relevant matter to the assessment of the applicant’s intentions to stay in Australia, temporarily. The Tribunal has considered all information provided by the applicant in support of her application.
On balance, the Tribunal is not satisfied that the information the applicant has provided regarding her circumstances in her home country, her potential circumstances in Australia, the value of the proposed course to her future, her immigration history and other relevant matters, are sufficient to demonstrate that the applicant is a genuine temporary entrant for a further stay as a student.
Rather, the factors indicate that the applicant appears to have enrolled in the present course for the purposes of securing a further student visa, and not a view to a genuine interest in study and overall academic progress. The applicant appears to be using the student visa program as a means of maintaining ongoing residence in Australia.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Frank Russo
Member

Attachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton

Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
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.

[2020] AATA 1079

16 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Intention