Sapkota Kandel (Migration)

Sapkota Kandel (Migration) [2020] AATA 5279 (8 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Shiba Kala Sapkota Kandel
Mr Tek Nath Kandel
Miss Himani Kandel
CASE NUMBER:  1818321
HOME AFFAIRS REFERENCE(S):          BCC2018/477856
MEMBER:Robert Cumming
DATE:8 January 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) Subclass 500 visas.

Statement made on 08 January 2020 at 12:30pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – incentives to remain or return – necessity of studying in Australia – long stay and multiple student visas and courses – some courses largely duplicated previous study – change of subject areas and courses at lower levels – value of current course to future plans – family, work and community activities – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 4 June 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 29 January 2018. 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 (the Regulations) because the delegate was not satisfied that the applicant intended genuinely to stay in Australia temporarily.
Only the applicant appeared before the Tribunal on 3 October 2019 to give evidence and present arguments.
The applicants were assisted in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant intends genuinely to stay in Australia temporarily.
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 Tribunal has had regard to all the information supplied to the Department of Home Affairs with the visa application (which is on the Departmental file provided to the Tribunal) and all the information supplied to the Tribunal by the applicant. In particular, the Tribunal notes the completed Request for Student Visa Information form (Information form) received by the Tribunal on 15 August 2019 and written submissions, statutory declaration and supporting documentation received on 2 October 2019. Additionally, the Tribunal has had regard to the oral evidence and submissions given by the applicant at hearing.
The Tribunal notes that it has on its file certain information which was not provided by the applicant. Namely, printouts from the Provider Registration and International Student Management System (PRISMS) and also the Departmental movement records. The Tribunal notes that the applicant has, in the Information form, given information to the same effect as the information contained in those two sets of printouts. As a result, the Tribunal has had regard to the information provided by the applicant rather than the information contained in the PRISMS records of the movement records.
However, out of fairness, the Tribunal gave copies of the printouts to the applicant at hearing (under the provisions of s.359AA of the Act) and the applicant was given time to consider the material and to comment upon it. Having had time to consider the material, the applicant gave explanations about certain aspects of the information contained in the printouts but otherwise did not challenge the accuracy of the information in the printouts.
Based on all of the information before the Tribunal (i.e. noting paragraph 11 above), the applicant’s circumstances may be summarised as follows:
(a)The applicant is a 37-year-old citizen of Nepal who first arrived in Australia on 13 May 2007.
(b)The applicant has links in her home country in the form of her mother and two brothers. Additionally, her son Aaron who was born on [date] at the Royal Brisbane and Women’s Hospital, Herston, Brisbane, Australia has been residing in Nepal since the end of 2011 in the care of the applicant’s family.
(c)In the Information form, the applicant notes her family are financially secure and the applicant confirmed in evidence that at least one of her brothers runs a successful business and has been providing the financial resources to enable the applicant to live, work and study in Australia. That funding is due to cease on completion of her current course of study, the applicant informed the Tribunal at hearing.
(d)The applicant keeps in contact with her family on a daily basis by telephone calls and electronic media. As will be noted later in this decision, since her arrival in Australia in 2007, the applicant has returned to Nepal for three family visits but her family has not visited her here in Australia.
(e)The applicant indicated in her completed Information form that she has no concerns in respect to requirements for military service commitments or for political and civil unrest in the area of Nepal where her family lives.
(f)In Nepal, the applicant completed nursing studies to the equivalent of a registered nurse.
(g)The applicant’s husband has property interests in Nepal through his family and the applicant expects to succeed to property in Nepal on her mother’s death.
(h)In Australia, the applicant is accompanied by her husband, who is the adult secondary applicant and her daughter, Himani, the elder of her children who was born in Nepal in 2006 and who has been with the applicant in Australia since 2013. Himani is the child secondary applicant.
(i)Additionally in Australia, the applicant does not have work restrictions attached to her bridging visa so she has been working approximately 30 hours per week at a Tricare Aged Care facility for the last six years. She earns approximately $46,943 annually according to the Information form. Her husband works part-time at a fruit shop and Himani is a secondary school student.
(j)Together, the applicant and her husband earn approximately $63,000 per annum against expenses of some $22,200 per annum.
(k)The applicant indicates she does have a circle of friends with whom she socialises on a regular basis with a frequency probably slightly less than monthly. This includes get-togethers with the Nepalese community in Brisbane.
(l)The applicant has a long study history in Australia. Prior to the current student visa refusal, the applicant had been granted eight student visas.
(m)Based on the information the applicant supplied in the Information form and as discussed in evidence at hearing, the applicant has completed the following courses:
(i)General English studies completed in September 2007;
(ii)Diploma of Nursing completed in December 2009;
(iii)Bachelor of Nursing completed in January 2014;
(iv)Diploma of Business completed in January 2015;
(v)Advanced Diploma of Business completed in February 2016; and
(vi)Certificate IV in Marketing and Communication completed in May 2019.
(n)For a time in 2016 and 2017 the applicant undertook an Advanced Diploma of Management (Human Resources) and an Advanced Diploma of Accounting, neither of which she completed. The applicant said in evidence that these studies focussed on how businesses can obtain a competitive advantage in the market place competing with other firms. This, the applicant said, was not suitable for the health clinic she intends to operate in remote Nepal on her return, which would focus on serving the community rather than making a profit. Accordingly, she changed the direction of her studies.
(o)The applicant is enrolled in a Diploma of Marketing and Communication, which she commenced in August 2019 and which is due for completion in March 2020. At hearing she had completed two of the 12 required units in that Diploma.
(p)In regard to the applicant’s future intentions, the applicant indicated that she wished to complete her Diploma of Marketing and Communication and then she would return to Nepal. It is her intention, as noted above, to open a health clinic in a remote area of Nepal to provide health care and support to the population in that area including aged citizens. She intends to seek funding support from various agencies including government agencies as well as non-government organisations and international organisations operating in Nepal. The applicant indicated her prime concern was health care for the Nepalese community rather than any remuneration for herself but that she would require financial support for her to achieve that aim.
(q)Based on the information supplied by the applicant to the Tribunal in her completed Information form, since her arrival in Australia on 13 May 2007, she has departed Australia on three occasions (in September 2009, November 2011 and January 2017) for a total of 11 and a half weeks against a total time of approximately 12 and a half years in Australia since her first arrival.
(r)In the information provided in documents to the Tribunal and also at hearing, the applicant gave sufficient evidence of her knowledge of living in Australia and her associated education provider.
(s)The applicant has previously successfully applied for eight student visas and she indicated that, but for the current refusal of her visa application, she had not had any other Australian visas refused or cancelled. Her evidence is to the effect that she has complied with her visa conditions during her time in Australia.
(t)The applicant gave evidence that her travels only involved travel between Nepal and Australia and that she has not travelled to any other countries.
(u)Apart from dealing with the issues of concern as will be dealt with later in this decision, the applicant did not suggest there were, or give evidence concerning, any other matters which may relate to her genuine temporary entrance status in Australia.
During the hearing, the Tribunal put to the applicant possible concerns it may have in respect to several issues.
Firstly, the Tribunal raised with the applicant the issue that she already had registered nursing qualifications in Nepal and therefore questioned the necessity for her to have studied a Diploma of Nursing and a Bachelor of Nursing in Australia. The applicant’s response was that Australian qualifications were highly regarded internationally and particularly in Nepal and for that reason it was appropriate for her to undertake those well regarded studies in Australia.
The second issue the Tribunal put to the applicant concerned her statement accompanying her visa application, which stated that she only wished to study a Certificate IV in Marketing and Communication after which she was keen to return to Nepal. Now the applicant has indicated that she needs to stay to study a Diploma of Marketing and Communication as well. The applicant’s answer was that she needed to study this course as it would give her the advanced knowledge necessary to communicate with government, non-government organisations and international organisations to seek funding for her clinic.
Based on that answer, the Tribunal then put to the applicant that based on her existing studies, being the Diploma of Business, the Advanced Diploma of Business, the partial studies in a Diploma of Management (Human Resources) and Advanced Diploma of Accounting as well as the recently completed Certificate IV in Marketing and Communication, she was more than well equipped to communicate with those organisations. At hearing, the Tribunal read out from the various records of completion of those courses, which the applicant had provided to the Tribunal, all the various competencies going to these particular skills. Once again, the extent of the applicant’s answer was to say that she needed more advanced skills to be able to deal with government organisations, international organisations and non-government organisations operating in the country.
The Tribunal then sought to elicit exactly what subjects the applicant needed to study to take her from the level of where apparently with all of her existing studies she would not be competent to deal with those international type organisations but if she completed the 12 units in the Advanced Diploma she would be so qualified. The applicant said the two units she had completed dealt with marketing research and marketing opportunities as well as strategies to improve her business and to deal with third parties. When questioned as to the remaining 10 units she would undertake, the applicant was unable to speak in any more detail than very generally that those subjects would allow her to learn how to deal with competition and come up with appropriate strategies to communicate with external organisations.
Having had regard to the applicant’s evidence and submissions, and her responses to the possible concerns raised by the Tribunal as summarised above, and giving consideration to all the factors specified in Direction No.69, the Tribunal makes the following findings:
(a)While the Tribunal does note the applicant’s reasons for studying in Australia rather than in Nepal, for the reasons to be discussed later, the Tribunal is not satisfied of the necessity, or indeed the explanation for the applicant to undertake her current studies and concludes that they are being undertaken for reasons other than genuine study as a student in Australia temporarily.
(b)The applicant has links in her home country in the form of her mother, two brothers and her son as well as property interests which her husband’s family have and also her own family’s interests which she will in due course succeed. However, the applicant’s conduct in remaining in Australia with only three visits back to Nepal totalling 11 and a half weeks in approximately 12 and a half years since arriving in Australia leads to the conclusion that the applicant has made a life for herself and her husband and daughter in Australia. Indeed, she has the financial support from her family supplemented by income from employment here, the ability to remain in contact with her family on a daily basis by electronic means all of which leads the Tribunal to conclude there is not a significant incentive for the applicant to return to her home country.
(c)As to her economic circumstances in the applicant’s home country, the Tribunal notes there is family financial support if she is to return. In those circumstances, this leads the Tribunal to find that economic circumstances of the applicant would not present a significant incentive for her not to return to her home country.
(d)There are no requirements for military service commitments affecting the applicant which would present a significant incentive for her not to return to her home country.
(e)There are no circumstances of political and civil unrest in the area the applicant’s family are located in her home country which would present a significant incentive for her not to return to her home country.
(f)In considering the circumstances of the applicant in her home country relative to the circumstances of others in that country, the Tribunal finds the applicant comes from a financially secure family but otherwise does not make any findings in that regard which are other than entirely neutral towards the applicant.
(g)The applicant has ties in Australia being her husband and daughter and the means to remain in Australia either with family support or an ability to earn an income.
(h)In this regard, the Tribunal notes that there were submissions from the applicant, that if she stayed in Australia, her visa conditions would restrict her hours of work.
(i)The Tribunal is not able to make a finding on whether that would be the case or not. What the Tribunal can do is make findings on the evidence before it. That shows the applicant’s family’s expenses in Australia are $22,200 per annum. Were the applicant’s work permissions to reduce to 40 hours per fortnight (as against her current work of 60 hours per fortnight (30 hours per week)) then her earnings would drop by two thirds from $46,943 to approximately $31,295 per annum. This, together with her husband’s earnings, is more than enough to cover the applicant’s stated expenses even without the applicant’s brother’s financial support.
(j)When it is also noted that the applicant has some involvement with the local Nepalese community, the combined effect of that and the matters dealt with in sub-paragraphs (g) to (i) inclusive above, all of which the Tribunal finds presents a strong incentive for the applicant to remain in Australia.
(k)While the Tribunal can accept that the applicant has undertaken studies and gained qualifications in Australia in Nursing (which she already had in her home country) as well as in Business and now Marketing and Communication, this has been taken over a period of 12 and a half years in circumstances where there is some inconsistency in the applicant’s reasons for undertaking her current studies.
(l)The first inconsistency is in relation to the fact that when the applicant applied for the student visa, the subject of this review, she indicated that she t wished to complete the Certificate IV in Marketing and Communication and then she would return home. The applicant now indicates she requires Diploma level studies. The applicant was pressed at length as to the requirement for those extra studies and she could not offer a coherent explanation other than a generalised statement that she needs more advanced studies than the existing multiple competencies she already has to liaise with government and international organisations.
(m)This, in the opinion of the Tribunal, is not a sufficient explanation as to why her existing competencies are not sufficient to allow her to perform at the required level.
(n)The applicant was pressed as to the particular studies she was undertaking which would give her particular qualifications over and above those she already has and the applicant was unable to satisfactorily explain the reasons for such studies other than generalised statements that these were advanced subjects that would help her.
(o)The next inconsistency is that the applicant indicated she had changed from an Advanced Diploma of Management (Human Resources) to an Advanced Diploma of Accounting, which she also did not complete, on the basis that this course was more to do with dealing with the competitive environment in which businesses operate rather than the requirement for working in a non-profit health clinic sector t. The very studies the applicant is now undertaking, on her own evidence at hearing, relate to the competitive environment of businesses, which studies the applicant indicates she now needs to have.
(p)In all those circumstances, therefore, the Tribunal considers that the applicant’s conduct is designed to help her remain in Australia and the continuation of her studies is designed to circumvent the intentions of the migration program.
(q)For similar reasons, the Tribunal considers the student visa is being used to maintain ongoing residence in Australia.
(r)As the adult secondary applicant is not a citizen of Australia and the applicant does not therefore benefit from being in a relationship with him, the Tribunal does not consider that the applicant and the adult secondary applicant have contrived their relationship for a successful student visa outcome.
(s)The applicant has demonstrated adequate knowledge of living in Australia and her intended course of study and the associated education provider.
(t)As has previously been noted above, the Tribunal is concerned as to the real reasons for the applicant undertaking the Diploma of Marketing and Communication and as such the Tribunal does not consider the course is consistent with her current level of education. Moreover, as she will be running the proposed clinic, according to her evidence, having such qualifications will not improve her employment prospects.
(u)For similar reasons, the Tribunal is unable to conclude how the Diploma of Marketing and Communication relates to her proposed future employment in her home country given her inability to explain just what particular skills, knowledge and attitudes she will gain that she does not already possess.
(v)In respect to remuneration, the Tribunal does note that the applicant’s stated intentions are to run a health clinic in a remote area of her home country and this is motivated by public and community service concerns rather than to earn remuneration for herself and, accordingly, the Tribunal does not consider it should make an adverse finding against the application on the issue of remuneration in her home country.
(w)At hearing, the applicant had been in Australia for approximately 12 and a half years during which time she had returned to her home country on three occasions for a total of 11 and a half weeks. Were she to remain to the conclusion of her proposed studies, the applicant will have been in Australia for just on 13 years.
(x)As to previous visa applications for the applicant, but for the current visa application under review, there is no evidence before the Tribunal that the applicant has previously been refused visas in Australia.
(y)There is no evidence before the Tribunal that any of the applicant’s previous visas in Australia have been cancelled.
(z)There is no evidence before the Tribunal that the applicant has travelled to countries other than Australia and her home country which makes it unnecessary for the Tribunal to consider whether the applicant has complied with the migration laws of any other country.
(aa)As noted, were the applicant to remain in Australia to the completion of her proposed studies, she will have been in Australia for just on 13 years. This will be in circumstances where the Tribunal is concerned as to the reason for her studies, as dealt with above, and accordingly, this leads the Tribunal to the conclusion that the use of the applicant’s student visa is primarily for the maintenance of ongoing residence in Australia and that she does not have a significant incentive to return to her home country.
(bb)As to the child secondary applicant, whilst she is a teenager, given the response given by the applicant at hearing that Himani is happy to return to Nepal, the Tribunal finds that the circumstances of Himani are governed by the intentions of her mother, the applicant.
(cc)There are no other relevant matters that bear upon the conduct of the review as to the applicant’s status as a genuine temporary entrant.

Balancing all these findings, the Tribunal considers the weight of the evidence points more to those factors not favouring the applicant’s case rather than those factors which are supportive of her case. The matters in subparagraphs 20(a), (b), (i), (j), (k), (l), (m), (n), (o), (p), (q), (t), (u), (w) and (aa) above weigh more heavily in the view of the Tribunal to establish that there is not a significant incentive for the applicant to return to her home country and that the student visa is being used to maintain ongoing residence in Australia than do the other subparagraphs which are either neutral to or in the applicant’s favour.
Having had regard to all matters, including the Direction No.69 requirements to which regard is required, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
Conclusion on cl.500.212
The Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
Secondary applicants
The two secondary applicants’ visa applications are dependent on the success or otherwise of the applicant’s visa application. In particular, cl.500.311 of Schedule 2 to the Regulations requires the secondary applicants, namely Mr Tek Nath Kandel and Miss Himani Kandel, to be members of the family unit of a person who satisfies, or has satisfied, the primary criteria for a student visa.
It follows that because the applicant is found not to meet the criteria for the grant of a student visa, the secondary applicants do not meet the secondary criteria for the grant of subclass 500 (Student) visas and the decision under review must be affirmed.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) Subclass 500 visas.
Robert Cumming
Member

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

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

[2020] AATA 5279

8 January 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal