Rakesh Kumar (Migration)

Rakesh Kumar (Migration) [2020] AATA 5880 (21 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Rakesh Kumar
Manu Sharma
Aditiya Sharma
CASE NUMBER:  1833603
HOME AFFAIRS REFERENCE(S):          BCC2018/3526608
MEMBER:Frank Russo
DATE:21 December 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 21 December 2020 at 10:59am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – current enrolment – lengthy stay in Australia – multiple changes of courses and colleges – gap in studies – value of current course to future career – family remain in India – 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 6 November 2018 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 17 September 2018. 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 delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.
The applicant is a 33-year-old Indian national. The second-named applicant is the applicant’s wife, a 27-year-old Indian national. The third-named applicant is the applicant’s son, a 3-year-old Indian national.
The applicant first arrived in Australia holding a Student visa in February 2009. The Student visa application was in respect of the applicant’s enrolment in an Advanced Diploma of Hospitality Management, which would have extended the applicant’s stay in Australia until at least 8 November 2020. At the time of the hearing, the applicant was enrolled in a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management, the latter of which is scheduled to end on 10 April 2022.
The applicant appeared before the Tribunal by telephone on 14 September 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicants were assisted in relation to the review by their registered migration agent, although their agent did not attend the hearing.
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.
In addition to the application form and copy of the delegate’s reasons for decision, the applicant provided the Tribunal with a s.359(2) response/completed ‘Request for Student Visa Information’ form, dated 14 April 2020, a Statutory declaration from the applicant, dated 7 September 2020, Confirmations of Enrolment for the Certificate IV in Commercial Cookery and the Diploma of Hospitality Management, both created on 9 April 2020, and certificates for the award of the following qualifications, together with transcripts of results:
a.Certificate of English Language Proficiency, issued by Holmes Institute on 8 May 2009;
b.Diploma of Management and Advanced Diploma of Management, issued by Apex on 27 November 2012 and 4 October 2013;
c.Diploma of Human Resources and Advanced Diploma of Management (Human Resources), issued by Apex on 20 February 2016; and
d.Certificate IV in Marketing, Diploma of Marketing, issued by Apex on 12 September 2018 and transcript of results for the Advanced Diploma of Marketing.
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.
Applicant’s evidence at the hearing
The applicant gave evidence that he arrived in Australia in February 2009 holding a Student visa, with the intention of studying an ELICOS English course and then a Diploma of Hospitality Management at Holmes Institute. The applicant completed the General English course, but not the Diploma of Hospitality Management He had completed a Bachelor of Arts, majoring in Economics, in India prior to arriving in Australia.
The Student visa currently under review was made in respect of the applicant’s enrolment in an Advanced Diploma of Hospitality Management, from 12 November 2018 to 8 November 2020. However this enrolment was cancelled for non-payment of fees on 17 June 2019. At the time of the hearing, the applicant was enrolled in a Certificate IV in Commercial Cookery, which he commenced on 27 April 2020 and is scheduled to end on 10 October 2021. He also has a CoE for a Diploma of Hospitality Management, with a start date of 11 October 2021 and an end date of 10 April 2022.
At the hearing, the Tribunal noted that it had read the applicant’s statutory declaration declared on 7 September 2020, where he sets out details of his enrolment history in Australia. In this he declares that:
a.He started studying an ELICOS English course on his arrival in Australia in February 2009 and completed it around May 2009;
b.He commenced the Diploma of Hospitality Management at Holmes Institute in July 2009, but the teachers were strict and he ‘was not understanding the subject material’ and decided to seek enrolment at another institute. He left Holmes Institute around April 2010;
c.He commenced a Certificate IV in Business at Unique International College in August 2010, which he states he continued until February 2011. He states that he found this course too simple and he obtained a release letter from the college;
d.In February 2011 he obtained admission to a Diploma of Accounting and Advanced Diploma of Accounting at LAMART College. He states that he was enjoying studying this course, but then the college closed and this was out of his control;
e.He completed a Diploma of Management from Apex College from May 2012 to November 2012 and an Advanced Diploma of Management from Apex College from January 2013 to July 2013;
f.He completed a Diploma of Human Resource Management at Apex College in April 2014. He completed an Advanced Diploma of Human Resource Management from April 2014 to October 2014;
g.He commenced a Certificate IV in Marketing at Apex College in March 2015, and completed this course in November 2015. He commenced a Diploma of Marketing at Apex College in January 2016 and completed it in January 2017. He commenced the Advanced Diploma of Marketing and Communication at Apex College in February 2017 and completed it in August 2018;
h.He states that he completed all of the courses that he was enrolled in between 2012 and 2018, and that following advice from the careers counsellor at Apex College he enrolled in the Advanced Diploma of Hospitality Management. He states that he commenced the course in November 2018, but he had disagreements with the college because they would not give him credit transfers for previous studies, the college wrongly gave him credit transfers for units in the Advanced Diploma of Hospitality Management that he had paid for an submitted assignments, and he was not satisfied with the studies in this course at Apex College because it consisted of all open book exams with no practical study. He states that he left Apex College in July 2019;
i.He states that he tried to obtain enrolment in another college in July 2019, but his education agent was late in getting him enrolled in the July intake. He states he sought enrolment again in the September 2019 intake, but colleges were slow in giving him offers to enrol because Apex College would not verify his past studies. He missed the September 2019 intake as well. He states that he tried to obtain enrolment in early 2020, but ‘was refused admission at some institutions’; and
j.In April 2020 he received enrolment in the Certificate IV in Commercial Cookery and Diploma of Hospitality Management at AHMI.
The Tribunal questioned the applicant about aspects of this enrolment history, and overall the applicant’s responses were consistent with the statements he had declared in his statutory declaration. The Tribunal notes that it has on file a copy of the applicant’s enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal does not however rely on the information contained within the document as it is overall consistent with the evidence the applicant gave about his enrolment history.
When asked about the cancellation of his enrolments in the Diploma of Hospitality Management in 2009 and 2010, the applicant stated that he took admission in this course, but his English was not up to standard and he found it very hard to understand, which is why he changed courses. He stated that his English has now improved, and that he is now studying Commercial Cookery so he can understand it.
As to his efforts at obtaining enrolment in a Hospitality Management course after July 2019, the applicant stated that he tried two colleges, which he named, but stated that the ‘verification process’ from Apex College was not ready, so the colleges were unable to provide him with CoEs.
The Tribunal also noted that the applicant’s visa application was in respect of his enrolment in an Advanced Diploma of Hospitality Management, whereas at the time of the hearing the applicant was enrolled in a Diploma of Hospitality Management. The applicant stated that the Commercial Cookery course is 18 months in duration and the Diploma of Hospitality Management is of 6 months duration. He stated that they are a ‘combination course’ (in other words, a package course), and that he has not done Commercial Cookery before and wants to learn about it, and hence was told to take this combination of courses. The Tribunal questioned whether the applicant was planning on enrolling in an Advanced Diploma of Hospitality Management after finishing the courses for which he has current CoEs, given he had previously been enrolled in this course. The applicant gave evidence that this was not his intention, and that as soon as he finishes the Diploma of Hospitality Management he will go back to India as his son and family are there. He stated that his son is three-and-a-half years old and he is looking for a school to enrol him. He stated that his parents are also getting old, that they are over 65 and he is their only son and has to look after them.
As to his future plans, the applicant stated that he wishes to work in a small to medium kitchen in India. He stated that Cookery courses are in great demand in India, and that opportunities include working on functions such as festivals, weddings and other parties. He stated that he plans to work as a manager of a small restaurant, as he has done a management course, and then after three to four years, he plans to open a small to medium restaurant where he will be the main chef. He stated that one of his motivations is that his father is there and he will help him to look for places where he can open a restaurant.
When questioned about the value of the course to his future, the applicant stated that the main reason is the course will enable him to open a restaurant and he will cook for people whatever they like. He stated that the value is that he can become a chef and open his own restaurant. The applicant stated that from research he has conducted by checking websites and asking friends, he believes that if he were to work as a manager in a restaurant he can earn 30,000 to 40,000 rupees per month.
The Tribunal questioned the applicant whether he had changed his plans, noting he had previously stated that his plans were to work in a hotel. The applicant responded that first he will work in a restaurant as he thinks he might not have enough knowledge to work in a hotel.
The Tribunal raised concern with the applicant regarding his previous qualifications, which include a Bachelor of Arts from India and three Advanced Diplomas from Australia, in Management, Human Resources Management and Marketing and Communication, and that the qualification from his current studies may add little value when considered against these existing qualifications. The applicant stated that as part of his Arts degree he studies I Economics and Political Science, which he has no interest in. He stated that he can use what he learned in Accounting when he opens his restaurant. He stated that his main interest now is in Cookery so he can open his own restaurant.
As to why he wishes to undertake the course of study in Australia rather than India, he stated that in a course in India they would only teach him how to cook Indian food, whereas in Australia he can learn how to cook Thai food, pizza and pasta. He stated that his English has also improved. He stated he chose his current education provider for two reasons, namely because it is near hos housem and the teaching is good and provides practical skills in the kitchen.
As to his personal ties, the applicant gave evidence that all of his family are in India, including his wife and son who are dependant applicant’s. In his statutory declaration the applicant declared that his wife and son had travelled back to India to support his parents. He stated that he decided not to call them back before international borders closed as a result of the COVID-19 pandemic as his family is more comfortable living in India. He stated that his wife has support from his mother in looking after their son. The Tribunal noted that in his s.359(2) response, provided to the Tribunal on 14 April 2020, the applicant had indicated that he would not be able to attend a hearing until October 2020 because his wife and son were overseas and affected by travel restrictions as a result of COVID-19. The Tribunal raised that this appeared to indicate that he was planning for his wife and son to return to Australia. The applicant stated that before it was his intention that they might return in October 2020, but now his son is growing up and he wants to put him in a school. He stated that they are not safe in coming to Australia and that he wants to finish his studies and return to India as soon as possible.
The applicant confirmed at the hearing that he has never worked in India as he arrived in Australia after completing his Bachelor degree studies. In his s.359(2) response the applicant stated that he has worked as a ‘Pick Packer’ for a company since July 2017. He declared no other employment. At the hearing he stated that this role involves delivering products such as vegetables to restaurants. He stated that he is not earning much at the moment because of the COVID-19 pandemic, earning about $200 to $300 per week, whereas before he was earning a maximum of $450 per week. When questioned whether he had ever worked in the hospitality industry, he stated that in 2015 he had worked as a kitchenhand for three to four hours on Fridays. He stated that he would only sometimes do this work and that he had done it for a maximum of four to five weeks. When questioned why he had not mentioned this in the employment history he had provided to the Tribunal, he stated that it was only one day a week to get knowledge in case he started working in that industry.
The applicant confirmed that there are no civil or political issues which would prevent his return to his home country.
The applicant gave evidence that he has previously had one Student visa refused, and further details are set out in his statutory declaration, regarding refusal of a Student visa application he made in September 2011. His application to the former Migration Review Tribunal (MRT)was successful.
The Tribunal questioned the applicant about his previous visa history and the length of his stay in Australia on temporary Student visas, which may indicate he does not intend to remain in Australia temporarily and is using the Student visa programme to maintain ongoing residence in Australia. The applicant responses that from 2012 onwards there are a number of times when he could have applied for a 457 visa, but he has not done so because that is not his intention. He stated that he proposes studying Hospitality Management so he can get a job as a manager in a hotel and then open up his own restaurant.
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.
Having considered the applicant’s claims against all the factors specified in Direction No.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.
Applicant’s circumstances in his home country

As to the applicant’s circumstances in his home country, the Tribunal accepts that the applicant’s entire family is currently in India, including his wife and son, and the Tribunal accepts that this indicates that he has significant incentive to return to his home country.
The applicant has provided little evidence or any economic ties to India. At the hearing the applicant claimed that he intends to open a restaurant in India and stated his father would help him find a place to open the restaurant. He has not provided any plans with respect to such a restaurant. In his s.359(2) response the applicant did not provide details of any properties or other assets owned by him or his family in India. He instead listed a car and household items which he owns in Sydney. The Tribunal however notes the information he provided to the Department with his visa application, which includes bank account details of the applicant in Australia and of his family in India, as well as pension details of his father and an affidavit of sponsorship from his parents.
The applicant has never worked in India and the Tribunal has concerns that the applicant has resided in Australia since February 2009, a period of almost 12 years. He has worked for the same company in Australia since July 2017, and although the evidence that he gave was that he would at most earn only $450 per week pre-COVID-19, given the lack of evidence of significant financial ties of his own to India and the length of time he has remained in Australia, the Tribunal finds that the applicant’s economic circumstances would present as a significant incentive for him not to return to India.
There is no evidence before the Tribunal that political and civil unrest would result in the applicant choosing to remain in Australia indefinitely. There is no evidence before the Tribunal of military commitments that would present as a significant motive not to return.
There is insufficient evidence regarding the applicant’s circumstances in his home country, relative to that of others in India, and the Tribunal makes no adverse findings regarding this factor.
As to his reasons for not undertaking the course of study in his home country, the applicant claims that studying Commercial Cookery in Australia will provide him with skills in cooking a range of international cuisines, rather than just Indian cuisine. While this may provide some explanation for the applicant’s motives, the Tribunal notes the applicant has provided little evidence of research into similar courses available in his home country, and given the Tribunal’s concerns with his enrolment history (which are addressed below), the Tribunal has concerns the applicant has enrolled in the course of study to maintain ongoing residence in Australia, rather than for the reasons stated.
Applicant’s potential circumstances in Australia
The Tribunal accepts that the applicant is currently enrolled in a Certificate IV in Commercial Cookery, which commenced on 27 April 2020 and is due to end on 10 October 2021. The Tribunal also accepts that the applicant has a CoE for a Diploma of Hospitality Management which is due to start on 11 October 2021 and end on 10 April 2022. The Tribunal also accepts that from 2012 to 2018 the applicant completed a number of courses that he commenced, including an Advanced Diploma of Management in 2013, an Advanced Diploma of Management (Human Resources) in 2014 and an Advanced Diploma of Marketing and Communication in 2018. However, the successful completion of previous courses and current enrolments are two of many considerations relevant to the assessment of whether the applicant, in regard to the current visa application, intends genuinely to stay in Australia temporarily.
The evidence before the Tribunal indicates the applicant arrived in Australia holding a Student visa in February 2009 and has now been in Australia for almost 12 years. During this time he has been granted a total of five Student visas, as well as associated Bridging visas. The length of the applicant’s stay in Australia and his enrolment history raises significant concerns that the applicant is using the Student visa program to circumvent the intentions of the migration program and to maintain ongoing residence. The Tribunal has particular concern that the applicant’s first enrolment in Australia (besides a short English language course) was a Diploma of Hospitality Management, which the applicant did not complete. Some 10 years later the applicant again enrolled in Hospitality Management course. The applicant gave evidence that his reason for not pursuing the Diploma of Hospitality Management in 2009 and 2010 was because he did not have sufficient English language skills and found the course instruction difficult to understand, hence he enrolled in a different course with a different provider. While the Tribunal accepts that the applicant may have had difficulties with the English language upon arriving in Australia, the Tribunal notes that following the cancellations of his enrolments in Hospitality Management in 2009 and 2010, the applicant enrolled in courses in Business, Management, Accounting, Human Resource Management and Marketing and Communication. Only after completing three Advanced Diplomas, two of which are in broader Management fields, has the applicant decided to return to Hospitality Management. On the basis of all of the evidence and information before it, the Tribunal is of the view that the applicant does not have a genuine interest in Hospitality Management or in his stated business plans in India, but has applied for the Student visa to maintain ongoing residence in Australia.
The Tribunal has also considered the applicant’s evidence regarding his reasons for the cancellation of his CoE for the Advanced Diploma of Hospitality Management on 17 June 2019 and the reason for his subsequent gap in enrolment, where he was not enrolled again until 27 April 2020. While the Tribunal is prepared to accept the applicant’s reasons for ceasing his studies at Apex College in June 2019, the Tribunal does not accept that the applicant was unable to obtain an enrolment in a Commercial Cookery or Hospitality Management course for a period of over 10 months. The Tribunal also notes that the applicant’s current CoEs were created on 9 April 2020, nine days after the Tribunal invited the applicant under s.359(2) to provide details of his current enrolments. Having regard to the length for which the applicant remained un-enrolled and the timing of his current enrolments, the Tribunal finds that the applicant’s current enrolments were obtained for the purpose of meeting the enrolment requirement for the grant of the Student visa. The Tribunal is of the view that a genuine student would continue to study and achieve course progression. This adds to the finding that the applicant is using the student visa program to maintain ongoing residence in Australia.
While the applicant gave evidence that his wife and son have returned to India, and that conditions are better for them there, the Tribunal notes that the applicant’s wife and son remain secondary applicants to the visa application. The Tribunal also has concerns the applicant requested a delay in the hearing of this application for review until after October 2020, to allow his wife and son to return to Australia for the hearing. While the Tribunal has heard the applicant’s evidence about the benefits of his wife and son remaining in India, including his plans to find his son a school in India, after considering the evidence as a whole, including the applicant’s immigration history, the Tribunal considers that if the Student visa were granted, the applicant’s wife and son may return to return to Australia. This adds some further potential concern regarding the applicant’s potential circumstances in Australia.
There is no evidence that the applicant has entered into a relationship of concern, and the Tribunal makes no adverse findings regarding this factor. The Tribunal notes the length of time the applicant has remained in Australia, and his evidence of progress towards completing his current enrolment in the Certificate IV in Commercial Cookery, and accordingly makes no adverse findings regarding the applicant’s knowledge of living in Australia or of his education provider or course of study.
Value of the course to the applicant’s future
The Tribunal has concerns regarding the value of the course of study to the applicant’s future. The Tribunal considers the university degree level study completed by the applicant in India to be at a higher level than study at the vocational studies he has undertaken in Australia since mid-2009. The applicant has already completed three qualifications at the Advanced Diploma level in Australia, in Management, Management (Human Resources) and Marketing and Communication. While the Tribunal accepts that qualifications in Commercial Cookery and Hospitality Management may further broaden the range of roles which the applicant could apply for to include roles within the hospitality industry, the Tribunal considers the applicant has had sufficient opportunity to equip himself with vocational skills. This included his first enrolment in the Vocational Education and Training (VET) sector, which was also in Hospitality Management. After undertaking studies in a range of fields and already completing three Advanced Diplomas, the applicant has now decided to re-enrol in Hospitality Management.
The Tribunal also finds that the applicant provided only general evidence of his future employment and business plans. The Tribunal notes that in his GTE statement provided with his application, the applicant stated he wishes to work in a 5-star hotel, whereas at the time of the hearing he indicated he wishes to start his own restaurant. When the applicant's inability to provide any meaningful detail about his future plans is considered with the number of times that he has changed the focus of his studies, the Tribunal considers that the applicant's evidence in relation to his future plans appeared to be tailored to fit with his current course selection in Australia. The Tribunal does not accept the applicant's claims regarding his career aspirations.
While the Tribunal notes the evidence provided by the applicant regarding the remuneration he expects he could receive in India from his current studies, the Tribunal gives this only little weight, as there is no information regarding the remuneration he can expect to receive from his existing qualifications in Management, Human Resources Management and Marketing and Communication.
The applicant has only limited experience in the hospitality industry. He has provided no supporting evidence of such experience, and only after the Tribunal questioned him whether he has worked in this field, did he say he briefly worked in hospitality one day a week in 2015. The applicant has not demonstrated any particular interest in the hospitality industry through his employment experience.
Having regard to the applicant’s circumstances, the Tribunal is not satisfied the proposed study will assist the applicant to obtain employment or improve his employment prospects. The Tribunal considers the applicant’s current studies at the vocational level are likely to be of marginal additional value when compared against his existing qualifications.
Immigration history
The applicant’s immigration history refers to both his travel and visa history. As noted, the applicant first arrived in Australia in February 2009 and has held five Student visas, as well as associated Bridging visas.
The Tribunal accepts that there is no evidence of the applicant breaching the conditions of his visas. The Tribunal also makes no adverse findings from the visa refusal decision made in 2011, and notes that the application was remitted by the MRT.
The Tribunal is concerned that the applicant is now proposing to remain in Australia until at least 10 April 2022 to complete the Diploma of Hospitality Management, which would bring his stay in Australia on temporary Student and associated Bridging visas to over 13 years. Given the range of courses the applicant has undertaken at the vocational level and his re-enrolment in a course which he had first enrolled in 2009, the Tribunal is not satisfied that the applicant is not simply now proposing further short, inexpensive courses in order to gain a student visa with the primary objective of maintaining ongoing residence in Australia.
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. Taking into account the amount of time the applicant has now spent in Australia on student and associated Bridging visas and the fact that the applicant has changed the focus of his studies a number of times, has already completed three Advanced Diplomas and has now returned to Hospitality Management after 10 years of focusing on other courses, the Tribunal has significant concerns that he is using the Student visa programme primarily for maintaining ongoing residence.
Other relevant matters
The Tribunal has also given regard to whether there are any other relevant matters and finds there are no other relevant matters to the assessment of the applicant's intentions to stay in Australia temporarily in addition to the matters covered above. The Tribunal has considered all the information provided by the applicant in support of the application.
Conclusion
On balance, the Tribunal is not satisfied that the information the applicant has provided regarding his circumstances in his home country, his 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 he 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 visa, rather than 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 and does not have a genuine intention to stay in Australia temporarily.
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 decisions not to grant the applicants Student (Temporary) (Class TU) visas.
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 5880

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction