Ram Ditta (Migration)

Ram Ditta (Migration) [2020] AATA 4435 (9 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ram Ditta Ram Ditta
CASE NUMBER:  1730464
HOME AFFAIRS REFERENCE(S):          BCC2017/3162550
MEMBER:David Thompson
DATE:9 August 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 09 August 2020 at 1:47pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine temporary entrant criterion not met– vague details about future plans –no strong incentive to return to home country –use the student migration program to maintain ongoing residence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359
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 Immigration and Border Protection on 15 November 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who is a citizen of the Republic of India, applied for the visa on 31 August 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because she was not satisfied that the applicant intended genuinely to stay temporarily in Australia.
The applicant appeared before the Tribunal on 4 December 2019 to give evidence and present arguments.
The applicant was assisted in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant meets the requirements of cl.500.212.
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.
Evidence
As well as giving oral evidence at hearing, the applicant provided the Tribunal with a number of items of documentary evidence, not all of which was relevant to the issues before the Tribunal. The documentary evidence that was relevant was as follows:
a.the Delegate’s decision record, dated 15 November 2017;
b.a completed Request for Student Visa Information form, submitted in response to the Tribunal’s request for information made pursuant to s.359(2) on 20 September 2019;
c.a certificate of completion of a Certificate III in Hospitality (Asian Cookery) dated 14 December 2009 and issued to the applicant by Austech Institute for Further Education (AIFE), with transcript of competencies attached;
d.a certificate of completion of a Diploma of Hospitality Management dated 18 March 2010 and issued to the applicant by AIFE, with transcript of competencies attached;
e.a certificate of completion of an Advanced Diploma of Management dated 20 February 2011 and issued to the applicant by Apex Institute of Education, with transcript of academic record attached;
f.a certificate of completion of an Advanced Diploma of Tourism dated 29 May 2013 and issued to the applicant by Australian College of Vocational Studies (ACVE), with transcript of academic record attached;
g.a letter dated 29 May 2013 from ACVE, confirming the applicant’s full-time enrolment between 18 April 2011 and 17 April 2013;
h.a certificate of completion of a Certificate IV in Accounting dated 5 June 2014 and issued to the applicant by Australis Institute of Technology and Education (Australis Institute), with transcript attached;
i.a certificate of completion of a Diploma of Accounting dated 25 February 2015 and issued to the applicant by Australis Institute, with transcript attached;
j.a certificate of completion of a Diploma of Marketing dated 31 October 2016 and issued to the applicant by Australis Institute, with transcript attached;
k.a set of 7 confirmations of receipt of funds issued by ANZ Bank to the applicant, dated 22 March 2018, 8 February 2018, 15 March 2019, 13 August 2019, 26 September 2019, 23 October 2019, and 8 November 2019;
l.Confirmation of Enrolment (CoE) 92D54E30 in respect of the applicant’s enrolment in a Bachelor of Accounting course with Group Colleges Australia Pty Ltd (Group Colleges), scheduled to run between 28 August 2017 and 13 December 2019;
m.an undated course progress record issued by Group Colleges with respect to the applicant’s Bachelor of Accounting studies;
n.a record of the applicant’s results in an Advanced Diploma of Marketing course issued by Australis and dated 5 July 2017;
o.a statement of completion of a Bachelor of Accounting dated 13 December 2019 and issued to the applicant by Universal Business School Sydney (a member of Group Colleges), with academic transcript attached;
p.an offer and acceptance agreement dated 14 January 2020 issued to the applicant by Holmes Institute with respect to a Master of Professional Accounting course scheduled to run from 23 March 2020 to 15 July 2021; and
q.CoE B44EF733, in respect of the applicant’s enrolment in a Master of Professional Accounting course at Holmes Institute, schedule to run from 23 March 2020 to 15 July 2021.
The Tribunal has also reviewed and considered the Departmental file in relation to the applicant’s visa application the subject of this review application. That file contains no relevant documents that have not already been mentioned above as having been provided directly to the Tribunal, with the following exceptions:
a.an undated document entitled ‘Statement of Purpose’ provided to the Department by the applicant in support of his application; and
b.the applicant’s visa application form.
Prior to hearing, the Tribunal obtained a copy of the applicant’s record from the Provider Registration and International Student Management System (PRISMS). Much of the information contained in that record is not prejudicial to the applicant and accords with evidence he gave to the Tribunal. The Tribunal has drawn on that information in making its findings of fact regarding the applicant’s study record below. However, certain information contained in that record, being prejudicial to the applicant’s case (or potentially so) was put to the applicant at hearing in accordance with s.359AA of the Act. That information, and the applicant’s responses, will be discussed further below when considering the applicant’s study record.
The applicant’s immigration history
At the date of this decision, the applicant has resided in Australia for just short of 11 years and 7 months. He has been enrolled in courses of study consistently over that period, with only relatively short gaps between courses. However, as the delegate noted, the sheer length of the applicant’s stay in Australia and his relatively frequent changes in course of study cast doubt in themselves on the applicant’s claim that he intends to return to his home country. It is, therefore, necessary to consider his immigration history in some detail. To that end, the Tribunal makes the following findings of fact on the basis of the evidence before it:
a.The applicant applied for his first student visa, a sub-class TU-572 student visa, at some time in the second half of 2008 in order to study for an Advanced Diploma of Hospitality Management. At around the same time, he applied for entry to that course at AIFE and was given a place. His course was scheduled to start on 24 November 2008.
b.On 15 December 2009 the applicant’s CoE for his Advanced Diploma of Hospitality Management was cancelled. On or about the same date, he was given a fresh CoE for the same course, which was scheduled to run from 19 January 2009 to 14 January 2011.
c.The applicant was granted his student visa on 16 December 2008.
d.On 16 January 2009, the applicant arrived in Australia, and on or about 19 January 2009 he commenced his studies.
e.The applicant was awarded a Certificate III in Hospitality (Asian Cookery) on or about 14 December 2009, and a Diploma of Hospitality Management on or about 18 March 2010, in both cases by AIFE. He started studying for his Advanced Diploma of Hospitality Management shortly after 18 March 2010.
f.The applicant’s CoE for his Advanced Diploma was cancelled on 17 June 2010.
g.In July 2010 the applicant enrolled in an Advanced Diploma of Management at Apex Institute of Education. He started studying that course on or about 26 July 2010 and finished it successfully on or about 25 January 2011.
h.In April 2011 the applicant enrolled in an Advanced Diploma of Tourism at ACVE. He started studying that course on or about 18 April 2011.
i.On 19 April 2011 the applicant was granted a further subclass TU-572 student visa, valid until 17 June 2013.
j.On 6 March 2012, the applicant departed Australia for India. He returned to Australia on 15 April 2012.
k.On or about 17 April 2013 the applicant successfully complete his Advanced Diploma of Tourism.
l.In June 2013 the applicant enrolled in a Certificate IV in Accounting at Australis Institute. He started that course on or about 15 June 2013.
m.On 9 July 2013 the applicant was granted a further subclass TU-572 student visa, valid until 8 March 2015.
n.On or about 25 April 2014, the applicant successfully completed his Certificate IV in Accounting.
o.In May or early June 2014, the applicant enrolled in a Diploma of Accounting, against at Australis Institute. He started studying that course on or about 6 June 2014 and successfully finished it on or about 8 January 2015.
p.In or about February 2015 the applicant enrolled in a package of courses at Australis Institute, comprised of:
i.Certificate IV in Marketing, scheduled to run from 23 February 2015 to 23 August 2015;
ii.Diploma of Marketing, scheduled to run from 28 September 2015 to 3 July 2016; and
iii.Advanced Diploma of Marketing, scheduled to run from 29 August 2016 to 4 June 2017.
q.The applicant studied for his Certificate IV in Marketing between 23 February 2015.
r.On 1 April 2015 the applicant was granted a further subclass TU-572 student visa, valid until 4 August 2017.
s.On or about 23 August 2015 the applicant successfully completed his Certificate IV in Marketing.
t.The applicant’s CoE for his Diploma of Marketing was cancelled on 19 October 2015. He in fact started studying for his Diploma of Marketing at Australis Institute on or about 5 October 2015.
u.On 21 January 2016 the applicant departed Australia for India. He returned to Australia on 29 March 2016.
v.On or about 2 October 2016 the applicant successfully completed his Diploma of Marketing.
w.The applicant’s CoE for his Advanced Diploma of Marketing was cancelled on 19 October 2015, before he could start studying that course. He was issued a new CoE (77DB6037) for an Advanced Diploma of Marketing course at Australis Institute scheduled to run between 14 November 2016 and 12 November 2017.
x.The applicant’s CoE 77DB6037 was cancelled on 14 July 2017, before he was due to complete his Advanced Diploma of Marketing.
y.On or about 10 July 2017, the applicant started studying for an Advanced Diploma in Marketing and Communications at Australis Institute.
z.On 31 August 2017 the applicant applied for a subclass TU-500 student visa.
aa.On or about 12 November 2017, the applicant successfully completed his Advanced Diploma in Marketing and Communications.
bb.On 15 November 2017 the applicant’s application for a subclass TU-500 student visa was rejected.
cc.In August 2017 the applicant enrolled in a Bachelor of Accounting course at Universal Business School Sydney, due to run from 28 August 2017 to 21 August 2020. He finished that course successfully on or about 13 December 2019.
dd.In January 2020 the applicant enrolled in a Master of Professional Accounting course at Holmes Institute, scheduled to run from 23 March 2020 to 15 July 2021. He is enrolled in that course at the date of this decision.
The applicant’s study history shows a number of changes of study path. He initially studied in the area of hospitality, moved to management studies (see paragraph 14(g) above), then moved to tourism studies (see paragraph 14(h) above), then to accounting studies (see paragraph 14(l) above), then marketing studies (see paragraph 14(p) above), then marketing and communication studies (see paragraph 14(y) above), and then back to accounting studies (see paragraph 14(cc) above). Whilst a change in study pathway does not necessarily in and of itself indicate that an applicant is not a genuine temporary entrant, this number of changes raise that possibility, in that they suggest that the applicant has other reasons for remaining in Australia. The applicant addressed some of these changes at hearing. He stated that his move from hospitality to management studies in July 2010 (see paragraph 14(g) above was a result of the closure of his college, AIFE. He was at that time studying hospitality management, and the course to which he move was (he said) a substitute for his Advanced Diploma of Hospitality Management. The Tribunal accepts that AIFE closed its doors at or about the relevant time – that would follow from the fact that its registration as a training organisation ceased in May 2010, according to the records available at The applicant explained his move to accounting studies by stating that he had become tired of the hospitality area and convinced that he did not wish to work in it, but found accounting genuinely interesting. However, he offered no explanation for his changes to tourism studies and marketing studies.
The applicant’s study history also shows some course cancellations. These cancellations were put to the applicant pursuant to s.359AA of the Act at hearing. The first (see paragraph 14(b) above) was clearly because his visa had not been issued in time for him to start studying. The second, of his enrolment in his Advanced Diploma of Hospitality Management (see paragraph 14(f) above), has already been explained as having been caused by the closure of his education provider at the time. The applicant explained the third cancellation (see paragraph 14t) above), of his Diploma of Marketing enrolment, was a result of changes to the course made by his college, and so purely administrative. The fourth cancellation, of his enrolment in an Advanced Diploma of Marketing was explained as following on from the third cancellation, as the courses were part of the same package. In the case of the fifth cancellation (see paragraph 14(x) above), of the applicant’s Advanced Diploma of Marketing, the applicant explained that his college changed the nature of the course to an Advanced Diploma of Marketing and Communication. As the applicant’s enrolment was cancelled before he could start the course, the Tribunal accepts that explanation. Indeed, the Tribunal accepts the applicant’s explanations for the other cancellations noted as well, and finds that were outside of the applicant’s control.
The sheer length of the applicant’s study history, along with his several changes of study pathway, strongly indicate that he is using the student visa system primarily to maintain residence in Australia. However, it should be noted that he has passed all of the many courses he has undertaken, without need to repeat any of them, and this ameliorates the effect of the other matters mentioned to some extent.
There is no evidence before the Tribunal to the effect that the applicant has previously been refused a visa, whether by Australia or any other country (although it should be noted that on the evidence his only journey to a country other than India or Australia was a short trip to the United Arab Emirates for a holiday in March 2012), and no evidence that he has ever had a visa issued to him cancelled, or that cancellation of any such visa has ever been considered. Nor is there any evidence before the Tribunal that the applicant has made any other Australian visa application that is yet to be determined. There is no evidence that the applicant has breached the migration laws of Australia or any other country.
All of the matters mentioned in the preceding paragraph support the applicant’s claim to be a genuine temporary entrant. However, neither they nor the other ameliorating factors mentioned above entirely overcome the effect of the sheer length of the applicant’s stay in Australia and (to a lesser extent) of his changes in study pathway. The Tribunal finds that the applicant’s immigration history weighs somewhat against his claim to be a genuine temporary entrant.
The applicant’s circumstances in his home country

On the applicant’s evidence, his family consists of his father, who has lived in Qatar for the last 18 to 19 years where he works as a construction contractor, a brother who lives in India, and a sister who is an Australian permanent resident and is living in this country. His mother is deceased. The applicant stated that he sees very little of his sister, who lives in Brisbane, but that he keeps in touch with his family by telephone and video calls, speaking to his father and brother every second day. The Tribunal notes, however, that he has only made two visits to India in the all the time he has been in Australia. The applicant gave evidence that he has no community involvements in India.
The applicant gave evidence that he has no assets in India, but said that his father owns some property. The applicant came to Australia to study directly after finishing his secondary schooling, and so has no employment history in India.
On this evidence, the Tribunal finds that the applicant has some family ties to India, but not such strong ties as would provide him with a significant incentive to return there at the conclusion of his studies. Whilst there is no evidence of any economic circumstance that would provide him with a significant incentive to avoid returning to India, there is no evidence of any economic factor or circumstance that would provide him with a positive incentive to return. These matters weight reasonably strongly against the applicant.
The applicant was asked at hearing why he chose to study in Australia. His response was that it was the high reputation of the Australian education system generally, and of Australian qualifications particularly, which motivated him. He also stated that he had contacted some friends from school who had already come to Australia to study, and that their reports on their experiences had convinced him to seek to study here. The Tribunal finds that these are reasonable motives for choosing to study in Australia.
The applicant gave evidence that he has no military service obligations to perform on his return to India, and has no concern regarding civil or political unrest in that country. There is nothing in the evidence before the Tribunal that contradicts the applicant’s evidence on these points, and the Tribunal accepts it.
The matters referred to in the two preceding paragraphs weigh in favour of the applicant to some extent, but do not outweigh the effect of the matters discussed in paragraphs 20 and 21, as assessed in paragraph 22 above. On the whole, the Tribunal finds that the applicant’s circumstances his home country weigh quite strongly against the applicant’s claim to be a genuine temporary entrant.
The applicant’s potential circumstances in Australia
As was noted above, the applicant has a sister living in Australia. He also stated at hearing that he has some distant cousins on his mother’s side living in this country, with whom he lived for the first two years of his residence here. Since then, he has been living in shared accommodation with friends. The applicant’s evidence at hearing was that he has no community involvements in Australia. He stated that he has no assets in Australia, and there is no evidence before the Tribunal to the contrary. He also stated that he has worked in Australia as a pizza delivery driver for two outlets in the Sydney area, the first from July 2009 to August 2017 and the second from 2011 to 2013. The applicant gave evidence at hearing that he is not working at present, as the conditions on his bridging visa will not allow him to do so. At present, he is being supported by his father.
On this evidence, the applicant has some personal ties with Australia, although not especially strong ones, and no significant economic ties. He therefore has some incentive to stay in this country once he has finished his studies, but not a strong incentive. This gives some weight to his claim to be a genuine temporary entrant.
At the time he made the visa application the refusal of which gave rise to this review application, the applicant had lived and studied in Australia for approximately 8 ½ years. He may therefore be taken to have had a good and first-hand knowledge of these matters. However, this does not assist the Tribunal in reaching its decision. The applicant’s evidence at hearing was that he chose what was then his current course provider on the basis that it was convenient and relatively inexpensive, and on the basis of good reports from friends who had studied there, or were then studying there. By the date of hearing, the applicant had only a week left of that course and had applied to his current course provider, Holmes Institute, for a place in their Master of Professional Accounting programme. He gave no evidence as to the basis for his decision to study at Holmes Institute. Accordingly, the Tribunal obtains no assistance from considering this factor.
There is no evidence before the Tribunal suggesting that the applicant has entered into any relationship of concern, in the sense of a relationship contrived to improve his chances of a successful migration outcome. Nor is there any evidence, apart from the matters discussed elsewhere in these reasons, that he is using the student visa programme to maintain residence in Australia, or is using the student visa programme to circumvent the intentions of the Australian migration programme in any other way. These matters do not detract from the applicant’s case.
Overall, the Tribunal finds that the applicant’s potential (and indeed actual) circumstances in Australia provide a little support to his claim to be a genuine temporary entrant.
The value of the applicant’s courses to his future
The course the applicant is currently undertaking, being a master’s degree programme, is consistent with his current level of education, give that his previous course was at bachelor’s degree level. As the applicant has never worked in his home country, and had only secondary level qualifications when he left to come to Australia, his current course will clearly improve his employment prospects in India, and can only assist him to obtain employment there. The applicant stated at hearing that his intention upon conclusion of his studies is to find a management accounting position either in India or the United Arab Emirates. The course he is currently undertaking, and indeed the course he proposed to undertake when he made his relevant visa application, are clearly relevant to that plan. The applicant went further in his evidence, in that he said that a master’s level qualification in accounting would be essential in finding a good position, because candidates with bachelor’s degrees in the area are relatively common.
The applicant was asked at hearing how much he could expect to receive working as an accountant in India with the qualifications he was seeking. His response was that he had no definite information on the point, but thought that in India he could expect to make the equivalent of INR50,000 to INR60,000 per month (which on current exchange rates is the equivalent of approximately AUD930 to AUD1,120 per month, or AUD11,160 to AUD13,440 per annum). However, he also said that if he could find a position in the UAE, he thought he could make AED3,000 to AED4,000 per month, tax free. On current exchange rates, that is the equivalent of approximately AUD1,140 to AUD1,520 per month, or AUD13,680 to AUD18,240 per annum. The applicant’s evidence was that remuneration at this level would be considered very good in India and in the UAR respectively. He added that with his father’s connections in Qatar, he might well be able to find a position there. The Tribunal notes, however, that even making allowances for differing costs of living, the applicant could in all likelihood command a much higher salary using his qualifications (and particularly his Master of Professional Accounting, when he is finished it) in Australia.
The Tribunal finds that the applicant’s studies have value for his future in his home country (and in the UAR), but that they may have even more value in Australia. These circumstances provide some support for the applicant’s claim to be a genuine temporary entrant, but not strong support.
Conclusion
Weighing all the matters discussed above together, the Tribunal finds that the evidence against the applicant’s claim to be a genuine temporary entrant outweighs that supporting his claim.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
David Thompson
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 4435

9 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal