Risman (Migration)

Risman (Migration) [2023] AATA 3351 (8 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Dhany Risman
Mrs Nieza Lusianti
Mr Muhammad Dhanzel Alif
Mr Ibrahim Bilal Saladin
CASE NUMBER:  2201314
HOME AFFAIRS REFERENCE(S):          BCC2020/2086448
MEMBER:Michael Biviano
DATE:8 September 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 8 September 2023 at 4:30pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– applicant has resided in Australia for more than 14 years – substantial ties to Australia – a strong incentive to remain in Australia – applicant was not a genuine applicant for entry and stay as a student –low level VET courses –use the student migration program to maintain ongoing residence – 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 27 January 2022 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 14 August 2020. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) for the reason that he was not a genuine applicant for entry and stay because he did not intend to stay in Australia temporarily.
The delegate in this case also refused to grant the visa to the applicant’s spouse and children, the secondary applicants, on the basis that as the applicant was not granted the visa, they did not satisfy the requirements of cl 500.311 of Schedule 2 to the Regulations.
The applicants appeared before the Tribunal on 28 April 2023 to give evidence and present arguments.
It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
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 applicant for entry and stay as a student.
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 is a 45-year-old Indonesian national who first came to Australia on 21 July 2009 on a student visa for the purposes of undertaking study here in Australia. The applicant has resided in Australia for more than 14 years on one student visa, 5 dependant student visas and a visitor visa.
The decision record of the delegate of the Department of Home Affairs dated 27 January 2022 which was provided to the Tribunal by the applicant confirms that he had applied for a student (Class TU Subclass 500) visa on 14 August 2020 and set out the reasons for the visa refusal (Decision Record). The Decision Record outlined that the applicant had completed a Diploma of Business & Management at Sydney Business and Travel Academy (SBTA) from 2009 to 2010 and an Advanced Diploma of Sales & Marketing at SBTA from 2010 to the conclusion of 2010. Furthermore the Decision Record confirmed that the applicant had lodged the application for the student visa to undertake a Diploma of Information Technology and an Advanced Diploma of Information Technology Business Analysis course so that he could establish his own IT business back in Indonesia and that those courses would require him to remain onshore until 5 March 2025 which would extend his stay in Australia on temporary visas and associated bridging visas to almost 16 years.
On 16 January 2023 the applicant filed with the Tribunal a response within time pursuant to an invitation to supply student visa information about the courses he was studying and information about his entry and stay in Australia in accordance with s 359(2) of the Act (Response). In addition to the Response the applicant filed a substantial number of documents in support of his application which comprised:
a.Confirmation of Enrolment (COE) No. 44283887 for the applicant to study a Certificate II in Business at the Australian College of Technology from 1 November 2010 to 18 November 2011 which was created on 27 October 2010;
b.COE No. 44290E53 for the applicant to study a Certificate III in Business at the Australian College of Technology with a course start date of 11 April 2011 to a course end date of 10 June 2011 which was created on 28 October 2010;
c.COE No. 44290F34 for the applicant to study a Certificate IV in Marketing at the Australian College of Technology with a course start date of 4 July 2011 and a course end date of 25 November 2011 which was created on 28 October 2010;
d.COE No. 44291342 for the applicant to study a Diploma of Marketing at the Australian College of Technology with a course start date of 16 January 2012 and a course end date of 8 June 2012 which was created on 28 October 2010;
e.COE No. 33B9EA16 for the applicant to study a Diploma of Management at SBTA with a course start date of 20 July 2009 and a course end date of 25 June 2010 which was created on 22 April 2009;
f.COE No. 33B9F982 for the applicant to study an Advanced Diploma of Marketing at SBTA with a course start date of 19 July 2010 and a course end date of 24 June 2011 which was created on 22 April 2009;
g.COE No. BBFFC768 for the applicant to study a Diploma of Information Technology at the International Institute of Business & Technology Australia (IIBT) with a course start date of 12 October 2020 and a course end date of 10 October 2021 which was created on 12 August 2020;
h.COE No. BBFFD313 for the applicant to study an Advanced Diploma of Information Technology Business Analysis at IIBT with a course start date of 11 October 2021 and a course end date of 9 April 2023 which was created on 12 August 2020;
i.COE No. C684F528 for the applicant to study a Diploma of Information Technology at York Business Institute with a course start date of 12 July 2021 and a course end date of 9 July 2023 which was created on 20 July 2021;
j.COE No. C6852139 for the applicant to study an Advanced Diploma of Information Technology at York Business Institute with a course start date of 10 July 2023 and a course end date of 5 January 2025 which was created on 20 July 2021;
k.translation of academic transcript from the Perbanas Institute of Asian Banking Finance and Informatics regarding the applicant’s undergraduate studies in Information Systems dated 13 January 2023 together with a letter of resignation from the course;
l.official translation for study requirements at the Department of Tourism Arts and Culture Bandung School of Tourism;
m.electronic ticket receipt from Garuda Indonesia regarding the applicant’s travels from Sydney to Jakarta on 18 July and return on 8 August;
n.electronic ticket receipt from Garuda Indonesia regarding travel from Australia to Indonesia on 8 December and return on 15 January;
o.letter from the applicant to the Department regarding administration error due to payment of tuition fee during 2011;
p.receipt from Academies Australasia dated 2 September 2011 for a payment of $1,260 on 1 August 2011;
q.email chain between the applicant and IIBT dated 7 and 8 July 2021 regarding the availability of studies in the Diploma of Information Technology at IIBT;
r.email from IIBT to the applicant dated 9 July 2021 confirming that the delivery of the Diploma and Advanced Diploma of Information Technology under the vocation education training program has been continued since early July 2021. However the email confirmed that the college was delivering courses using higher education pathways for Business Administration and Information Technology;
s.Statement of Attainment from IIBT for the applicant for his studies in the Diploma of Information Technology dated 7 July 2021;
t.applicant’s Subclass 572 and 573 visas received from Australia;
u.letter from the Department of Immigration and Border Protection dated 20 March 2014 to Nieza Lusianti notifying her of the grant of a student temporary Class TU higher education sector Subclass 573 visa together with visa grant notice to her husband, the applicant, and their two children;
v.letter from the Department of Immigration and Border Protection to the applicant dated 6 June 2017 enclosing visa grant notice for the applicant’s student temporary Class TU Subclass 500 visa;
w.letter from the Department of Home Affairs to the applicant dated 23 January 2019 confirming visa grant until 14 August 2020 for a student Subclass 500 visa;
x.Certificate of Graduation for Dhanzel Alif from Penshurst Public School dated 13 December 2011 confirming completion of kindergarten together with a Certificate of Achievement dated 7 December 2017, Certificate dated 14 November 2017 confirming completion of Year 6 primary education, Certificate of Achievement for citizenship dated 13 December 2011 and Certificate of Achievement for science and technology dated 12 December 2013;
y.Certificate from Georges River College Peakhurst Campus undated awarded to Muhammad Alif for completion of Year 7;
z.letter from the Education Standards Authority to the applicant dated 23 December 2021 confirming that Muhammad Dhanzel Alif had completed Year 10 and enclosing a Certificate of Completion;
aa.New South Wales Education Standards Authority Certificate of Homeschooling for Ibrahim Bilal Saladin for kindergarten from 9 February 2022 to 8 February 2023;
bb.Year 7 Transition Report dated March 2018 for Muhammad Alif;
cc.Australian Curriculum Assessment and Reporting Authority Student Report 2018 for Muhammad Alif;
dd.Report from Georges River College Peakhurst Campus dated 1 and 2 September 2018;
ee.screenshot from RMIT University regarding information technology courses;
ff.grades for Muhammad Dhanzel Alif for Introduction to Programming Essentials of Information Technology;
gg.electronic ticket receipt from Garuda International for Muhammad Dhanzel Alif dated 25 December to fly to Jakarta;
hh.Garuda International confirmation of flight for Ibrahim Bilal Saladin from Jakarta to Sydney dated 8 November 2018 and flight for Muhammad Dhanzel Alif dated 27 October 2018 and returning on 9 November 2018;
ii.flight confirmation for Mrs Nieza Lusianti departing 27 October 2018 and returning on 9 November 2018;
jj.passport stamps and temporary entrant visa stamp for New Zealand dated 16 March 2015;
kk.letter from AZ Medical Centre regarding Mrs Nieza Lusianti dated 26 July 2013 seeking to cut down on studies by reason of previous miscarriages and that she was 6 weeks pregnant;
ll.letter from AZ Medical Centre dated 19 March 2014 seeking that Mrs Nieza Lusianti reduce her level of studies;
mm.Georges River College Peakhurst Campus reports for Muhammad Alif dated 24 July 2019 and 9 December 2019;
nn.Student Progress Report 2020 for Muhammad Dhanzel Alif for Year 9 together with grades;
oo.transcript being a printout from York Business Institute regarding units the applicant has completed in the Diploma of Information Technology.
The applicant gave evidence that prior to coming to Australia he had completed a Diploma of Food and Beverage Management at the Bandung School of Tourism which he completed in 1999. The applicant in the Response confirmed from 1998 to 1999 he worked as a banquet team member at Hotel Indonesia. Further from August 2000 until January 2009 he studied a Bachelor of Information System Management at the Perbanas Institute of Australian Business. During the period from April 2009 to September 2009 he worked as the principal and owner of his own business called Blossoms Graphic Cipta Management (BGCM). He claimed in evidence that he did not complete the Bachelor of Information System Management because he withdrew from his studies as he was concentrating on his business back in Indonesia at BGCM. He confirmed his income in his business equated to approximately A$20,000 per annum.
The applicant then came to Australia on 21 July 2009 on a student visa. Prior to that time he had visited Australia on a visitor visa back in 2003 and returned home. The applicant confirmed in evidence that in July 2009 he had enrolled in a Diploma of Management at SBTA and also in an Advanced Diploma of Marketing at the same institute. However the applicant in evidence confirmed he did not complete those courses. In November 2010 the applicant enrolled in a Certificate II in Business which he completed and subsequently enrolled in a Certificate III in Business at the Australian College of Technology but he did not complete that course. The applicant had subsequent enrolments in the Certificate IV and Diploma in Marketing at Australian College of Technology which he did not commence.
The applicant claims that from 2011 to 2020 he did not study. Instead he was looking after his son and supporting his spouse who was undertaking studies in a double degree course and then a Master of Accounting. The applicant’s spouse had difficulties during her studies in the Bachelor of Professional Accounting and Graduate Diploma of Business which delayed her studies.
In the interim whilst the applicant’s spouse was studying the applicant was working between September 2012 and September 2019 as a store person at Toll Customised Solutions and he was earning approximately $40,000 per annum. From July 2019 to August 2020 the applicant worked as an Uber partner driver and then subsequently obtained work back at Toll Logistics in September 2020 to October 2022 working as a store person again earning $40,000 per annum. The applicant in the Response outlined that since October 2022 he worked as a staging team member for Woolworths and from December 2022 to January 2023, he worked for Action Workforce and that he continues to work for Action Workforce as a store person earning A$33 per hour working 24 hours a week which equates to an income of approximately A$800 per week before tax. Such a level of income is a high level of income, double what he was earning back in Indonesia, which would provide the applicant with a substantial financial incentive to remain here rather than to return home.
The applicant gave evidence that after his spouse concluded her studies, he decided to enrol to undertake a Diploma of Information Technology and an Advanced Diploma of Information Technology Business Analysis at IIBT. The applicant commenced the Diploma in October 2020 but in July 2021 ceased studies in the course. The applicant gave evidence that IIBT ceased offering those courses and as a consequence he was required to transfer his courses to another education provider. The difficulty with this evidence is the correspondence that the applicant has provided to the Tribunal which clarifies that IIBT had not ceased providing those courses but that it had stopped offering the Diploma of Information Technology as a vocational course and was offering it as a higher education Diploma of Information Technology. The applicant was informed that the timetable for those studies was Tuesday to Friday 3.00pm to 6.00pm Sydney time and asked whether he was prepared to go ahead with that course. The applicant chose not to and instead enrolled in a Diploma of Information Technology at York Business Institute. The applicant provided confirmations of enrolment to study the Diploma of Information Technology at York Institute from July 2021 to July 2023 and an Advanced Diploma of Information Technology from July 2023 until January 2025. If the applicant completes those courses his stay in Australia on temporary visas will extend beyond 15 years both on primary and secondary student visas. The Tribunal considers that the duration of such a stay is not temporary and inconsistent with the purpose of the student visa.
The applicant in evidence claimed that he wishes to complete both the Diploma and Advanced Diploma of Information Technology so he can commence his own IT consulting firm back in Indonesia. It was unclear from the applicant’s evidence how he could establish an Information Technology consulting firm back home without having had any proper experience working in the Information Technology field and merely by completing a Diploma and Advanced Diploma here in Australia. As at the date of this decision it would appear that the applicant would have completed the Diploma of Information Technology based on the trajectory of his studies. That being the case the Tribunal considers that the applicant is merely seeking the Advanced Diploma to further his knowledge and skills in the Information Technology field. Obviously the completion of the Diploma and Advanced Diploma would improve his level of education which would provide him with better employment prospects and the ability to earn a higher level of wages. However considering the applicant’s experience and studies that he has already completed and in particular his experience running his own business back in Indonesia, the Tribunal considers that the skills gained from the course would only marginally improve his employment prospects and level of remuneration back in Indonesia.

The applicant in evidence confirmed that there was nothing stopping him from undertaking studies back in Indonesia in Information Technology. He claims that he decided to study here in Australia by reason of advice given to him by friends who work in the field that the Australian qualification would provide him with better job prospects back home in Indonesia. The applicant in the Response stated the following reasons for undertaking studies in Australia:
Who doesn't know Julian Assange the founder of Wikileaks? I am pretty sure almost everyone regardless of whether or not they are working in IT industry, They will know his name. Australia is well known for having world class entrepreneurs in IT industry, like Mike Cannon-Brookes and Scott Farquhar the founder of Atlassian, Melanie Perkins & Cliff Obrecht the founder of Canva, Nick Molnar the founder of Afterpay just to name a few. And Australia is also home of great innovations ever invented like Wifi by C SIRO. These are one of the reasons why Australia has become inspiration for a lot of people from around the world to come and study.
Having qualification from an Overseas institution especially from a country like Australia are highly regarded in Indonesia. As it is recognized worldwide. Indonesia has a high competitive employment market and its also quite known that employer in Indonesia are seeking employees that have accreditations and qualifications from overseas institution. Not only do overseas intitution teach the latest cutting edge technology information but the best part is they teach them in english as english language is more prevalent in company. My cousin, who has graduated from studying in Australia, also recommended me in studying in Australia, as it has a great lifestyle outside the studying life. like my father once said, if we want to learn something, always learn from the best, and this is why i am choosing Australia to study.
Essentially the applicant in evidence claimed that the level of skills and knowledge in the courses provided here are far superior to those in Indonesia and would provide him with better opportunities in the future. Whilst that might be the case, the applicant in evidence confirmed that he had not made any enquiries in regard to undertaking studies in Information Technology back in Indonesia and had not considered the prospects of undertaking studies back home. Failure to undertake such research is consistent with someone who is keen to study in this country and not assess their prospects of completing studies in their home country which may suit their needs and requirements.
In all those circumstances the Tribunal does not consider that the applicant has a reasonable motive for undertaking these studies here in Australia.
During the course of the applicant’s stay since 2009 the applicant claims he has resided in Australia on a primary student visa and 5 dependant student visas which are all temporary visas.
The applicant has changed his career path in his studies initially from undertaking food and beverage management to information system management to business to marketing and now to information technology. The applicant claims that the courses he has studied since food and beverage management are all connected in regard to operating a consultancy business. The Tribunal does not accept that explanation. The applicant commenced studies in information system management back in 2000 back in Indonesia and has had ample opportunity to complete those studies. Moreover the courses which he has undertaken are separate and distinct and do not lead to a position in employment. Whilst it is arguable they may assist someone in operating a business, it is difficult to accept that they are sufficiently connected to provide a position moving forward.
The Tribunal recognises that it is important to allow for reasonable changes to career and study pathways. However this is not the case when an applicant has merely decided to change careers through undertaking short vocational education training (VET) courses. The Tribunal notes that the courses that the applicant has studied in Australia are VET courses but accepts the Diploma and Advanced Diploma courses in Information Technology are long courses, the Diploma taking 2 years and the Advanced Diploma a year and a half. Nevertheless the Tribunal notes that these studies could have been taken during the applicant’s long stay in this country and it appears that the courses are being undertaken merely to extend the applicant’s ability to reside here with his family having stayed here already more than 14 years.
The applicant has previously enrolled in studies in Indonesia but in evidence confirmed that he had not completed those courses back home in Indonesia. When asked why he had not completed those courses he claimed that he had sabotaged himself in those studies. The Tribunal does not accept that as being a plausible explanation for having taken on those studies and not completing them.
The Tribunal accepts that if he completes the Diploma and Advanced Diploma of Information Technology it will provide the highest level of qualification in his studies since completing the Diploma back in Indonesia. Such studies are therefore consistent with his level of education. However the applicant’s failure to complete courses whilst both in Australia and at home including a Bachelor of Information System Management in Indonesia together with the courses here being the Diploma and Advanced Diploma of Marketing and the Certificate III in Business are consistent with someone who has not applied themselves in their studies and is using the student visa program to maintain residency here rather than to complete their courses.
The applicant has lived in Australia for the last 14 years and obviously has a substantial degree of knowledge about living in Australia. The applicant has been studying Information Technology courses at York Business Institute for more than 2 years and by reason of his experience in those courses has a substantial degree of knowledge about the courses and the education provider.
The applicant in evidence confirmed that the level of wages in Australia are higher than those in Indonesia which would provide a substantial financial incentive for him to remain here rather than to return home.
The applicant in evidence also outlined that he was unable to assess whether Indonesia had more favourable economic conditions than Australia by reason that it was a fast-growing economy and that he was intending to enter into the fast-developing online business industry. The Tribunal makes no adverse findings against the applicant regarding this matter.
The applicant gave evidence that he did not have any concerns about returning to Indonesia and he had no concerns about military service commitments and political or civil unrest in his home country. The Tribunal finds they do not present as a significant incentive for the applicant not to return home.
The applicant has returned to Indonesia on 2 occasions during his stay in Australia back in 2014 and 2017 for a total period of 59 days which equates approximately to 2 months during school holidays and to visit family. The applicant also had a short visit of 3 days for a holiday to New Zealand in 2015. The Tribunal notes that there were travel restrictions imposed by reason of the COVID-19 pandemic from March 2020 until the commencement of 2022. Notwithstanding those restrictions the fact that the applicant has only returned home twice for a stay of approximately 2 months in the 14 years he has resided here leads the Tribunal to consider such conduct consistent with someone intending to reside in this country on a permanent basis and not wanting to return home.
The applicant both in the Response and in evidence confirmed that he has no assets back home in Indonesia and currently has a motor vehicle here in Australia worth approximately $22,000. When one considers the level of income that the applicant receives here coupled with that asset it would provide a significant financial incentive for him to remain here rather than to return home.
The Tribunal notes that the applicant has been supported in his studies by his family and the Tribunal accepts that based on the applicant’s circumstances in his home country including his education, the support from his educated spouse and the support from their families that relative to others in that country they are in a good position and it would not provide a significant incentive for them not to return home. The applicant and his spouse have been married for a long period of time and have 2 children aged 17 and 6 and in those circumstances the Tribunal finds that they are not in a relationship of concern for a successful visa outcome.
The applicant has both personal ties to Australia and to Indonesia. The applicant gave evidence that he has his father and 3 brothers residing back in Indonesia and that would ordinarily provide him with an incentive to return home to Indonesia. However he has not seen them since 2018. The Tribunal notes that the applicant has been in this country for some 14 years and intends to remain here at least for a further year and a half which is consistent with someone who does not have a substantial incentive to return home especially having regard to the fact that his spouse and 2 children are with him here in Australia. The applicant has no economic ties to Indonesia. In those circumstances the Tribunal finds that the ties to Indonesia do not provide a strong incentive to return home.
The applicant has substantial ties to Australia. He has his spouse and 2 children here and his children are in school and furthermore they have been living in stable accommodation for the last 4 years and he has also been in stable employment in well-paid jobs during the course of his stay in this country. The Tribunal finds that such ties demonstrate that he has a strong incentive to remain in this country rather than to return home by reason of his ties to this country.
The applicant in his Response has not identified any visa refusals or cancellations in Australia or elsewhere. There is nothing before the Tribunal from the delegate’s Decision Record to indicate that the applicant has experienced any other visa refusals or immigration issues either in or outside of Australia.
In light of the circumstances of the applicant having been in this country for a very long period of time living with his spouse and family, developing strong ties, being in stable high-paid employment and living in stable accommodation, such ties are consistent with someone living in this country and using the student visa program for the purposes of maintaining residency in this country.
Based on the above matters the Tribunal is not satisfied the applicant has made this application to gain a student visa to study temporarily and that it considers the primary objective of the application is to maintain an ongoing residence in Australia with a view to remaining here permanently.
On the basis of the above the Tribunal is not satisfied the applicant intends to genuinely 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.
As the applicant does not satisfy the requirements for the grant of a visa, the secondary applicants do not satisfy the requirements of cl 500.311 of Schedule 2 to the Regulations.
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 applicants Student (Temporary) (Class TU) visas.
Michael Biviano
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.

[2023] AATA 3351

8 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction