Sethi (Migration)

Sethi (Migration) [2019] AATA 4997 (26 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Shiv Sethi
CASE NUMBER:  1728547
HOME AFFAIRS REFERENCE(S):           BCC2017/3142639
MEMBER:Mark Bishop
DATE:26 July 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 26 July 2019 at 2:35pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine temporary stay – time off studies to recover from injury – lengthy gap in enrolment – limited evidence of academic progress – non-payment of course fees – benefits of current and proposed study – maintaining residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212
CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Home Affairs [2019] FCCA 1372
Kaur v Minister for Immigration and Border Protection [2014 FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC
Minister for Immigration and Citizenship v Li [2013] HCA18
Yang v MIAC [2010] FMCA 890
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 6 November 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 30 August 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.
In this case the Tribunal formally wrote to the review applicant pursuant to s.359(2) of the Act inviting the review applicant to provide further information to the Tribunal, including information in relation to enrolment: cl.500.211(a).
The Tribunal did not receive any response within the prescribed time-frames to the before mentioned written invitation. That is the review applicant has not provided the Tribunal within the prescribed time-frame with any further information than that which was provided to the Department.
The applicant did provide to the Tribunal a written response on 14 March 2019. The Tribunal has considered this response. The applicant provided a copy of the decision record to the Tribunal.
The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under s.359(2) of the Act. The invitation was sent to the review applicant’s nominated address, being an address provided by the review applicant in connection with this application for review.
As the applicant failed to respond within the prescribed period, s.359C(1) applies and pursuant to s.360(3), the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear see Hasran v MIAC [2010] FCAFC 40 at [26]; Yang v MIAC [2-010] FMCA 890 at [40].
The Tribunal has considered whether, in the circumstances of this case, information that the review applicant meets the requirements of the Act and Regulations is likely to be forthcoming and whether the review applicant has had a fair opportunity to provide relevant information already.
The Tribunal has given consideration to whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal has had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to Minister for Immigration and Citizenship v Li [2013] HCA18 (8 May 2013) regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC (4 February 2014) which considered analogous issues, as well as the recent decision of Kaur v Minister for Immigration and Border Protection [2014 FCA 915 (28 August 2014).
In these circumstances, for the reasons set out in this decision record above, the Tribunal considers that the review applicant has had a fair opportunity to provide relevant information.
Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the review applicant more time. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information it has before it, including the information previously provided by the review applicant to the Department.
Ultimately, a decision maker is not required to make the review applicant’s case. It is for the review applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the review applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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 Genuine Temporary Entrant (GTE).
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.
In the recent decision of Kaur v Minister for Home Affairs & Ano.,[1] the Federal Circuit Court observed:
The use of guidelines in the exercise of statutory discretionary powers is not uncommon. [*] The trend of reasoning in the authorities [*] respecting Direction 53 … confirms that the use of those guidelines requires that they be addressed insofar as they are relevant to the particular facts of the instant application. By extension, those guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines. [Footnotes omitted]
[1] Kaur v Minister for Home Affairs [2019] FCCA 1372
The Tribunal has considered all the above material and had regard to it in the context of the guidance outlined above in paragraph 18 from the Federal Circuit Court of Australia.
The applicant provided a statement to the Department (Df: 30). In that statement he outlined his reasons for seeking to extend his student visa, his motivations to finish a course of study, why he picked Stott’s College to take a Bachelor program, why he chose Australia and his ties to India. He further advised:
·His previous education provider did not support him when he went through a personal problem. In this statement he did not outline any detail as to that personal problem or any attempts to gain support of any kind;
·He finished secondary school in India and pursued studies leading to a Diploma in Hotel and Restaurant Services. He provided a copy of this Diploma and relevant academic transcript (Df : 36). His Diploma had an almost exclusive concentration on practical training in various facets of the hotel and restaurant services;
·During his studies he decided to pursue further education in a country where he could learn the most. His study performance in a Bachelor of Hospitality at Holmesglen College was poor. He changed education providers and enrolled in VET courses in Commercial Cookery, a Diploma of Hospitality Management leading to further study at Bachelor level;
·He was involved in an accident and was sore for a long time. He did not attend classes. His college did not permit him to continue with his semester. His college cancelled his COE. He chose another education provider in Stott’s College;
·His vision is to provide “elegant and classy services”. The Tribunal notes he was trained in the provision of silver service in India in 2013 as part of his Indian based Diploma;
·He wished to learn “service techniques and methodologies, food preparation and health and safety policies”. The Tribunal notes again the applicant’s academic transcript from India demonstrates he has successfully completed units in all of these aspects of the hotel and restaurant industry;
·He outlined detail as to market drivers in the services industry in India;
·Upon completion of his courses he will return to India;
·He outlined reasons for choosing this package of courses as summarised in dot point 3 above;
·He outlined reasons for choosing Stott’s College, Australia as a study destination and family ties to India. His family has some asset based wealth in the form of multiple homes, land and accumulated savings that provide varied income streams. He has one sibling.
The applicant did not provide any supporting information or corroborating evidence to support his various statements as to an accident or cancellation of his COE at his then education provider. The applicant did not provide any transcripts from his education providers that outlined his progress (if any) during his period of enrolment in Australia. The applicant did not provide any medical reports or medical information from a psychiatrist psychologist, medical counsellor or student counsellor that attested to his inability or incapacity to attend classes for any reasons. He did not provide any medical information or medical reports that might attest to his accident. He did not provide any information from his education provider that would have confirmed his inability to attend college.
The delegate made a finding the applicant arrived in Australia on 9 August 2014 as the holder of a TU-573 visa that was granted until 30 August 2017. The visa was granted to undertake a Bachelor of Hospitality Management due for completion 30 June 2017. The delegate outlined the detail of the applicant’s proposals of study derived from PRISMS (Tf: 2) as follows:
·Certificate IV in Commercial Cookery from 27 January 2016 to 31 December 2016;
·Certificate III in Commercial Cookery from 25 September 2017 until 16 September 2018;
·Certificate IV in Commercial Cookery from 24 September 2018 until 1 April 2019;
·Diploma of Hospitality Management from 15 April 2019 to 22 September 2019;
·Bachelor of Business from 18 November 2019 to 30 June 2021
At the time of the delegate’s decision the applicant proposed to remain resident in Australia until at least June 2021.
The primary purpose of a student visa is for a visa holder to enrol in approved courses of study and progress academically.
The applicant provided a written response to a s.359(2) request for information. It outlined the following:
·He completed a Diploma in Hotel and Restaurant Services in Singapore in December 2013;
·He completed a course of training as a food runner, bartender and kitchen hand in Singapore in 2013;
·He arrived in Australia in August 2014;
·He returned home on one occasion for 15 days in January 2016 to attend the wedding of a sibling;
·He lived and studies and undertook an internship in Singapore for two years in the years 2012 and 2013;
·He arrived in Australia as the holder of a student subclass 573 visa in August 2017. He did not complete various courses in Hospitality Management at Bachelor level in the HE sector and Commercial Cookery in the VET sector in the years 2014 until present;
·He advised he completed a course in Commercial Cookery III in September 2018. He did not provide copies of a Certificate of Graduation or Statement of Attainment in this course;
·He could not keep up with the study load in his Bachelor of Hospitality Management. He changed his study to a Certificate IV in Commercial Cookery. He was involved in a car accident and suffered “minor physical injuries”. He says he went into a “state of shock”. He did not provide any evidence of the car accident such as a police report or insurance claim. He did not provide any medical evidence of his “minor physical injuries”. He did not provide any information as to the “state of shock”. He did not provide the date or time of the accident. He changed education providers;
·He has been employed as a cook and then chef at hotels from September 2017 until March 2019 (date of this s.359(2)response) earning a salary of $22,000 AUD. The applicant did not provide advice as to why he was able to work in a physically demanding occupation for a lengthy period of time whilst for some of this time he may have been unable to engage in study because of his car accident;
·His annual living expenses in Australia are $15,420 AUD;
·He last saw his family in India in 2016;
·He maintains contact with his family in India using the tools of social media;
·He had extensive community ties and community interests in India as a boy and student. He has not lived in India since 2012;
·He outlined detail of community engagement in Australia as participation in a student council, community events and awareness campaigns. He derived work opportunities from his time at Stott’s College;
·He wishes to be an entrepreneur in India. He wishes to provide the best quality services to clients. He needs to understand business at its core. He completed a Certificate III in Commercial Cookery. He has future enrolments that will give him a theoretical appreciation of work in the hospitality sector and a solid education in business disciplines;
·He will seek to find a business partner in India;
·He does not have any concerns about military service commitments or political or civil unrest;
·He advised he attached COE’s past and future for various courses.
In a written response dated 14 March 2019 to a s.359(2) request for information the applicant advised he completed a Certificate III in Commercial Cookery in September 2018. He advised he had not completed any other courses of study. He advised he was then studying a Certificate IV in Commercial Cookery (Tf: 12-16).
The applicant did not provide any Statements of Completion, Certificates of Graduation or Statements of Attainment for any course of study in Australia. He did not provide any information as to course progress or course completion as an attachment to his s.359(2)response. He did not provide by way of a GTE Statement or attachments to such statement any information as to course progress or course completion.
Excluding the comment repeated in paragraph 26 above as to completion of a Certificate III in Commercial Cookery there is no further evidence before the Tribunal as to the completion of this course or any other course of study in Australia.
The Tribunal has serious doubts the applicant has completed any course of study in Australia from August 2014 until the present time, a period of almost five years.
On 5 July 2019 the Tribunal wrote to the applicant. The Tribunal enclosed a copy of the applicant’s PRISMS record. The Tribunal advised the applicant his PRISMS record appeared to show he had not been enrolled in any course of study from April 2019. The Tribunal further advised the applicant his PRISMS record showed his then future enrolments in a Diploma of Hospitality Management and Bachelor of Business were cancelled by the education provider for reason of “non-payment of fees” or “non-commencement of studies”.
The Tribunal invited the applicant to provide comments on or respond to the information in his updated PRISMS record and COE’s in writing.
The applicant responded to the Tribunal invitation in writing. He advised as follows:
·He was not aware his COE had expired;
·He was not aware he was not enrolled in a course of study;
·He advised he did not pay his tuition fees on time;
·From 5 June 2019 until 22 July 2019 he sought to enrol in a course of study. His education provider sought payment of outstanding and future fees. He was unwilling to pay these fees;
·He sought enrolment in an alternate education provider. He provided copies of future COE’s as follows:
oCOE in a Certificate III in Commercial Cookery scheduled to commence 21 July 2019 and conclude 5 July 2020. He paid initial fees of $1,450 out of a fees cost of $7,259. The COE was issued on 18 July 2019;
oCOE in a Certificate IV in Commercial Cookery scheduled to commence 3 August 2020 and conclude 11 April 2021. The COE did not show payment of any portion of tuition fees. The COE was created on 18 July 2019.
oCOE in a Diploma of Hospitality Management scheduled to commence 10 May 2021 and conclude 25 July 2021. The COE did not show payment of any portion of tuition fees. The COE was created on 18 July 2019.

Hence from the information provided to the Tribunal on 22 July 2019 the applicant seeks to continue residence in Australia until at least July 2021. He has provided copies of COE’s in courses of study in the future in Commercial Cookery when as recent as 14 March 2019 he advised the Tribunal in writing he completed a Certificate III in Commercial Cookery (Tf: 14) and was “about to complete the Certificate IV in Commercial Cookery” (Tf: 12).
The applicant has not been resident in his home country since 2012. Since 2012 he has been a resident of Singapore and Australia. The applicant has been resident in Australia since August 2014. He advised the Tribunal he had returned home on one occasion only for 15 days in 2016. He has not provided any evidence of progress in any course of study since 2014. He has not provided evidence of attendance, study, progress or completion of any course of study since 2014.
He has provided proof of enrolment on numerous occasions in the same set of courses. The Tribunal accepts the fact the applicant has sought to maintain enrolment in courses of study. The Tribunal is also aware the applicant enrols in courses of study in Australia on repeat occasions when he has already completed similar course in Singapore on two occasions. The Tribunal is also aware the applicant has considerable practical experience in his chosen vocation of hospitality services from study in Singapore and work in Australia. The Tribunal was surprised to read the applicant’s submission that he was unaware his COE had expired and his future enrolments were cancelled by his education provider for the reasons outlined in paragraph 30 above.
It seems axiomatic that a decision by the applicant not to pay his tuition fees might result in cancellation of his enrolment. Education providers are not charities. At the time of enrolment the applicant agreed to pay scheduled fees at particular times. He failed to honour his obligations.
In his written response to a s.359(2) request for information the applicant provided considerable detail as to his employment in Australia at a handsome salary as a part time chef from September 2017 until March 2019. He provided detail as to assets in Melbourne and India of significant amounts (Tf: 12 and 13). The applicant earns considerable income in Australia.
He provided detail of sponsorship from India to the Department. The sponsor was his father and he advised in a signed affidavit that “he would “bear all study expenses as well as living expenses during his stay in Australia” (Df: 25).
In summary the applicant left his home country of India in 2012 to pursue study opportunities of a practical nature leading to career possibilities in the hospitality sector. The applicant came to Australia in August 2014 to study in the Higher Education sector. After a short period he discontinued those efforts and since that time has mostly maintained enrolment in courses in the VET sector leading to further study in the HE sector. He has asserted he has completed a course in Commercial Cookery. He has failed to provide any evidence of completion of such course.
He was unaware his education provider cancelled then current and future enrolments in courses of study. He remained unaware of those cancellations until 5 June 2019. He did not obtain further enrolment until late July 2019. That further enrolment was in a course of study that he had previously advised the Tribunal he had completed or almost completed. That further enrolment was in a different education provider as he did not wish to pay outstanding fees or future fees that he had previously contracted to pay.
The applicant seeks to retain residence in Australia by the device of providing to the Tribunal a copy of a COE with a minimal amount of tuition fees paid in the same course he has previously advised he has completed.
The Tribunal has considered the applicant’s written response to a s.359(2) request for information. It is full of grandiose intent. It is full of plans for the future. It is full of ambition. It seeks to assure the Tribunal the applicant is serious about the value of courses to his future. It seeks to establish a foundation so the applicant might “partner with those international brands for catering and event management… so that his company might be successful and have a strong turnover…” (Tf: 12). It fails to address reasons for an almost total lack of progress in courses of study since August 2014 until the present time.
The applicant fails to provide a business plan. He does not identify those international brands or companies. He does not provide the detail of any discussions or negotiations that might lead to such an outcome. He does not identify prospective partners. He does not outline any detail as to legal structures, income or cash flow statements, possible sites, and labour market or staff options. It short his future plans are properly characterised as little more than the genesis of an idea.
The Tribunal is inclined to the view the applicant is not a genuine student. A genuine student would enrol, pay his fees, attend classes and complete his course of study. The applicant has provided only minimal evidence of course enrolment and tuition payment. He has not provided after nearly five years any proof of course study or course completion. The Tribunal is inclined to the view the applicant is not serious about his study obligations in Australia. He is serious about continuing residency in Australia. He is serious about working in Australia.
The Tribunal is inclined to the view the applicant is serious about only one issue. It is continuing residence in Australia allied to the right to work so that he might enjoy a high income as his father has sponsored his costs in this country.
The applicant provided little detail as to current community ties in India. This is not surprising as the applicant has lived away from his home country for many years and rarely visited his family or former friends.
The applicant has provided sufficient detail of his life in Australia for the Tribunal to draw the conclusion the applicant has established ties with Australia that present as a strong incentive to remain in this country. He has established an order and structure to his life. It involves income from home and Australia, study, participation in his student community, work in his field of employment and active engagement in community events and campaigns.
The Tribunal has considered the value of the courses to the applicant’s future. The Tribunal has considered the applicant’s study engagement in Australia. The only firm evidence provided to the Tribunal is ongoing enrolment in various courses and subsequent occasional cancellation that sometimes escaped the attention of the applicant for a lengthy period of time. The applicant has not provided any indicia of academic progress, completion or achievement. His study progress to date appears to be minimal. His study enrolments appear to replicate prior studies in Singapore. He certainly has some skills as a cook/chef, waiter, kitchen hand and barman as he has either completed course with a practical orientation or he has sector specific experience gained in the industry in Australia as he has been employed for nearly two years as a chef at various hotels. It troubles the Tribunal the applicant re-enrols in courses relating to Commercial Cookery when he advises the Tribunal he has completed such courses. The Tribunal cannot understand why a genuine student would enrol in a course of Commercial Cookery III level when he has already completed that course (as he advised in writing). The Tribunal is troubled by the apparent inability of the applicant to complete the VET level courses and progress academically into the HE sector by starting and completing his Bachelor degree.
The Tribunal is inclined to the view the applicant is seeking to undertake a course that appears to complement his current level of education but will not assist him to obtain employment or improve employment prospects in his home country. The Tribunal is inclined to the view the applicant’s current enrolment and future enrolments in courses of study have little relevance to his past or future employment.
The Tribunal is of the view the applicant has spent a considerable amount of time in Australia (and provided minimal evidence of course progress of any kind) and the Student visa is intended primarily for maintaining ongoing residence. The Tribunal is of the view the applicant has undertaken a series of short, inexpensive courses and has been onshore for some time without successfully completing a qualification.
The Tribunal has considered whether there is any other relevant matter under clause 500.212, however in this case the Tribunal has determined that there are no other relevant matters. The Tribunal has considered all of the information provided by the applicant in support of his application. The Tribunal is not satisfied that the information the applicant has provided regarding circumstances in the home country, potential circumstances in Australia and the value of the proposed course to the applicant’s future are sufficient to demonstrate that the applicant is a genuine temporary entrant.
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).
Conclusion on cl.500.212
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.
Mark Bishop
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 4997

26 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction