Ramandeep (Migration) - [2023] AATA 568

Ramandeep (Migration) [2023] AATA 568 (17 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Ramandeep
CASE NUMBER:  2117855
HOME AFFAIRS REFERENCE(S):          BCC2019/6941036
MEMBER:Robert Cumming
DATE:17 February 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa.

Statement made on 17 February 2023 at 12:37pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa––applicant had spent a considerable amount of time in Australia – applicant was not a genuine applicant for entry and stay as a student –use the student migration program to maintain ongoing residence – lack of academic performance and progress – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1999, Schedule 2, cl 500.212
CASES
Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the now styled Minister for Immigration, Citizenship and Multicultural Affairs on 10 November 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 31 December 2019. At the time of application, Class TU contained 2 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 the delegate was not satisfied that the applicant intended genuinely to stay in Australia temporarily.
The applicant appeared by telephone before the Tribunal on 8 September 2022 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the latter stages of the COVID-19 pandemic. However, the more practical reason for the hearing by telephone was that the Tribunal, as constituted, was sitting in Brisbane and the applicant was resident at Lalor, Victoria. As such, a remote attendance would have been necessary anyway even though it is the fact that face-to-face hearings have largely been put on hold because of the pandemic. In any event, the applicant actively participated in the hearing by telephone and, when asked at the outset of the hearing, the applicant indicated that she agreed to and accepted the hearing to be undertaken by telephone. The Tribunal is satisfied, therefore, that the applicant was given a fair opportunity to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed]
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 Student visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa, need only satisfy the secondary criteria. The issue in the present case is whether the applicant intends genuinely to stay in Australia temporarily.
Genuine applicant for entry and stay as a student: cl 500.212
Clause 500.212 of the Regulations requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, a copy of which was provided to the applicant in the course of the application process by the Tribunal and another copy of which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist, but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Tribunal has had regard to all the information supplied to the Department with the visa application which is in the Departmental file provided to the Tribunal and all the information supplied to the Tribunal by the applicant. In particular, the Tribunal notes the application received by the Tribunal on 29 November 2021, the supporting documents received by the Tribunal on 9 May 2022, the submissions and supporting documents received by the Tribunal on 12 July 2022, the supporting document received on the day of hearing and the further submissions and supporting documents the applicant was given leave by the Tribunal to provide after hearing and which were received by the Tribunal on 20 September 2022 and the oral evidence and submissions given by the applicant at the hearing.
The Tribunal notes that it has on its file, certain information which was not provided by the applicant. These were printouts from the Provider Registration and International Student Management System (PRISMS) and the Departmental movement record. Out of fairness, and in accordance with s 359AA of the Act, the applicant was sent these printouts prior to the hearing and the applicant had them available at hearing and was offered time to consider them.
The Tribunal asked the applicant whether she considered the information in the printouts to be accurate and the applicant responded that she considered the printouts were accurate. Subsequently, in the hearing, the Tribunal put concerns that it had about the information in the printouts which the Tribunal noted to the applicant might be the reason, or part of the reason, why the Tribunal would affirm the decision under review. The applicant took the time to give a detailed response to the concerns. As the Tribunal sought extra information from the applicant and gave her leave in that regard, it was also stated that the applicant could have that additional time to reply more fully to the Tribunal’s s 359AA concerns. The concerns and response will be dealt with later in these reasons.
Based on all the information available to the Tribunal, most notably the material supplied by the applicant, the applicant’s circumstances may be summarised as follows.
(a)The applicant is a 24 year old citizen of India who first arrived in Australia on 10 February 2017 as the holder of a Subclass 500 (Student) visa.
(b)The applicant has links to her home country in the form of her father, mother and brother. She is in contact with her family in India by means of telephone and online applications one to 2 times per week.
(c)The applicant’s father is a farmer and owns agricultural land and her mother is a housewife. The applicant’s brother is younger than her and is at hearing was aged 21 years and was working as a vehicle mechanic.
(d)Currently the applicant does not own any assets in India herself. As to family inheritance the applicant thought it was likely that the land would pass to her brother rather than to herself.
(e)During the hearing there was some discussion about the role of women in Indian society and the applicant was quite honest in talking of her concerns about returning to India because she says that it is her parents’ clear intention to arrange a marriage for her. This is something she does not want. Rather she wishes to pursue her own career ambitions. It would be the case on return to India that there would be financial support for her in the sense that she could live with her parents until the marriage for her was arranged and then she would be looked after by her new husband and his family, but she would not be able to work on her own account, was what the Applicant said in her evidence at the hearing.
(f)In her oral evidence, the applicant indicated that she has no concerns in respect of military service commitments or political or civil unrest in the area of India where her family lives.
(g)In Australia, the applicant has no immediate family members. She indicated she did have some cousins and uncles in Australia, however, she does not have any contact with them at all. Apart from that, the applicant said she was not a very social person. She does have her boyfriend with whom she does not live, but does socialise with him. She also maintains contact with her friends that she studied with in Brisbane. However, in recent times due to the COVID-19 pandemic and other factors, that level of contact had diminished. She does have some colleagues from study and work as well.
(h)The applicant has work in Australia and at the date of hearing she was working in the café known as Two Birds One Stone Cafe, working largely 3 days a week, Friday to Sunday some 7 to 8 hours per day on shift. The other 4 days of the week the applicant said were for study. Depending on shifts, the applicant said she earned approximately $700.00 to $900.00 per week. Depending on her level of financial commitments, sometimes she could save up to $200 per week on her earnings. At other times she did not have any money spare. Her family has in the past supported her financially and indeed her mother had provided documentary evidence of that in the material on the Departmental file.
(i)As far as the applicant’s education is concerned, she arrived in Australia having completed secondary education in India in March 2016. In the interval between finishing that course and her arrival in Australia, the applicant had not had paid employment but had spent some 7 to 8 months doing English language courses.
(j)The applicant first enrolled in Australia in a course Diploma of Health Sciences which was due to be conducted between 27 February 2017 and 31 January 2018. The applicant said that she tried her best at those studies but could not really satisfactorily complete those, she passed some subjects and not others and really, as a young person living away from home for the first time, she struggled with her studies. In approximately November 2017 the applicant discontinued those studies which meant a further enrolment that she would have subsequently undertaken in a Bachelor of Health Sciences to be conducted from February 2018 to October 2019 also was cancelled.
(k)The applicant then commenced Certificate IV in Commercial Cookery being studies listed to be offered between 13 November 2017 and 18 March 2019. The applicant said that she did undertake those studies but had difficulties with the college and otherwise that period of time until approximately August 2018, when the particular Registered Training Organisation (RTO) cancelled her enrolment. This was an issue over fees. The applicant said that she really had no satisfactory communication with her RTO in regard to those particular studies and, unfortunately for her, she received no Recognition of Prior Learning (RPL) for some of the competencies she did in fact complete. Once again that meant the following course Diploma of Hospitality Management to be conducted in the period 15 April 2019 to 11 October 2019 was cancelled as a result.
(l)There followed a period where the applicant was not actually enrolled and the applicant has provided evidence of her father’s illness during that time but it must be said that that was at a time during which the applicant was still enrolled on the course.
(m)The applicant then returned to study by enrolling in a course of Advanced Diploma of Hospitality Management being conducted between 14 February 2020 and 11 February 2022. The applicant has produced evidence of completing 11 of the 33 competencies required for that course. Once again, the applicant points to some difficulties in passing the course and submitting assessments and being deemed not yet competent. She also pointed to a serious assault that she sustained in December 2021. The applicant has provided the statement she supplied to the investigating police in respect of that particular incident. This, the Applicant points to, being part of the reason for not completing her studies. Since that time the applicant has re-enrolled in the course Advanced Diploma of Hospitality Management, those studies recommencing on 7 August 2022, only a short time before hearing. The studies are due to be completed on 13 April 2024.
(n)In relation to the Applicant’s future intentions on completing her studies in April 2024, the applicant says that she does not think she will remain in Australia. She spoke during hearing of an intention to travel to the United Kingdom (UK) to gain experience working in restaurants there. The reason for this was because she had had discussions at her current employer with a chef who had worked overseas who pointed to the value of that international experience and this is the sort of experience that the applicant feels she would like to get. She also spoke of perhaps an intention to travel to the United States of America (USA) because her brother has expressed a view to travel there to further his interest in motor vehicles and it might be the case that the applicant would join her brother there.
(o)Based on the information supplied by the applicant in evidence and as confirmed in relation to the movement records, since the applicant’s initial arrival in Australia on 10 February 2017 she has not since departed Australia. The applicant in evidence pointed to her father’s desire to arrange marriage for her in the early years of her time in Australia which the applicant truthfully stated was a reason she did not wish to return home and since 2020 the onset of the COVID-19 pandemic has restricted travel for her.
(p)In the material the applicant supplied to the Tribunal and in her oral evidence she was able to give sufficient evidence of her knowledge of living in Australia and by and large able to speak in relation to her education provider. As to knowledge of her intended course of study, the Applicant was able to give some details of that however a little bit more will be said of this later in this decision.
(q)As to previous visas, the applicant has been granted one Student visa and one Bridging visa class A. In evidence, the Applicant stated that apart from her current visa refusal, she has not otherwise had a visa in any country (including Australia) refused or cancelled and has not made an application for any other visa for which she is still awaiting a decision.
(r)As to compliance with visa conditions, the Applicant admitted that maintaining enrolment and maintaining satisfactory progress which had been conditions of her Student visa had not been complied with by her.
(s)The applicant advised that she had not travelled to any other countries apart from her home country and Australia.
(t)Apart from dealing with issues of concern and explaining her situation regarding her studies in greater detail and her general statement of intention for her future career, which will be discussed later in this decision, the applicant did not suggest there were, or give evidence concerning, any other matters which may relate to her genuine temporary entrant status in Australia.
During the hearing, the Tribunal put to the Applicant possible concerns it may have in respect of several issues.
The first concern put to the applicant by the Tribunal arose out of consideration of the PRISMS and movement records and in connection with affording the applicant an opportunity to respond to the concerns under s 359AA of the Act. This was in the nature of lack of academic progress by the Applicant to date and lack of travel home in the time she had been in Australia with the possible inference that this may mean that she was not a genuine student and was rather using her visa to maintain residence in Australia. That, it was explained to the applicant may be the reason or part of the reason why the decision of the Department may be affirmed by the Tribunal. The Applicant took the time to give an explanation in relation to that at hearing. This was largely in the nature of arriving in Australia as a young person and being unfamiliar with study conditions and otherwise and not progressing satisfactorily leading to her requiring a change of subject matter of her course. That similarly continued with lack of course progress and problems with her RTO. She then made some progress and now is re-enrolled and has every intention to finish her studies.
It should be pointed out that the Tribunal took the time because the Applicant was not represented to give a very detailed explanation of the sort of information it would permit the applicant to provide in explaining her study history, what subjects she had undertaken, why she had passed some and not others, and give a detailed explanation of what elective subjects she had been undertaking and would be undertaking and whether there would be any change to what she had already studied at the first attempt at the Advanced Diploma where she completed approximately one-third of the course (11 competencies out of 33).
Despite the pains which the Tribunal went to explain the sort of information it would allow the applicant to provide in support of her case to be able to explain her lack of progress, the applicant failed to do so and instead largely regurgitated a previous short set of submissions she had made previously. Although she stated in her written submission that she had provided further documents, these did not arrive at the Tribunal and the explanations given were largely to the extent of her initial problems in settling into Australia followed by lack of support at her second RTO and then the assault she sustained from a co-worker in December 2021 leading to proceedings for intervention orders and otherwise she could not concentrate on her studies.
The next concern related to the reason for the applicant studying in Australia rather than at home in India. In response, the applicant spoke generically of the difficulty of studying in India and lack of real practical education. She also highlighted the regard in which qualifications were viewed from Australia which was more so than that for qualifications from India. She also spoke of the discussion she had had with her co-worker who had studied with Australian qualifications in the UK and how that was well regarded there.

There was also the concern put to the applicant about her own admission of not wishing to return to India because of her parents’ intention of arranging a marriage for her. While given the opportunity to put material in relation to that, the applicant did not really seek to downplay that or offer any other explanations of her intentions to return to India. The applicant spoke generically about intending to study in the United Kingdom and really that it was not her intention to remain in Australia because of all the difficulties she had had in recent times particularly with her visa. She also indicated that whilst she had boyfriend, she was not sure how that relationship would go, and it was not her intention to seek a partner visa with him notwithstanding that he is an Australian citizen and to do so might help her remain in Australia.
As stated above, the key issue the Tribunal has to decide in this case is whether the applicant intends genuinely to stay in Australia temporarily. On that issue, the considerations set out in cl 500.212(a) of Schedule 2 to the Regulations govern the matters the Tribunal needs to consider.
In assessing whether an applicant meets the genuine temporary entrant criterion, the Tribunal must have regard to Direction No.69. As also noted above, that Direction is not to be used as a checklist but rather, it is intended to guide decision makers in considering the applicant’s circumstances as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
In adopting that process in this case and having considered all the factors in the Direction on the basis of which the Tribunal has made certain findings which are about to be set out, the Tribunal finds that some of those factors, and the findings based on those factors, are not of such significance, importance or materiality to its decision so as to tip the balance away from the view the Tribunal has taken of the applicant’s circumstances. This is not to suggest that those factors, and the findings based on those factors, have been overlooked. Rather, the Tribunal, in considering its decision has found these factors and findings of lesser weight in balancing all the factors and findings in coming to its decision overall on the merits of the review application.
Having had regard to the applicant’s evidence and submissions, including oral and written submissions, and particularly the applicant’s responses to the possible concerns raised by the Tribunal which have been discussed earlier in this decision, and giving consideration to all the factors specified in Direction No.69, the Tribunal makes the following findings:
(a)The first factor the Tribunal has to consider is whether the applicant has given reasonable reasons for studying in Australia rather than in her home country of India. The applicant’s reasons are those often heard by the Tribunal, namely that of the quality and more practical basis of the education and the international exposure otherwise available in Australia which is superior to that she could obtain in her home country and also the fact that Australian qualifications are more highly regarded in overseas countries than Indian qualifications. However, in the absence of specific examples rather than these bald statements of generality, it is difficult for the Tribunal to resolve this issue. The applicant sought to give evidence of her discussions with her co-worker as to the regard Australian qualifications are held in overseas but really there was no other aspects independently verifying the applicant’s statements. So, the Tribunal is faced on the one hand with the case of the applicant not having given reasonable reasons for studying at home in India. On the other hand, in assessing the evidence given by the applicant it is a case of, at best, her situation being one where the Tribunal can view this in a neutral fashion as far as the applicant is concerned. In the circumstances, and while reasonable minds may differ, the Tribunal considers that, on balance in this instance the applicant did not provide sufficiently detailed reasons for the Tribunal to accept why she was studying in Australia rather than at home in India.
(b)The applicant has links in her home country in the form of her father, mother and brother. She is in contact with her family one to 2 times per week. At this stage, the applicant owns no property of her own in India and in the due course of family succession it is unlikely that property would come to her. Rather it is the situation that it would be expected that a marriage would be arranged for her, and the applicant was honest enough to say that was one of the reasons she had some reluctance to return to India. It is acknowledged of course that from 2020 to perhaps a little earlier in 2022 before the hearing, the impact of the COVID-19 pandemic meant that the applicant could not travel to India during that time.
(c)The applicant speaks of her thoughts of travelling to emulate her co-worker by working overseas in the UK to gain culinary experience there. She also indicated that she may even travel to the USA because her brother has spoken of his intentions to travel there.
(d)By contrast, the applicant seems to have established herself in Australia. She has a boyfriend although they do not cohabitate according to the applicant, and she has employment which largely is sufficient to cover her costs of living in Australia and indeed in some weeks she is able to save perhaps $200 per week. She has continued to maintain residence in Australia notwithstanding poor academic progress. A little more will be said of that, but it is the case that in the over 5 years the applicant had been in Australia at the time of hearing, she had only completed approximately one-third of the competencies required in one course. It is of course acknowledged by the Tribunal that the applicant was young when she arrived and the Tribunal accepts that people can take time to settle into studies and the applicant indicates that certainly happened to her in her first year in Australia. There is also the issue of the assault the applicant sustained which affected her from the end of 2021 into 2022. However, by the time of the assault the applicant was approximately in the 21^st month of a 24 month course but had only completed a third of the competencies. The applicant was advised to give a detailed statement of her circumstances and failure to complete the studies and had indicated in a hearing that she knew the sort of information that she was required to provide yet she did not do so other than to make a slightly enhanced version of a previous statement where short paragraphs were advanced concerning her ability to settle into studies initially, then problems with her RTO, and then the assault in December 2021 and the problems with respect to intervention order ensuing in the following months. The applicant was specifically advised to provide any supporting medical evidence as to stress or other conditions that she sustained however that information was not provided by the applicant.
(e)So, it is the issue of balancing the factors surrounding the applicant’s intention to return to India and her conduct as displayed by lack of academic performance to date in Australia. The Tribunal is of course sympathetic towards the applicant but considers that her lack of progress and her lack of explanation concerning that lack of progress does not help to explain or contribute to a significant intention on her part to return to India. In fact, the applicant has honestly stated that her concern about returning to India surrounds her family’s desire to arrange a marriage for her which she does not wish to enter because that will restrict her ability to pursue her own career which is something she wishes to do and that is the reason she wishes to remain to complete her studies. In these circumstances, noting again that reasonable minds may differ, in exercising its discretion to weigh up the evidence both for and against the applicant in this regard, the Tribunal considers that the conduct of the applicant is not that of a person who has a significant incentive to return to her home country of India.
(f)As to economic circumstances in the applicant’s home country, the Tribunal notes there will be family support if the applicant has to return. The applicant also indicates that it would not be her desired situation because while she would not be able to pursue her own career and earn her own money, she would however be part of her arranged marriage with her new husband, and her new husband and her new husband’s family would provide for her economic support. Accordingly, the Tribunal remains concerned about the applicant’s incentive to return to India, and while technically she would have the economic support there, she does not desire that support to be by way of an arranged marriage and in that instance the Tribunal considers the applicant does not have a significant incentive to return to India for the reason of the arranged marriage and the constraints that would place on her ability to work although technically she would be financially supported in that regard.
(g)The applicant has ties in Australia namely her work, her studies, and her boyfriend and some other social acquaintances although she does not socialise to any great extent. The applicant has made no return trip to India and this has been considered at some length in respect of the arranged marriage issue. However, it must be noted that for the years of 2020 and 2021, and for a large portion of 2022, the COVID-19 pandemic restrictions prevented travel. But, it is in relation to the lack of progress to date the applicant is making in her studies that concerns the Tribunal the most. The Tribunal has considered this and remains very concerned that well into her 6^th year in Australia, the applicant has only to date completed some 11 competencies out of a course requiring 33 competencies, and has already had one full attempt at completing that course and now has re-enrolled in an attempt to get that particular qualification. Added to this is the applicant’s reluctance to return to her home country because of the arranged marriage situation but the applicant has given evidence of an intention to get qualifications in Australia and then use those qualifications to seek employment overseas particularly in the UK. She has also mentioned travel to the USA. So, it is difficult to work out clearly what the applicant’s intentions are. Is it a case on her part of genuinely having that intention to leave Australia or is it just her stating that she has an intention to travel away from Australia on completion of her studies in order to satisfy this particular criterion as having an intention to remain in Australia only temporarily? Added to this is the very detailed indication given by the Tribunal to the applicant of the sort of information that she should supply to explain her studies, lack of progress, and intended studies going forward which the applicant at hearing indicated that she understood what she had to do, but then she failed to do so when supplying the information to the Tribunal. The Tribunal considers this a finely balanced case and noting that reasonable minds may reasonably differ, in closely examining the conduct of the applicant in this case and looking very carefully at factors both for and against her, the Tribunal in this instance finds that the balance tips to the finding that the applicant is using her Student visa to circumvent the intentions of the migration program.
(h)For similar reasons, the Tribunal finds that the Student visa is being used by the applicant to maintain ongoing residence in Australia.
(i)As to the applicant’s knowledge of living in Australia, her intended course of study and her associated education provider, the Tribunal was broadly satisfied that the applicant had done the minimum necessary to allow the Tribunal to accept her responses in relation to satisfying her knowledge of living in Australia, and to a certain extent, her knowledge of her RTO. However, given that the Tribunal spent a considerable amount of time going through the sort of information that the applicant should provide to the Tribunal as to the applicant’s studies and the particular elective subjects the applicant was going to undertake, that is to say whether on the cookery side or on the management side, which the applicant had spoken in general terms of at hearing, but then, when the applicant supplied her further statement that she had been given leave to provide, she did not go into any detail in this regard as to her studies. For that reason, the Tribunal finds that the applicant has not given a response which is satisfactory to explain her knowledge of her intended course of study.
(j)As to the level of the applicant’s studies, it is noted that the applicant arrived in Australia only with secondary school qualifications and is studying at a higher level. The applicant also states that it is her intention to work in the catering field. In those circumstances, the Tribunal can accept that the applicant is undertaking a course that is consistent with her current level of education and will assist the applicant to obtain employment or improve her employment prospects in her home country.
(k)Similarly, the Tribunal can find that the studies the applicant is currently enrolled in will be relevant to her future employment either in her home country or a third country.
(l)As to remuneration the applicant would receive in her home country as opposed to Australia, the applicant indicated that she had given no consideration to that, and had made no research of that issue and was concentrating on getting her qualifications. The Tribunal is, consequently, prepared to make a neutral finding as far as the applicant’s ability to satisfy this particular criterion is concerned.
(m)As at the date of hearing, the applicant had been in Australia since initial arrival on 10 February 2017 for a period of 5 years 212 days, during which time she had not subsequently departed Australia. The Tribunal notes the travel restrictions brought on by the COVID-19 pandemic. If the Applicant were to remain in Australia until the last day of her currently enrolled studies namely to the completion of that course as per the Confirmation of Enrolment (CoE) being 13 April 2024, the Applicant will have been in Australia for a period of 7 years 65 days.
(n)As to previous visa applications for the applicant, but for the current visa application under review, the applicant has successfully been granted one Student visa and one Bridging visa class A. There is no evidence to suggest that any other visas the applicant has applied for in any country (including Australia) have been cancelled or any other visas she has applied for in any country (including Australia), apart from the current visa under review, have been refused. There is no evidence to suggest that the applicant is awaiting the outcome of a visa application for another class of visa for which she has applied and for which a decision has not yet been made.
(o)As to compliance with visa conditions, there is evidence before the Tribunal in the form of the PRISMS records which the applicant confirmed, and on her own admission during the hearing, that the applicant has failed to comply with her Student visa conditions in respect to maintaining enrolment and maintaining satisfactory attendance and course progress. This was in the period 16 August 2018 when her enrolment in the Certificate IV in Commercial Cookery was cancelled and that situation remained until the termination of the Student visa on 31 December 2019. It is noted also that the applicant technically has visa condition 8105 on her Bridging visa class A which limits the applicant to working 40 hours per fortnight during term times. However, as a result of the COVID-19 pandemic, the applicant has the advantage of having that condition waived and this explains why the applicant may technically be working in excess of that length of time on a fortnightly basis. Thus, no finding of breach of that visa condition is made in connection with the applicant.
(p)There is no evidence that the applicant has travelled to any other countries apart from Australia and her home country which makes it unnecessary for the Tribunal to consider whether the applicant has complied with the migration laws of any other country.
(q)As noted, were the applicant to remain in Australia for the completion of her currently enrolled studies, to the last day of that course as per the CoE being 13 April 2024, the applicant would have been in Australia for a period of 7 years 65 days. This is in circumstances where the Tribunal has concerns over the conduct of the applicant. That conduct largely relates to lack of academic performance and progress as well as her incentive to return to her home country. While the Tribunal notes that the applicant has made some progress in one full attempt at completion of her currently enrolled course, the applicant only completed one-third of the competencies and while the Tribunal notes that the applicant did suffer an assault, but this was however towards the end of the course when it would reasonably be expected that more competencies had been completed by that stage of the course by the applicant. There is also the issue of the applicant’s reluctance to return to India because of her parents’ intention to arrange a marriage for her. She must be commended for the honesty of her evidence in that regard. The question really is what her future intention is. This could be in terms of travelling to the UK or it could be travelling to the USA.
(r)So there is the applicant’s stated intention not to remain in Australia on completion of her studies. But overall and noting while reasonable minds may reasonably differ, this Tribunal is concerned about the length of time the applicant has been in Australia and her level of academic achievement in that time. The Tribunal acknowledges that young students often taken time to settle down and find a course that suits their aptitudes and desires for a career. The Tribunal also notes the assault that took place on the applicant but the Tribunal considers that this was at the stage of her studies where it would be reasonably expected that the applicant would have completed more than one-third of her course. In all the circumstances, the Tribunal considers this is a case where it can find that the conduct of the applicant amounts to the actions of a person who is using her Student visa primarily for the maintenance of ongoing residence in Australia.
(s)As there is no secondary applicant, let alone a secondary applicant who is an infant, it is unnecessary for the Tribunal to consider the intentions of a parent, guardian or spouse of any infant applicant.
(t)There are no other relevant matters that bear upon the conduct of the review as to the applicant’s status as a genuine temporary entrant.
Balancing all of these findings, the Tribunal considers the weight of the evidence points more to those factors and findings not favouring the applicant’s case than those factors that are supportive or neutral to her case. No doubt, there are factors which do point to an intention to leave Australia, namely the applicant’s stated intention to do so and broad generic statements of intention with respect to gaining work experience in the UK or USA. However, in weighing up all of the evidence, the Tribunal places lesser weight on these particular aspects given the overarching conduct and concern as to genuine status as a student the Tribunal has found in this instance. The Tribunal is at pains to note that these factors have been considered at some length and very carefully by the Tribunal and the Tribunal’s reasoning has been expressed already in this decision. The Tribunal acknowledges reasonable minds may differ, but this Tribunal has balanced the evidence very carefully and while the Tribunal is sympathetic to the circumstance of the applicant, the Tribunal finds that the factors and circumstances it considers are applicable in this case, do lead to the conclusion that the applicant is using her Student visa to maintain ongoing residence in Australia.

Having had regard to all matters, including the Direction No.69 requirements to which regard is required, the Tribunal is not satisfied the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
Having regard to the Federal Court of Australia decision, Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25, a finding that the applicant does not meet cl 500.212(a) means it is unnecessary to consider whether the applicant meets cl 500.212(b) or (c). This is because, having failed to satisfy one condition even where the applicant can meet the other 2 conditions, overall the applicant has failed to meet a condition and therefore the application must be decided against her.
Conclusion on cl 500.212
The Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa.
Robert Cumming
Member

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

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