Sidhu (Migration)

[2023] AATA 3339

Sidhu (Migration) [2023] AATA 3339 (25 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harsimran Singh Sidhu

REPRESENTATIVE:  Ms Prabhjit Kaur (MARN: 1574834)

CASE NUMBER:  2201649

HOME AFFAIRS REFERENCE(S):          BCC2021/218306

MEMBER:Michael Biviano

DATE:25 August 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl 500.212 of Schedule 2 to the Regulations.

Statement made on 25 August 2023 at 4:59pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – a genuine applicant for entry and stay – has a job offer to return to back in India – a reasonable motive for undertaking these studies in Australia – an economic tie to home country – applicant is a genuine applicant for entry and stay as a student – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218

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 1 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 9 February 2021. 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) for the reason that he was not a genuine applicant for entry and stay because he did not intend to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 21 April 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicant was assisted in relation to the review.

6. It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 was a genuine applicant for entry and stay as a student.

   Genuine applicant for entry and stay as a student (cl 500.212)

9. 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?

10. 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.

11. 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.

12. The applicant is a 23-year-old Indian national who first came to Australia on 26 October 2018 pursuant to a student visa for the purposes of undertaking study in the Diploma and Bachelor of Commerce.

13. The decision record of the delegate of the Department of Home Affairs made on 1 February 2022 which was provided to the Tribunal by the applicant confirms that the applicant made his application for a student (Class TU Subclass 500) visa on 9 February 2021 (Decision Record). The Decision Record set out the reasons for the visa refusal and confirmed that the applicant was proposing to undertake a Certificate III in Painting and Decorating and a Diploma of Building and Construction (Reasons).

14. On 9 December 2022, the applicant filed with the Tribunal a response within time pursuant to an invitation to supply student visa information about the courses he was studying and information about his entry and stay in Australia in accordance with s 359(2) of the Act (Response).

15. In addition to the Response the applicant filed with the Tribunal the following documents in support of his application:

    a.Confirmation of Enrolment (COE) No. D4432248 for the applicant to study a Certificate III in Painting and Decorating at the Centre of Excellence with a course start date of 13 December 2022 and a course end date of 22 January 2023 which was created on 20 July 2022;

    b.letter from the Centre of Excellence dated 2 December 2022 confirming the applicant’s course had been superseded and that the course start date was 8 February 2021 and whilst the course end date was originally 30 June 2022, the new course end date was 22 January 2023;

    c.COE No. D4434243 for the applicant to study a Diploma of Building and Construction at the Centre of Excellence with a course start date of 6 February 2023 and a course end date of 15 April 2024 which was created on 20 July 2022;

    d.high school documentation and record of results for the applicant;

    e.letter from Deakin College dated 26 November 2020 confirming that the applicant had enrolled in a Diploma of Commerce which commenced on 29 October 2018 and he withdrew on 18 October 2019 and recommenced the Diploma of Commerce on 2 March 2020 and was completed on 19 June 2020 together with academic transcript confirming the Diploma of Commerce had been completed;

    f.General English Certificate for the applicant from Level Up English for a 5-week course;

    g.academic transcript for the applicant’s studies in the Bachelor of Property and Real Estate which the applicant undertook in 2020;

    h.COE No. A03D1E40 for the applicant to study a Diploma of Commerce at Deakin College with a course start date of 29 October 2018 and a course end date of 4 October 2019 which was created on 27 September 2018;

    i.COE No. B3D61888 for the applicant to study a Diploma of Commerce at Deakin College with a course start date of 2 March 2020 and a course end date of 5 June 2020 which was created on 17 January 2020;

    j.COE No. B159BA26 for the applicant to study General English at Level Up English with a course start date of 25 November 2019 and a course end date of 27 December 2019 which was created on 18 November 2019;

    k.COE No. A03D2580 for the applicant to study a Bachelor of Commerce at Deakin University with a course start date of 4 November 2019 and a course end date of 30 June 2021 which was created on 27 September 2018;

    l.COE No. B3D62514 for the applicant to study a Bachelor of Commerce at Deakin University with a course start date of 6 July 2020 and a course end date of 1 July 2022 which was created on 17 January 2020;

    m.COE No. BB100E95 for the applicant to study a Bachelor of Property and Real Estate at Deakin University with a course start date of 13 July 2020 and a course end date of 30 November 2022 which was created on 21 July 2020;

    n.COE No. BFDD3B48 for the applicant to study a Certificate III in Painting and Decorating at the Centre of Excellence with a course start date of 8 February 2021 and a course end date of 12 December 2022 which was created on 16 December 2020;

    o.COE No. BFDD9165 for the applicant to study a Diploma of Building and Construction with a course start date of 13 December 2022 and a course end date of 20 February 2024 at the Centre of Excellence which was created on 16 December 2020;

    p.letter from Prime Coat Painting, addressed To Whom It May Concern dated 1 December 2021 confirming that the applicant has been employed as a painter from July 2022 together with provision of payslips;

    q.payslips dated 5 October 2022 through to 17 November 2022;

    r.bank statement for the applicant’s account with the ANZ Bank from 26 October 2022 until 29 November 2022;

    s.affidavit of the applicant’s parents dated 1 December 2022;

    t.balance certificate dated 30 November 2022 for the applicant’s father;

    u.statement dated 29 November 2022 to the applicant’s father confirming the balance outstanding to his credit was 51,086 rupees;

    v.balance certificate for the applicant’s father’s account at Bathinda totalling 318,792 rupeesing

    w.certificate from Punjab & Sind Bank setting out a statement of account as at 30 March 2022 being a total balance of 207,100 rupees;

    x.balance certificate for the applicant’s mother at Bathinda with a total amount of 402,921 rupees;

    y.further balance certificate of the applicant’s mother at Bathinda in the amount of 187,730 rupees;

    z.statement from Jimmy Mittal & Associates confirming the immovable property of the applicant’s father and his mother and himself in total equating to 121,686,000 rupees together with a break-up of those assets into land and property holdings and bank account statements;

    aa.various valuation reports of J.P. Architects dated 1 December 2022;

    bb.English translation of property holding documents held by the applicant’s family members together with original Punjabi documents;

    cc.various property holding documents for land holdings held by the applicant’s family;

    dd.income statement for the applicant’s father together with Indian income tax return acknowledgement for the 2020/2021 year for the applicant’s father;

    ee.income tax return acknowledgement for the applicant’s father for the 2021/2022 year;

    ff.passport extract for the applicant’s father together with Government of India identification card;

    gg.passport extract for the applicant’s mother together with identification card;

    hh.letter from ANZ Bank to the applicant dated 30 November 2022 confirming the applicant’s bank account balance was $20,500.98;

    ii.letter from SRA Construction Company dated 7 December 2022 confirming that the applicant had been offered a full-time position as a manager in the company SRA Construction Pvt Ltd in Bathinda (SRA Constructions) and that he will be offered employment with a better annual salary on return after completing the Certificate III in Painting and Decorating and the Diploma of Building and Construction;

    jj.statutory declaration from the applicant (Statutory Declaration);

    kk.submission from the applicant’s representative.

16. The applicant gave evidence that he had completed the Certificate III in Painting and Decorating and he was studying the Diploma of Building and Construction. The applicant submitted further documents immediately prior to the hearing including the Certificate III in Painting and Decorating from the Centre of Excellence and a course progress confirmation letter from the Centre of Excellence dated 6 April 2023.

17. During the hearing an issue arose as to the genuineness of the letter of offer of employment from SRA Constructions. The applicant was given 7 days from the hearing of the matter to file further documents in support of the application.

18. After the hearing the applicant filed with the Tribunal the following documents in support of his application:

    a.documents regarding the courses he was studying;

    b.a further statutory declaration;

    c.letter from SRA Constructions dated 28 April 2023; and

    d.video.

19. The applicant gave evidence that he completed his secondary schooling in India in mid-2018 and first came to Australia on 26 October 2018 for the purposes of undertaking a Diploma of Commerce leading to a Bachelor of Commerce. The applicant provided to the Tribunal a letter from Deakin College confirming that the applicant commenced the Diploma of Commerce on 29 October 2018 and withdrew from the course on 18 October 2019 and he recommenced the Diploma of Commerce on 2 March 2020 which he completed on 19 June 2020. The applicant in the Response further claimed that between November 2019 and December 2019 he completed a General English course whilst he withdrew from the Diploma of Commerce course.

20. The applicant claimed that as at mid-2020 he obtained advice from his cousin, who had recommended that he obtain qualifications in property and real estate in order that it would help him establish a business back in India with him. Consequently the applicant enrolled in a Bachelor of Property and Real Estate at Deakin University. That course was to commence in July 2020. The applicant undertook studies in the Bachelor course and he completed 2 semesters in those studies. He undertook studies in 4 subjects and he confirmed that he failed 2 of those subjects. He claimed that he found the studies to be somewhat difficult and ceased those studies. From February 2021 to January 2023 the applicant studied and completed a Certificate III in Painting and Decorating. The applicant claimed he had an interest in undertaking that course as it would assist him in working in the painting and decorating field back in India. In February 2023 the applicant commenced a Diploma of Building and Construction at the Centre of Excellence and the COE that has been provided to the Tribunal confirms that that course is expected to conclude on 15 April 2024.

21. The applicant submitted a letter from the Centre of Excellence confirming that there had been changes to the Certificate III in Painting and Decorating course, causing it to be superseded which appears to have extended the time for completion.

22. The applicant claimed that the Diploma of Building and Construction will assist him to obtain employment and help him set up a construction business in the future back in India which focuses in part on painting and decorating but also on construction works. The applicant submitted to the Tribunal a letter from SRA Constructions dated 7 December 2022 confirming the applicant had been offered a full-time position as manager in the company SRA Construction Company Pvt Ltd Bathinda. The letter stated:

    This is to confirm that Harsimran Singh Sidhu S/o Sukhmander Singh Sidhu has been offered a full- time position as Manager in our company SRA CONSTRUCTION COMPANY PVT. LTD. BATHINDA

    His employment will begin after he return to India on completion of his studies in Australia.

    Currently he is studying Certificate Ill in Painting and Decorating and Diploma of Building and Construction (Building) in Australia. will offer him an employment position with a better annual salary on his return after he has completed his Course.

    Should you have any more questions regarding his employment, please feel free to call our office at 98150 15623 or send us an email at sradal [email protected]

23. Further the Tribunal noted that the typeface of the letter was not square with the letterhead and inconsistent which led to some concerns that the letter was not genuine. The applicant post the hearing provided to the Tribunal an updated letter from this company explaining that they do have a position for employment for the applicant in a management role as an entry-level manager in the construction business with a starting salary of 150,000 Indian rupees per calendar month which he claimed was higher than the market rate. The letter also apologised if there was any ambiguity with the letter and they were unaware as to the contents of what letters were required in Australia. Further a video was provided of the printing of the letter which demonstrated that the typeface was not necessarily square with the letterhead. Having considered the further documents and the video the Tribunal accepts that the letter is genuine and that the applicant has been offered a position with SRA Constructions as an entry-level manager on the completion of his courses in April 2024.

24. The Tribunal considered the applicant’s evidence and the fact that he has a job offer to return to back in India in an entry-level position earning 150,000 Indian rupees per calendar month which equates to A$2,720 per calendar month. The Tribunal accepts the course he is undertaking will improve his employment prospects and level of remuneration back in India.

25. The applicant was questioned about how he obtained the position and he confirmed that he had been recommended to apply by a family friend and after a telephone interview was subsequently offered the role. He confirmed that the company has approximately 15–20 people who work in the office and 100 other staff who work in different cities in India.

26. The applicant in the Response stated that he sought to undertake these studies in Australia rather than in India for the following reasons:

    Australia is widely recognized all over the world for its education where a student gets the chance to learn through theoretical concepts and practical work placements. The Australian education system maintains its international reputation through high educational standards. Also, work experience and internships are all ways in which you can gain Australian work experience in your field of study and be competitive in the international job market after graduation. After studying here, I have job offer to work in my home country.

    Painting and Building Construction courses are available in India as well. But as per the reputation of Indian institutes, they mostly focus on theoretical practice and practical training is not provided properly. Nowadays many students are doing these courses and not getting any desirable outcomes. My Australian qualification will surely add to my existing job opportunities. After completing my education in Australia, I will go back to my home country as I am planning to work in a well-paid Building Construction position. I will gain industry experience there and start preparing to open my own business in the future. The Employees who are already working in this field in India do not have any international knowledge and work in traditional ways. So, I will be given priority over others when I enter the employment field there.

1. In evidence the applicant claimed that he was keen to undertake his studies in Australia rather than in India because primarily the courses here were more practical but that it would provide him with a high-level international qualification which would assist him to gain a better future in India. Having considered the applicant’s study history and the reasons for wanting to undertake the Diploma course the Tribunal accepts he has a reasonable motive for undertaking these studies in Australia.

2. The applicant has changed his career path initially from studying Commerce to Property and Real Estate to Painting and Decorating and now to Building and Construction. The courses studied in their totality are not connected to each other and are not complementary to each other and do not lead to a career path or position in employment. The applicant gave evidence that he has changed career paths and seeks to now focus on both building and construction and painting and decorating which are complementary to each other in obtaining a management role within the building and construction industry back in India. He gave evidence that this is the reason why there has been a change in career path and that he struggled with the higher education courses.

3. The Tribunal recognises that it is important to allow for reasonable changes to career and study pathways. However this is not the case when an applicant has merely decided to change careers through undertaking short vocational education training (VET) courses for the purposes of extending one’s stay in this country. The courses in which the applicant has enrolled in in Australia since undertaking the Bachelor of Property and Real Estate are all VET courses. However the Tribunal accepts that those courses are of a specialised nature for the purposes of working in the building and construction industry back in India. Considering that the applicant has previously completed a Diploma in Australia, being a Diploma of Commerce, his current studies in the Diploma of Building and Construction will not lead to a more advanced qualification. Nevertheless the Tribunal accepts in this case that the qualification he is studying to obtain is consistent with the level of study he has already completed.

4. The applicant has lived in Australia for the last 4 years and 9 months and has a substantial degree of knowledge about living in Australia. Furthermore he has studied at the Centre of Excellence for the last 2 years and 5 months and has a high degree of knowledge about the education provider. He is also nearly halfway through the Diploma of Building and Construction course. In those circumstances the Tribunal accepts he has a high degree of knowledge about the course and the education provider.

5. The applicant has had various jobs whilst in Australia. He has worked as a cleaner, delivery driver, customer service/pizza maker and store manager from January 2019 to July 2022 with the income arising out of those roles varying from A$20,000 to A$25,000 per annum. On occasions there has been overlap between the roles that he has undertaken. Importantly the applicant from September 2021 to December 2021 took up a role as a painter where he earnt approximately A$6,000 for that period of time and since July 2022 through to December 2022 he worked as a painter for Prime Coat Painting and his earnings equated to A$26,520 per annum. That employment as a painter provides valuable experience for someone who is undertaking painting and decorating qualifications. The level of income the applicant has earnt in those roles are significant and would provide some financial incentive to remain in this country.

6. The applicant in evidence confirmed the level of income he would expect to receive if he returned home would equate to nearly A$3,000 per calendar month. However in evidence he conceded that the levels of income in Australia are substantially higher than those in India which would provide a significant financial incentive to remain here rather than to return home. It is important to note that the income the applicant has received in this country has been in circumstances where there have been limitations in place that he can only work 20 hours per week. If the applicant was able to work on a full-time basis for Prime Coat Painting one would expect the level of income he would receive would exceed A$50,000 per annum. That would provide the applicant with a substantial financial incentive to remain here rather than to return home.

7. The applicant also gave evidence that the economic conditions in Australia are more favourable than those in India which would not present him with a significant incentive to return home. The applicant has not returned home during his stay in Australia. Notwithstanding there were travel restrictions imposed by reason of the COVID-19 pandemic from March 2020 to the commencement of 2022 which restricted the applicant’s ability to travel, it does not provide an explanation why he has not returned home at all since his arrival here in October 2018.

8. The applicant in his Response confirmed that he had not seen his parents since October 2018 and his failure to return home in all of that time is more consistent with someone intending to remain here permanently rather than return home.

9. The applicant in evidence confirmed that he had savings here in Australia in the amount of $20,500. Those savings would ordinarily provide an incentive to remain here rather than to return home however those funds are liquid and can be transferred back to India.

10. The applicant submitted a vast amount of information about property holdings held by his family. The applicant in evidence confirmed that he and his father jointly owned some of those properties in particular agricultural land back in India. It was difficult to discern what particular property holdings he in fact held in his own name. The Tribunal notes that the applicant in his Response identified some property holdings held predominantly by his father which exceeded A$1 million. The applicant’s evidence was that he held some agricultural land with his father.

11. Ultimately the Tribunal does accept that he has an economic tie to his home country by reason of the job offer and that there would be some financial incentive to return home due to the family’s vast property holdings back in India. However those incentives will need to be considered relative to the level of income that the applicant can earn in this country.

12. The applicant both in evidence and the Response did not have any concerns about returning home to India and he had no concerns about military service commitments or political or civil unrest in his home country. The Tribunal finds they do not present as a significant incentive for him not to return home. Furthermore the applicant from his evidence and from the responses did not appear to be in a relationship of concern for a successful visa outcome.

13. The Tribunal finds that based on the applicant’s evidence and circumstances in his home country including his family’s assets, his education and the assets that he has coupled with the support from his family that relative to others in that country he is in a good position and it would not provide a significant incentive for him not to return home.

14. The applicant has both personal ties here in Australia and to India. The applicant gave evidence that he has his mother and father who are back home and that would ordinarily provide him with an incentive to return home. However he has not seen them since October 2018 but he claims to remain in contact with them on a regular basis almost every day via audio and video calls. He also has a job offer back in India. Furthermore he claims he has family and friends back in India which would provide some incentive for him to return home. However his circumstances in India must be considered in light of his circumstances here in Australia in that he is in stable employment earning a significant level of income, is in stable accommodation as he has been living with his sister for the last 3 years who is here in Australia undertaking a PhD; she is here with her spouse. Furthermore he has resided here for the last 4 years and 9 months and intends to remain here at least for a further 9 months. In those circumstances the Tribunal finds that such ties do not provide a strong incentive to return home to India.

15. The applicant also has substantial ties here. He has friends and distant family including a cousin who recommended he undertake studies in real estate. He also has his sister here with whom he is living and when one considers the duration and stability of his living and employment arrangements they demonstrate substantial ties to Australia. Accordingly the Tribunal finds that such ties demonstrate a strong incentive to remain in Australia rather than to return home.

16. The applicant in his Response did not identify any visa refusals or cancellations in Australia or elsewhere and there is nothing before the Tribunal from the delegate’s Decision Record to indicate that the applicant has experienced any other visa refusals or any immigration issues either in or outside of Australia.

17. Having considered the above matters the Tribunal notes that the applicant has been persistent in his studies in the way that he completed the Diploma of Commerce and the Certificate III in Painting and Decorating and is undertaking the Diploma of Building and Construction for the purposes of obtaining employment back in India for which he has already obtained a job offer with SRA Constructions in a well-paid job. Notwithstanding the strengths of his ties back home to India and that he has been living here with his sister for the last 3 years, the Tribunal considers that the studies he is undertaking here are genuine and are for the purposes of advancing his career.

18. However the applicant has been here for a long period of time and if at the conclusion of these studies he intends to undertake further studies in this country then the Tribunal would consider that such studies would be inconsistent with the purpose of the student visa which is to come to this country and complete one’s studies in a timely manner and return home. Any future studies would be inconsistent with the visa and inconsistent with remaining here on a temporary basis. However this is not a matter the Tribunal needs to consider in this application as the applicant has given evidence that he will return home at the conclusion of this course in April 2024. In all the above circumstances the Tribunal is satisfied that the applicant has made this application to gain a student visa to study temporarily.

19. 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).

20. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.

21. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

22. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl 500.212 of Schedule 2 to the Regulations.

    Michael Biviano
    Member

    
    

    Attachment – Direction No.69

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

    (Section 499)

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

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

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

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

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

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

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

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

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

    Regulations mean the Migration Regulations 1994.

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

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

    Student visa means a Subclass 500 (Student) visa

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

    Application

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

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

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

    Preamble

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

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

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

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

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

    d.any other relevant matter.

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

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

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

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

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

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

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

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

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

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

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

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

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

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

    The applicant’s circumstances

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

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

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

    The applicant’s circumstances in their home country

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

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

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

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

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

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

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

    The applicant’s potential circumstances in Australia

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

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

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

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

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

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

    Value of the course to the applicant’s future

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

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

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

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

    The applicant's immigration history

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

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

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

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

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

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

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

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

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

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

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

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

    Any other relevant matters

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