Romero Garay (Migration)

Romero Garay (Migration) [2024] AATA 1653 (18 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Donovan Josue Romero Garay
CASE NUMBER:  2300077
HOME AFFAIRS REFERENCE(S):          BCC2021/1280003
MEMBER:Peter Booth
DATE:18 April 2024
PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 18 April 2024 at 12:23pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant has not been enrolled in a course of study since March 2021 – is not currently enrolled – significant period of time living in Australia – not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student – applicant is using the student visa programme as a means of maintaining ongoing residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 2, cl 500.312
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 14 December 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 21 June 2021. 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 applicant applied for the visa on 21 June 2021. The delegate refused to grant the visa on 14 December 2022 on the basis that the applicant did not satisfy the requirements of cl 500.312 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 500.312 of Schedule 2 relevantly requires the applicant to be a of the family unit of a student visa holder at the time of decision. Further that the applicant genuinely intends to stay in Australia temporarily and intends to comply with all conditions subject to which the visa was granted. The delegate was not satisfied that the applicant was a genuine temporary entrant.
The applicant appeared before the Tribunal on 17 April 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s de facto partner or spouse, Ms Andrea Estefania Ortiz Parraga (Ms Parraga)
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary entrant.
The issue in this review is whether the applicant a genuine temporary entrant and satisfies cl500.312.
Clause 500.312 of Schedule 2 to the Act provides as follows:
The applicant is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa, having satisfied the primary criteria for that visa:
(a) 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
(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) because of any other relevant matter.
In considering whether the applicant satisfies the genuine temporary entrant criteria the Tribunal must have regard to Direction No 108, ‘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 criteria.
The delegate concluded that the applicant did not satisfy the genuine temporary entrant requirement.
Background
On 21 June 2021 the applicant applied for a student visa dependent on the student visa held by his partner Ms Parraga. On 14 December 2022 the application was refused on the basis that the applicant was not a genuine temporary entrant. The delegate concluded as follows:
The Student visa application currently under consideration was lodged on 21 June 2021. The applicant ROMERO GARAY, DONOVAN JOSUE (09/04/1997,M) has lodged a sub-entrant application on the basis of their relationship with their spouse ORTIZ PARRAGA, ANDREA ESTEFANIA (20/04/1992,F).
I have taken into account the applicant’s economic circumstances relative to the economic
circumstances their home country and Australia.
I have considered the applicant’s likely earning potential in Australia and their home country. General financial circumstances, such as income level, savings, assets and investments can provide some indication of the applicant’s financial incentives to return to their home. The applicant has provided no evidence of their current financial or employment circumstances in their home country. I acknowledge the applicant provided financial evidence from Australian bank accounts as well as lease agreements in Australia. However, based on the information before me, I am not satisfied the financial incentives to return home outweigh the financial incentives to remain in Australia.
The applicant has stated they wish to study English and then return to Colombia as a Bilingual professional to work at a coffee international business industry. The applicant also stated they wish to remain with their partner while they complete their studies. I note the applicant’s partner has completed their studies this year as well as the applicant completing their English studies in 2020. This raises concerns on the applicant’s intentions to remain in Australia.
While I acknowledge family support can be beneficial for an individual whilst studying in a foreign country, I am not satisfied the applicant’s intentions are only to remain in Australia while their spouse undertakes their studies. The applicant has not demonstrated strong ties to their home country to satisfy me that they will return upon the completion of their spouse’s studies. I am concerned that the applicant’s circumstances in Australia will outweigh those of their home country given that their spouse is currently studying in Australia. As such, I have serious concerns regarding the applicant’s intentions to remain in Australia for purposes other than providing support for their partner.
I have considered the circumstances of the applicant and the reasons for wanting to remain with their spouse in Australia. While I acknowledge that the applicant wanting to remain with their spouse during their studies, I am not satisfied that they will return to their home country upon completion.
The applicant arrived in Australia in March 2019 and has spent a significant amount of time in Australia and minimal amount of time outside of Australia. This raises concerns regarding
the applicant’s intention to remain in Australia temporarily. Therefore, in consideration of the applicant’s circumstances in Australia and immigration history, I am not satisfied that they have satisfied the Genuine Temporary Entrant criteria.
On 3 January 2023 the applied to this Tribunal for a review of the decision.
The applicant provided several documents to the Tribunal prior to the hearing. The applicant did not refer to those documents during the hearing. Nonetheless they have been taken into account by the Tribunal and given appropriate weight. In response to a request to provide information the applicant provided a variety of information relevant to his application for review. He stated that he was born on 9 April 1997. Prior to arriving in Australia he had completed several bartending and barista courses between August 2015 and November 2018. He was employed as a “barista manager” prior to arriving in Australia between November 2015 and February 2019 from which he derived an annual salary of AU$6000.
The applicant arrived in Australia on 8 March 2019 and has not returned to his home country since that time. He travelled to Indonesia in November 2022 for one week for a vacation.
He stated hisvisa history to be as follows: he held a “student visa 500” between February 2019 and September 2019, and another such visa between October 2019 and July 2021 and applied for the student visa question on 21 June 2021.
He stated that he completed the general English course between 11 March 2019 and 2 August 2019, and completed another such course between 30 September 2019 and 17 April 2020. He enrolled in a certificate IV in leadership and management due to commence on 18 May 2020 but did not complete it.
The applicant stated his employment history in Australia as follows: he was employed as a “barista manager” between November 2022 in January 2024, as a “barista” at a different firm between April 2021 October 2022 and as a “barista” add yet another firm between May 2022 and October 2022.
The applicant stated that his father, mother, sister and daughter reside in Colombia and that his partner resides in Australia.
As to his future career intentions the applicant stated that he intended to work in the coffee industry in Colombia.
The applicant also provided a letter dated 14 February 2024 addressed to “migration and refugee division officer”. The letter is unsigned and without page or paragraph numbers. It states as follows:
Thank you for the opportunity to review my case number 230007, under Donovan Josue Romero Garay. I intend to make known some essential points to pursue an extensive revision to the Department of Foreign Affairs and Immigration's decision. I want to express some aspects that should be considered and to clarify that I do not wish to keep a negative annotation in my immigration records that would affect any future applications.
My partner and I have been together since 2019, and we have always wanted to continue our studies in Australia to grow professionally and personally in our work areas. On January 7, 2021, my partner extended her visa to continue her studies. The same year, my student visa expired on July 14, 2021. On June 21, 2021, I applied to be her dependent under a Student Visa (Subsequent Entrant - Subclass 500); in the meantime, I was granted a Bridging Visa Type A. However, due to visa processing times, my visa could not be approved within the validity of my partner's visa (November 4, 2022), resulting in a visa refusal on December 14, 2022. I considered the decision unfair as the process took longer than expected (a year and a half), and the arguments should have considered limitations during the COVID-19 pandemic, such as that we could not leave the country or find job opportunities.
After visa refusal, I decided to appeal this decision, and since then, I've been in a Bridging Visa type A number 2009584335956 with no visa I could join during this time. However, my appeal was created to avoid generating a negative annotation in my immigration records.
On the other hand, It is essential to acknowledge that the global closure of borders from April 2020 to December 2021, coupled with the unfinished nature of our studies, prompted my continued stay in Australia during this critical period and that after all the headwinds, we are expecting to shortly resume our plan to get higher education, leaving behind all the negative impacts of the pandemic.
However, I believe that after having spent years living in Australia, acquiring skills in a new language, and gaining experience in marketing and hospitality, my professional profile has grown significantly, and that brings me closer to obtaining my dream job as a marketing manager when I will be back in Colombia.
Another of my greatest inspirations is to return to my country and provide a better quality of life for my daughter, Isabella Romero. Considering the knowledge acquired during this time in Australia, I can accept better job offers, as I mentioned above, and accompany my daughter in her growth process.
Last but not least, mentioning that my partner and I aim for a higher education is critical. Estefania got an admission process for the Master's Degree in Social Work at Griffith University in QLD. While waiting for the university's response, we decided to apply for a new COVID visa extension because the new term did not fit within the expiration date of her current visa. From my side, supporting her emotionally in the new educational process is also essential.
I respectfully reiterate the request to review my visa decision, as unforeseen circumstances beyond our control impacted the outcome. We remain dedicated to pursuing our educational goals and contributing to the Australian community, leveraging our skills and experiences to solve the skill shortages impacting different sectors of the Australian economy, such as the Hospitality and Health sectors.
A certificate of attainment confirms the applicant has successfully completed several units comprising a certificate IV in marketing and communication. A civil certificate dated 26 May 2021 confirms the applicant and Ms Parraga are in a civil partnership relationship.
The hearing
The applicant informed the Tribunal that he had read the delegate’s decision dated 14 December 2023 and that he understood that the issue for determination was whether he was a genuine temporary entrant for the purposes of his dependent student visa application.
He was asked whether his partner currently holds a student Visa. He said “no”.
The applicant confirmed that he arrived in Australia on 8 March 2019 and that he had not returned to Colombia since arriving in Australia. He said: “because we arrive prior to Covid 19 we got stuck here and applied for bridging Visa and so kept attending.” The Tribunal observed that his response did not explain why he had not returned to Colombia in more than five years of residing in Australia. He said: “when we are holders of bridging Visa A we applied for bridging Visa B and given that I couldn’t leave the country.” The Tribunal observed that he could leave the country whenever he wanted but might have difficulty returning. The applicant said: “I didn’t want to leave without everything sorted out in my current visa.”
The Tribunal observed that he enrolled in a certificate IV in leadership and management due to start on 18 May 2020 but did not complete it. He said: “I had Covid 19, then depression, I was ill for three or four months.” He was asked whether he had any medical opinion evidence to corroborate his contention that he was depressed. He said: “no there weren’t any vaccines, I was advised to stay at home.” When the question was repeated he said “no all I had was Covid 19”. He was asked whether he was now saying that he was not depressed. He replied “no I did have it but couldn’t access any help”.
He was asked when he ceased studying the course. He said: “I have a rough idea, October 2020.” The Tribunal informed the applicant that a search of his study history disclosed that his enrolment was cancelled on 26 March 2021 for unsatisfactory academic progress and asked whether he disagreed. He said “yes correct”.
He was asked whether he undertook any study after that. He said: “no because in bridging Visa so not able to study.”
The Tribunal observed that the applicant provided a statement of attainment in respect of a certificate IV in marketing and communication. The applicant agreed. The Tribunal observed that a study history search only disclosed enrolment in a certificate IV in leadership and management. The applicant said: “it was cancelled by the same college and replaced with a marketing course, so I did marketing and communication but never started leadership and management.”
He was asked why he did not return to Colombia when he abandoned the certificate IV course. He said: “I couldn’t travel then because both partner and I had priority is to support each other and not able to leave the country.”
He was asked why he did not make another student visa application in his own right. He said: “we thought my partner could finish a study, never could focus on me.” He was asked when his partner completed her study. He said “January 2023”. The applicant was asked why he did not return to his home country at that time. He said: “big because my partner needs to get more experience in the area of disability, she is studying a particular course, she needed more time.” The Tribunal observed that it was now April 2024 and asked why he had not returned to his home country. He said: “she is currently awaiting a resolution about Visa, applied to Master of social work, she is waiting until can pursue that project.”
He was asked whether he was currently employed and if so to state his current income and role. He said: “I was managing café and at that point living in northern Australia, I recently moved to Queensland, so that in the whole project to be able to help my wife so she can pursue in Queensland.” When asked to respond directly to the question he said “I am not working because of the move”.
He was asked whether his daughter was currently residing in Colombia. He said “yes”. When asked to state the age of his daughter he said “seven years”. He was asked why she did not accompany him to Australia. He said “she lives with her mother and someone else”. The Tribunal observed that the child was not a child of his current relationship. The applicant said “no”.
When asked whether he owned assets in Colombia in his own name he said “no”.
The applicant was asked what he intended to do when he returns to Colombia. He said: “I would like to resume my career managing restaurants and café’s and now with a second language could get better opportunities.” The Tribunal observed that he had completed two short English courses in Australia and asked why he had not undertaken such courses in Colombia. He said: “because I wouldn’t have been able to acquire language and be exposed to this field in a foreign country, and overseas certificates are more valuable in my country.”
He was asked when he anticipated returning to Colombia. He said “I intend or plan in two years, when my wife finishes her studies”.
He was asked whether he intended undertaking further study when his wife completes her own studies. He said: “yes ideally I do while she is pursuing her master and I can concurrently focus and specialise.” The Tribunal observed that he had chosen not to study for approximately three years and asked why he would return to study. He said: “my main goal was to study while my wife was studying but never got a resolution from the government.”

The applicant declined an opportunity to add anything further to his application for review.
Ms Parraga was then invited to give evidence. She said: “the reason why pursue the specific because of master in social work is not offered in my country, I am a nurse, but studying like the social component were enables me to work in that area.”
She was asked when she completed her most recent course and to state the name of the course. She said “3 January 2023, diploma of community services”. The Tribunal observed that a search of her study history disclosed that she had completed it on 30 October 2022. She said: “when I did get the history notice it appeared if I registered twice, but I did finish it, and I finished in October, but I got the certificate in January.”
She was asked when her student visa expired. She said “4 November 2022”. She was asked why she did not return to Colombia when she completed the diploma of community services or when her student visa expired very shortly thereafter. She said: “I did I went to lodge the application for Covid 19 visa and then I returned.” She was asked why she had not enrolled in the Masters course. She said: “first because I wanted to explore linguistic proficiency and professional level and get more experience in the field, because not to same as to speak the language.” The Tribunal observed that she had been studying in Australia since 2019 and it was difficult to accept that she needed more time to study the English language. She said: “when you find an advanced English because it is hard to go back to study, need something higher than that and a certificate and a diploma enabled me to speak.”
She was asked why she had not enrolled in a further English language course. She said: “because I deem my language skills to be good enough.” The Tribunal informed the witness that it was difficult to accept the responses because she had completed her most recent course in October 2022. She had not enrolled in a Masters level course. She said she wanted more English language proficiency but had not enrolled in a further English language course. She said: “I am waiting for response from Griffith University, they have not replied, so the document which has been lodged I have given you a screenshot.” She was asked to state the name of the course for which she had applied and when she had done so. She said “Masters level course, 11 February 2024”. The Tribunal asked the witness why she had waited so long in order to apply for a place in the Masters course. She said: “I need to allocate resources and at the same time to give us time to work in the area, to see if I wanted to do it.”
When was asked whether she was currently employed and if so to state the role and her income. She said: “I started a role as a casual disability support worker this week, $35 per hour.” She was asked whether she had been employed since October 2022 and if so to state the roles. She said: “I worked social worker in aged care and disability sector, finished last month on March 3, because I moved to Queensland.”
The applicant was asked whether anything arose from the witness’ evidence upon which he would like to comment. He said: “she worked in the Northern Territory got experience, I moved to the Northern Territory to get the sponsor, I met the Northern Territory, he lied to me now and moved to Queensland.” The applicant was asked whether he had applied for permanent residence in Australia. He said “no”.
Conclusion
In considering whether the applicant has met the genuine temporary entry criterion, the Tribunal had regard to the following factors consistent with cl 500.312 and the Ministerial Direction No. 108. The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether he has satisfied the genuine temporary entrant criterion.
Without diminishing the applicant’s evidence, it can be summarised as follows.
Prior to arriving in Australia, the applicant had completed bartending and barista courses between 2015 and 2018. He had been employed as a barista or café manager in Colombia between 2015 and 2019. He arrived in Australia on 8 March 2019 and has not returned to Colombia. However, the applicant travelled to Indonesia on vacation for one week in November 2022.
The applicant has held two student visas between February 2019 and July 2021 and the application to the student visa in question was made on 21 June 2021. His most recent student visa expired on 14 July 2021. The applicant’s current student visa application was made as a dependent on his wife’s student visa which expired on 4 November 2022.
The applicant has completed two English language courses, one between March 2019 and August 2019 and another between September 2019 and April 2020. He was enrolled in a certificate IV in leadership and management but did not complete it. The applicant stated that he abandoned the course in October 2020. His explanation was that he contracted Covid 19 and had depression for several months and could not study. He has produced no corroborative medical opinion evidence to support the assertions. They are given little weight.
The Tribunal observes that his study history search discloses that his enrolment in the certificate IV course was cancelled on 26 March 2021 due to unsatisfactory academic performance.
The applicant has not been enrolled in a course of study since March 2021 and is not currently enrolled. The applicant has been employed as a barista or café manager and continues to be so employed. He has no assets in Colombia. His immediate family including his daughter reside in Colombia. The applicant’s daughter resided in Colombia with her mother.
The applicant has not returned to Colombia since arriving in Australia. His explanation was that global travel restrictions and more recently the terms of his bridging visa prevented him from doing so. He has not explained why he did not apply for permission to travel outside Australia and return to Colombia notwithstanding being the holder of a bridging visa.
The applicant’s spouse completed her last course of study in Australia, a diploma of community service on 30 October 2022. She did not apply for a place in her next course, a Master of social work, until 11 February 2024. She explained the delay by a need to improve her English language proficiency. This is not accepted by the Tribunal, she has been in Australia studying courses taught in English since 2019 and has completed several English-language courses. She also said that she wanted to gain experience in “the area” and to see if she wanted to a Masters in social work. This explanation is not accepted. She has worked in aged care, and disability support since arriving in Australia, she has a background as a nurse in Colombia, and she has completed a diploma of community services and a certificate III in individual support in Australia. This should be sufficient to enable her to assess whether she would want to continue with a Masters level qualification in a related area. She also said that she needed to gather “resources” because a Masters course was “costly”. This is the most likely explanation for the witness’ failure to immediately continue her studies in a linear fashion. However, in the opinion of the Tribunal, a diligent student would commit to the next logical course and complete as soon as possible.
The applicant said that he intended to stay in Australia until his wife has completed her next course of study, the Masters degree. He said that this would be in two years. In the Tribunal’s view, having regard to the lackadaisical approach to the Masters degree by the applicant and his spouse, it is reasonable to conclude that the applicant has no present intention to depart Australia and no timeline in which to do so. In the Tribunal’s view if the applicant was genuinely intending to depart Australia after his wife had completed the Masters course then they would both be diligently pursuing enrolment in such a course and completion of it as soon as possible.
The applicant has not explained to the Tribunal’s satisfaction why he has not continued with his studies, why he has decided to be dependent on his spouse’s student visa, why he has not returned to Colombia permanently either after he abandoned his certificate III course or when a student visa application was refused or when his spouse completed her most recent course of studies, why his spouse has not immediately embarked upon Masters level studies after completing the diploma of community services, why his spouse has still not commenced the masters level course, why his spouse only recently applied for a place in the Masters level course and a realistic date when he will depart Australia and return to Colombia permanently.
The Tribunal has considered the applicant’s circumstances in his home country. The applicant is in a recognised de facto relationship and is from Colombia. The applicant has provided evidence of direct family ties to his home country which may operate as an incentive to return. The Tribunal finds that he has been able to demonstrate ties to act as an incentive to return to his home country at the completion of the actual or proposed study. Whilst the Tribunal accepts that the applicant may have family ties to Colombia having regard to the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to Colombia.
The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 8 March 2019 as a holder of student visa valid to July 2021. The proposed study would extend the applicant’s stay until his spouse has completed a Masters degree which she has not commenced and has only applied for a place in the course a few weeks ago. He anticipates the course of study will take two years. However the applicant’s spouse completed her last course of study in October 2020 and she is busy working in the aged care and disability sectors and not studying. The Tribunal considers that this conduct of is inconsistent with the conduct of a genuine temporary entrant. On balance it is consistent with the applicant having decided to extend her stay in Australia by utilising the student visa programme.
The Tribunal turns to consider whether there are any other relevant matters. The Tribunal finds that there are no other relevant matters to consider that may be beneficial or adverse to the applicant, and that this aspect is not relevant.
The Tribunal has considered the applicant’s economic circumstances in his home country relative to his potential circumstances in Australia. Having regard to the disparity in economic circumstances between Colombia and Australia, the Tribunal is not satisfied that the applicant has significant incentive to return to Colombia. The applicant has been unable to demonstrate substantial ties or personal assets in his home country which diminishes his incentive to return to Colombia.
The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study.
The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 8 March 2019 the applicant has spent more than five years in Australia, has not returned to Colombia, has departed Australia on one occasion for vacation for seven days, he owns no assets in Colombia, his spouse resides in Australia and intends to do so for at least the next several years all of which indicates that he appears not to have strong personal ties to Colombia. On balance, the Tribunal assesses the applicant’s incentive to return to Colombia to be very poor
The Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. Whilst the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant was previously granted a visa specifically to enable him to achieve that goal. The applicant was granted two student visas which would have facilitated the applicant’s study in his desired field. The applicant’s current student visa application was made as a dependent on his wife’s student visa which expired on 4 November 2022. It therefore appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study.
The Tribunal has considered all the information provided by the applicant in support of his application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in his home country, potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.
Having regard to the totality of the evidence the Tribunal concludes that the conduct of the applicant is inconsistent with the conduct of a genuine temporary entrant. Rather the applicant’s conduct is more consisted with the conduct of a person who is intent on remaining in Australia by any available means.
The Tribunal considers that the applicant is using the student visa programme as a means of maintaining ongoing residence in Australia, and does not have a genuine intention to stay in Australia temporarily.
There is no evidence before the Tribunal regarding the following factors indicated by Direction No.108: economic circumstances of the applicant; any potential military service in Colombia; political or civil unrest circumstances in Colombia; remuneration the applicant could expect to receive in Colombia or a third country compared with Australia; circumstances in Colombia relative to Australia or any other country; and the applicant’s circumstances in Colombia relative to others in that country.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.312(a).
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Peter Booth
Member

ATTACHMENT – DIRECTION NO. 108
DIRECTION NUMBER 108 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, Claire, Minister for Home Affairs and Cyber Security give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 21 March 2024
Claire O’Neil

Minister for Home Affairs and Cyber Security
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. 108 - Preliminary
NAME OF DIRECTION
This Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 108.
COMMENCEMENT
This Direction commences on 23 March 2024.
REVOCATION
Direction No. 69, given under section 499 of the Act, is revoked.
INTERPRETATION
Act means the Migration Act 1958.
Finally determined has the same meaning as is set out in subsections 5(9) and (9A) of the Act.
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 against the genuine temporary entrant criterion for Student visa applications and Student Guardian visa applications (as applicable).
This Direction also applies to members of the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; who review the decisions of primary decision-makers in relation to a Student visa or Student Guardian visa application.
This Direction applies in relation to Student visa applications and Student Guardian visa applications made before 23 March 2024 but not finally determined on that date, including such visa applications that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for a Student visa and seek to satisfy the primary or secondary criteria, or an application for a Student Guardian visa and seek to satisfy the primary criteria.
Note: Direction No. 106 applies in relation to Subclass 500 (Student) visa applications and Student Guardian visa applications made on or after 23 March 2024, including visa applications made on or after that date that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.
Preamble
The Australian Government operates a student visa program 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 program 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. 108 - Preliminary
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 or Student Guardian 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 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.
iii.b. Previous travels to Australia or other countries, including:
iv.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;
v.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
vi.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
vii.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 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.

[2024] AATA 1653

18 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Intention

Procedural Fairness