Rai (Migration)

Rai (Migration) [2020] AATA 4377 (21 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Gurjeet Singh Rai
Mrs Harkulbir Kaur
Ms Harjas Kaur Rai
CASE NUMBER:  1910432
HOME AFFAIRS REFERENCE(S):          BCC2019/643801
MEMBER:Peter Booth
DATE:21 August 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 21 August 2020 at 1:40pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – land ownership in India – plans to start a business – cancellation of several courses – applicant changed to Vocational courses – applicant’s medical issues – value of studies to future career – maintaining ongoing residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359; Direction No 69
Migration Regulations 1994, Schedule 2 cl 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 Home Affairs on 9 April 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 26 February 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was not a genuine temporary entrant.
The applicants appeared before the Tribunal on 31 July 2020 to give evidence and present arguments.
The applicants were assisted in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the matter 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 entrant.
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.
Background
On 26 April 2019, the applicant lodged his application with the Tribunal, including a copy of the Department’s decision. The application was also accompanied by an ‘Appointment of Authorised Representative Appointment of Authorised Recipient’ form appointing Mr Ernie Hu of This is Australia as the applicant’s representative and authorised recipient. The form was signed by the applicant on 25 April 2019 and by Mr Hu on 26 April 2019.
On 1 May 2019 the applicant’s migration agent submitted a ‘Request for access to documents under the Freedom of Information Act 1982’ which was signed by Gurjeet Singh Rai and Harkulbir Kaur. This request was accompanied by an Indian passport of Gurjeet Singh Rai which was issued on 4 January 2019 and expires on 3 January 2029; an Indian passport of Harkulbir Kaur which was issued on 20 July 2018 and expires 19 July 2028, and an Indian passport of Harjas Kaur Rai which was issued on 23 January 2019 and expires 22 January 2024.
On 18 November 2019 the Tribunal wrote to the applicant’s migration agent to clarify the scope of the FOI request. On 18 November 2019, the applicant’s migration agent replied by email and confirmed the withdrawal of the FOI request and requested access to the Tribunal file and the Department file under s.362A. On 19 November 2019, the Tribunal wrote to the applicant’s migration agent confirming the withdrawal of the FOI request and receipt of the request for access to written materials under s.362A of the Act.
On 27 July 2020 and 30 July 2020, the Tribunal received various documents which are detailed below. These included a detailed submission from the applicant’s migration agent dated 29 July 2020.
Regarding his property ownership in India the applicant has provided a Valuation Certificate dated 20 July 2020 and a Land Record.
The applicant also provided various documents relating to his father’s property ownership in India. First, the applicant provided an affidavit of his father, Gobinder Singh, detailing his land ownership and stating that the applicant is Gobinder Singh’s legal heir and he will inherit all Gobinder Singh’s property. He has also provided a number of valuation certificates for properties in India, as well as Land Records of various properties.
Regarding previous study, the applicant provided an email from Orange International College noting that his enrolment was cancelled for non-payment of fees so the applicant is not eligible for any completion document.
Regarding his future business plans the applicant provided a Business Plan for Hope Construction and Painting Pty Ltd.
Regarding his work experience, the applicant provided a written reference from Punjab Construction Group Pty Ltd, which stated that the applicant volunteered with the business three days per week from 1 November 2019 to 12 May 2020.
The applicant provided a letter dated 24 July 2020 containing an offer for the applicant to join Bhandari Business Advisor & Construction Co. (based in India) after completing his studies in Australia.
Regarding enrolment, the applicant provided a Confirmation of Enrolment at Oceania Polytechnic Institute of Education Pty Ltd between 10 December 2019 and 2 February 2021.
On 31 July 2020 the applicant’s migration agent submitted various medical reports and notes for the applicant dated between 5 July 2019 and 15 January 2020 where the applicant presented for various issues including abdominal pain, depression, counselling and wound care.
On 31 July 2020 the applicant and his migration agent, Mr Bajwa, participated in a telephone hearing.
On 3 August 2020 the applicant’s migration agent provided further documents including:
a.A written submission from the applicant’s migration agent dated 3 August 2020
b.A statutory declaration of the applicant signed 3 August 2020 providing details of his medical history and treatment.
c.Various medical notes dated between January 2019 and August 2020, including a letter dated 3 August 2020 certifying that the applicant is suffering from liver cirrhosis.
d.A letter from Oceania Polytechnic Institute of Education Pty Ltd stating that the applicant is currently enrolled in the course of Certificate III in Painting and Decorating as a full-time overseas student from 10 December 2019 and scheduled to finish by 2 February 2021.
e.An admission certificate from Guru Nanak Dev Academy (India) confirming that Miss Harjas Kaur Rai is enrolled for a course commencing 1 October 2021.
f.Additional copies of the following documents previously submitted: the business plan for Hope Construction and Painting Pty Ltd; a letter dated 24 July 2020 containing an offer for the applicant to join Bhandari Business Advisor & Construction Co. (based in India) after completing his studies in Australia; the migration agent’s submission dated 29 July 2020; a written reference from Punjab Construction Group Pty Ltd, which stated that the applicant volunteered with the business three days per week from 1 November 2019 to 12 May 2020; an email from Orange International College noting that his enrolment was cancelled for non-payment of fees so the applicant is not eligible for any completion document; Confirmation of Enrolment at Oceania Polytechnic Institute of Education Pty Ltd between 10 December 2019 and 2 February 2021; various property valuation certificates and land records for property owned by the applicant and his family in India; and an affidavit of Gobinder Singh dated 20 July 2020.
The hearing and consideration of the evidence
The applicant gave evidence at the hearing, the substance of which was as follows. The applicant had read the delegate’s decision dated 9 April 2019 refusing his application for a student visa. The applicant understood that the issue for determination was whether he was a genuine temporary entrant.
The applicant said that he is currently enrolled in a Certificate III in Painting and Decorating which commenced on 10 December 2019 and which is due to be completed on 2 February 2021, thereafter he is enrolled in a Diploma of Building and Construction which is scheduled to commence on 15 March 2021 and be completed on 14 March 2022. The applicant had produced confirmation of enrolment documents to the Tribunal in that regard.
The applicant had also provided information to the Tribunal in the form of a response to a request to do so pursuant to s.359(2). The applicant confirmed that he did not want to add to or vary this document. In summary the information provided by the applicant was as follows.
The applicant was born on 15 November 1990, Harkulbir Kaur, a secondary applicant was born on 5 May 1989 and Harjas Kaur Rai, a secondary applicant, was born on 18 October 2018.
Prior to arriving in Australia, the applicant completed a Bachelor of Computer Applications in India between May 2007 and November 2013. He did not disclose any employment history prior to arriving in Australia. The applicant stated that he first arrived in Australia on 20 June 2019. Although as events transpired at the hearing, he had arrived in Australia well prior to that time. Since arriving in Australia, he has returned to India on two occasions, in January 2017 for approximately seven weeks and in January 2020 for approximately 21 days.
The application for the student visa in question was made on 26 February 2019.
In relation to his visa history the applicant stated that he held a student visa between 14 June 2014 and 1 December 2016, a “student dependent” visa between 5 October 2015 and 1 December 2016, a further “student dependent” visa between 19 January 2017 and 10 August 2017 and a “temporary resident” visa between 28 August 2017 and 28 February 2019. The applicant stated that he had not been refused a visa to any country or had a visa cancelled other than the refusal of the student visa in question.
As to his study history in Australia the applicant stated that he completed an “Elicos” course between 23 June 2014 and 3 October 2014, another “Elicos” course between 8 December 2014 and 23 January 2015, a Master of Business Administration degree between April 2015 and November 2015 was commenced but he did not complete it, he is now studying a Certificate III in Painting and Decorating, he has a future enrolment in a Diploma of Building and Construction, he commenced a Certificate III in Carpentry on 11 March 2019 but did not complete it and he was enrolled in a Diploma of Building and Construction due to commence on 20 April 2020 but did not commence it.
As to the availability of his current courses in India the applicant stated that such courses were available, but they did not offer “practical experience” and only “theoretical study” and further that “the standards of those institutes are not very good”.
The applicant gave details of his employment in Australia including as a kitchen hand and chef, a delivery driver and “construction steel delivery”. The latter employment is the most recent and was between April 2018 and March 2019 and in relation to which the applicant disclosed an annual income of AU$30,000.
The applicant stated that his mother and father reside in India. He identified his wife and daughter as immediate family but did not state their country of residence. It is apparent that they are the secondary applicants and, as disclosed in the hearing, they both reside in Australia with the primary applicant.
The applicant stated that he has assets in India comprising farming land which he estimated to have an approximate value of AU$80,000.
As to his future employment plans the applicant stated “once I will finish my study I will get work experience, I will work as builder for few years, gaining more exposure after that I will set up my own business in my home country”.
As to his expected future remuneration the applicant stated: “while working for someone else it will be 60,000 Indian rupees, when I set up my own business I will be earning nearly 700,000 Indian rupee monthly”.
The Tribunal proceeded to ask the applicant some questions arising from the information paraphrased above. In summary, the questions and the applicant’s responses were as follows.
The applicant stated that he had not been employed in India prior to arriving in Australia. He arrived in Australia on 20 June 2014 as the holder of a student visa intending to study a Master of Business Administration. He said that this course was scheduled to commence on 13 October 2014, and went on to say “I did Elicos course, then I started the MBA, I studied for two semesters, I got married, I transferred the visa onto my wife’s Visa, after completion of my wife’s Visa I applied for a temporary working Visa 485”.
The applicant confirmed that he held a 485 visa between 28 August 2017 and 28 February 2019. When asked what the applicant did during that period, he said “I was supporting my wife”. When asked whether he was engaged in any professional employment he said “no, casual work”. He then said that he applied for the student visa in question on 26 February 2019. He confirmed that this was two days prior to the expiry of the 485 visa.
The applicant confirmed that his wife and daughter reside with him in Australia and that he was married on 20 July 2015. When asked what his wife does in Australia, he said “she was studying a Master of Accounting, studying together”. When asked what visas his wife has held the applicant said, “she has held a student visa, a temporary resident visa”. When asked what visa his wife holds currently, he stated “bridging visa”. When asked when the applicant last held a visa in his own right he said “January 2019”. When asked to explain this he said, “the temporary visa expired, 485”. When asked what his wife was currently doing, he said “she is looking after our child”.
The Tribunal asked the applicant whether the applicant’s wife was applying for a visa in her own name to which he said “no”.
The applicant was invited to add anything further to his application for review. He said “as to future plans I have provided a business plan, I have a job offer, I have made mistakes, I have made it right, the qualifications is for my future, my parents have spent money on my studies, I have booked my daughter in school in advance, I am the only son, no siblings”.
The applicant’s representative also provided a submission dated 29 July 2020 in support of the application for review. The Tribunal makes several observations in relation to this submission. First, it does not address the applicant’s failure to complete a Master of Business Administration, a Certificate III in Carpentry or a Diploma of Building and Construction. Secondly, other than in the most general terms, it does not explain the utility of the applicant’s current course of study or his intended course of study to his future employment or career path. Thirdly, it does not explain the applicant’s visa history or that of the applicant’s wife which appear to be quite interlinked. The representative confirmed that he relied on these written submissions but did not otherwise address them when invited to make further submissions at the hearing. Nonetheless the Tribunal has taken the written submissions into account and given them appropriate weight.
As described earlier the applicant has provided a large number of documents to the Tribunal. None of the documents were specifically referred to by the applicant during the course of giving his oral evidence at the hearing. Nonetheless they have been taken into account by the Tribunal and given appropriate weight. In relation to some particular documents the Tribunal makes the following observations. The undated business plan is in respect of an entity described as “hope construction and painting pty ltd”. The author of the business plan is not identified. The document also appears to have been stamped “For S.M. Trading Co.”. It appears to be a quiet high-level business plan and does not refer to the applicant by name. An email dated 26 July 2020 apparently from an education provider “Orange.edu” confirms that the applicant’s enrolment in the vocational carpentry course was cancelled for “non-payment of fees”. A letter dated 24 July 2020 from “Bhandari business advisor & construction Co” addressed to the applicant states in part “I would too like to provide an opportunity to join our firm after completing your studies in Australia… As we discussed over phone you will work with this company for one and half year from 01/06/2022. So, I consider you will be an asset for a company, your acceptance for this proposal will be beneficial for both of us”. The letter does not disclose the role in which the applicant could be employed or his potential salary. The applicant did not state that he had accepted this offer of employment.
On 31 July 2020 the applicant’s representative provided a variety of medical documents briefly referred to above. These documents were not the subject of oral evidence by the applicant at the hearing. Nonetheless the Tribunal takes them into account and gives them appropriate weight. The Tribunal makes a number of observations in relation to these documents. They appear to be file notes of consultations by medical practitioners upon the applicant for a variety of conditions including abdominal pain (1 October 2019), a medical examination for the purposes of obtaining a driving licence (17 January 2019), abdominal pain (29 November 2019), and a facial laceration (30 July 2019). There is also an endoscopy report from an Indian provider dated 1 February 2020, and a technical report in respect of an abdominal ultrasound from an Indian imaging group which appears to be dated 15 January 2020. They are not in the form of medical opinion evidence but rather technical reports or notes of examinations. When the applicant’s representative was asked as to the relevance of these reports, he stated there were two reasons. First that the applicant had started his course as a carpenter and because of medical problems with hard work he could not continue. However, the representative said that this was not contained in any of the documents. Secondly that “he has problems, health and depression”. The representative was unable to refer the Tribunal to which document supported that contention.

On 3 August 2020 the applicant’s representative provided further documents which were described above. Many of these documents had already been provided to the Tribunal. Several of these documents had not previously been provided to the Tribunal. The Tribunal makes several observations in relation to those. In a further submission dated 3 August 2020 the applicant’s representative explains “the medical documents [were] provided by the applicant for the recently scheduled hearing”. The submission in fact deals with a variety of matters by reference to documents which had already been provided. Insofar as the medical reports are concerned the representative asserts that the applicant abandoned the carpentry course because “he was having medical issues due to which he was facing fatigue and couldn’t do any task which require great amount of physical strength”. It is not apparent to the Tribunal where this assertion is contained in the material however the Tribunal observes that even if it is to be gleaned from the file notes there is no evidence as to the nature and extent of this issue and how long it persisted for. It is given little weight. The submission also refers to a declaration from the applicant “stating about his ongoing chronic illness which also stands as a compelling reason for him to return back to his home country after he completes his study for which he is enrolled in”. This is a reference to a statutory declaration dated 3 August 2020 by the applicant in which he states as follows “in 2009 I was diagnosed with chronic illness due to hepatitis B and liver cirrhosis. I was suffering from fatigue, sore joints and abdominal pain, which limits my ability to perform daily tasks in efficient manner. I was prescribed medications by the doctor. Unfortunately, I was not showing any improvements in the doctor recommended for monthly diagnosis until further notice. Therefore, after the completion of my studies we would go back to India and resume my treatment for the betterment of my health”. The Tribunal observes that the applicant did not give this evidence during the hearing. Secondly there is no medical opinion evidence to support this contention. Thirdly the applicant does not state that he could not study nor the period of which he was limited in his performance of daily tasks in an efficient manner. The statutory declaration is given little weight. An admission certificate dated 30 July 2020 in respect of the applicant’s daughter confirms that she is enrolled at early learning classes commencing on 1 October 2021. The Tribunal accepts that the applicant’s daughter is enrolled to start at an Indian school in October 2021. However, this is no guarantee of nor necessarily an incentive of the applicant’s return to India. It is given little weight.
Without wishing to diminish the applicant’s evidence and the plethora of documents which have been provided, it appears that his circumstances can be summarised as follows. Prior to arriving in Australia, the applicant completed a Bachelor of Computer Applications between 2007 and 2013. He arrived in Australia on 20 June 2014 and has returned to India on two occasions. The application for the student visa was made on 26 February 2019. He has held a student visa between 14 June 2014 and 1 December 2016, and then a “dependent” visa between 5 October 2015 and 1 December 2016, another “dependent” visa between 19 January 2017 and 10 August 2017, and the temporary resident visa between 28 August 2017 and 28 February 2019. As noted earlier he applied for the student visa in question on 26 February 2019, two days prior to the expiry of the temporary resident visa. It his time in Australia the applicant has completed two short vocational English courses. He has been enrolled in and either not commenced or not completed a Master of Business Administration, a Certificate III in Carpentry and a Diploma of Building and Construction. During that time, he held a 485 visa. He did not undertake any professional employment. In total, between 5 October 2015 and 10 August 2017 he was a dependent on his wife’s student visa. She is now a secondary applicant on his student visa application. If granted a visa he intends to stay in Australia as a student until at least 14 March 2022. The applicant has assets in India, family in India, and an offer of employment in an undisclosed capacity from an Indian firm once he completes his studies in Australia. There is no evidence of the applicant having accepted this offer.
In considering whether the applicant has met the genuine temporary entrant criterion, the Tribunal had regard to the following factors consistent with cl.500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether he has satisfied the genuine temporary entrant criterion.
The Tribunal has considered the applicant’s circumstances in his home country. The applicant is married and is from India. The applicant has provided evidence of social, direct family and financial ties to his home country or other economic incentives to return. When considering the applicant’s circumstances in his home country, the Tribunal therefore finds that he has been able to demonstrate ties to act as an incentive to return to his home country at the completion of the proposed study. The Tribunal accepts that the applicant may have family ties to India, however, given the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to India.
The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 20 June 2014 as a holder of a student visa. The proposed study would extend the applicant’s stay until at least 14 March 2022. The Tribunal finds that the length of this proposed additional stay creates serious concerns that the applicant is studying for the purposes of staying in Australia. Whilst the Tribunal accepts that plans can change, this is not the conduct of a genuine temporary student. Rather, it suggests the applicant has decided to extend his stay in Australia by utilising the student visa programme.
The Tribunal does not place weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. There are several reasons for this. The applicant has not explained, other than in vague detail, the relevance of or utility of his current and proposed study. The offer of employment is in respect of an undefined role and there is no evidence of the applicant having accepted the offer of employment.
The Tribunal has considered the applicant’s study history since arrival and notes that he commenced study in Australia in 2015. Whilst the applicant has been in Australia, he has completed two short vocational English courses. He has been enrolled in but either not commenced or not completed a Master of Business Administration, a vocational course in carpentry and a Diploma of Building and Construction. He has not explained to the Tribunal’s satisfaction why he abandoned those courses and why he has not completed any substantial study during his lengthy stay in Australia.
The Tribunal notes that this course plan is inconsistent with the applicant’s qualifications obtained in India and is inconsistent with his plans when he initially entered Australia. The applicant now wishes to pursue vocational courses in painting and decorating and building and construction in Australia. The courses are asserted to have relevance to very vague future plans.
The Tribunal is not satisfied that the applicant has established that study will provide him with significant benefits in his proposed career plan, considering the cost of the study and the fact that the applicant already has a degree in computing obtained in India. The Tribunal therefore is not satisfied that the applicant has demonstrated that the proposed additional study has a realistic prospect of providing significant value to his future beyond the qualifications he already holds.
The Tribunal has had regard to whether there are any other relevant matters. The Tribunal observes that the applicant and his wife appear to be acting in concert with the intention of extending their stay in Australia by reason of, the fact that at any one time, either of them being a student holding a visa or being a dependent on the other holding a student visa. The applicant held student visas between June 2014 and December 2016. Thereafter he held a dependent visa, consequent upon his wife’s student visa between October 2015 and August 2017. It was only two days prior to the expiry of his temporary resident visa that the applicant once again applied for a student visa on 26 February 2019. Now the applicant’s wife seeks to be a dependent on her husband’s student visa application. The Tribunal observes that the applicant’s wife, a secondary applicant in the proceeding, did not give evidence. These matters are given some weight by the Tribunal.
The Tribunal has considered all the information provided with the visa application. After weighing up these factors as a whole, the Tribunal finds that the applicant has not been able to satisfy it that the applicant genuinely intends a temporary stay in Australia as a student.
The Tribunal has considered the evidence and has taken into account the applicant’s economic circumstances in his home country relative to his potential circumstances in Australia. Given the disparity in economic circumstances between India and Australia the Tribunal cannot be satisfied that the applicant has significant incentive to return to India. The applicant has been unable to demonstrate substantial ties or personal assets in his home country which diminishes his incentive to return to India.
The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from his proposed study which will outweigh the significant time and monetary commitment this course will require. Therefore, the Tribunal is not satisfied that the applicant has demonstrated the value of his proposed course to his future.
The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 20 June 2014 the applicant has spent more than six years in Australia and 10 weeks outside of Australia, his wife and daughter reside with him in Australia, he has been able to obtain employment in Australia which indicates that he does not appear to have strong personal ties to India. Based on this evidence the Tribunal assesses the applicant’s incentive to return to India to be minimal.
On balance, the Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. Whilst the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant was previously granted a visa specifically to enable him to achieve that goal. The applicant was granted a student visa which would have facilitated the applicant’s study in his desired field. The applicant lodged this application two days prior to expiry of a temporary resident visa. It therefore appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study. The Tribunal has also had regard 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 his application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in his home country, potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.
On the contrary, the factors indicate that the applicant appears to have enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study and overall academic progress. The applicant appears to be using the student visa programme as a means of maintaining ongoing residence in Australia and does not have a genuine intention to stay in Australia temporarily.
There is no evidence before the Tribunal regarding the following factors indicated by Direction No.69: economic circumstances of the applicant; any potential military service in India; political or civil unrest circumstances in India; remuneration the applicant could expect to receive in India or a third country compared with Australia; circumstances in India relative to Australia or any other country; and the applicant’s circumstances in India relative to others in that country.
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.
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.
The application of the primary applicant having been unsuccessful, it follows that those of the secondary applicants also fail.
DECISION
The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.
Peter Booth
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 4377

21 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction