Rana (Migration)

Rana (Migration) [2021] AATA 4711 (22 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Prashant Rana
CASE NUMBER:  2002293
HOME AFFAIRS REFERENCE(S):          BCC2019/6321772
MEMBER:Peter Booth
DATE:22 November 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 22 November 2021 at 1:34pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – several courses not completed – gap in studies – benefit of course to future career and a specified work project – applicant changed to Vocational courses – no identified future career path – maintaining ongoing residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, Schedule 2 cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 January 2020 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 27 November 2019. 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 (Cth) (the Regulations) because the applicant was not a genuine temporary entrant.
The applicant appeared before the Tribunal on 29 September 2021 to give evidence and present arguments.
The applicant was assisted in relation to the review by his 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 is a genuine temporary entrant.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The applicant gave evidence at the hearing, the substance of which was follows. The applicant had read the delegate’s decision dated 29 January 2020 refusing his application for a student visa. The applicant understood that the issue for determination was whether he was a genuine temporary entrant.
The applicant was asked to describe his current enrolment including commencement and completion dates. The applicant said “start 23 August 2021 and will end on 23 August 2022”. He did not elaborate. When invited to state the name of the course he said “Diploma of Business Management”.
The applicant had produced a confirmation of enrolment document to the Tribunal in respect of a Diploma of Business Management which commenced on 23 August 2021 and is scheduled to be completed on 19 August 2022.
Notwithstanding the vague nature of the applicant’s evidence, the Tribunal accepts that he is enrolled in the course described in the confirmation of enrolment.
The applicant had also provided information to the Tribunal in the form of a response to a request to do so pursuant to s 359(2) of the Act. In summary the information provided by the applicant was as follows.
The applicant completed a course which he described as “mechanical engineering” between July 2011 and July 2015 in India. He did not provide any Indian employment history.
The applicant arrived in Australia on 24 October 2015 and since that time has returned to his home country on two occasions. First in February 2017 for approximately 38 days, and secondly in October 2017 for approximately 37 days.
The applicant stated that the application for the student visa in question was made 23 August 2021. This response must be incorrect.
The applicant stated his visa history in Australia to be as follows: he held a “Student Subclass 573” visa between 6 October 2015 and 14 December 2017, then he held a “Temporary Graduate Subclass 485” visa between 9 December 2017 and 9 December 2019, and he applied for a “Student Subclass 500” visa on 27 November 2019, which was refused on 29 January 2020.
The applicant stated his study history in Australia to be as follows: he enrolled in a Diploma of Business on 20 January 2020 but did not complete it, and he is “studying now” a Diploma of Business course which he enrolled in on 23 August 2021 and expects to complete on 19 August 2022. He did not disclose any other study in Australia.
The applicant stated that he had been refused a visa application. He described the circumstances as follows:
Applied for tourist Visa NEW ZEALAND.
The VISA was refused on 17/05/2021 because they believed I am not a bonafide applicant.
You have not provided sufficient evidence to demonstrate strong personal commitments in Australia. You have not provided adequate evidence to support your purporse of travel to NZ.
The applicant stated that he was not enrolled in a registered course whilst the holder of a student visa between 9 June 2020 and 15 January 2021. He explained this as follows:
enrolled to this course in January 2020 with full enthusiasm. I completed few of my subjects as well during the course. Soon, after Covid started, I lost all my savings during course enrollment and applying for appeal. I also sold my car in January 2020, to overcome the financial hardship I wasn't mentally and financially stable to continue the course and lost my interest too
The applicant stated that he was employed as “IT desktop support” from 23 July 2019 from which he derived an annual salary of AU$40,000.
The applicant did not provide any information regarding his family and their place of residence.
The applicant did not provide any information regarding ownership of assets in India.
As to his future employment plans the applicant stated:
Once I complete my courses, I will return to my home country and look for job opportunities. I am confident that with my international master’s degree, work experience and added qualification will give me an edge over other job seekers and I will easily land up getting a job in multinational companies like Wipro, Infosys and Tata Consultancy Services. There are a lot of industry sectors that contribute towards revenue of analytics industry. The finance and banking sector accounts for almost 37 percent of the total analytics market with approximately 756 million U.S. dollars, making it the highest revenue generating sector. Marketing and advertising come second at 26 percent, while e-commerce contributes about 15 percent. Data analytics employees are generally paid a high salary because of the niche technical expertise. Data analysts in the e-commerce sector get paid about 1,3 million Indian rupees per annum, making it the most attractive area for budding analysts, while the analysts in the retail and FMCG sectors come a close second with about 1.2 million per annum. The scope of data analytics In India includes organizations in banking, policing, fraud detection, healthcare, telecommunications, e-commerce, energy and risk management.
As to his expected future remuneration the applicant stated: “The current average annual salary of business analyst in India is Rs. 12,00,000 and globally about $80,000. So, I believe, studying in Australia will be beneficial to my career as a future business analyst.”
The Tribunal proceeded to ask the applicant some questions arising from the responses paraphrased above. The questions and the answers, in summary were as follows.
The applicant confirmed that the student visa application in question was made on 27 November 2019. He also confirmed that at that time he held a Subclass 485 visa. The Tribunal observed that the applicant applied for the student visa approximately 12 days prior to the expiry of the Subclass 485 visa. The applicant agreed, and added “I was given project which required these skills, I applied to study then”. He was asked as to the expected duration of the project. He said “one month”. The Tribunal observed that on that basis he applied to study a Diploma of Business Management. The applicant said “yes”. The Tribunal observed the applicant had decided to study a one-year course because he was given a one-month project which may have relevance. The applicant said “yes”.
The Tribunal asked the applicant whether he had completed a Master’s degree in information technology between November 2015 and July 2017. Applicant said “yes”.
The Tribunal observed that the applicant had enrolled in a Diploma of Business which was due to commence on 20 January 2020 but did not complete it. The applicant agreed. When asked what he had done between July 2017 and January 2020, he said “I went back to India, I look for a job, they suggested experience in working in IT, if I came back to Australia and did professional year in 2018 and 2019, I get internship, I start work as IT support engineer”.
He was asked when he returned to India. He said “October 2017”. He was asked when he returned to Australia. He said “in November 2017”.
In answer to a question from the Tribunal the applicant confirmed that he had been the holder of a Subclass 485 visa between December 2017 and December 2019.
He was asked what professional employment he had obtained during that period and for how long. He said “internship for three months, start work in July 2019”. When asked whether he had continued working for that employer he said “yes for 20 hours”.
The Tribunal observed that at the conclusion of his Subclass 485 visa he had applied for a student visa. The applicant agreed.
The applicant was asked when he had ceased studying the first Diploma of Business course. He said “due to COVID I could not study, lost focus, and I have returned to same course”. When the question was repeated, he said “June 2020”. He was asked whether he had abandoned the course or was excluded from it. He said “abandoned”.
The Tribunal asked the applicant whether he wanted to say anything about abandoning the course . He said “my mother not well in India due to COVID 19 and could not focus and had to drop the course”. He did not elaborate. When asked whether he produced any medical evidence regarding his mother’s condition he said “no”.
The Tribunal observed that the applicant’s next enrolment was in another Diploma of Business course which started on 23 August 2021. The applicant agreed. He was asked what he did between June 2020 and August 2021. He said “not sure, not able to focus anywhere else, I lost my interest”. He did not elaborate.
It was asked whether he had he applied to defer the first Diploma of Business course. He said “yes”. When asked what evidence he had regarding the application to defer the course he said “none”. He was asked whether the deferral was granted. He said “not granted”. The Tribunal asked whether he meant to say that the deferral application was refused. He said “I spoke to the College and they said ‘no’”.
The Tribunal asked whether he produced any medical evidence of any condition or circumstances which prevented him from studying whilst in Australia. He said “no”.
The Tribunal invited the applicant to explain the circumstances in which his application for a visa travel to New Zealand was refused. He said “applied for New Zealand tourist visa, refused because I am not bone fide applicant because I did not provide all the documents”. He did not elaborate. When asked when he had applied for the visa he said “this year”. When invited to be more specific he said “May 2021”. The Tribunal asked the applicant why he applied for a New Zealand tourist visa. He said “because travel bubble was open, to visit for two or three day as tourist”.
He was asked to explain the change in direction of his study from engineering to business courses. He said “I did good research in India, I wanted to be a person who has knowledge and skill to manage, I only wanted to gain some business skills for employment in India, technical skills are not enough”.
He was asked to explain the change in the level of study from higher education to vocational studies. He said “I did Master of Information Technology, while I was working in the project, I needed management skills which are lacking behind, because India was for three years, we have MBA or Bachelor of Business, this course will give same skills”.
When asked whether he had assets in India in his name. He said “no”. He was asked to explain his employment intentions when he returns to India. He said “brother is a programmer, he say need management skills. My intention is to work as an information technology manager when I returned to India”.
When invited to add anything further to his evidence the applicant said “I have no intent to remain in Australia or apply for other visa, I happy leave after course”.
Prior to the hearing the applicant provided a variety of documents to the Tribunal. The applicant did not refer to any of these documents during the course of giving evidence at the hearing. Nonetheless, they have been taken into account by the Tribunal to the extent relevant and given appropriate weight.
Prior to the hearing the applicant provided two statements in support of his application for review. The first statement is unsigned, undated, and without page numbers or paragraph numbers. The second statement is dated 20 September 2021, it is signed, but has no page or paragraph numbers. Neither statement was referred to by the applicant during the course of giving evidence at the hearing. Nonetheless, they have been taken into account by the Tribunal to the extent relevant and given appropriate weight. The Tribunal makes a number of observations in relation to the statements. In the first statement the applicant stated that he was seeking to complete a Diploma of Leadership and Management and then an Advanced Diploma of Business. These courses were disclosed by the applicant in the hearing. He gave vague evidence of an intention to apply for employment with multinational companies. The nature of his proposed employment was not stated. The second statement is broadly consistent with the applicant’s oral evidence at the hearing but provides similar detail. In it he expresses a vague intention to work as an “IT manager, project team leader”. He also states that he intends to return to India after the completion of his studies. Neither statement explains why the applicant changed courses, why he did not complete the Diploma of Leadership and Management or the Advanced Diploma of Business, the details of a career path and the reasons for his study gaps.
The applicant’s representative was invited to make submissions to the Tribunal. In summary, those brief submissions were to the effect that the applicant had no family ties in Australia, no permanent employment, and he has undertaken research.
The Tribunal undertook a PRISMS search on 8 November 2021. That search discloses that the applicant was enrolled in a Master of Management (Project Management) due to commence on 2 November 2015 and be completed on 31 October 2017. That enrolment was cancelled. By letter dated 8 November 2021, the applicant was invited to provide a signed statement in which he explains the reason or reasons why the enrolment was cancelled and when it was cancelled. Also, in an unsigned and undated statement provided to the Tribunal approximately 28 August 2021, the applicant stated that he was seeking a student visa in order to complete a Diploma of Leadership and Management and an Advanced Diploma of Business. The applicant was invited to provide a signed statement in which he explains whether he enrolled in those courses, and if he did not enrol in them why he did not enrol in them.
By letter dated 12 November 2021 the applicant responded. The applicant stated that he abandoned the management (project management) course because he decided to enrol in an information technology course. This occurred on 18 May 2016, the course having started on 2 November 2015. He said that he transferred some of his units from the first course to the new course. He did not explain to the Tribunal’s satisfaction why he chose to abandon the course, other than he preferred the information technology course. In answer to the second question asked by the Tribunal, he stated that he did not enrol in the Diploma of Leadership and Management and advanced business courses, but instead enrolled in a Diploma of Business course. The applicant does not explain why he did not enrol despite his unsigned statement asserting that he intended to study these courses.
CONCLUSIONS
The evidence of the applicant was often unresponsive to the question, vague, imprecise or discursive. Often the evidence of the applicant contained elements of all these issues. The Tribunal has rehearsed the evidence as a representative narrative, given in real time, which was often quite disjointed. The Tribunal’s rehearsal of the evidence is not intended to be a transcript of the evidence, rather the best recording as it transpired. It does give and is intended to give an appreciation of the nature and quality of the applicant’s evidence.
Without diminishing the applicant’s evidence, it can be summarised as follows.

The applicant completed a Bachelor of Mechanical Engineering in India. He has not been employed in India. He arrived in Australia on 24 October 2015 as the holder of a Subclass 573 student visa. He has returned to India on two occasions. His most recent return to India was in 2017. He held a Subclass 485 visa between 9 December 2017 and 9 December 2019. He applied for the student visa in question approximately 12 days prior to the expiry of the Subclass 485 visa. The applicant stated his visa history in Australia as follows: he held a “Student Subclass 573” visa between 6 October 2015 and 14 December 2017, then he held a “Temporary Graduate Subclass 485” visa between 9 December 2017 and 9 December 2019, and he applied for a “Student Subclass 500” visa on 27 November 2019, which was refused on 29 January 2020. The Tribunal observes that he did not disclose the completion of a Master of Information Technology course in Australia in his response to the request to provide information.
More recent PRISMS search of his study history discloses that he was enrolled in a Master of Management (Project Management) which commenced in 2 November 2015 and was due to be completed in 31 October 2017. That enrolment was cancelled. This enrolment was not disclosed by the applicant in his response to the request for information. The Tribunal invited him to explain this enrolment and also enrolments in vocational courses in leadership and management and advanced business which were referred to in his first unsigned and undated statement. The applicant’s response was as described above, namely, that he decided to enrol in information technology courses and abandoned the Master of Management (Project Management) course. He does not explain to the Tribunal’s satisfaction why he decided to do this. Secondly, despite asserting in his unsigned statement that he intended to study the Diploma of Leadership and Management and an Advanced Diploma in Business he did not do so. He doesn’t explain to the Tribunal’s satisfaction why he did not proceed with these courses.
The applicant did not provide any information as to the location of his family members and whether he has any family members residing in Australia. He explained that he applied for a Diploma of Business course because he was offered one month’s work, for which that course would be relevant. It is a 12-month course. His explanation for applying to be enrolled in the Diploma of Business course is most unconvincing.
The applicant failed to complete the first Diploma of Business course. His reasons for failing to complete it are most unconvincing.
The applicant has significant study gaps, mainly between July 2017 and January 2020 and between June 2020 and August 2021. His reasons for not studying are most unconvincing. He owns no assets in India. He appears to have stable employment in Australia.
The applicant applied to travel to New Zealand in 2021. His application was refused. However, his reasons for travelling or wanting to travel to New Zealand were that there was an opportunity during COVID restrictions. He provided no details or documents to explain the reason why his application was refused. He said he only intended to stay in New Zealand for two or three days.
The applicant has not explained to the Tribunal’s satisfaction why he changed the purpose of his travel to Australia from information technology to business, why he has changed the level of his study from higher education study in India to vocational courses in Australia, why he has changed the direction of his study in Australia, why he has not obtained employment in India using his existing qualifications, why he has not returned to India since 2017, why he did not return to India permanently having completed several courses of study in Australia, why he did not return to India when his student visa application was refused, the reasons for his extensive study gaps whilst in Australia, cogent details of his future career path and the utility of his current course to his vague career plans.
In considering whether the applicant has met the genuine temporary entry criterion, the Tribunal had regard to the following factors consistent with cl 500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether he has satisfied the genuine temporary entrant criterion.
The Tribunal has considered the applicant’s circumstances in his home country. The applicant is unmarried and is from India. The applicant has provided little evidence of social, direct family and financial ties to his home country or other economic incentives to return. However, the Tribunal finds that he has some ties to act as an incentive to return to his home country at the completion of the actual or proposed study. Whilst the Tribunal accepts that the applicant may have ties to India, having regard to the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to India.
The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 24 October 2015 as a holder of Subclass 573 visa. The proposed study would extend the applicant’s stay until at least August 2022. The Tribunal considers that the length of the proposed stay suggests that the applicant is studying for the purposes of staying in Australia. Whilst plans can change, in the Tribunal’s view this is not the conduct of a genuine temporary student. On balance it is consistent with the applicant having decided to extend his stay in Australia by utilising the student visa programme.
The Tribunal does not place weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. There are several reasons for this. First, the applicant gave extremely vague evidence in that regard. Secondly, the applicant has not provided any details of a career path to the Tribunal’s satisfaction. Thirdly, he has not explained, to the Tribunal’s satisfaction, the relevance or utility of his current course to his vague career path.
The Tribunal observes that this is inconsistent with the applicant’s qualifications obtained in India, and is inconsistent with his study history in Australia and inconsistent with his plans when he entered Australia.
The applicant relies on two statements in which he addresses the various genuine temporary entry criterion. As discussed above, the statements do not provide answers to many of the deficiencies in the applicant’s case, however they have been taken into account and given appropriate weight.
On balance, the Tribunal is not satisfied that the applicant has established that study will provide him with significant benefits in his proposed career plan, considering the cost of the study and the fact that the applicant already has extensive qualifications obtained both in India and in Australia. Accordingly, the Tribunal is not satisfied that the proposed additional study has a reasonable prospect of providing significant value to his career beyond the existing qualifications.
The Tribunal turns to consider whether there are any other relevant matters. The Tribunal finds that there are no other relevant matters to consider that may be beneficial or adverse to the applicant, and that this aspect is not relevant.
The Tribunal has considered the applicant’s economic circumstances in his home country relative to his potential circumstances in Australia. Having regard to the disparity in economic circumstances between India and Australia, the Tribunal is not satisfied that the applicant has significant incentive to return to India. The applicant has been unable to demonstrate substantial ties or personal assets in his home country, which diminishes his incentive to return to India.
The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from his proposed study which will outweigh the significant time and monetary commitment this course will require. Accordingly, the Tribunal is not satisfied that the applicant has demonstrated the value of his proposed course to his future.
The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 24 October 2015, the applicant has spent more than six years in Australia and departed Australia on two occasions, most recently in 2017. He has no employment history in India, he owns no assets in India, there is no evidence of the extent of his family connections to India and he appears to have stable employment in Australia, all of which indicates that he does not appear to have strong personal ties to India. On balance, the Tribunal assesses the applicant’s incentive to return to India to be minimal.
The Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. Whilst the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant was previously granted a visa specifically to enable him to achieve that goal. The applicant was granted a Subclass 573 visa which would have facilitated the applicant’s study in his desired field. Thereafter, he obtained a Subclass 485 visa to enable him to obtain professional experience in Australia. The applicant lodged this application 12 days prior to expiry of the visa. It therefore appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study.
The Tribunal has considered all information provided by the applicant in support of his application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in his home country, potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.
On the contrary, the evidence suggests that the applicant has enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study. The Tribunal considers that the applicant is using the student visa programme as a means of maintaining ongoing residence in Australia, and does not have a genuine intention to stay in Australia temporarily.
There is no evidence before the Tribunal regarding the following factors indicated by Direction No.69: economic circumstances of the applicant; any potential military service in India; political or civil unrest circumstances in India; remuneration the applicant could expect to receive in India or a third country compared with Australia; circumstances in India relative to Australia or any other country; and the applicant’s circumstances in India relative to others in that country.
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.
Peter Booth
Member

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

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

[2021] AATA 4711

22 November 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction