Sharma (Migration)

[2024] AATA 3406

Sharma (Migration) [2024] AATA 3406 (4 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aman Kumar Sharma

REPRESENTATIVE:  Mr Mohammad Ahasan Ali (MARN: 0851085)

CASE NUMBER:  2202333

HOME AFFAIRS REFERENCE(S):          BCC2020/526240

MEMBER:Penelope Hunter

DATE:4 September 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 04 September 2024 at 4:56pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No 108 – reasons for studying in Australia – family ties in home country – circumstances in Australia – various cancellations and withdrawals from enrolment – value of the course – immigration history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 11 February 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 21 February 2020. 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.

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 temporarily in Australia.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   BACKGROUND

5. The applicant is a 25 year old, male citizen of India. He applied for the visa in order to undertake study in Australia in an Advanced Diploma of Leadership and Management and a Bachelor of Business.

6. In support of his visa application the applicant provided evidence of his financial circumstances, evidence of Overseas Student Health Insurance, identity documents, a Confirmation of Enrolment (CoE) in an Advanced Diploma of Leadership and Management with course dates from 7 October 2019 to 11 November 2020, a CoE in a Bachelor of Business (Professional Accounting) with course dates from 16 November 2020 to 23 June 2023, a certificate of completion of a Diploma of Leadership issued on 11 October 2018, and a statement addressing the temporary entry criteria. In his statement the applicant set out the following relevant matters (in summary);

   i.He had been residing in Australia since 2017 and initially studied a Diploma of Information Technology at the Sydney Institute of Business and Technology (SIBT) however after completing one semester he could not continue the study due to family issues and his enrolment was cancelled.

   ii.He then attempted a Bachelor of Information Technology at Western Sydney University and studied from February 2018 to February 2020 but he could also not complete this course.

   iii.One of his friend suggested that he undertake a Diploma of Leadership and Management and he obtained enrolment at the Queensland International Business Academy (QIBA). Before he finished the diploma he was informed that QIBA may close the Leadership and Management program and he transferred to Southern Cross School of Business (SCSB). Eventually, after receiving credit from QIBA he completed the Diploma of Leadership and Management in August 2018.

   iv.The applicant then commenced the Advanced Diploma of Leadership and Management at SCSB and studied for one year, but then SCSB had their registration cancelled by ASQA.

   v.He then determined to transfer to Elite Education Vocational Institute to complete his study. He was currently studying the Advanced Diploma of Leadership and Management leading to a Bachelor of Business.

   vi.Australia offered a rich cultural and academic heritage, it boasts a cheap cost-of-living and the charges for educational tuition for international students is less. It is a suitable climate. Completing his education in Australia, learning different skills and tactics would help tremendously in his future career.

   vii.He had a strong connection with his parents and it was a strong incentive for him to return home. He is the eldest son in his family. After the completion of his studies he will return to India and have a healthy future.

7. While awaiting the processing of his application the applicant subsequently submitted a letter of offer dated 18 November 2020 from the Southern Academy of Health Sciences (SAHS), a CoE in a Certificate IV in Ageing Support at created on 18 November 2020, with course dates from 23 October 2020 to 21 October 2021 and a CoE in a Diploma of Community Services with course dates from 6 December 2021 to 4 December 2022.

8. In refusing the visa the delegate, in their decision record, set out the following concerns (in summary);

   i.The applicant was single and with no dependents. He had not provided any evidence is to suggest that he had business ties or assets of his home country. It was considered he had been unable to demonstrate sufficient economic ties to his home country.

   ii.It was considered that the applicant had demonstrated limited knowledge of his courses or that he had research study options in his home country or another country.

   iii.It was considered that the applicant had not clearly demonstrated the benefits that taking the proposed courses in Australia will provide to his career prospects. It was noted that the applicant had changed study pathway multiple times and provided no explanation regarding the change from information technology to business to community services. Further, the applicant had not demonstrated the clear and substantial improvement in the career opportunities that would outweigh the significant time and monetary commitment his courses will require. Overall delegate was not satisfied that the applicant had demonstrated the value of his study for his future.

   iv.The applicant initially arrived in Australia in February 2017 and the delegate was concerned that he was now proposing to extend his stay to study a series of courses that he been unable to establish would act significant benefit to his future remuneration for career prospects in his home country. There were concerns that the applicant was attempting to utilise a student visa program to maintain ongoing residence.

9. The Tribunal received an application for review from the applicant on 21 February 2022, together with a copy of the decision record of the delegate.

10. On 21 March 2023, the Tribunal wrote to the applicant pursuant to the provisions of s 359(2) of the Act and requested that he provide specific details in Student Visa Information form.

11. On 4 April 2023, the Tribunal received a Student Visa Information form completed by the applicant.

12. On 30 June 2023, the applicant was invited to attend the hearing before the Tribunal on 24 July 2023 to give evidence and present arguments. This hearing was postponed at the request of the applicant’s representative.

13. On 17 August 2023, the applicant provided the following documents to the Tribunal;

    ·A CoE in a Diploma of Information Technology with course dates from 20 February 2017 to 2 February 2018.

    ·A CoE in Bachelor of Information and Communications Technology with course dates from 26 February 2018 to 8 February 2020.

    ·A CoE in a Diploma of Leadership and Management with course dates from 21 August 2017 to 17 August 2018.

    ·A certificate of Completion of the Diploma of Leadership and Management dated 24 August 2018.

    ·A CoE in an Advanced Diploma of Leadership and Management with course dates from 24 September 2018 to 6 March 2020.

    ·A CoE in an Advanced Diploma of Leadership and Management with course dates from 7 October 2019 to 11 September 2020.

    ·A CoE in a Bachelor of Business (Professional Accounting) at elite education with course dates from 2 November 2020 to 28 October 2022.

    ·A CoE in a Certificate IV in Ageing Support with course dates from 23 November 2020 to 21 November 2021.

    ·A CoE in a Diploma of Community Services with course dates from 6 December 2021 to 4 December 2022.

    ·A certificate of completion of the Diploma of Community Services, date completed 8 January 2023.

    ·A CoE in an Advanced Diploma of Leadership and Management with course dates from 7 February 2023 to 25 February 2024.

    ·A letter from Australis Institute of Technology and Education (AITE) dated 20 July 2023 confirming that the applicant was enrolled as a full-time international student in the Advanced Diploma of Leadership and Management commencing on 27 February 2023 and concluding on 25 February 2024.

    ·Income statements for the applicant for the 2020/2021, 2021/2022 and 2022/2023  financial year.

    ·A screenshot of mobile phone call records for the applicant.

    ·Bank account statement for the applicant with the Newcastle Permanent for the period 29 March 2023 to 1 July 2023.

    ·An Australian Taxation Office notice of assessment for the applicant for the year ended 30 June 2023.

14. On 18 August 2023 the representative of the applicant provided submissions to the Tribunal, and a statement of the applicant, which set out the following relevant information;

    i.He arrived in Australia in February 2017 and had enrolled in a Diploma of Information Technology leading to a bachelor degree but he found the subject challenging and failed two subjects in the Diploma. He encountered challenges such as language, study and cultural differences. Despite the availability of student support he could not gather the courage to schedule appointments. He did not want to disappoint his parents so concealed his struggles.

    ii.Eventually he made a few friends, they advised him that he was able to change his course. He shifted his area of study to business studies. He enrolled in a Diploma and an Advanced Diploma in Leadership and Management. He finished the Diploma of Leadership and Management at SCSB in August 2018 and was continuing to the Advanced Diploma of Leadership and Management until SCSB came under investigation. His enrolment was cancelled. He then arranged for a new enrolment in an Advanced Diploma of Leadership and Management and also an enrolment in a Bachelor of Professional Accounting in 2019.

    iii.The applicant travelled to India in October 2019 and returned to Australia in March 2020. Then the pandemic happened as his first student visa was expiring. He applied for the visa under review, unfortunately the educational institution that offered in his enrolment shut down which led to the cancellation of his enrolment.

    iv.The applicant then enrolled in the Certificate for Aged care and the Diploma of Community Services. He did not hear about the progress of his visa application for a long time and the resultant buildup of uncertainty caused him to lose focus in his studies. The death of his grandfather in June 2020 had further worsened his overall well-being. He failed the to complete the Certificate IV.

    v.In February 2022 his visa was refused. However the applicant completed the Diploma of Community Services. He is currently studying the Advanced Diploma of Leadership and Management which will be completed successfully in February 2024.

    vi.The applicant wanted to complete the Advanced Diploma of Leadership and Management so that he could acquire the skills and knowledge needed to effectively lead and manage individuals and organisations. He wished to take on leadership roles in his community and make a positive difference in the world. It will provide him with necessary skills and knowledge to take higher positions in the aged care industry. In India, the ageing population is growing rapidly, and there is need for more aged care facilities and services in the community. With his studies he could gain the skills and knowledge to effectively manage and lead an aged care facility.

    vii.He also started working in the aged care sector of pursuing his current course. After reflecting on the experiences that he had gained in the work he had done in the aged care sector he decided he would like to pursue a Bachelor of Community services after he completes his Advanced Diploma. As a community service worker he can help bridge the gap by providing healthcare education preventative care and advocacy for better health care access.

15. The applicant appeared before the Tribunal by telephone on 21 August 2023 to give evidence and present arguments. The representative of the applicant also participated in the hearing.

16. On 28 August 2023, the Tribunal received further submissions from the representative of the applicant, evidence of full-time work rights for the applicant as an aged care worker, and a confirmation email from Elite Education Institute dated 25 February 2020 that the applicants enrolment in the Bachelor of Business (Professional Accounting) had been cancelled.

17. 19 April 2024, the Tribunal wrote to the applicant pursuant to the provisions of s 359A regarding information contained in his Provider Registration and International Student Management System (PRISMS) records, which were considered adverse to the review application.

18. On 21 March 2024, the representative for the applicant submitted to the Tribunal a copy of a certificate of completion in an Advanced Diploma of Leadership and Management issued by AITE on 8 March 2024 and transcript, and a CoE  at the Wales Institute, in a Graduate Diploma of Management (learning) with course dates from 6 May 2024 to 3 May 2026, created on 19 March 2024, a Pearson PTE Academic Score Report, an email from SCSB to the applicant dated 5 November 2019 and a statement from the applicant. In his statement the applicant set out the following information:

    i.In 2017, when he changed his study pathway for IT, he recognised the universal value of strong management abilities which were indispensable across various professional domains. He made an informed choice to transition to Leadership and Management. While the future remains uncertain, he was committed to acquiring a solid foundation management skills which he could leverage across any other field in his future academic pursuits.

    ii.He chose to enrol in the Bachelor of Business (Professional Accounting) as he recognised the invaluable versatility of the business focused skill set. He was convinced he chose a good combination of courses.

    iii.After his enrolment in the Bachelor of Business was cancelled he sought a change of pace that will allow him to take a break and focus on something that would make him internally happy. The ongoing pandemic reminded him of the profound suffering experienced by others and highlighted the critical importance of human connection and support in times of crisis. He therefore opted to pursue the Certificate IV in Ageing Support and the Diploma of Community Services. He discovered a newfound sense of purpose and fulfilment, as the opportunity to positively impact the lives of others brought him immense joy.

    iv.Two years later, his visa application was refused, prompting him to contemplate how his academic achievements consisted only of a diploma. He had spent five years in Australia and was only able to complete a single diploma. This intensified his anxiety and prompted sense of failure he felt in his father’s eyes.

    v.After completing the Diploma of Community Services he thought about how every time he tried to pursue the Advance Diploma of Leadership and Management he was prevented from doing so for reasons beyond his control, such as the course provided being unable to deliver the program. He did acknowledge that he could have done better keeping his emotions in check and continued with the Advanced Diploma with Elite Education. He wanted to prove to himself, and to his father, that he was capable of pursuing a study program as long as he was interested in it. He is proud that he completed the Advanced Diploma of Leadership and Management on 25 February 2024. This felt like a huge achievement and he was studying to regain hope for a better future for himself.

    vi.Although his trend of enrolment and unenrolment attracted scrutiny as to how he was utilising the student visa program he wanted to bring forward several factors. Firstly his student visa was initially granted to him when he was young and not exactly sure what he wanted to study. Secondly, when he decided what he wanted to study his choice was constantly limited by his education providers and the pandemic. He was also going through panic attacks and trauma due to impediments in his academic endeavours. The completion of the Diploma of Community services and the Advance Diploma of Leadership and Management demonstrate that he had a genuine intention of obtaining education for his career.

    vii.He wished to pursue a Graduate Diploma Management (Learning) from Wales Institute. He wished to study in Australia as having done his schooling in India and then studying in Australia he has experienced a difference in the delivery of education. The syllabus and curriculum designed according to international standards and include topics that are relevant to contemporary challenges. The curriculum was also integral to critical thinking, problem-solving and analytical thinking which were desirable skills for any successful business. In terms of student life he finds it easy to travel across places in Australia in contrast to India.

    viii.He had carefully researched the Wales Institute to make sure he was moving forward with the right course provider. Their official website offered testimonials and he was convinced that they welcome students from culturally different backgrounds. The Wales Institute also provided a wide range of courses which reflected their commitment to prepare students for different types of careers as a person who had struggled to seek help during times of stress he appreciated that they had a range of student services, from academic support to student counselling and many more.

    ix.He believed that the Graduate Diploma of Management (Learning) would be a suitable compliment to his previous education in Leadership and Management. He had a solid foundation of management principles and was confident in taking up managerial roles. However for long-term success he will need to complete the Graduate Diploma of Management (Learning). It would allow him to excel in the field of organisational learning, to develop programs within an organisation and apply critical thinking for complex problem solving. It would translate to a successful career for him because he would be able to take up prestigious roles such as manager and director, shipping resources manager, project manager and operation manager. By working at the back and designing and developing projects and organisations that support communities and age residents, he will be acquiring a sense of fulfilment but also strong financial security.

19. On 11 June 2024, the applicant was advised that the matter had been reconstituted to another Tribunal member.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. 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.

1. 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?

2. In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 108, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, supersedes the previous direction, Direction 69, however there is little meaningful change to the criteria. The applicant has addressed the relevant factors in his evidence and submissions. A copy of Direction 108 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.

3. 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.

4. In his final submissions to the Tribunal, the applicant said that his reasons for studying in Australia was the method of educational delivery, the syllabus designed to international standards and in respect of student life, the ease of transport in Australia as opposed to India. He also identified matters such as the climate, safety and cost of education compared to other international destinations. There is no evidence before the Tribunal that the applicant has undertaken any research as to comparable courses in management in his home country or any other country. The applicant has given evidence to the Tribunal that his father wished him study in India, and despite his glowing assessment of the Australian education system in his submissions, the applicant has had varying success with his own attempts. He attributes his initial difficulties with study to his youth and differences in the method of education delivery. He acknowledges that he has experienced problems with multiple education providers in the past. The applicant has been in Australia for seven years, he has changed his study pathway on several occasions and has today completed two Diplomas and an Advanced Diploma. He has chosen to obtain enrolment in the Graduate Diploma of Management (Learning) in 2024, a course that was not clearly within his intentions when he appeared before the Tribunal. Overall, the Tribunal is not satisfied that the applicant has demonstrated reasonable reasons for the undertaken relevant study in his home country.

5. Tribunal accepts that the applicant has his parents and brother in his home country. He has been in Australia since 2017 and returned to India on one occasion in 2019. Tribunal acknowledges these family connections may provide some incentive for him to return. However, the Tribunal must balance this with the evidence of the applicant that for a significant period while holding his previous visa and while awaiting review he has kept his true circumstances from his family, and not discussed with them his studies. The applicant has provided evidence of term deposits of his father. He claims that his father has property and farming land, however no evidence been submitted. There is no evidence that the applicant has any assets of his own name and he has not disclosed any previous employment in his home country. There are no other personal or employment ties that the applicant has demonstrated which the Tribunal is satisfied would act as a significant incentive for him to return.

6. There is no evidence to suggest that the applicant has any military service commitments. Neither is there evidence of any political or civil unrest that would induce the applicant to apply for a student visa.

7. As to the applicant’s circumstances in Australia. The applicant claims that he has no family in Australia. It is noted that he has set out in his submissions taking guidance from close friends in his studies, and he spoke to the Tribunal at hearing about a man who he referred to as his uncle, though unrelated, upon whom he relied upon at the time for guidance. It appears he has a supportive network of friends and community onshore. The applicant has been long term employed. His payment summaries presented to the Tribunal disclose that he has worked in hospitality for several years progressing from a kitchenhand to cook, and then as an aged care worker. His after tax salary for the year ending 20 June 2023, as an aged care worker being assessed as $68,525. The applicant claims to have found a passion working in aged care. The applicant has transitioned through several study pathways from having arrived in Australia to undertake studies at the bachelor level in IT, to then obtaining enrolment at the vocational education and training level in Leadership and Management, then potentially progressing to a Bachelor of Business but then returning again to the VET level to study aged care and community service, then back to Leadership and Management. The applicant’s latest enrolment is again in Management, however the multiple enrolments that the applicant has obtained and the inability to complete several courses suggests to the Tribunal that he may be using the student visa program as a means to obtain ongoing residence. Even accepting that an education provider selected by the applicant was under investigation and another had ceased operating, these events do not account for up to four enrolments in the Advanced Diploma of Leadership and Management, the cessation of his studies in IT or his inability to complete his Certificate IV in Aged Care.

8. The Tribunal has had further regard to the explanations provided by the applicant as to various cancellations and withdrawals from his enrolment. He claimed that he was affected by a language barrier due to the delivery of courses in English and culture shock when he arrived in Australia for his initial studies, yet this is the expectation when choosing to study abroad in a country where the language and culture are different to that in the applicant’s home country. Despite the applicant’s claimed difficulties with the instruction of courses in English, he has not presented any evidence of enrolment in further English studies. The institutions chosen by the applicant to undertake his initial studies in the Diploma and Advanced Diploma of Leadership and Management both came under investigation by ASQA. While in no way do fault of the applicant, it does raise questions for the Tribunal as to the level of research he undertook on each occasion into his education provider. It is also noted that the applicant has consistently changed providers with each program of study, and sometimes for the same course. The applicant conceded in his evidence at hearing that he did not make good choices in the past, and he has been thinking more about the visa than his studies. The Tribunal held concerns that the applicant obtained enrolment on the basis of the next available course for the purposes of the visa rather than actual interest in the program of study. With his current education provider, the Wales Institute, the applicant has set out that his careful research included looking that the testimonials tab on their official website, and also other services discussed on their website. He has relied on self-promotional material from the provider rather than independent research and investigation. The Tribunal is not satisfied that he has demonstrated a realistic knowledge of his education provider given the time that the applicant has spent in Australia and the troubles he claims to have experienced with education providers in the past.

9. As to the value of the applicant’s study, the Tribunal notes that there have been various changes to his study pathway. He chose IT because it was supposed to be a stable field with  potential. He claims to have undertaken his courses in Leadership and Management because it was related to business and managing a business. He chose Community Services because her realised the importance of community during the pandemic and he felt good to give back. The applicant has again returned to management courses with the further enrolment in the Advanced Diploma of Leadership and Management and following the Tribunal hearing the Graduate Diploma of Management (Learning). He has made submissions which seem to be information from his education providers website that the course would allow him to excel in the field of organisational learning and capability development, and prepare him for roles such as a manager and director. In assessing whether these changes in pathway are reasonable, the Tribunal places weight on the applicant’s actual evidence at hearing where he told the member that he initially decided to go into leadership and management because he was told it was an easier course than IT. When asked at the Tribunal hearing, how the Advanced Diploma of Leadership and Management would help his career back in India the applicant responded, “I’m like going to be completely honest. Like at the moment I do not know. I don’t know because, like it is uncertain, like I am just applying for courses and I might apply for another course. I don’t know, but right now I’m trying to prove that I am willing to study”.[1] While the Tribunal accepts that the applicant has studied and he did ultimately complete the Advanced Diploma of Leadership and Management, it is not satisfied that he was motivated by a desired to obtain management qualifications, nor that he was motivated to address his past unsuccessful attempt. Rather, the Tribunal considers that the applicant enrolled for the purposes of the visa. The value of the course appears to extent his time onshore and the Tribunal holds concerns that the applicant is using the student visa to maintain residence.   

   [1] Audio recording of hearing on 21 August 2023

10. Once more considering the value of the course, the Tribunal places weight on the evidence of the applicant at hearing when questioned on this issue that he “did not know”.[2] Further, when the applicant was at the hearing how the Advanced Diploma of Leadership and Management would assist him in his endeavours in the future compared to what he had already studied, the applicant responded, “I don’t have any answer”.[3] While the Tribunal has had regard to the submissions of the applicant regarding potential careers in management it places greater weight on his oral evidence. Particularly, in circumstances where the applicant had already made several attempts and held multiple enrolments in the Advanced Diploma of Leadership and Management, it is reasonably expected that the applicant would be able to speak without hesitation of the skills he wished to acquire and the manner in which it would improve his employment prospects of assist him to obtain employment. As the applicant could not speak to the value of his course, the Tribunal is not satisfied that it had particular value for him, and holds concerns about the value to his future to undertake study in a further course in this pathway, being the Advanced Diploma of Management Learning. 

    [2] As above

    [3] As above

11. At the hearing the Tribunal discussed with the applicant his studies in community services, he confirmed with his existing qualifications he could work in a hospital or an aged care facility in his home country. He also said that he was more interested in courses such as nursing since he had been working in aged care, and he would like to study nursing or psychology in the future. He then went on to say that he had “completely no interest”[4] in what was at the time his studies in the Advanced Diploma of Leadership and Management. The Tribunal has considerable difficulty balancing this evidence at hearing with his subsequent enrolment in further studies in management, or providing weight to his post hearing submissions that he wished to take up prestigious roles as manager and director. It is not satisfied that his current enrolment is relevant to future employment that the applicant intends to pursue, it is not satisfied that the course is consistent with his career interest or that it holds value to him in improving his employment prospects in his home country. Furthermore, the Tribunal is not satisfied that the course will assist the remuneration that the applicant could expect to receive in his home country, compared with Australia, using the qualifications gained from his proposed course of study. The value of the proposed course of the applicant to his future is not demonstrated to the Tribunal.

    [4] Audio of hearing on 21 August 2023

12. As to the immigration history of the applicant, it is accepted that there is no evidence that he has applied for any other visa in Australia or any other country which has been refused. There is nothing to suggest that the applicant has not complied with the conditions of various visas he has held. The length of time that the applicant has spent in Australia is of concern for the Tribunal, which is suggestive of not just a temporary stay. Even if granted the visa, as it is not satisfied that the course has value to the applicant the Tribunal is not satisfied that he would seek to return at the conclusion of the Graduate Diploma of Management (Learning), rather he may go on to enrol in further courses in nursing and psychology consistent with what he claims is his genuine interest at the hearing and further extend his time onshore.

13. As to other matter, the Tribunal has taken into consideration the claims of the applicant that he experienced considerable stress, trauma and panic attacks awaiting the processing of his visa, and while awaiting review. It acknowledges that the uncertainty was stressful for the applicant. He has not presented evidence of any diagnosed mental health condition or that he sought medical treatment as a consequence of the effects of ongoing condition. In the circumstances the Tribunal does not accept this as an explanation for the disruptions in the applicant’s studies, or as an excuse for him not continuing a course, or as explaining his changes in study pathway.

    Conclusion

14. Considering the totality of the circumstances of the applicant it is accepted that he has some family ties to his home country and other circumstances in his home country that are favourable. It is also accepted that the applicant has completed some courses while awaiting review and it is accepted that he can undertake study. However, the Tribunal is not satisfied as to the value of the applicant’s courses, that he has a reasonable knowledge of his course provider or that he has reasonable reasons for not undertaking relevant study in India. It appears to the Tribunal that the applicant is using the student visa program to maintain residence and considers that his circumstances in Australia may operate as a significant incentive for him to remain. Overall having considered the criteria in Direction 108 and the relevant circumstances of the applicant, the Tribunal it is not satisfied that the applicant intends to stay in Australia temporarily.

15. Accordingly, the applicant does not meet cl 500.212(a).

16. Accordingly, the Tribunal not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.

17. 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

18. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Penelope Hunter
    Member

    
    

    Attachment – Direction No.108

    DIRECTION NUMBER 108 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, CLARE O’NEIL, Minister for Home Affairs and Minister for Cyber Security, give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 21 March 2024

    Clare O’Neil

    
    

    Minister for Home Affairs and Minister for Cyber Security

    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 - Preliminary

    Name of Direction

    This Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 108.

    Commencement

    This Direction commences on 23 March 2024.

    Revocation

    Direction No. 69, given under section 499 of the Act, is revoked.

    Interpretation

    Act means the Migration Act 1958.

    Finally determined has the same meaning as is set out in subsections 5(9) and (9A) of the Act.

    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 against the genuine temporary entrant criterion for Student visa applications and Student Guardian visa applications (as applicable).

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

    This Direction applies in relation to Student visa applications and Student Guardian visa applications made before 23 March 2024 but not finally determined on that date, including such visa applications that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for a Student visa and seek to satisfy the primary or secondary criteria, or an application for a Student Guardian visa and seek to satisfy the primary criteria.

    Note: Direction No. 106 applies in relation to Subclass 500 (Student) visa applications and Student Guardian visa applications made on or after 23 March 2024, including visa applications made on or after that date that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.

    Preamble

    The Australian Government operates a student visa program 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 program 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 – 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 or Student Guardian 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 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.

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

    iv. 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;

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

    vi. 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

    vii. 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 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.