Sarakarn (Migration)

Sarakarn (Migration) [2019] AATA 6186 (31 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Supattra Sarakarn
CASE NUMBER:  1721648
HOME AFFAIRS REFERENCE(S):          BCC2017/1813869
MEMBER:Penelope Hunter
DATE:31 October 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 31 October 2019 at 2:33pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not genuine student – enrolled in 21 different courses – thirteen enrolments cancelled – tertiary qualified – continued study at lower level – spent 95 days outside Australia in seven years onshore – concerns about genuineness of future business plans – economic incentives to remain in Australia – inconsistent information – credibility issues – using student visa program to maintain ongoing residence in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 376(3), 499
Migration Regulations 1994 (Cth), 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 Immigration and Border Protection on 30 August 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 22 May 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.
BACKGROUND
The applicant is a citizen of Thailand. She applied for the visa in order to undertake study in a Certificate IV in Marketing and Communication and a Diploma of Marketing and Communication with course dates from 14 May 2017 to 10 May 2019.
In her visa application the applicant identified that she was never married, and had completed a Bachelor of Arts at Chandrakasem Rajabhat University. While in Australia, the applicant had undertaken study in English (2012), a Certificate IV in Information Technology, English, a Certificate III in Business (2015), a Certificate IV in Business (2016), and a Diploma of Business (2017). She also set out that in Australia she had been employed as a receptionist at Suksabai Thai Massage from January 2015. The applicant stated that she did not have a job at the completion of the course but would like to start her own business in Thailand.
In a statement accompanying the visa application the applicant set out the following further relevant information (in summary):
i.After finishing school in Thailand she completed a degree majoring in Japanese. During the degree she became aware of the demand for people working in business and hospitality in Thailand to be competent speaking in English and Japanese. She decided that she would start a business language school primarily targeting college students in the greater Isan area in Thailand. To do this it was necessary for her to have sufficient mastery of the languages and business skills to enable her to develop and run the business.
ii.She had anticipated, due to her previous study, that she would be able to quickly attain a sufficient level of English. Unfortunately it took some time. After studying English in 2012 she started a course in Information Technology in 2013. While she successfully completed the Certificate IV, she found it very difficult because her English was not adequate. She sought assistance from her teachers and decided to complete another English course before continuing on to the diploma.
iii.In January 2014 the applicant started an English course at Performance Education in Sydney. By the time she completed this course she had become quite discouraged and questioned whether to continue. After discussing it with her family she decided to prioritise her business education. Her agent recommended a business course at Magill College. They required her to start at the Certificate III level. She completed her Certificate III, IV and Diploma of Business and intended to undertake the Advanced Diploma but Magill College restructured their courses so that the Diploma course was extended to include the content that was previously in the Advanced Diploma.
iv.Her English has now improved substantially but it is still not at the level that she needed. Studies in business also made her realise the importance of marketing and that these skills were necessary to successfully establish a business. Her education agent recommended the marketing course at Business Institute of Australia and they allowed her to start at the Certificate IV level. When she finishes her Diploma in Marketing she will have effectively ensured that her goals are achieved and she can resume her life and career in Thailand.
v.She has many family members in Thailand. Her parents have separated and each has a new family. In addition she has four siblings, 12 aunts and uncles and about 20 cousins. Her family is a strong social group and she returns home for a couple of weeks every year. In addition, she misses the religious observance of the Buddhist faith. She finds that it is hard to get to a Thai temple in Sydney. Although she had many Thai friends in Sydney she felt as though she was cut off from her religion and culture. She planned to go back to Thailand in June 2019 equipped with the skills and knowledge that she had gained through completion of her courses.
vi.In Australia she works as a receptionist and chose this job because she is able to talk to many English-speaking clients. It helps her to develop her language skills. While she enjoys living in Australia part of the reason for enjoying it is that she knows that it’s temporary.
vii.She had prepared a preliminary business plan for the establishment of her business. She estimated that the cost of establishing the business and running it for the first year was 1,400,000 Baht. The applicant claimed to have available capital to establish the business in the sum of 2,250,000 Baht. She was confident that she had the resources necessary to establish the business.
Tribunal Application
The Tribunal received an application for review from the applicant on 19 September 2017.
On 21 August 2019, the Tribunal received further documents from the applicant including a personal statement, a further Confirmation of Enrolment in an Advanced Diploma of Marketing and Communication with course dates from 8 July 2019 to 3 January 2021, a Certificate of completion of a Certificate IV in Marketing and Communication and academic transcript, a Certificate of completion of a Diploma of Marketing and Communication and academic transcript, and copies of financial documents from the applicant’s stepfather (sponsor). In her statement the applicant set out the following further information (in summary):
i.Her goal while living and studying in Australia was to gain the required skills in order to start her business in Thailand upon completion.
ii.She is a genuine student and she has not worked while she has been in Australia. She had been supported financially by her mother in Thailand who has her own business. Her mother was supporting her to gain adequate skills so she can open the business in Thailand in 2021 after completion of the Advanced Diploma in Marketing and Communication.
iii.She was a genuine student who had shown progression in her studies towards the goal of opening her business. She came to have completed all of her past courses and her only wish was an extension to be granted in order to complete the Advanced Diploma.
Within the Tribunal file is information received from the Department that is the subject of a Certificate issued on 14 May 2018, pursuant to s.376(3) of the Act. Prior to the hearing the Tribunal had a copy of the Certificate given to the applicant.
The applicant appeared before the Tribunal on 22 August 2019 to give evidence and present arguments. The Tribunal hearing was commenced with an interpreter present in the Thai and English languages. At the commencement of the hearing the Tribunal had concerns about the quality of the interpreting and adjourned the hearing for a short period until a new interpreter could be located. The hearing then resumed with an interpreter in the English and Thai languages by phone. The applicant confirmed at the conclusion of the hearing that she was satisfied with the quality of the interpreting. Where relevant the Tribunal has set out the evidence provided by the applicant at the hearing below.
The applicant was assisted in relation to the review by her 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 satisfies 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 accepts that while in Australia on her various student visas the applicant has undertaken and completed several courses of study. This is however the general expectation of all student visa applicants. It is further accepted that the applicant has completed the Certificate IV and Diploma of Marketing and Communication for which she originally sought the visa under review. Yet for the reasons set out below, the Tribunal is not satisfied that the applicant satisfies the genuine temporary entrant criterion.
The Tribunal has concerns about the amount of time that the applicant has spent onshore. Although not determinative, the applicant arrived in Australia in October 2013, and although she holds tertiary qualifications in her home country, she has continued to maintain enrolment for seven years at the lower vocational education and training (VET) sector.
Furthermore, although when the applicant applied for the visa she claimed that she would be returning to start her business in Thailand at the conclusion of her Diploma of Marketing and Communication, she has instead undertaken a further enrolment which will see her remain onshore until 2021. The Tribunal was not persuaded by the explanations offered by the applicant for her further enrolment. She told the Tribunal that she had enrolled in the additional Advanced Diploma, because her family supported her and she thought that she needed the higher education to be certain that she could open her business. This raised questions for the Tribunal why the applicant had commenced her studies in Marketing at the Certificate IV level if it was truly the higher qualification of the Advanced Diploma that she desired. The Tribunal has considered the explanation offered by the applicant that she was merely guided by her agent to start at the Certificate IV level, however this was not the applicant’s first attempt at study in Australia. She had by this time undertaken several courses in English, Information Technology and Business, including study to the Diploma level. The Tribunal considers that if the applicant was genuinely desirous of obtaining the higher qualification, having already completed diploma-level studies, it was not necessary for her to commence marketing studies at the Certificate IV level. It appeared by this enrolment that the applicant was regressing in her studies and extending her time onshore.
The Tribunal accepts that the applicant has family in Thailand. The Tribunal queried with the applicant whether she had in fact returned every year for several weeks each year as set out in her submissions. The applicant responded that she had gone back sometimes but not that often. She told the Tribunal that she had not returned since she applied for the visa. The applicant herself had no assets in her home country, although she claimed that her mother and stepfather had funds. The Tribunal acknowledges that the applicant has provided a statement from an account of her stepfather. The applicant did not provide evidence consistent with her written submissions that she missed the cultural and Buddhist ceremonies of her home country, although it is accepted that she may enjoy these in her home country. It is also accepted that the family ties of the applicant provide some incentive for her to return to Thailand. The Tribunal must also balance this with the amount of time she has spent and proposes to spend in Australia.
The applicant told the Tribunal that she had no outstanding military service obligations. She also claimed that there were no incidents of civil or political unrest that would act as an incentive for her to remain in Australia.
As to the applicant’s circumstances in Australia, she claimed to have no family ties and was living in rented accommodation with a friend. She had been residing in the same accommodation for the last seven years. This continued residence at the same address, and the length of time she has spent in Australia, indicated to the Tribunal that the applicant saw Australia as a permanent place to reside and not just a temporary place to study.
The Tribunal also had concerns as to the accuracy of the applicant’s submissions as to her employment, and whether there was some financial motive for her to remain in Australia. In pre-hearing submissions to the Tribunal, the applicant claimed that she was not working, and even set out that she had not worked while in Australia. This submission was clearly inconsistent with the information supplied at the time of the visa application where the applicant had set out that she had been working as a receptionist at Suksabai Thai Massage from January 2015. When the Tribunal discussed this with the applicant, she told the Tribunal that she used to work at Suksabai before the visa application but that this was only for a few hours for a little food and shopping. The Tribunal then discussed with the applicant further information and the Certificate issued by the Department pursuant to s.376(3) of the Act. It was explained to the applicant that the Certificate stated that a Departmental officer received particular information in confidence and, therefore, the Tribunal’s use and disclosure of the particular information sent to it are subject to the provisions of s.376(3) of the Act. The Tribunal had considered the validity of the Certificate and was satisfied that it was issued in writing and the information that it refers to was in fact given to an officer in confidence. As a result the Tribunal was satisfied that the Certificate has been properly given. The applicant and her representative were invited to make submissions in relation to the Certificate, and did not dispute its validity. Pursuant to the provisions of s.359AA of the Act the Tribunal then proceeded to give the applicant clear particulars of substance of the information. The applicant was informed that the information the subject of the Certificate was a tip-off letter to the Department. The information was that although the applicant was in Australia on a student visa, she did not attend school, and her real intention was to work. It was further claimed that the applicant worked well in excess of 20 hours per week at three Sydney brothels including Dream Girls Massage Alexandria (on Tuesdays and Wednesdays) and another brothel in Green Square and also in Surry Hills. It was further claimed that this conduct had occurred for over five years. The applicant was advised by the Tribunal that the information may be relevant because if the Tribunal relied upon it, it may not be satisfied that she was in Australia to study, rather, to work, as was the substance of the allegation. The applicant was offered time to respond and elected to respond immediately. She told the Tribunal that she had only worked at Dream Girls Alexandria one day per week and claimed to have stopped working the previous year. She also claimed to have stopped working at the Green Square premises and this was also likely to have been the previous year, although she could not remember the exact date. The applicant then said she probably stopped working at Dream Girls in January 2019, and she had only worked at Suksabai for three years not five. The applicant told the Tribunal that she was definitely not working more than 20 hours per week. Initially the Tribunal was not minded to place much weight on the information submitted in the tip-off letter. However it was of concern for the Tribunal that the applicant in fact confirmed in her response to the Tribunal that she was working in the three places reported around the time that the letter was written. In considering this information, the Tribunal is not satisfied that on the basis of an anonymous tip-off letter that the applicant had not studied, given her certificates of qualifications. Further it does not accept that the information demonstrates the applicant is working more than 20 hours per week, or that she has breached her visa condition in this regard. Yet, as discussed with the applicant, it does raise doubts for the Tribunal with respect to the applicant’s assertion that she is no longer working, and that she has worked minimally throughout her studies as she has been supported throughout by her mother. The applicant’s response to the information sent to the Department also did not allay the concerns that she had economic incentives to remain in Australia other than for the purposes of study.

The Tribunal also had concerns about the number of courses that the applicant had enrolled in while in Australia. Again pursuant to the provisions of s.359AA of the Act the Tribunal provided the applicant with a copy of her Provider Registration and International Student Management System (PRISMS) records. The applicant was informed that the particulars of the relevant information from the records were that since 2011, she had enrolled in 21 different courses, of which 13 had been cancelled. Additionally, it recorded that she had undertaken study in the areas of Information Technology, Business Administration, English, Business, and Marketing and Communication all in the VET sector. Despite more than seven years study in Australia, she had continued to maintain enrolment in the VET sector, and up until her current course which commenced a month prior to the Tribunal hearing, she had not proceeded above the diploma level. The applicant was advised that the Tribunal considered the information would be relevant because the records showed that there had been significant changes to her study pattern, and continued study at a level lower than that achieved in her home country, and this was not considered to be behaviour consistent with a person wishing to progress academically who had invested significant time and money in the decisions to study in Australia. The applicant chose to respond immediately and suggested that several of her course cancellations occurred because education agents had enrolled her in packages of courses, and when she decided to change course direction for example from Information Technology to English and Business several enrolments were required to be cancelled. She also claimed that she had to undertake several courses of English at the same level due to language difficulty. The Tribunal accepts that this may explain the cancellation of the Diploma of Information Technology, yet it does not explain all cancellations, particularly in business-related courses. Furthermore the applicant did not address the ongoing concern that she has maintained enrolment at the VET level without progression. The ongoing enrolment at this level was not consistent with her level of education received at the tertiary level prior to arriving in Australia.
The Tribunal also examined the relative academic transcripts submitted by the applicant and noted similarities in her various course contents. For example marketing and promotional subjects formed part of her Certificate IV and Diploma of Business courses. In addition to her Information Technology course,[1] subjects in her Certificate IV in Business and Marketing and Communication, and the Diploma of Business included word processing subjects such as write complex documents,[2] design and develop complex text documents,[3] design and produce text documents.[4] The Tribunal questioned the value of the repeated enrolments while in Australia and whether her additional courses would assist the applicant in her home country. Although the applicant claimed to want to start a business teaching languages, her studies to date did not indicate any relevant qualifications in a teaching-related field. This also called into question for the Tribunal the value of her studies. When asked about this at the hearing the applicant claimed reliance on her agent and did not appear aware of relevant studies. In addition, throughout the hearing the applicant attempted to impress upon the Tribunal at several instances that her current Advanced Diploma course was very important to her because she believed that this higher level study was essential for the success of her business. Yet she had only commenced this course a month before the Tribunal hearing, having spent several years undertaking VET study and then starting in a different subject at a lower level. For example after she completed Certificate IV-level study in Information Technology the applicant enrolled in a lesser Certificate III in Business. Then after she had progressed to Diploma-level study in Business she commenced study at the Certificate IV level in Marketing and Communication. This was considered to be a regression in her studies and inconsistent with the actions of a genuine student.
[1] Design organisational documents using computing packages
[2] Certificate IV in Marketing and Communication
[3] Certificate IV in Business
[4] Certificate III in Business
When the Tribunal questioned the applicant further about her proposed business, the reason for her ongoing study, it also had concerns about the genuineness of this stated intention. When asked whether she had undertaken any market research as to the viability of the proposed language school, the applicant claimed that she had done some internet searches but had not yet started this. In addition when asked about the proposed size of the business and number of employees, the applicant responded that it would depend on the number of pupils enrolled but she thought perhaps three teachers. The Tribunal further questioned the applicant on the location of the business and she indicated that her family had land which was currently used for rice growing on which she proposed to build a school. As premises are yet to be constructed, the Tribunal considered that it was not expected that the applicant’s business would be operating for some time. She did not yet have any plans for the premises or construction details. Although in her written submissions the applicant made claims about a projected operating budget and referred to her own personal savings, she did not provide evidence similar to this at the hearing. In fact she claimed that she would borrow money from her stepfather, and then she would give it back once the business started operating. If the applicant already had the financial resources and land on which to start her business the Tribunal was not satisfied that the further time and expense of study in Australia would assist her to obtain this employment or improve her prospects of undertaking the business in her home country, or that it would have a measurable impact on the remuneration that the applicant expected to receive in her home country. It also did not understand why she would delay the project further rather than commencing the actual set-up of the business as she had already spent over seven years in Australia doing study she claimed was relevant.
The applicant told the Tribunal that in her submissions she had set out proper details of her business. The Tribunal put to the applicant that they were very vague and general. Although the applicant had referred to a business plan, none had been submitted, and there was not even a program for works for the construction of the school and its operations. In reply, the applicant said that this was the reason she needed to do her advanced study in Marketing so that she could go into the planning a lot deeper. After this further course she claimed that she should know a lot more. The Tribunal considered that the lack of evidence and supporting information in relation to her generic study claims suggest that the applicant had not placed significant thought with regard to how her study plans in Australia would benefit her career in Thailand. Information in her submissions appeared to have been constructed for the purpose of her student visa application in order to demonstrate relevance and the necessity of the chosen studies to her future claimed intentions. The applicant was not able to expand on this information with actual details. If the applicant genuinely intended to operate her language school in the immediate future, and had held this intention for some time, it was considered that she would have undertaken relevant planning at an earlier date, or at least ascertained around the time of the application for the visa in 2017, that it was the Advanced Diploma she required.
Furthermore if the applicant genuinely required higher level, Advanced Diploma qualification for her business, the applicant was unable to identify for the Tribunal reasonable reasons for not undertaking the study in her home country. Particularly as she still had significant planning in her home country to undertake for the establishment of her business.
The Tribunal also had regard to the immigration history of the applicant. At the hearing she was provided with a copy of her Departmental movement records. The Tribunal discussed these records with the applicant pursuant to the provisions of s.359AA of the Act. The applicant was advised that the relevant information was that since her arrival in 2011 she has spent only 95 days outside Australia, which may indicate to the Tribunal that her family ties were not as strong as she claimed. The applicant elected to respond immediately and said that although she did not go back often she talked to members of her family every day. The Tribunal considered this response but still had ongoing concerns that the student visa program may be being used by the applicant for maintaining ongoing residence.
Regarding other elements of the applicant’s migration history, it is accepted by the Tribunal that these weigh in favour of the visa grant. There is no evidence that the applicant has previously had a visa refused or considered for refusal or cancellation. There is also no evidence that the applicant has not complied with the migration laws of any other country. The Tribunal is further not satisfied that the information before it d that the applicant has not previously complied with visa conditions while in Australia.
Conclusion
Having had regard to all the relevant considerations pursuant to Ministerial Direction No.69, and the relevant evidence and submissions of the applicant the Tribunal is not satisfied that the applicant is undertaking her program of study for the reasons that she has claimed, but rather is using it as a pathway to maintain residence in Australia. In making this decision the Tribunal has considered that the applicant has completed several courses in Australia. It accepts that she has attended her courses, has family ties in Thailand, that the evidence does not demonstrate that she has not complied with her visa condition and the other material that she has raised. However the Tribunal gives more weight to the length of time that she has spent onshore, the continued enrolment in short inexpensive courses with the failure to progress to higher levels of study, the lack of satisfaction as to the stated value of her course and the concerns about the genuineness of her future business plans.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Penelope Hunter
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.

[2019] AATA 6186

31 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice