RANGASAMY (Migration)

RANGASAMY (Migration) [2020] AATA 4314 (12 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sounderraj Rangasamy
CASE NUMBER:  1831965
HOME AFFAIRS REFERENCE(S):          BCC2018/2865299
MEMBER:Frank Russo
DATE:12 October 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 12 October 2020 at 2:12pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa, travel, study and work history – change from non-extendable work visa to student visa – enrolment at lower level and in different subject area than previous study – value of study to future work plans – inconsistent evidence – no evidence of enrolment at time of decision – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 500.111, 500.211(a), 500.212(a)
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 19 October 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 31 July 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.
The applicant appeared before the Tribunal by telephone hearing on 21 August 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Indian) and English languages.
The applicant was assisted in relation to the review by their registered migration agent, although his agent did not attend the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.
While the issue before the delegate was whether the applicant is a genuine temporary entrant, from the documents before the Tribunal, there is no evidence that the applicant, at the time of this decision, meets the enrolment requirement in cl.500.211(a) for the Student visa.
Background
The applicant is a 25-year-old Indian national. He first arrived in Australia holding a Skilled – Recognised Graduate Work (subclass 476) visa on 28 April 2017. On 31 July 2018 the applicant applied for the Student visa in respect of his proposed study of an Advanced Diploma of Hospitality Management.
In addition to the application form, the applicant provided the Tribunal with a copy of the delegate’s decision and the following other documents:
a.A s.359(2) response (Form M17);
b.Confirmation of Enrolment (CoE) for the Advanced Diploma of Hospitality Management at Clarendon Business College from 6 August 2018 to 28 August 2020;
c.Enrolment summaries for the Diploma of Hospitality Management and the Advanced Diploma of Hospitality Management, issued by Academies Australasia on 3 April 2020 and 24 July 2020, and both indicating a course completion date of 28 August 2020;
d.Travel itinerary for January 2020; and
e.Applicant’s birth certificate.
The Tribunal has had regard to these documents. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file.
Evidence provided by the applicant
Prior to the hearing, the applicant provided to the Tribunal a CoE for the Advanced Diploma of Hospitality Management at Clarendon College, commencing on 6 August 2018 and ending on 28 August 2020. This CoE was therefore due to expire 7 days from the date of the hearing.
As the applicant was enrolled at the time of the hearing, the Tribunal heard evidence from the applicant regarding his claims that he is a genuine temporary entrant. The Tribunal has therefore set out the applicant’s evidence. As is noted in further detail below, at the conclusion of the hearing the applicant requested an extension of time to provide further documents to the Tribunal, including his stated intention to obtain a further CoE, in respect of his proposed enrolment in a Bachelor of Hospitality Management.
At the hearing the applicant gave evidence that he arrived in Australia in April 2017 holding a 476 visa (he arrived 28 April 2017), and that his intention at the time was to work in Australia. The applicant told the Tribunal that he completed a Bachelor of Mechanical Engineering in India, and that when he arrived in Australia he worked as a machine operator for a company called ‘ITW’ for one-and-a-half years. He then worked for Custom Bus Pty Ltd as a machine operator. According to the information provided in his s.359(2) response, he commenced working at Custom Bus in May 2019.
The applicant gave evidence that he stopped working three months before the hearing (approximately May 2020). When questioned why, he responded that he wanted to focus on his studies, because he wants to find work when he returns to his home country. When questioned whether his ceasing employment was because of the effects of the COVID-19 pandemic on business, he stated that it was not.
When questioned about his studies in Australia, the applicant stated that he commenced the Advanced Diploma of Hospitality Management about one-and-a-half years before the hearing and that he had two months left to complete the course. The Tribunal asked the applicant whether he was certain about this. The applicant then responded that he had a CoE for the Advanced Diploma of Hospitality Management which ends on 5 June 2020. The Tribunal noted that that date had passed. The applicant then stated that he has another CoE for this course, which has an end date of 28 August 2020. The Tribunal questioned the applicant as to why he had stated that he had two months left to complete his course of study when his CoE was due to expire 7 days after the hearing. The applicant responded that he is one subject in arrears and that his education provider stated that it might take a further two to three weeks to complete. The applicant stated that this unit was Physical Asset.
The Tribunal questioned the applicant whether a new CoE had been issued to allow him to complete this remaining unit. The applicant responded that as at that date he had not received anything.
When questioned about the value of his course of study to his future, the applicant stated that the reason why he enrolled in the Advanced Diploma of Hospitality Management was because it is difficult for engineers to find jobs in India, as lots of engineers have been produced. He stated that Hospitality Management would expand his horizons in finding a job. When questioned whether there were any other reasons as to why he is studying this course, he stated that there were no other reasons.
When questioned about his plans for the future, the applicant stated that he would like to do a Bachelor of Hospitality Management, after which he would like to get a job in India in the hospitality industry. He stated he would be looking for a managerial position. When questioned whether he had done any research or planning with respect to such roles in India, the applicant stated that he has done his research and has lots of references and knows lots of people who work in the hospitality industry. He stated that they have told him there are jobs in India, that he has done extensive research and that he understands the scope of jobs, and that if he does his studies in a foreign country it will be helpful in finding a job.
When questioned about the research he has done he stated that he has done online research, including looking at the scope of particular jobs, and spoken to friends, mainly in the food industry, and discussed the kinds of jobs that he could get.
The Tribunal questioned the basis on which the applicant believes he would be able to obtain a managerial job in the hospitality industry and whether he had any experience working in the hospitality industry. He responded that at the moment he is working part-time as a kitchen hand in an Indian restaurant. When asked how long he has worked there, he stated for the past three months. The Tribunal questioned whether there was any reason why he did not mention this employment when questioned earlier about his employment. The applicant responded that there was no specific reason and that he probably forgot to tell the Tribunal. When questioned about what he was earning from this current employment, the applicant gave a vague response, stating that he has not done this job much.
As to his reasons for wishing to undertake Hospitality Management in Australia, the applicant stated that there are no major institutions that offer Hospitality in India. He stated that he does not know anyone in other countries and he was already here in Australia and had asked friends in Australia about this course.
When questioned about his reasons for choosing to study at Clarendon College, he stated that friends had told him about it. He stated that there were no other reasons for choosing to study at this college.
As to his personal circumstances, the applicant stated that his mother, father and brother live in India and that he has no family living in Australia. He stated that he has friends in Australia, although he does not know them well. He stated that he is single and lives alone.
The applicant confirmed that there are no civil or political issues which would prevent his return to India, and that he has returned twice to India since first arriving in Australia.
The applicant gave evidence that he has not previously had a visa application refused, does not have any outstanding applications for other classes of visa, and that he has complied with visa conditions while in Australia.
When asked whether there were any other relevant matters which the Tribunal the applicant stated that it would be a great help to him if the Student visa were granted, and that he intends to complete the course and then return to India to find work in the hospitality industry. He reiterated that all of his family is in India, and that his parents are reaching an older age and he is responsible for them. He stated that he would like to stay with his family and that he intends to marry in India. He stated that his intention is to complete the course as soon as possible and then return to India.
The Tribunal questioned whether his stated intention to return to India as soon as possible is inconsistent with his earlier statement that he wishes to continue his studies in Australia by completing a Bachelor of Hospitality Management. The applicant responded that this is just another plan, and that maybe after two years he will think about it. He stated that he wants to go back to India and this further study is the second stage of his plan.
Concerns raised by the Tribunal regarding the applicant’s evidence
At the hearing the Tribunal raised a number of potential concerns with the applicant regarding the evidence he had provided and gave him an opportunity to respond to each concern. The Tribunal raised concern that the applicant had arrived in Australia holding a 476 Skilled – Recognised Graduate visa, which can be granted for 18 months, and for which no extensions are available. The Tribunal raised concern that the applicant may have applied for the Student visa with the primary intention of maintaining residence in Australia, rather than because of a genuine interest in the course of study. The applicant responded that his intention was to return to India when his 476 visa expired, but at the time his visa was finishing he was thinking that he might not be able to get a good job in India, and since he was already in Australia, he thought to ‘extend’ his education by applying for the Student visa.
The Tribunal noted that the applicant had been employed as a machine operator from April 2017 until approximately May 2020, and that his employment in Australia may serve as an incentive to remain in Australia. The applicant responded that it was not like that. He stated that he did the work, but was considering what would help him with his future. The Tribunal raised concern that the application for review of his Student visa has allowed the applicant to continue working as a machine operator, and that this may have been his primary purpose in applying for the visa. The applicant’s employment as a machine operator was declared in his Student visa application. The applicant stated that this wasn’t the case as when he held the 476 visa he had full work rights, but at the moment his main motivation is study and he continued to work as a machine operator just to cover his living expenses.
The Tribunal raised concern that the applicant had provided little evidence of the value of his course of study to his future, and noted that his study at the vocational level (Advanced Diploma) may be inconsistent with his existing qualification from India (Bachelor degree). The Tribunal noted that this concern was raised by the delegate, who noted that the applicant had not provided a detailed GTE statement, and that he had failed to respond to the Department’s request for comment and did not provide further supporting documentation. The applicant stated that this could have been due to his carelessness, because he would not have sighted this.
The Tribunal raised concern that the applicant’s stated plan to work in the hospitality industry may be inconsistent with his previous education in Engineering and employment experience, including his recent work as a machine operator in Australia. The applicant responded that India produces hundreds of thousands of engineers each year and it is difficult for engineers to find jobs. He stated that they don’t have schools for hospitality in India, but there are jobs available in this field. He stated that engineers can be hired at a cheap rate, and therefore hospitality professionals can earn a higher wage.
Request for extension of time to provide additional documents
At the conclusion of the hearing the applicant requested whether he could submit further documents to the Tribunal in response to the concerns raised. The Tribunal questioned how long he would need, to which the applicant responded approximately one month.
The Tribunal noted that the applicant’s CoE was due to expire on 28 August 2020, and on the evidence he had provided, he did not have another current CoE. The Tribunal informed the applicant that if the Tribunal were to make a decision after 28 August 2020 and he did not in the meantime provide any evidence that he had obtained a new CoE, the only decision the Tribunal could make in relation to the review would be to affirm the delegate’s decision, as the applicant would no longer meet the enrolment requirement for the grant of a Student visa.
The applicant stated that he has a plan to obtain a further enrolment in a Bachelor of Hospitality Management and that he would provide the Tribunal with a CoE for this course. The applicant requested 20 days to submit further information.
On the basis of the applicant’s request, the Tribunal granted the applicant 21 days to submit any additional documents which he wished to provide in support of his application. The Tribunal questioned the applicant as to whether 21 days would be sufficient, to which the applicant confirmed that it would.
The Tribunal informed the applicant that it would proceed to make a decision on the review after 21 days of the date of the hearing, and that if no further documents were provided, after 21 days the Tribunal would proceed to make a decision based on the evidence and information before it. The Tribunal noted that if no further information enrolment or a CoE was provided within this time, then the only decision it could make would be to affirm the delegate’s decision. The applicant confirmed that he understood this.
The applicant did not provide the Tribunal with any further information or documents within 21 days of the hearing (namely, by 11 September 2020). At the date of this decision, seven weeks have now passed since the hearing. No further information or documents have been provided by the applicant in the period since 11 September 2020. The Tribunal has not received a request for a further extension of time. The Tribunal has therefore now proceeded to makes its decision on the information and evidence before it.
Enrolment (cl.500.211)
Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.
‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.
As noted above, the applicant provided the Tribunal with a copy of a CoE for the Advanced Diploma of Hospitality Management at Clarendon College, commencing on 6 August 2018 and ending on 28 August 2020. This CoE was due to expire 7 days after the date of the hearing.
At the hearing the applicant gave conflicting and confused evidence regarding when he was due to complete the Diploma of Hospitality Management. The applicant initially stated that he had two months left to complete this course. He then stated that he had a CoE for this course until 5 June 2020, which the Tribunal noted had expired. The applicant then stated that he had another CoE for this course, with an end date of 28 August 2020, a copy of which had been provided to the Tribunal. The applicant stated that he had one subject ‘in arrears’, which according to his education provider, might take him a further two to three weeks to complete. When asked whether he had a further CoE to allow him to complete this remaining unit, the applicant stated that he had not received one.
The Tribunal also notes that the most recent enrolment summary which the applicant provided, dated 24 July 2020, records the unit ‘Physical Asset’ as not yet completed, however the course completion date is recorded as 28 August 2020, and the applicant has not provided a more recent enrolment summary.
As noted above, the applicant requested an extension of time to provide further information and stated that he intended to obtain a CoE for the Bachelor of Hospitality Management, which he would provide as evidence of enrolment. The Tribunal granted the applicant 21 days to provide this information, however no further information has been provided by the applicant as at the date of this decision, and no further extension of time has been sought.
The Tribunal does not accept the applicant’s claim that the Diploma of Hospitality Management was due to end two months after the hearing. The applicant did not provide any documentary evidence in support of such a claim, but rather, the most recent CoE which he provided for this course has an end date of 28 August 2020.

The Tribunal notes that it has on file a copy of the applicant’s enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal did not however need to rely on the information contained within the document or need to put this information to the applicant at the hearing, as the only enrolments listed are for the Advanced Diploma of Hospitality Management, and the information contained in the document is consistent with the CoE the applicant provided, with the end date of 28 August 2020.
There is accordingly no evidence that the applicant is now enrolled in a course of study or has a current offer of enrolment. The most recent CoE provided by the applicant expired on 28 August 2020. Despite being provided with, at his request, an extension of time of 21 days to provide further documents, the applicant has not provided any further information or requests for extension of time. As at the date of this decision, seven weeks have passed since the hearing. No CoE has been provided for an extension of the applicant’s enrolment in the Advanced Diploma beyond 28 August 2020, and no CoE or other information has been provided regarding the applicant’s proposal to enrol in the Bachelor of Hospitality Management, or for any other course of study.
Accordingly, there is no evidence before the Tribunal that the applicant is now enrolled in or has a current offer of enrolment in any applicable course of study.
Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.
As cl.500.211 is not met, the applicant does not meet the criteria for the grant of the Student visa, and accordingly the Tribunal does not need to consider whether the applicant meets the genuine temporary applicant criterion. However, given the evidence which the applicant provided to the Tribunal at hearing, the Tribunal sets out its findings based on the evidence and material before it.
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.
As noted above, at the hearing the Tribunal raised a number of potential concerns with the applicant regarding the evidence he had provided. The applicant provided responses to these concerns, but overall the Tribunal did not find these responses were sufficient to address the concerns raised. The applicant requested an extension to provide further documents, and an extension of 21 days was granted. Seven weeks have now passed since the date of the hearing, however no further information has been provided. The Tribunal’s findings are therefore based on the information previously provided by the applicant and the evidence given at the hearing.
Having considered all the material before it and the relevant considerations as set out in Direction 69, the Tribunal is not satisfied that the applicant genuinely intends to stay in Australia temporarily for the reasons set out below.
I find that there is insufficient evidence before the Tribunal to conclude that the applicant’s enrolment in the Advanced Diploma of Hospitality Management will be of value to his future. The delegate’s decision notes that the applicant has provided very little information addressing why he wished to study this course, and that the applicant failed to respond to the Department’s request for comment and did not provide any further supporting documentation in relation to his application. I have considered the information contained in the Department file and note that the applicant did not provide a GTE statement. The applicant’s visa application contained no information as to why he had enrolled in the course of study, other than a statement that ‘Applicant will seek job in Hospitality Sector’ in response to a question about future employment.
The applicant has provided very little information to the Tribunal in support of his claims as to the value of the course. Although the applicant provided a s.359(2) response, the responses to each question are very brief and written in the third person. As to information about his future plans, the response merely indicates that the applicant ‘Plans to complete studies and then seek employment in the field of studies’. As to the remuneration the applicant could earn by completing the proposed qualification, the response states, ‘Review applicant can make $15-25K AUD in India working as Chef or Manager in Hotel and Motel’. No supporting information has been provided to indicate the basis for such a view.
Similarly, no supporting information has been provided to support the applicant’s claim that he will have better opportunities working in hospitality than working in engineering in India. While the Tribunal accepts that there is an oversupply of engineers in India, the applicant has provided very little information regarding the comparative opportunities and salary within the hospitality industry.
The Tribunal also has concern that the applicant’s course at the Advanced Diploma level is not consistent with his existing education at the Bachelor degree level. Although the Tribunal has made allowance for reasonable career changes, it did not find the applicant’s evidence regarding his proposed career and study plans to be convincing. The applicant was less than up-front in his evidence regarding his employment. The applicant initially told the Tribunal that he ceased working three months before the hearing (approximately May 2020) when he stopped working as a machine operator, and that he did so in order to concentrate on his studies. After the Tribunal questioned the applicant about his genuine interest in working in hospitality and whether he had any experience in this sector, the applicant then stated that he has worked as a kitchen hand in a restaurant for the past three months. The Tribunal does not accept his claim that he had simply forgotten to mention it.
The Tribunal also has concerns regarding the confused nature of the applicant’s evidence regarding his enrolment. At the date of the hearing the applicant had seven days until his then current CoE was due to end. It would be reasonable to expect that a genuine student who is so close to completing their course of study would be aware that their course was due to end in one week, whereas the applicant first told the Tribunal that the course was due to end in a couple of months. The applicant also gave inconsistent statements regarding his plans to return to India, stating at times that he intended to return after completing the Advanced Diploma of Hospitality Management, and at other times that he intended to study a Bachelor degree. When questioned about this he stated that the Bachelor degree was just an idea and he would pursue this two years after returning to India, however at the conclusion of the hearing he requested further time to submit documents, including to obtain an enrolment in a Bachelor degree. The Tribunal finds the applicant’s inconsistent evidence regarding his future plans is not consistent with the behaviour of a genuine temporary entrant, but rather that it more likely indicates an intention to maintain residency in Australia.
I have considered the applicant’s stated reasons for wishing to study in Australia rather than his home country and for choosing his education provider, but note that there is little evidence of research, other than the applicant’s claim that he had asked friends.
The Tribunal notes that the applicant arrived in Australia in July 2018 holding a 476 visa, which was for 18 months and for which no extensions can be granted. The Tribunal notes that the applicant was employed as a machine operator since July 2018 until at least April 2020. In his s.359(2) response, the applicant indicated that he received a salary of $37,000 from his most recent machine operator role, which he commenced in May 2019. As noted above, the applicant claimed that he has not worked in Australia since then, in order to concentrate on his studies, but then stated that he has been working part-time as a kitchen hand. After obtaining his current Bridging visa, the applicant continued to work as a machine operator (as he did while holding the 476 visa) for a further 18 months.
I have taken into account the applicant’s personal circumstances in his home country, including his family ties, and note they may act as an incentive for the applicant to return to his home country. I have also taken into account the applicant’s return to his home country on two occasions since his initial arrival in Australia, in assessing his circumstances as a whole. However, I consider that the applicant’s economic circumstances present as a significant incentive for him not to return to his home country. The applicant has not provided any evidence of economic ties to his home country, despite this also being raised as an issue in the delegate’s reasons for decision.
The applicant’s immigration history refers to both his visa and travel history. The Tribunal has concerns that the applicant has applied for the Student visa to extend his stay in Australia, following the expiry of the 476 visa. I acknowledge that there is no evidence that the applicant has breached the conditions of his visas and there is no evidence that he has had any other visa applications refused.
The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The Tribunal considers that the applicant enrolled in a course of study which was not relevant to his academic background or his previous work experience. The Tribunal is not satisfied that the applicant has not simply proposed enrolling in a short and relatively inexpensive course with no demonstrated relevance to his background, in order to gain a Student visa with the primary objective of maintaining ongoing residence in Australia.
The Tribunal makes no adverse findings with respect to the following factors set out in Direction No. 69:
a.Any military service commitments in India;
b.Any political or civil unrest in the applicant’s home country;
c.The applicant’s circumstances in his home country relative to those of others in India;
d.Whether the applicant has entered into a relationship of concern; and
e.The following factors relating to the applicant’s immigration history: clauses 14(a)(i) and (ii), and 14(b)(i), (ii) and (iv).
The Tribunal has also given regard as to whether there is any other relevant matter, and finds there to be no other relevant matter to the assessment of the applicant’s intentions to stay in Australia, temporarily. The Tribunal has considered all information provided by the applicant in support of the applicant’s application. The Tribunal notes that it has provided the applicant with an opportunity, at his request, to supply additional information, but the applicant has provided no further information subsequent to the hearing.
On balance, the Tribunal is not satisfied that the information the applicant has provided regarding his circumstances in his home country, his potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters, are sufficient to demonstrate that the applicant is a genuine temporary entrant.
On the contrary, the factors indicate that the applicant appears to have enrolled in his proposed course for the purposes of securing a further visa in response to the expiry of his 476 visa, rather than because he has a genuine interest in study and overall academic progress.
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.
Frank Russo
Member

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

Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

[2020] AATA 4314

12 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies