Rehman (Migration)

Rehman (Migration) [2021] AATA 5569 (7 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Attiq Ur Rehman
CASE NUMBER:  1935302
HOME AFFAIRS REFERENCE(S):          BCC2019/5214080
MEMBER:Mark Bishop
DATE:7 July 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 07 July 2021 at 1:37pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – genuine temporary entrant criterion not met – applicant has not demonstrated the value of the courses to his future – strong ties to Australia – significant period of time living in Australia ––use the student migration program to maintain ongoing residence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 360, 499
Migration Regulations 1994, r 1.03, 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 11 December 2019 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 17 October 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 visas on the basis that the first-named 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 temporary entrant.
On 25 February 2021 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information about the course of study they were presently enrolled in and their status as a genuine temporary applicant as a student to enter and remain in Australia in writing. The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by 11 March 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
In their response on 7 March 2021, the review applicant indicated that they consented for the application for review being decided without a hearing. The Tribunal is satisfied that the necessary consent has been given under s.360(2)(b) of the Act and that, pursuant to s.360(3), the review applicant is no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.
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 satisfied cl.500.212.
Genuine applicant for entry and stay as a student (cl.500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
‘Meaning of Genuine Applicant’,
As has been often noted elsewhere in many Tribunal decisions while not defined in the Regulations, the word ‘genuine’ may be taken to mean ‘authentic, ‘real’ or ‘true’, according to its ordinary and natural meaning. The Regulations also specify two constituent elements of a genuine student visa applicant.
First, an applicant is regarded as a genuine applicant because he or she ‘intends genuinely to stay in Australia temporarily.’ The applicant must demonstrate an intention to stay in Australia for a limited time only – not permanently. That intention must be unqualified. This requirement reflects the temporary nature of being a student. A person chooses to study to meet a passing need to obtain specific skills and formal qualifications that will, in turn, place them in a better position with respect to future employment opportunities. Once they have had a reasonable amount of time to complete their studies, it is expected that the visa holder will immediately depart Australia.
The Tribunal acknowledges that this expectation is not without qualification. A student visa holder’s circumstances may change while studying in Australia. They may genuinely wish to extend their stay so they can undertake further study, such that there is a need for a further student visa application to be made. Alternatively, as a result of a personal relationship entered with a permanent resident or Australian citizen, or an employer sponsorship, or for some other reason, they may wish to extend their stay in Australia by other legitimate means. And so, the student visa holder may become eligible to apply for another kind of visa before their student visa expires. However, in the absence of such circumstances arising, the general expectation remains. A student visa is granted anticipating that the visa holder will eventually cease being a student, return to their home country, and enter the workforce to put their newly acquired skills to economically productive use.
Secondly, a genuine applicant is one who ‘intends to comply with any conditions to which the visa may be subject.’ There are several conditions that attach to student visas. The most important of these conditions oblige the visa holder to remain enrolled in a registered course of study, to make satisfactory course progress in their studies, and to attend classes.
Furthermore, if the visa holder changes their enrolment, they must avoid ‘downgrading’ to a course that will lead to a qualification of a level that is lower than that of the proposed qualification that resulted in the grant of the visa. These conditions reflect the very essence of being a student.
A genuine applicant must demonstrate both an intention to study and an intention to complete a course that is as challenging as the visa grant contemplates.
The Tribunal has carefully considered the delegate’s decision record dated 16 October 2019, a copy of which was provided to the Tribunal by the review applicant with the application for review.
The applicant applied for a Student (Temporary) (Class TU) Student (subclass 500) visa on 6 July 2019. At the time of application, the applicant was enrolled to undertake a Certificate II in a Business course. There was insufficient information at that time to satisfy the delegate that the applicant met the requirements for the grant of a Student (Temporary) (Class TU) Student (subclass 500) visa.
The visa was refused on 16 October 2019, and the applicant lodged an application to review this decision with the Tribunal on 6 November 2019.
On 19 February 2021 the Tribunal wrote to the applicant under s.359(2) of the Act with a Request for Information that addressed matters found under Ministerial Direction Number 69 (MD69). On 5 March 2021 the applicant provided a written response to the Tribunal. It is summarised below. The Tribunal is required to consider the criteria listed below as part of its decision-making process.
The applicant provided the Tribunal with the following evidence:
-Confirmation of Enrolment for Diploma of Leadership & Management 2019-2020;
-Confirmation of Enrolment for Advanced Diploma of Leadership & Management 2020-2021;
-Evidence of course payment 4 September and 6 December 2019;
-Pearson English language test results 29 May 2019;
-Engineers Australia skills assessment 4 June 2018;
-Enrolment letter 12 December 2019;
-Pakistan Water and Power Development Authority internship certificate;
-Certificate of completion – professional year in engineering 2019;
-ALTEC College provisional results; and
-Kohat Cement Company internship certificate.
On 25 February 2021 the Tribunal wrote to the applicant under s.359(2) of the Act with a Request for Information that addressed the following matters found under Ministerial Direction Number 69 (MD69). The Tribunal was required to consider the criteria listed below as part of its decision-making process.
a. Personal details;
The applicant provided relevant information as to name and DoB.
b. Hearing Information;
The applicant consented to waive his right to a hearing and the Tribunal making a decision on the information before it.
c. Information about courses undertaken before arriving in Australia;
The applicant provided evidence of previous study, including a lengthy period of pre-engineering study and a degree in electrical engineering.
d. Information about work experience before arriving in Australia;
The applicant provided detail of his roles as a trainee engineer before arriving in Australia.
e. Travel details to Australia and home country visits;
The applicant provided detail that he had travelled to his home country for a period of 1 month in 2018.
f. Information about travel to other countries;
The applicant advised he spent a few hours in Dubai enroute to Australia
g. Visa History;
The applicant provided detail of his previous visa history, which is that the applicant was the previous holder of a Skilled Graduate visa in the period March 2018 until October 2019.
h. Enrolment and study in Australia;
The applicant advised he had completed a professional year in Engineering, a Diploma in Leadership and Management and would complete an Advanced Diploma in the same course in September 2021. He did not advise of study after this date. He did not outline any further study plans in Australia. The applicant indicated that a reason why he chose to study in Australia was his view that the education provided in Australia is superior to that offered in Pakistan. The applicant indicated that he decided to study at ALTEC given the positive feedback that he saw the institution had from previous students, one of which included a friend of the applicant. The applicant was already in Australia when he decided to pursue further study in Leadership and Management. He asserts there are higher educational standards in Australia. He asserted universities in Pakistan did not each the course in Leadership and Management. He did not provide any detail of online searches into the availability of like courses in his home country.
i. Work and expenses in Australia;
The applicant detailed the casual labour positions he has held in Australia earning between $26,000 and $50,000 per annum in Australia since November 2018 and the expenses that he incurs of approximately $23,400 per annum.
j. Family circumstances;
The applicant detailed that he has two parents, and four siblings all resident in Pakistan, who he communicates with every day. The applicant advised the Tribunal of the ties he has to Pakistan, particularly his close ties to his family and his father’s business.
k. Information about community ties in Pakistan and Australia;
The applicant advised he had strong links to his community in Pakistan. He loves making new friends. He is captain of a local cricked team in Pakistan and has cordial relations with his father’s business partners. He detailed the community ties he has in Australia including participation in sporting clubs and cricket and horse racing..
l. Information about assets;
The applicant detailed two car he owns, one each in Australia and Pakistan, as well as land in Pakistan.
m. Information about future plans;
The applicant advised that he had difficulty obtaining employment in his field of engineering, and his enrolment in the present course will assist his employment outcomes in Pakistan. He advised he will return to his home country at the conclusion of his current course.
n. Information about other circumstances;
The applicant advised he does not have any concerns about military service commitments or political or civil unrest in his home country
On 7 March 2021 the applicant responded to the Tribunal’s request and provided the following additional documents.
-Section 359(2) Request for Student Visa Information response form (as outlined above); and
-Statement of purpose submitted 7 March 2021.
In his statement of purpose submitted to the Tribunal, the applicant asserted that he was a genuine student who intended to depart Australia at the conclusion of his course and find work in Pakistan. The applicant submitted that holding an Australian qualification would assist him in finding employment in Pakistan, and also outlined the employment positions he has held whilst in Australia.
In addition the applicant provided the following documentary evidence to the Tribunal:
·Confirmation of Enrolment for Diploma of Leadership & Management 2019-2020;
·Confirmation of Enrolment for Advanced Diploma of Leadership & Management 2020-2021;
·Evidence of course payment 4 September and 6 December 2019;
·Pearson English language test results 29 May 2019;
·Engineers Australia skills assessment 4 June 2018;
·Enrolment letter 12 December 2019;
·Pakistan Water and Power Development Authority internship certificate;
·Certificate of completion – professional year in engineering 2019;
·ALTEC College provisional results; and
·Kohat Cement Company internship certificate.
Applicant Circumstances in His Home country
The delegate made the following findings:
I have given regard to the applicant's circumstances in their home country. The applicant is unmarried with no dependent children in their home country. The applicant has provided evidence they completed a Bachelor of Science in Electrical Engineering in September 2017 in their home country. The applicant has not provided any evidence of further study in the two years since completing their Bachelor qualification, which raises serious concerns regarding their motivation to re-commence studies in Australia. The applicant has not provided any verifiable evidence to demonstrate they own any assets or have any personal financial or business ties in their home country. I acknowledge that the applicant’s family circumstances, in the form of their parents and sibling may act as a motivation to return, I find these ties do not, of themselves, constitute a strong incentive to depart when considered against the fact that strong employment or economic circumstances in their home country have not been evidenced. When considering the applicant's circumstances in their home country, on balance I find that the applicant has not been able to demonstrate strong enough ties to outweigh a significant incentive for the applicant not to return to their home country.
With the above factors in mind, I am not satisfied that the applicant has been able to
demonstrate a significant incentive to return to their home country following study in Australia.
The Tribunal has reviewed all the above material and all material on the Tribunal and Departmental files inclusive e of the decision record.
The applicant has provided limited additional information to that before the delegate. The Tribunal has reviewed the findings of the delegate as outlined above in paragraph 30. The applicant.
The applicant has not lived in his home country since 2018. He has resided in Australia since early 2018. His links to his home country are minimal and visits to his home country in recent years have been minimal. He has been continuously employed in Australia since 2018 and earned a good salary in more recent years.
He has provided detail of enrolments in courses relating to Leadership and Management. He has provided only minimal detail as to course progress, academic achievements and payment of course fees.
The Tribunal is satisfied that personal ties to his home country are minimal. As a single man his parents and siblings reside in Pakistan. His father has business interests in the home country. His lifestyle, surplus of income over expenses employment, community sporting activities all point to an established life in this country. His economic
incentives of regular work and a good income suggest a well-funded lifestyle. The Tribunal can see little economic imperative to return to his home country. The Tribunal is satisfied the applicant’s economic circumstances present as an incentive not to return to his home country.
There was minimal information before the Tribunal as to reasons for undertaking or not undertaking the study in his home country. The major factor seemed to be that it was convenient to study in Australia post completion of his Engineering practice years.
The applicant’s ties to his home country appear to be minimal and the Tribunal is of the view those circumstances do not serve as a significant incentive to return to the home country.
The applicant did not address “any concerns about military service commitments or political or civil unrest in his home country”. The Tribunal does not make an adverse finding concerning cl.9(d) or (e) of MD69.
There was minimal information concerning the applicant’s circumstances in the home county relative to the circumstances of others in that country. The Tribunal does not make an adverse finding concerning cl.10 of MD69.
Applicant Circumstances in Australia
The delegate made the following findings:
I have given regard to the applicant’s circumstances in Australia. The applicant is studying a Diploma of Leadership and Management and holds an enrolment for an Advanced Diploma of Leadership and Management in Australia. I acknowledge the applicant’s Genuine Temporary Statement (GTE), which outlines a number of reasons the applicant wishes to study in Australia. Within their GTE statement, the applicant offers some testimony in relation to why they need to further their education in Australia. They state: “Students learn plenty from their programs, which delve intensively into the coursework. Australian institutions tend to be a lot cheaper than those offered by their counterparts in other popular education destinations. Living expenses in Australia are also far more reasonable when compared to the UK or US. Australian universities also incorporate the latest innovations, technological advances and currents trends in the industry to ensure that their programs meet the highest education standards”. However, I find that it is of concern the applicant has not taken substantive steps to continue their education in their home country, where such academic progression could be achieved locally. Furthermore, the applicant was unable to identify the differences between studying in their home country, as opposed to Australia, in any practical details. While I accept and have placed weight on the fact the applicant may wish to study in an English speaking environment, given they have not pursued or investigated further study options in their home country, and taking into account the financial outlay of study abroad, I am not satisfied that they genuinely intend a temporary stay in Australia. I find they have not demonstrated knowledge of their proposed education provider, course contents and educational objectives. On balance, I find that the applicant’s potential circumstances in Australia may act as an incentive for the applicant to remain in Australia. I place weight on the applicant’s potential circumstances in Australia.

The applicant advised the Tribunal as to the detail of his life in Australia since arrival in this country. He has an aptitude for cricket and appears to spend a lot of leisure time playing sport. He has been engaged in employment in Australia on an apparently continuing basis including it appears during the period of Covid-19 The applicant has built a varied life in Australia centred around work, income, sporting activities and community engagement. The Tribunal understands that the period of Covid-19 involved cessation of some study and study like activities for some people. The applicant has provided only the most minimal material that details his academic progress in Australia in the field of Leadership and Management. The applicant’s more later COE shows he will complete his studies in Leadership and Management in September 2021. The Tribunal is not aware of the academic progress, if any in this Advanced Diploma.
The applicant has built a varied life in Australia centred around work, income, a sporting activities and community engagement The Tribunal is satisfied the applicant’s circumstances in Australia present as an incentive to remain in this country.
The Tribunal is satisfied the applicant’s ties with Australia do present as a strong incentive to remain in Australia. The Tribunal is satisfied the applicant is using the student visa program to circumvent the intentions of the migration program.
The Tribunal is of the view the applicant has provided only the most basic and limited information about his chosen education provider, course content, course detail, educational objectives and possible future remuneration. He provided only the most general comment as to his educational purpose.
There is insufficient information before the tribunal as to cl.11(c) (d) and (e). The Tribunal does not make any adverse findings concerningcl.11(c) (d) and (e) of MD69.
Value of the Course
In relation to the value of the course, the delegate stated the following:
I have given regard to the value of the course to the applicant’s future. I have also
considered the applicant’s GTE statement setting out their reasons for undertaking
their intended course of study in Australia: “Furthermore, after studying leadership and
management, an individual can be more talented, will easily be able to tackle complex
situations and have effective relationships with employees and clients. So, this qualification is an easiest way to grow fast in career. I was influenced to know about all these that I made a decision of studying diploma leading to advanced diploma of leadership and management at ALTEC Tasmania.” However, details regarding future duties and why an overseas qualification is required, were not included in the GTE statement. This fact is concerning as given the significant financial outlay required, it is reasonable to expect the applicant to have a more detailed insight into their intended courses in Australia. Whilst I acknowledge their desire to secure employment in their chosen field, I find the applicant has not provided a detailed or a convincing testimony as to how their proposed study would assist them in achieving their goals in comparison to a qualification which could be acquired domestically. Considering the time and effort the applicant is investing to pursue studies they state will enable them to achieve their professional goal in their home country, I do not consider it unreasonable to expect the applicant to provide this or similar information and evidence to substantiate any claims made. I have also taken into consideration the applicant has previously completed a Bachelor of Science in Electrical Engineering in their home country.
I note the proposed courses are at a lower educational level than the qualifications they
currently claim to hold. Based on the available information I do not find a compelling cause for the applicant to study in Australia at significant expense to pursue the proposed study when they have already completed a Bachelor of Science in Electrical Engineering in their home country. Therefore I cannot be satisfied the proposed qualification may be of a greater benefit to the applicant than the qualifications they already hold. I am therefore not satisfied that the applicant has demonstrated the value of their proposed courses to their future.
The applicant in his s.359(2) response to the Tribunal advised he undertook university level education in his home country in two distinct periods involving pre-engineering and engineering. He completed work placement in Australia and hence now has formal university level qualifications, job experience and practical experience in his field following earlier work in his home country.
He brought little insight into the subject detail of his course of study in Leadership and Management He did not in any great detail attempt to relate this management type course to future employment option sin his home country.
The Tribunal is not aware if the applicant has completed his Diploma level course (although the applicant in his Statement of Purpose dated March 2021 advised he had completed such Diploma) and whether he is near completion of his Advanced Diploma course. COE’s and letters of enrolment are the beginning of the academic journey. The Tribunal regards it as reasonable that formal indicators of academic progress (more than a letter detailing competencies in 3 subjects) might have been provided by the applicant.
The Tribunal is not persuaded there is much value in terms of the relevance of the Advanced Diploma in Leadership and Management to the applicant’s past or proposed future employment in either his home country or a third country. There is little evidence before the Tribunal as to the utility of the proposed Advanced Diploma in Leadership and Management to potential business interests in the applicant’s home country or elsewhere.
The Tribunal is unable to see how this course will assist the applicant to obtain employment or improve employment prospects in his home country.
Applicant’s Immigration History
The delegate made the following findings:
The applicant has declared in their application form they initially arrived in Australia as the holder of a Recognised Graduate VF-476 visa. The applicant submitted this TU 500 student visa application on 17 October 2019, to study at the vocational education level the same day as their visa VF-476 cease date. This leads to concerns the applicant may have enrolled in studies for the purposes of the visa application, only in order to secure a student visa for a long-term stay in Australia, rather than due to a genuine interest in this area of study and overall academic progress. The applicant’s significant change of migration intentions since their VF-476 visa grant, raises the concerns that this visa may be used to facilitate the stay of the applicant and find they are more likely seeking to maintain residency in Australia.
The Tribunal has reviewed all the material on the Departmental file that led the delegate to the above conclusion. The Tribunal has reviewed all the material on the Tribunal file. The applicant will shortly finish his study in Leadership and Management at Advanced Diploma level. The applicant advised the Tribunal he will return to his home country at the completion of this course. There is no evidence before the Tribunal that suggests the applicant has any current intention to remain in Australia. The applicant appears to have lawfully entered Australia and maintained his residence as the holder of various temporary visas.
Conclusion on cl.500.212
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.
Mark Bishop
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.

[2021] AATA 5569

7 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice