Sarbjot Kaur (Migration)

Sarbjot Kaur (Migration) [2024] AATA 268 (12 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Sarbjot Kaur
Mr Gurpiar Singh
REPRESENTATIVE:  Ms Preeti Kaur (MARN: 0963328)
CASE NUMBER:  2209827
HOME AFFAIRS REFERENCE(S):          BCC2022/625185
MEMBER:Peter Booth
DATE:12 February 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.

Statement made on 12 February 2024 at 9:31am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No 69 – Advanced Diploma of Hospitality Management – poor study history – lengthy gap in study – relatively consistent path of study – future employment plans – employment offer – benefit of the doubt – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
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 Home Affairs on 16 June 2022 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 11 March 2022. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant was not a genuine temporary entrant.
The applicants appeared before the Tribunal on 7 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the second named applicant, Gurpiar Singh. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicants were assisted in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The applicant gave evidence at the hearing, the substance of which was follows.
The applicant had read the delegate’s decision dated 16 June 2023 refusing her application for a student visa.
The applicant understood that the issue for determination was whether she was a genuine temporary entrant.
The applicant was asked to describe her current enrolment including commencement and completion dates. The applicant said that she was enrolled in an “advanced diploma in hospitality which will commence 19 February 2024 and will finish 25 August 2024”. The applicant had produced a confirmation of enrolment document to the Tribunal in respect of such a course. The Tribunal accepts that she is enrolled in the course described in the confirmation of enrolment.
The applicant had also provided information to the Tribunal in the form of a response to a request to do so pursuant to s 359(2). In summary the information provided by the applicant was as follows.
The applicant completed year 12 in India in 2018. She did not provide any information regarding her Indian employment history.
The applicant arrived in Australia on 20 February 2019 and since that time has returned to India on two occasions, in September 2022 for three weeks and in November 2022 for two weeks.
The application for the student visa in question was made in July 2022. The applicant stated her visa history in Australia to be as follows: she was granted a “student” visa on 2 February 2019. No other information was provided. This understates her history which is explained further below.
The applicant stated her study history to be as follows: she enrolled in a bachelor of hospitality to be conducted between February 2019 and October 2020 but did not complete it, she enrolled in a certificate III in commercial cookery due to be completed between March 2019 and January 2021 but did not complete it, she completed a certificate III in commercial cookery between October 2021 and October 2022, she completed a certificate IV in commercial cookery between October 2022 and May 2023, she was “studying now” a diploma in hospitality management which commenced in May 2023 and she enrolled in the bachelor of tourism and hospitality management in November 2021 but did not commence it.
The applicant stated that she had been enrolled in a registered course of study at all times while in Australia as the holder of a student visa.
The applicant stated that she was employed as an “all-rounder” at a café from April 2019 until November 2019, as a “kitchen hand” in a restaurant from December 2019 until July 2023 and as a “kitchen hand” in another restaurant from July 2023 to date. She did not disclose her salary.
The applicant stated that her mother, father, brother and father-in-law resided in India and that her spouse and mother-in-law reside in Australia.
The applicant stated that she owned assets in India as follows: real property owned by her spouse, a fixed deposit owned by her mother-in-law and a fixed deposit owned by her father, and real property owned by her father together with cash at a bank in the name of her spouse in Australia.
As to her future employment plans the applicant stated:
Studying in Australia offers various benefits, enhancing both my personal growth and future career prospects. It demonstrates my courage and open-mindedness in embracing diverse ideas and environments. Through programs like internships, I can showcase my adaptability and add valuable perspectives to future employers. Moreover, an internationally recognized education will equip me with the skills to thrive in a globalized world. Australia's standard of living ranks among the highest globally, and living expenses and tuition costs are more affordable compared to the UK and US. The option to work part-time while studying will help cover living expenses and offset the overall financial burden. Looking ahead, my Diploma in Hospitality Management will open doors to a fulfilling career. I'm passionate about leading, motivating, and collaborating with others while valuing different perspectives and opinions. The field of Hospitality Management aligns perfectly with these attributes, offering not only personal success but also opportunities to contribute positively to others. In conclusion, my ultimate goal is to harness the wealth of knowledge I acquire during these courses to contribute meaningfully to the hospitality industry. I firmly believe that learning is a continuous process that extends beyond the confines of the classroom, and I am committed to investing my energy, dedication, and enthusiasm into achieving academic success. Please see my statement of purpose for further details.
As to her expected future remuneration the applicant stated:
Hospitality salary in India ranges between ₹ 0.2 Lakhs to ₹ 6.7 Lakhs with an average annual salary of ₹ 1.8 Lakhs. Reference: Please see my statement of purpose for further details.
The Tribunal proceeded to ask the applicant some questions arising from the responses paraphrased above. The questions and the answers, in summary were as follows.
When asked when she had completed her previous course she said “diploma of cookery completed 15 November 2023”. She was asked when she enrolled in her current course. She said “my COE was issued on 2 February 2024 and 9:30 PM also sent me a letter to their dispute forward to get signed”. The applicant was asked when she paid tuition fees for the course. She said “I made a payment on 24 January 2024”.
She was invited to explain her Indian employment history. She said “I just finished year 12 in India, I did not do any sort of work”.
When asked what she intended studying when she arrived she replied “bachelor of hospitality management, which were meant to commence on 12 February 2019 but I got visa granted on 14 February 2019”. The Tribunal observed that she did not complete that course. She said “no I adjusted 6 months then start commercial cookery”. She was asked whether she abandoned the course or was excluded from it. She said “I was not excluded, I change course with the help of the migration agent”. She was invited to comment about leaving the course. She said “it was a degree, second think visa granted later, my study start on 12 February, got visa on 14 February, arrived on 19 February, orientation already done, there was a mixed community, in the technical basis was hard for me to understand, the migration agent suggested a short course which would be easy for me to study”.
The Tribunal observed that she next enrolled in a certificate III in commercial cookery. The applicant agreed. The Tribunal observed that she did not complete this course. She replied “I did 10 or 12 units until December, then pandemic in March 2020, then after 10 or 12 months everything got stuck”. She was asked when she stopped studying that course. She said “I did not stop doing study, I was enrolled in certificate 3, attended classes, started in 2019, completion that was in 2020, I was providing course information”. When the question was asked again she said “from 18 December 2020 I stopped going to college and stop receiving any calls”. She was invited to comment about not completing the course. She said “there are reasons, I stopped study, because of Covid 19, my father-in-law passed away, I applied for dependent visa, we were mentally and emotionally disturbed, that is why a gap, not intentional”.
The applicant was asked whether she produced any medical opinion evidence about the assertion of being mentally and emotionally disturbed. She said: “we moved into a new house, one January 2021, then got the call, father-in-law passed on 15 January 2021, really awkward, we did not go to the doctor, 44 hours we were in contact with family, we did not do any work, we took Panadol, after time we went to the doctor, first in January 2021 and 14 February 2022, I have a certificate for those dates, we cannot go outside”.
The Tribunal observed that that she next enrolled in another certificate III course in commercial cookery, at a different institution which started in October 2021. The applicant said “yes started for October 2021”.
The applicant was asked if she studied from 8 December 2020 until 4 October 2021. She said “no there was a gap, when Covid 19 restrictions lifted I started doing research, I was receiving warnings from the previous college, so I was searching for another course”. It was asked why she did not study online during that period. She said “because online assisted letter from bachelor degree, hard for me to understand technology, I prefer face-to-face classes”.
The Tribunal observed that she was due to start a bachelor of tourism and hospitality management but did not commence it. The applicant said “at the time I was studying commercial cookery three, difficult to do two courses at the same time I sent an email to extend the COE but I did get no response”. The Tribunal observed that it was the applicant’s choice to abandon the previous course and start a vocational course. She said “yes was most wish to study a trade course”.
She was asked why she did not embark on vocational study when she arrived in Australia. She replied “when I arrive for study I got enrolment in bachelor’s degree, after year 12 we have to enrolled in bachelor’s degree, we thought it would be easy, but here in Australia everything was difficult, new environment, here we have to do assignments and group assignments, we have to study individually in India”.
When asked whether she was currently employed she said “just my interest, I work 10 or 12 hours in Mexican restaurant”. When invited to state her income she said “fortnightly sometimes 700 sometimes 750”.
She was invited to state her intention when she completes her current course of study. She said “after completion of study want to go back to India, I have a job offer letter from five-star hotel, I plan to do that and open a restaurant”. She was asked whether she had provided a letter to the Tribunal. She said “when visa refused I applied to AAT, provided letter to agent”. The Tribunal informed the applicant that it had not seen the letter and invited her to provide it all before 4 PM on the day the hearing. She said that she would do so.
The applicant was invited to explain the contents of the letter. She said “this is offer letter, after completion of study get three months training and then an interview for a job”. She was asked to state the date of the letter and replied “2 July 2022”. The Tribunal asked her what courses she had completed at that time. She said “certificate III in progress not completed” for stop she was asked whether the letter was from a hotel or a restaurant. She said “it is both, five-star hotel and restaurant”. The Tribunal asked the applicant why five-star hotel, on the other side of the world would offer her training opportunity in employment when she had not completed any course of study relevant to the position. She said “this is close to where I live, very easy for me to commute there, not an offer of employment, is only three months training”. She was invited to state the connection with the hotel or any connection by her family. She said “my mother-in-law’s family has no connection, it is my dream, this restaurant is very old and popular”. The Tribunal observed that she was asserting that a very popular restaurant in her location was offering her three months training and the possibility of employment, but she was completely unknown to the proprietors, and at the time she had not completed any relevant course of study. She said “yes they will give me a training, but not if I don’t complete my study, must complete up to diploma”. The Tribunal observed that it was a condition of employment there that she complete up to a diploma of hospitality management. She said “yes certificate three, certificate four and diploma hospitality management”. The Tribunal observed that she had completed the conditions and asked why she had not returned to India permanently. She said “because we have not received our result, and we are waiting for AAT, and to go to India we need a visa, and advanced diploma hospitality management also offers many other benefits, I can be a manager, I can learn so many things, we are dealing with this case for the last 1 ½ years we will be excluded from Australia, and we want to go back to India with happy faces, and we don’t want to go back without happy faces”.
The Tribunal put to the applicant that she had completed the conditions of the offer of training and was curious that she had not returned to India permanently and invited her to comment. She said “we spent five years, here have paid fees, study, and when I want to go back without a proper visa, if my restaurant or anywhere else I applied for a job, it will affect our reputation, I am studying advanced diploma hospitality management if I do a job somewhere else it will offer benefits”.
She was asked whether she will return to India permanently when she completes the advanced diploma of hospitality management. The applicant said “yes”.
When asked whether she had any assets in India in her own name she said “my husband has a land and house, my in-laws family has land”. She was asked whether the answer to the question was no. She said “I married, and India is not usual for anyone to own anything in the wife’s name, but it also belongs to me to”. When the question was asked again she said “no nothing in my name”.
When invited to add anything further to her evidence the applicant said “you check record, I completed study, I know there is a gap, we are going through AAT, if you see my previous study I completed study, after advanced diploma hospitality management I want to go back to India to my family”.
The Tribunal invited the second applicant, Mr Singh to give evidence. He said “we are a genuine student and after completing study will go back to our country”.
He was asked what courses he had completed in Australia. He said “certificate III in commercial cookery after that I applied for dependent visa”. He was asked when he was granted such a visa. He replied “29 January 2021”. The Tribunal asked Mr Singh when his previous student visa had expired. He said “I applied before expiry of other visa”. When the question was repeated he said “I don’t recall”. The Tribunal asked whether it had expired on 21 January 2021. He said “my dependent visa was granted on the day”. The Tribunal put to him that his previous visa expired on the same day. He said “don’t remember maybe”.
He was asked why he did not continue with study. He said “we knew each other before, we thought if we be together would be a great help”. When invited to answer the question he said “we met each other and study was tough”. He was asked to state when and where he was married. He said “20 April 2020”. When asked whether he and the applicant were living together prior to that in Australia he said “yes”. He was asked how long they were cohabiting prior to marriage. He said “we came here on 5 February 2019”. When invited to answer the question directly he said “seven or eight months”.

Mr Singh was asked whether he was currently employed and if so to state his role and income. He said “yes construction labour, $1700 or $1800 fortnightly”.
The applicant was asked whether anything arose from the questions to Mr Singh. She said “no”.
Prior to the hearing the applicant provided a variety of documents to the Tribunal. The applicant did not refer to any of these documents during the course of giving evidence at the hearing. Nonetheless they have been taken into account by the Tribunal to the extent they are relevant and given appropriate weight. The Tribunal makes a number of observations in relation to those documents. A document headed “statement of purpose” was provided. It is signed but is undated and without page or paragraph numbers. The applicant arrived in Australia intending to study “a bachelors program in tourism and hospitality management… and bachelor of hospitality management”, however “the transition to the Australian education system pose challenges that hindered my progress”, consequently the applicant “redirected my focus towards shorter term courses in commercial cookery.” She enrolled in certificates III and IV in commercial cookery however the advent of the global pandemic meant that “the landscape of education and commercial cookery shifted dramatically as Melbourne came under the restrictive grasp of the pandemic”, restaurants closed including the one at which she was employed, her father-in-law died and the applicant “got also very sick”, restrictions meant that the applicant “encountered significant impediments to completing my workplace assessments”, however the applicant states that she “successfully completing all my theoretical coursework during this tumultuous period”, she states that “my previous COE for acumen Institute of further education was cancelled because during pandemic I couldn’t do my workplace assessment since it was locked down period And college was also requesting additional fees”, she then refers to a series of attachments marked as appendix 1 – 12, the goes on to state that she has re-enrolled and completed certificate III and IV in commercial cookery and is currently enrolled in a diploma of hospitality management, she states that “upon completing a hospitality management program graduates embark on a journey of exploring diverse employment avenues within India”, she does not state that she intends to do this but it seems to be what she is inferring, she produces some Internet data on likely salaries. She states that her husband and mother-in-law are supporting her in Australia.
A variety of documents are also provided including the following which appear to be relevant: a telephone message dated 11 September 2020 informing the applicant that courses are online “until further notice”. There are several similar messages on different dates. The course name is not identified. An email dated 16 August 2023 informs the applicant that her academic progress in certificate III in commercial cookery is unsatisfactory. Another document also marked appendix 3 which is an email dated 16 August 2023 to the applicant stating that her enrolment will be cancelled within 24 hours. The course is not identified. Several messages confirming payment of course fees. They are dated variously in early March 2020. Further messages confirming, apparently, course fee payments. These are variously dated in 2023. A certificate dated 14 May 2023 which confirms the applicant has completed a certificate IV in commercial cookery. A letter dated 18 August 2023 states that the applicant is currently enrolled in a diploma of hospitality management to be completed on 15 November 2023. An updated medical certificate confirms the applicant is unfit for “her usual work” from 7 December 2021 until 8 December 2021. The relevance of this is unclear. A certificate confirms that one Bhola Singh died on 3 January 2021 in “Sangrur”, the relevance of this is unclear. The document marked as appendix 11 comprising a confirmation of enrolment in respect of the applicant’s enrolment in a diploma in hospitality management due to be conducted between 20 March 2023 and 20 September 2023.
The applicant provided a letter addressed to the Tribunal dated 23 August 2023. The letter sets out her study history in similar form to that referred to above. It also attaches 11 documents said to be “the following proof of evidence is that I am a good student and I intend to complete my studies in Australia only”. These documents appear to be the same as those referred to in the earlier statement of the applicant but that is not clear.
The Tribunal conducted movement searches of the applicant and her spouse, the second applicant in these proceedings. The search of the applicant’s movement history discloses the following: on 13 February 2019 she was granted a TU 500 student visa, valid until 15 March 2022. She arrived in Australia on 9 February 2019. On 11 March 2022 she was granted a bridging (WA010) visa, valid until 9 September 2022 and on 9 September 2022 she was granted a further bridging (WB020) visa. She departed Australia on 12 September 2022 and returned to Australia on 7 October 2022, departing Australia again on 28 November 22 and returning on 15 December 2022. In summary the applicant has held one subclass TU 500 student visa valid from 13 February 2019 until 15 March 2022, she has returned to India on two occasions and has not left Australia since 15 December 2022. The application for the student visa in question was made on 11 March 2022, four days prior to the expiry of her then student visa.
The search of the second applicant’s movement history disclosed the following: On 14 November 2018 he was granted a subclass TU 500 student visa valid until 29 January 2021 and he arrived in Australia on 6 February 2019. He was granted a bridging (WA010) visa on 10 November 2020, valid until 29 January 2021, and on 29 January 2021 he was granted another TU500 visa valid until 15 March 2022. On 11 March 2022 he was granted a bridging (WA010) visa valid until 23 November 2022 and on 23 November 2022 he was granted a a further bridging (WB020) visa. He departed Australia on 11 December 2022 and returned on 5 January 2023. In summary the second applicant has held two TU 500 student visas the last of which expired on 15 March 2022, he has returned to India on one occasion on 11 December 2022 but has not left Australia since 5 January 2023.
On 2 February 2024 the Tribunal conducted a search of the applicant’s study history. Amongst other things, it disclosed that the applicant was not enrolled in a course of study. By letter dated 5 February 2024 the Tribunal wrote to the applicant inviting her to comment on her enrolment status. The letter was in the following terms:
The particulars of the information are:
·You completed a Diploma of Hospitality Management between 15/05/2023 and
·15/11/2023;
·You are not currently enrolled in any registered course of study in Australia.
A document with screenshots of the results of this PRISMS search accompany this
letter.
This information is relevant to the review because it indicates that you may not
currently be enrolled in an approved course of study.
If we rely on this information in making our decision, we may find that you are not
currently enrolled in an approved course of study. We may therefore find that you do
not meet cls 500.211 of Schedule 2 to the Migration Regulations 1994 (Cth), which is a primary criteria for the grant of a student visa.
The applicant responded by email dated 5 February 2024 enclosing a confirmation of enrolment in respect of an advanced diploma of hospitality management to be conducted between 19 February 2024 and 25 August 2024.
The applicant had provided several relevant documents to the Department as follows. A certificate confirms that the applicant and the second applicant were married in Australia on 30 April 2020. The letter headed “statement of purpose” was provided. It is signed but is undated and has no page or paragraph numbers. The applicant states that she was enrolled in certificates III and IV in commercial cookery and a diploma of hospitality management, the study did not go well and she states “I have tried many times but unfortunately my tries to do not go well I am always trying and never think to surrender their cause I know someday it will turn out to be successful.” She then enrolled in the same courses at another course provider. She then states that “when I came back from India after completing academics there I enrolled myself in bachelors of tourism and hospitality management.” She commenced the course but “couldn’t finish it as it was getting very hard for me to cope with the vast environment and study pattern changes.”She changed the level of the course and states “I decided instead of doing a bachelors first I shouldn’t do short cookery and management courses”. She stated that she then enrolled in certificates III and IV in commercial cookery and a diploma of hospitality management in another institution but the impact of the global pandemic meant she “couldn’t even finish one course”. She then states that she enrolled yet again in the trilogy of commercial cooking courses and that she is “very determined and keen to complete try (sic) study is now”. As to her future she states: “I can secure a profession in the field of hospitality management”, further that her husband “will be accompanying me and will support me.” She states that “after completing the course we will travel back to India and will not stay in Australia beyond the visa duration.” She goes on to state “I will go back to India and engage myself in big companies in the hospitality industry”, and that “I will go back to my home country and will work in the 5 stars hotel.”
The applicant did not refer to these documents during the hearing.
After the hearing the applicant provided a letter from Vikram Palace Bar Hotel & Restaurant, dated 2 July 1998. The letter is is titled: “Future Employment offer for Mrs. Sarbjot Kaur after completion of certificate III and Certificate IV in Commercial cookery and Diploma of Hospitality Management at Angad Australia Institute of Technology Pty Ltd.” The letter outlines the offer of a position of full-time chef to the applicant contingent upon the completion of her studies. The letter is signed by the Manager and the applicant.
CONCLUSIONS
The evidence of the applicant was often unresponsive to the question, vague, imprecise, or discursive. Often the evidence of the applicant contained elements of all these issues. The Tribunal has recorded the evidence as a representative narrative, given in real time, which was often quite disjointed. The Tribunal’s recording of the evidence is not intended to be a transcript of the evidence, rather the best recording as it transpired. It does give and is intended to give an appreciation of the nature and quality of the applicant’s evidence. The evidence of the second applicant suffered from the same issues.
Without diminishing the applicant’s evidence, it can be summarised as follows.
The applicant completed year 12 education India in 2018. She has no Indian employment history. She arrived in Australia on 20 February 2019 and has returned to India on two occasions. She has not left Australia since 15 December 2022. The applicant has held one student visa which expired on 15 March 2022. The application for the student visa in question was made on 11 March 2022, four days prior to the expiry of her then student visa.
The applicant’s study history is poor and summarised above. She has changed the level of her study from bachelors level to vocational level, she has completed three courses since arriving and she has a substantial gap in her study from December 2020 until October 2021. The applicant blames various things for the study gap including Covid 19, the changed to online study, the death of her father-in-law in January 2021 and mental health issues. She has produced no medical opinion evidence to support her assertion that she was unable to study due to any mental health issues. This assertion is given no weight. The death of her father-in-law, presumably the person identified on the death certificate, is not accepted by the tribunal as the reason for such a lengthy gap in study. As to her ability to complete online study, the Tribunal accepts that this was a difficult period for a variety of reasons but the explanation as to online study is not compelling.
The applicant has recently enrolled in an advanced diploma of hospitality management due to be completed in August 2024. She states that she will return to India permanently upon completion of that course.
She has an offer of three months training at a well-regarded hotel and restaurant in India. She may procure employment from that firm thereafter. She also wants to start her own restaurant. She could have returned to India permanently upon the completion of her diploma of hospitality management and taken up the offer of three months training. She has chosen not to do so. The reasons seem largely due to the legal consequences of her student visa refusal.
The applicant does not own real property in India although her husband and relatives do own such assets.
The applicant appears to have stable employment in Australia. Her spouse and mother-in-law reside in Australia. The remainder of her immediate family reside in India.
The second applicant disclosed that he ceased studying in January 2021 when his own student visa expired and at the same time he was granted a dependent student visa. The applicant is the primary visa holder. The second applicant appears to have stable employment in Australia. The applicant and the second applicant were married in Australia in March 2021, having cohabited for 7 to 10 months prior.
The Tribunal considers the factors for and against the applicant being a genuine temporary entrant for study in Australia are closely balanced in this case. On the one hand the applicant has been in Australia for nearly 5 years and has only completed three relatively short vocational courses, she has changed the level of the study from bachelors level to vocational level quite quickly after arriving in Australia, she has a substantial gap in her study of approximately 10 months, her husband has abandoned his studies relatively quickly after arriving in Australia and become a dependent on her student visa They both appear to have reasonably stable employment in Australia. The applicant’s spouse and mother-in-law reside in Australia, she owns no assets in their own name in India and has no employment history in India. She had qualified to take up the offer of three months training by a well-known restaurant in India but has chosen to stay in Australia and undertake further study. However, in the applicant’s favour, she has maintained a relatively consistent path of study, namely in hospitality subjects, the period of not studying does correspond to the pandemic restrictions in Australia and may well be explicable by the change to online study in what presumably are relatively hands-on courses, and the current course of study appears relevant to her broader career aspirations. The Tribunal notes that this course is due to finish in August 2024. It remains to be seen whether she does complete this course in August 2024, a matter about which there may be some reasonable doubt.
However, on balance, and not without significant misgivings, the Tribunal considers it appropriate to give the benefit of the doubt to the applicant. Should the applicant make a further student visa application on the basis of her intention to undertake further study after this, the evidence she gave to the contrary in connection with this case will clearly be relevant to any assessment of her intention to stay in Australia temporarily only to study.
On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).
Accordingly, the Tribunal is 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 appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
DECISION
The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.
Peter Booth
Member

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

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

[2024] AATA 268

12 February 2024

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Immigration

Statutory Interpretation

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Judicial Review

Procedural Fairness

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