Shahbuddin (Migration)

[2021] AATA 3208

Shahbuddin (Migration) [2021] AATA 3208 (2 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Shahid Shahbuddin
Miss Nazleen Dhamani

CASE NUMBER:  1921853

HOME AFFAIRS REFERENCE(S):          BCC2019/2920632

MEMBER:Penelope Hunter

DATE:2 August 2021

PLACE OF DECISION:  Sydney

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(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

Statement made on 2 August 2021 at 11:09am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine entrant criterion met –applicant has studied in approved courses – positive study record – benefit of the doubt – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 July 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 7 June 2019. 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.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay in Australia temporarily as a student.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Application to the Department

5. The applicant is a citizen of Pakistan; he arrived in Australia in October 2016 and applied for the visa in order to undertake courses of study in a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Automotive Mechanical Diagnosis and a Diploma of Automotive Technology in Australia; completion dates were 30 June 2019, 6 June 2019 and 8 March 2020 respectively. The second named applicant is his wife and she has applied for the visa as a member of his family unit.

6. With the visa application, the applicants provided to the Department several documents including their passports, marriage certificate, evidence of Overseas Student Health Insurance, evidence of financial support, a certificate of completion of the Certificate III in Automotive Electrical Technology issued 8 February 2019, a letter of Confirmation of Enrolment (CoE) issued by Education Access Australia dated 24 May 2019, a Pearson Test of English Academic Exam issued on 15 June 2019, evidence of completion of a Bachelor of Business Administration (Hons) by the applicant from the University of Karachi in 2012, and a statement in support by the applicant. In his statement the applicant set out the following relevant information (in summary):

   i.When he arrived in Australia in October 2016, he was enrolled to study a Master of Business Administration at GCA Sydney. Due to a change in circumstances he moved to Melbourne and took admission in a Master of Professional Accounting in April 2017. He tried coping with the accounting study load but was unsuccessful. In his second semester he deferred his studies to see his father in Pakistan, who was going through surgery in October 2017. He then stayed in Pakistan to provide mental support to his parents. His father works in real estate and his mother is a housekeeper.

   ii.When he returned to Australia in November 2017, he was stressed as his academic results were poor and was almost about to drop the idea to continue with his Student visa application. He thought about giving it a second try and decided to talk to education and migration agents in Melbourne. It was suggested to him that he apply for a work visa, but he wasn’t looking for that. He met with Vision Consultants Education Agents and explored various courses of study based on the demand in Pakistan and Mozambique. They explored the options of Information Technology, Accounting, Social Work, Trade Course (Automotive) and MBA (General).

   iii.He chose to study Automotive as the course thrilled him. He wished to become an all-rounder motor mechanic, as he did not want to limit his understanding. To understand the key points of Automotive business, he studied a Certificate III and Certificate IV in Light Vehicle Technology – the latter he was still pursuing.

   iv.By gaining the technical knowledge of the technical and mechanical section, he would have a broad idea of this field. He planned to establish a spare parts shop for sports, American and Japanese cars in his home country. His course would help him achieve his ultimate goal. He needed more attention in the operational side of the business because he lacked technical skills. He also believed that he could easily hire people to work on the technical side and found there was no harm in learning and polishing his skills. He would implement his work expertise and diversified environment to attract locals and foreigners, particularly those who invest money in expensive cars, and seek his help importing spare parts. Based on the research he had conducted, there was a high trend of expensive cars in his country. He wanted to set up a business where he could offer a variety of cars for various occasions, like weddings. He had a team of people already who were willing to support him to fulfil his dream. His business would be different as his theme would be ‘Australian’, and no one else would have a better idea. He was looking to complete his education so that he could kick start his career as he saw himself as a successful businessman within three to five years. He would be working for a few businesses to have an idea of the market and gain an understanding.

   v.He chose to study in Australia rather than his home country, as he had studied here for more than two years. He admired the educational system, because in Pakistan it is orthodox with limited cultural boundaries. He chose Australia because it is a multicultural society with people from all over the world who also came to study. With an Australian education, he thought he would be a good catch for any industry as the education standard is so high and it is demanded by almost all organisations in all countries around the globe. He felt lucky studying and learning here and wanted to further enhance his skills before he returned to Pakistan or Mozambique.

   vi.He lived with his wife in Melbourne and friends, where household expenses were shared. His parents were his sponsors and sent him money for his education and accommodation. His brother was also living in Australia.

   vii.Soon after completing his studies he would return to Pakistan, as his family and dream is waiting for him there. Further, as the eldest male of the family he bears responsibility and must visit Pakistan.

7. In their decision, a copy of which the applicant has submitted to the Tribunal, the delegate set out the following reasons for the visa refusal:

   i.The delegate noted that the applicant did not provide any evidence that he owns any assets or has any business ties to Pakistan. The applicant’s spouse was included in the visa application and the delegate was of the view that having his immediate family in Australia, including his brother, reduced the applicant’s incentive to return to his home country on the completion of his studies. The delegate was not satisfied that the applicant demonstrated his personal or economic ties to his home country.

   ii.The delegate held concerns regarding the applicant’s motivation to study in Australia since he did not demonstrate that he took substantive steps to achieve his academic goals in his home country.

   iii.The delegate considered the value of the courses to the applicant’s future as the courses he had chosen represented a lower level qualification he completed previously. The delegate was not satisfied that the applicant had given strong reasons in his statement for his change in study field. For example the applicant claimed that he wanted to establish a spare parts shop and that he had the business knowledge for running a business, but lacked the technical knowledge. At the same time the applicant claimed that he could easily hire people for the technical side. Further the delegate was not satisfied that the applicant had demonstrated that a Diploma qualification from Australia would be of a greater benefit than the Bachelor degree already obtained in his home country.

   iv.The delegate gave regard to the applicant’s immigration history; the applicant had not provided academic transcripts or medical evidence to support his claims of study in 2016, or his father’s illness. Since his arrival in 2016, he stayed on temporary visas and failed to complete a Master of Business Administration, the basis on which his visa was granted. If he was granted this visa the delegate was concerned that the applicant would further extend his stay as a temporary resident. The delegate was concerned that the applicant was using the student visa programme to remain in Australia as a de facto resident and was not satisfied that he would return to his home country at the end of his proposed stay.

   Tribunal application

8. The Tribunal received an application for review from the applicant on 7 August 2019.

9. On 20 January 2020, the applicant submitted to the Tribunal a copy of his Certificate III in Automotive Electrical Technology, and a record of results issued on 8 February 2019, a copy of his Certificate IV in Automotive Mechanical Diagnosis and a record of results issued on 21 November 2019, and a copy of a CoE in a Diploma of Automotive Technology with course dates from 11 November 2019 to 12 July 2020.

10. On 20 February 2020, the representative for the applicant provided to the Tribunal further copies of completion of his studies to date, and a letter of submission which set out the following further information:

    i.The applicant chose to study Automotive because he was gaining knowledge of the technical and mechanical section and would be polishing his understanding in other sections to have a broad idea of this field. He planned to establish a spare parts shop for sports and imported cars in his home country and the course would help him achieve his ultimate goals. He recognised that he lacked the technical side, and needed more attention in the operational side of the business.

    ii.He could easily hire people to work on the technical side of his proposed business and he may have previously studied some of the units competently, but he strongly believed that there is no harm in learning and polishing the skills with innovations. The representative provided a link to articles submitted to the delegate regarding the automotive industry in Pakistan and Mozambique and factors considered by the applicant.

11. On 11 October 2020 the applicant provided the Tribunal with a copy of a further CoE created 19 May 2020, for study in a Diploma of Automotive Technology, with course dates from 20 April 2020 to 20 December 2020, and requested an expedited hearing as his course was finishing in December 2020.

12. On 5 May 2021, the Tribunal was provided with updated passport and contact details for the applicants.

13. On 28 June 2021, the representative for the applicant provided to the Tribunal further submissions which included the following additional documents:

    i.Certificate of Completion of a Diploma of Automotive Technology, letter of completion and academic transcript issued on 26 April 2021.

    ii.Letter of offer from the Menzies Institute dated 23 January 2021 in a Diploma of Automotive Management.

    iii.CoE in a Diploma of Automotive Management created on 10 February 2021, with course dates from 19 April 2021 to 17 April 2022.

    iv.Medical evidence regarding the applicant’s father’s surgery dated 9 October 2017.

    v.Summary of the applicant’s travel history.

    vi.Certificate of Overseas Student Health Insurance.

    vii.Letter of confirmation of part-time employment for the applicant with Ford Toyota Spares N Repairs as a permanent part time mechanic dated 5 June 2020.

    viii.TRA Provisional Skills Assessment Application Results for the applicant issued on 4 December 2020.

    ix.Certificate of bank account details for the applicant’s mother issued 24 June 2021.

    x.Undertaking by applicant’s mother.

    xi.Family registration certificate, issued by the government of Pakistan.

    xii.Declaration of assets by the applicant’s mother.

    xiii.Letter issued by the Commonwealth Bank of Australia documenting the balance of the applicant’s and second-named applicant’s account dated 25 June 2021.

14. In their letter of submission, received on 28 June 2021, the representative for the applicant provided the following further information (in summary):

    1. It was claimed that documents had been submitted providing details of the applicant’s family assets, properties and financial ties to Pakistan. He had a plan to establish his own automotive business when he returns as he needs to make sure that he is utilising his inherited assets and properties in his own business.
    2. It was further submitted that the applicant may not be bright, but his study was continuous demonstrating his commitment to completing his education.
    3. His immediate family members may be living in Australia, but he did not want to follow the same path. Someone had to take care of the assets and family businesses in Pakistan.
    4. The applicant has always missed his friends and culture; he is struggling to get acquainted in Australia. The technical qualification from Australia would add extra value to his profile and business.
    5. The representative provided weblinks to additional research which it was claimed demonstrated that the automotive industry in Pakistan had a very bright future and a lot of potential. Most families own a private car, and the number of car owners is increasing.
    6. The applicant’s wife does not want to stay in Australia; she has always been homesick.
    7. Due to the COVID-19 pandemic, the applicant has not been able to seek a business planner in Pakistan. Almost every business has been under lockdown restrictions for the last 18 months. He has only been able to get a support letter from one of his potential business partners in Africa.
    8. Although it is a lower level qualification than his previous bachelor degree the Australian VET sector provides practical training to students on the latest technical equipment and some of those are difficult to maintain. The applicant wished to experience this so he could train his staff to run the business.

15. The applicants appeared before the Tribunal by telephone on 12 July 2021, to give evidence and present arguments. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicants were assisted in relation to the review by their registered migration agent, who also participated in the telephone hearing.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant satisfies cl 500.212 of Schedule 2.

17. 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?

18. 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.

19. 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.

20. The Tribunal accepts that the applicant has maintained his enrolment and that he has demonstrated that he has successfully completed the courses for which he had requested the visa: the Certificate III in Light Vehicle Technology, the Certificate IV in Automotive Mechanical Diagnosis and the Diploma of Automotive Technology. It is noted that the applicant was required to extend his enrolment in the Diploma of Automotive Technology, however, the Tribunal accepts the evidence of the applicant that an extension of his enrolment was required due to COVID-19 related lockdowns and associated disruptions in the delivery of his course. This is the general expectation of applicants seeking to stay temporarily in Australia while on a Student visa. It is accepted also that with this pattern of study, the applicant has turned around the study record noted by the delegate while on his initial Student visa.

21. The applicant is now proposing a further course of study, and again this is at the Diploma level. The Tribunal held concerns that, given the qualifications that he had already achieved and his Bachelor of Business Administration from Pakistan, that the applicant was seeking to maintain enrolment for the purposes of extending his time in Australia. It further appeared to the Tribunal that the applicant was enrolling in a course at the Diploma level when he already held Automotive qualifications at this level. When these concerns were put to the applicant at the hearing, he explained that his proposed course dealt specifically with management of an automotive business and his previous bachelor degree focussed on general business administration. Further, it was argued that it was almost 10 years since he had completed his bachelor qualification and he considered that his management knowledge was outdated. It was argued that COVID-19 had disrupted business in his home country and the applicant sought to use the time to obtain all relevant skills prior to establishing his own business. The applicant further provided evidence that he had enrolled at the Diploma level as this was the highest level that the course was offered in Australia. The applicant gave evidence that the course content was completely different to his Diploma in Automotive Technology and no course credit was applicable. The Tribunal reviewed the course units for his proposed course on the website of his education provider, Menzies Institute of Technology,[1] and is satisfied that the applicant is not repeating past units of study. The applicant further provided evidence that no similar courses focussing specifically on automotive management were available in his home country. In the circumstances the Tribunal is satisfied that the applicant has reasonable reasons for not undertaking study in his home country. It is further accepted that the applicant has demonstrated a realistic level of knowledge of his intended course of study and the outcomes he is aiming to achieve from this study. The Tribunal further finds the reasons advanced by the applicant for undertaking his course as plausible and reasonable and does not find that he has obtained his further enrolment for the predominant purpose of maintaining ongoing residence.

    [1] AUR50116 Diploma of Automotive Management - Menzies Institute of Technology

1. It is accepted that the applicant and the second named applicant have family in their home country, and it is reasonable that their parents would act as an incentive for them to return. The applicant has presented evidence to the Tribunal addressing the concerns of the delegate regarding his father’s former illness. The applicant has also returned to visit his father when he has undergone treatment in 2017. In further evidence submitted to the Tribunal the applicant has demonstrated that his parents are the owners of property and bank savings in which the applicant has a future interest. There is no evidence of economic circumstances that would present a significant incentive for the applicant not to return to his home country. There is also no evidence of any military service commitments or political or civil unrest in the applicant’s home country that may induce him to apply for a Student visa. The applicant did not identify any fears of returning to Pakistan. These circumstances of the applicant generally in his home country are supportive of him being a genuine temporary entrant.

2. As to the applicant’s potential circumstances in Australia, included in the visa application is his immediate family in the form of the second named applicant. While awaiting review they are also now parents to a son, born November 2019. The applicant’s younger brother is also in Australia with his wife. The Tribunal considered that the presence of his sibling may act as an incentive for him to remain, however, the applicant gave evidence to the Tribunal that he has not seen his brother for some time; he claimed that his brother changed personality once he was married, and that their wives do not get along. According to the applicant this was an estranged relationship and did not act as any incentive for him to remain in Australia. The applicant claimed to be working casually in a warehouse packing; occasionally he continued to volunteer on Saturdays at a mechanics workshop where he previously had obtained experience. It did not appear to the Tribunal that the applicant was building a career as an automotive professional in Australia. There is no evidence that the applicant has entered into a relationship of concern. Other than having his immediate family onshore, in the particular circumstances the Tribunal accepts the applicant’s submission that in his particular circumstances his other circumstances do not present a strong incentive for him to remain in Australia.

3. With regard to the value of the proposed course to the applicant’s future, it is accepted that the applicant has presented reasonable evidence as to why he wished to undertake the course and the value he believed that it could contribute to his knowledge in the automotive industry. The applicant discussed with the Tribunal that with the intention of improving his management skills he had initially considered studies in Leadership and Management but upon reviewing the course content considered that his proposed course in Automotive Management was of greater benefit and focus for intended future business. The Tribunal notes that he obtained his enrolment in early 2021, prior to notification of the Tribunal hearing and completion of his previous qualification. It does not appear to the Tribunal that he has enrolled in the course merely for the purpose of satisfying the visa requirement. The Tribunal further accepts that the course is relevant to his past study and proposed future employment of establishing an automotive spare parts business. It is also accepted that effective management skills may improve his future remuneration and prospects of success as a business owner.

4. Other than the length of time that the applicant has remained in Australia, and his lack of progress while on his first visa, there is nothing in the immigration history of the applicant that is of concern for the Tribunal. The applicant provided assurances in his evidence that the Diploma of Automotive Management was the final course he wished to undertake and that he intended to depart at the conclusion of this course. There is no evidence that he has not complied with conditions of his previous visas and there is no material before the Tribunal that he has had a previous visa refused, cancelled or considered for cancellation.

5. In balancing the relevant factors the Tribunal accepts the applicant’s reasons as to why he sees Australia as a better environment in which to obtain well‑regarded qualifications and improve his employment and remuneration prospects in his home country. The Tribunal was impressed by the oral evidence of the applicant regarding his desire to establish his business outside Australia. It is acknowledged that he has made significant progress in his studies. Having his family onshore continues to be of concern but the Tribunal is not persuaded, considering the other evidence that it outweighs the other factors favourable to the granting of the visa. Having considered the particular circumstances of the applicant in accordance with the relevant criteria in Direction No.69, has given the applicant the benefit of the doubt ,and accepted that he has genuinely remained in Australia for the purpose of study. 

6. 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).

7. 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 in respect of both the applicant, and second named applicant.

   DECISION

8. 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 Migration Regulations 1994 (Cth) (the Regulations).

   Penelope Hunter
   Member

   
   

   Attachment – Direction No.69

   DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

   (Section 499)

   I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

   Dated: 18 April 2016

   Peter Dutton

   
   

   Minister for Immigration and Border Protection

   Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

   Part 1 of Direction No. 69 - Preliminary

   Name of Direction

   This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

   It may be cited as Direction No. 69.

   Commencement

   This Direction commences on 1 July 2016.

   Interpretation

   Act means the Migration Act 1958.

   Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

   Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

   Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

   Regulations mean the Migration Regulations 1994.

   Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

   Spouse has the same meaning as the definition of the term in section 5F of the Act.

   Student visa means a Subclass 500 (Student) visa

   Student Guardian visa means a Subclass 590 (Student Guardian) visa.

   Application

   This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

   This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

   The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

   Preamble

   The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

   An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

   The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

   a.the applicant’s circumstances; and

   b.the applicant’s immigration history; and

   c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

   d.any other relevant matter.

   This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

   Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

   Part 2 of Direction No. 69 - Directions

   Assessing the genuine temporary entrant criterion

   1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

   2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

   a.considering the applicant against all factors specified in this Direction; and

   b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

   3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

   4.Circumstances where further scrutiny may be appropriate include but are not limited to:

   a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

   b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

   c.the applicant intends to study in a field unrelated to their previous studies or employment; and

   d.apparent inconsistencies in information provided by the applicant in their Student visa application.

   5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

   The applicant’s circumstances

   6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

   7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

   8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

   The applicant’s circumstances in their home country

   9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

   a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

   b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

   c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

   d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

   e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

   10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

   The applicant’s potential circumstances in Australia

   11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

   a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

   b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

   c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

   dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

   e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

   Value of the course to the applicant’s future

   12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

   a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

   b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

   c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

   The applicant's immigration history

   13.An applicant’s immigration history refers both to their visa and travel history.

   14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

   a.Previous visa applications for Australia or other countries, including:

   i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

   ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

   b.Previous travels to Australia or other countries, including:

   i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

   ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

   iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

   iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

   If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

   15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

   Any other relevant matters

   16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.