Singh (Migration)

Singh (Migration) [2022] AATA 3044 (26 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Tejpal Singh
CASE NUMBER:  2114718
HOME AFFAIRS REFERENCE(S):          BCC2017/1027451
MEMBER:Gabrielle Cullen
DATE:26 July 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 26 July 2022 at 10:30am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – Federal Circuit and Family Court remittal – enrolment in a registered course ceased – enrolments cancelled – lengthy stay in Australia – marriage to an Australian citizen – impact of the COVID19 pandemic – applicant changed to vocational courses – gaps in studies – maintain ongoing residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 360, 499; Direction No 69
Migration Regulations 1994, Schedule 2 cls 500.211, 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 14 June 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 15 March 2017. At the time of application, Class TU contained 2 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.
The applicant arrived in Australia on 15 November 2013 on a Subclass 573 student visa valid to 15 March 2017 and applied for the visa to which this decision relates on 15 March 2017. He has departed Australia on 2 occasions, from 17 March 2019 to 11 April 2019 and 22 June 2022 to 26 June 2022. At hearing he indicated he returned to India on the 2019 trip and travelled to Fiji in 2022.
Confirmation of Enrolment documents (CoEs) attached to the current application refer to the applicant studying a Certificate IV in Automotive Diagnosis from 15 February 2017 to 14 August 2017, followed by a Diploma of Automotive Technology and Advanced Diploma of Business to 24 January 2019. The evidence indicates he successfully completed all of these courses. He also attached a CoE to undertake a Bachelor of Business (Business Management) from 4 March 2019, however, the evidence indicates he did not commence this course. He then enrolled in a Bachelor of Business (Leadership and Management) from 23 March 2020 to 22 October 2021, with enrolment being cancelled for unsatisfactory course progress on 4 November 2020. He then enrolled in the same course from 22 March 2021 to 24 February 2023, with enrolment being cancelled for unsatisfactory course progress on 6 January 2022[1]. He has now enrolled in a Graduate Diploma of Management (Learning) to be studied from 19 September 2022 to 15 September 2024.
[1] As raised with him via s 359AA at hearing
The applicant’s oral and written evidence indicates he previously studied the following courses, with the following outcomes.
·Certificate IV in Accounting, studied from February 2014 to December 2014. At hearing he advised he did not successfully complete this course. A certificate submitted by the applicant notes he successfully completed 8 subjects, failed 5 subjects and 4 subjects were given the result of inadequate participation (withdrawn).
·Diploma of Accounting, studied from 9 February 2015 to 30 June 2015. At hearing he advised he did not successfully complete this course. A certificate submitted indicates he failed 3 subjects and withdrew from one subject after the census.
·Bachelor of Accounting, enrolled from 6 July 2015 to 30 June 2017. At hearing the applicant advised he did not commence the course.
·Certificate III in Light Vehicle Mechanical Technology, studied from 19 December 2015 to 29 January 2017 – this course was successfully completed.
With his application for the visa he also provided a statement addressing the genuine temporary entrant criterion, in which he indicated he enrolled in the accounting courses on arrival with his father’s guidance but was not able to pass the exams. He said he then decided to change his direction after talking with his father and enrolled in and completed the Certificate III in Light Automotive Technology, and then the Certificate IV in Mechanical Diagnosis, which at that time was 80% completed. He said he then wanted to study an Advanced Diploma of Business and Bachelor of Business to open his own luxury car showroom/garage on return to India but needed business skills. He submitted he will return to start his own business in India.
In the application for the visa the applicant also provided evidence of meeting the English criterion and evidence of health insurance, and advised he was currently working at an automotive firm.
The delegate decided to refuse to grant the visa on 14 June 2017. The delegate decided to refuse to grant the visa because the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) on the basis that he is not a genuine applicant for entry and stay as a student. The delegate was concerned as to the applicant’s length of time in Australia, having not departed since his arrival on 15 November 2013, and that the course he was proposing to undertake in Australia would require him to stay until 2021. The delegate was also concerned the applicant had not completed any courses above the vocational level and was not satisfied that the proposed study plan would assist the applicant to obtain employment or improve his employment prospects on return. The delegate also noted that on the basis of the limited evidence before the Department, s/he was unable to be satisfied that the applicant’s studies would assist his claimed future goal of running his own business in India.
The applicant applied to the Tribunal for review on 26 June 2018 and attached the decision of the Department.
On 7 August 2018 the Tribunal wrote the applicant a s 359(2) letter, which stated as follows:
As you applied for this visa on the basis of undertaking a course of study in Australia, it is a requirement for the visa that you are enrolled in a registered course of study and that you are a genuine applicant for entry and stay as a student.
Accordingly, you are now invited to give, in writing, information about your proposed course(s) of study and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information questionnaire attached with this letter. The information requested should be given by completing the attached questionnaire and returning it to us.
The Tribunal also advised that in considering whether the applicant is a genuine applicant for entry and stay as a student, the Tribunal must have regard to Ministerial Direction No.69 ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ and attached a copy.
The applicant provided a completed form dated 14 August 2019, which provided the following additional information relevant to the genuine temporary entrant criterion:
·He had been working at Sandu Motors as a trainee mechanic since 2017.
·His parents and sister live in India and his brother lives in Canada.
·He owns no property.
·He repeated that he is studying to return to India to open a workshop.
·Thera are no civil or political issues or military commitments in India which would act as a disincentive to return.
He also provided further documents before the hearing including a further statement addressing the genuine temporary entrant criterion, which provided additional information as follows:
·He has always had a passion for bikes and cars, and attaining international qualifications will qualify him to work in any automotive industry.
·He notes his family has a health club in India and he wants to be an entrepreneur like his father, and he has discussed with father opening his own automotive workshop/garage which will provide services modifying and maintaining cars. He notes India is the largest manufacturer of cars and that the automotive industry contributes around 7.1% of GDP. He referred to research he had done as to job opportunities in the field in India and in the car industry in India.
·After completion of the Advanced Diploma of Business and Bachelor of Business he will return home.
·He will return to look after his parents.
·His parents have enough funds to support his studies.
He provided evidence of the value of his family’s property, evidence his father supports and will finance his study and stay in Australia and evidence pertaining to his father’s good financial position.
The applicant first appeared before the Tribunal (differently constituted) on 2 October 2018 to give evidence and present arguments .
On 23 November 2018 the Tribunal (differently constituted) affirmed the delegate’s decision.
On 24 January 2022 the Federal Circuit and Family Court quashed the decision made by the Tribunal (differently constituted) and remitted the matter back to the Tribunal to be re-heard on the basis that the Member’s manner was unnecessarily argumentative, cynical and erroneous, to warrant a finding of apprehended bias. The Court found the applicant was not afforded a fair and meaningful hearing as required by s 360 of the Act.
On 8 June 2022, the Tribunal wrote to the applicant via his representative and invited him to attend a hearing on 27 June 2022.
The applicant requested a hearing postponement as his lawyer was unavailable. The Tribunal considered the request and on 20 June 2022 advised that without evidence his lawyer was overseas the hearing would proceed on 27 June 2022.
On 27 June 2022 the applicant advised he was not well enough to speak as he had a cold and sore throat and requested the hearing be postponed. The Tribunal considered the request and advised the following.
Please be advised that as the hearing is scheduled to take place at midday today and without a medical certificate indicating that you are not well enough to attend the hearing by telephone, today’s hearing will proceed.
The applicant appeared before the Tribunal by telephone on 27 June 2022 to give evidence and present arguments. He was assisted with an interpreter in the Punjabi and English languages.
The Tribunal noted that the issues before it are whether he meets the enrolment criterion as per cl 500.211 and the genuine temporary entrant criterion as per cl 500.212. It outlined these requirements and Direction No.69.
The applicant said he was currently enrolled in a Bachelor of Business (Management) and he commenced the course on 3 March 2020.
The Tribunal raised with him, via the process outlined in s 359AA, the following information from the Provider Registration and International Student Management System (PRISMS) record:
·He is currently not enrolled in a course of study and has not been since 6 January 2022.
·He was enrolled in a Bachelor of Business (Leadership and Management) from 22 March 2021 to 24 February 2023 but enrolment was cancelled on 6 January 2022 for unsatisfactory course progress.
·He was enrolled in a Bachelor of Business (Leadership and Management) from 22 March 2020 to 22 October 2021 but enrolment was cancelled for unsatisfactory course progress on 4 November 2020.
·He was enrolled in a Bachelor of Business (Business Management) from 4 March 2019 to 22 October 2021 but enrolment was cancelled on 5 July 2018 when he did not commence studies.
·He was not enrolled in any course from 24 January 2019 to 23 March 2020.
·He has not successfully completed any course since he completed the Advanced Diploma of Business on 24 January 2019.
The Tribunal outlined the relevance of the above with regard to cl 500.211 and cl 500.212.
The applicant said he could not speak because of a sore throat and requested the hearing be adjourned. The Tribunal agreed on the basis he provide a medical certificate.
On 28 June 2022 he provided a medical certificate from Dr Kotur stating he was unfit for work duties from 28 June 2022 to 4 July 2022.
The Tribunal invited the applicant to a further hearing on 19 July 2022.
Prior to the hearing he provided a CoE dated 14 July 2022 evidencing enrolment in a Graduate Diploma of Management (Learning) from 19 September 2022 to 15 September 2024.
He also provided a further statement addressing the genuine temporary entrant criterion, and in which:
·He submits, as to his need for education:
Although, I have studied business course, but I still lack in few fields of management like strategic transformation, learning and development strategies, Implementation of improved learning practice etc. I have already completed my package course in Automotive and after that I have done advance diploma in Business Management. I have good knowledge of automotive industry but I want to work at higher Managerial positions in Automotive companies and my advance diploma in business is not sufficient for me to get higher profiles in industry so I need deep Knowledge of Management and Grad Diploma will help me out for same. In Graduate Diploma program, I will study those units in depth and able to learn and execute necessary actions, if required in my work area and within my teammates. To gain a high salaried job, I need to learn Professional Management skills .
·He outlines what he will learn in the Graduate Diploma of Management (learning) and why he has chosen Laneway Education as the education provider.
·He indicates that following completion of the course there are multiple job profiles in the automotive industry, including as leader or manager in a well-known car organisation. He refers to working in business analytics, as a car dealer or manager. He refers to wanting a reputable job in an automotive organisation, and that he can also easily establish his own business. He refers to available jobs (with website links) in India.
·He states that his parents, sister and extended family are in India and his parents support his education. On completion of his studies, he will return and stay with his family.
The applicant again appeared before the Tribunal by video on MS Teams on 19 July 2022. He was assisted with an interpreter in the Punjabi and English languages, although he was advised that the hearing could be conducted in English. The Tribunal advised him that at any time he needed the interpreter he was to use the interpreter, and to let the Tribunal know whenever he did not understand and the interpreter would be used.
The applicant confirmed he had departed Australia on 2 occasions since his arrival in Australia in November 2013. He said he returned to India in 2019 and had recently travelled to Fiji for 4 days in June with his new wife.
The applicant advised he had married an Australian citizen on 10 February 2022 and they travelled to Fiji as her family is from there. The Tribunal raised with the applicant that his marriage to an Australian citizen may indicate strong ties to Australia and may indicate he is not a temporary entrant. He said she is happy to live in India on completion of his study. He said he had not applied for a spouse visa.
As to his other family, he said his parents and sister are in India. He said he owns no property but will inherit property from his family.
The Tribunal raised as of concern that he had been in Australia since 15 November 2013 and had only returned to India on one occasion, in a period of almost 9 years, and is now wanting to stay a further 2 years. It raised that his length of stay in Australia, with only one departure to his home country, may indicate a lack of connection to his home country and raises questions about whether he is a temporary entrant. He said that but for COVID-19, he would have returned to India more often, and while he wanted to go to India recently, his wife wanted to travel to Fiji. The Tribunal noted that COVID-19 has only been an issue since 2020.
The Tribunal noted the applicant arrived in Australia in 2013 on a Subclass 573 visa to study a Bachelor of Accounting. He confirmed he did not successfully complete the Certificate IV and Diploma of Accounting as it was too difficult and did not commence the Bachelor of Accounting as a result. The Tribunal confirmed with him the successful completion of courses until January 2019 when he finished the Advanced Diploma of Business, but noted again, as previously raised with him via s 359AA, that he had not completed the bachelor degree. It referred to his poor study record and lack of completion of any courses from January 2019 to date. He said he was in Australia to study. The Tribunal raised his lack of study and course completion as outlined in the information raised via s 359AA and questioned whether he is a genuine student and in Australia for the reasons he claims. He said since COVID-19 he could not study as he is not used to studying online. He also said he did not successfully complete any units towards the bachelor courses he enrolled in.
The Tribunal also raised as of concern that, despite claiming he has been in Australia to study, in the previous almost 9 years he had only successfully completed 4 courses at the vocational level. It noted that this is particularly of concern as he came to Australia indicating he wished to study at the bachelor level. It also raised with him his lack of recent periods of study, particularly from January 2022 to date, and he referred to the difficulty for him of studying online, the difficulty obtaining a CoE on a bridging visa, and that he was looking for the right course and there were fewer options presently.
The Tribunal asked why he now wishes to study the Graduate Diploma of Management (Learning) and he said he has completed the Advanced Diploma of Business but needs a higher degree so he can have more skills and knowledge of the market for his automotive business. The Tribunal asked for more detail as his reasons appeared vague and lacking in detail, particularly considering the cost and length of the course. He said he needs more business skills to run his business. The Tribunal noted he had already studied an Advanced Diploma of Business. The Tribunal asked which business he was talking about, and he referred to the automotive business. He said the knowledge learned would assist him to run the business. He said he needs strategy and knowledge to run a profitable business, and the Tribunal raised that these appeared to be skills he would have gained in the Advanced Diploma of Business. He said he needs a level up from the Advanced Diploma of Business, and the Tribunal asked why, and he said he needs more skills and strategy.
The Tribunal asked why he is now doing the Graduate Diploma of Management course and he said he did not know it existed, and the Tribunal raised with him that his evidence appeared vague as to the value of the course to his future. He said he wanted to do a bachelor’s degree but this is harder.
The Tribunal asked him about the automotive business he wants to open and he said he wants to open a garage on return and referred to the increase in the number of electrical cars. The Tribunal referred to the brochure for the Graduate Diploma of Management (Learning) he is enrolled in and read who it is aimed at, and questioned the value of the course to his future plans. He said he had done research and he had the technical knowledge from his work and previous study, but needs more knowledge about how to run a business, how to expand the business and he needs more business knowledge generally.

The Tribunal raised with him that it is of concern that he has been saying he is in Australia to study to assist him to open an automotive business in India since the application for the visa 5 years ago, but his evidence appears vague and lacking in detail as to that business. It raised with him that it questioned whether he is credible as to the reasons he claims he has enrolled in the course and is studying in Australia. The applicant asked the Tribunal what it wanted to know, and it asked him to tell the Tribunal more about the business he wants to open. He did not add anything further.
He confirmed he is currently working as a mechanic at Sandu Motors, which is the same place he had been working since 2017.
He said there were no civil or political reasons in India or military commitments which would act as a disincentive to return.
He was asked whether he had anything to add on a number of occasions and did not add any additional evidence to that already provided.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant meets cl 500.212.
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
Having considered the applicant’s claims against all the factors specified in Direction No.69, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors, as outlined below.
As to the applicant’s circumstances in his home country, no evidence has been presented that the applicant’s economic circumstances would present as a significant incentive for the applicant not to return to India. There is no evidence before the Tribunal that political and civil unrest would result in the applicant choosing to remain in Australia indefinitely. There is no evidence before the Tribunal of military commitments that would present as a significant motive not to return. It accepts his evidence as to why he chose and chooses to study in Australia and not India, and the benefits of an Australian education on return to India. The Tribunal accepts that he has close family ties in India, including his parents, who he is responsible for taking care of. It also accepts he has a sister in India. It accepts that while he does not own property, he will inherit property from his parents. The Tribunal accepts that these circumstances in India are indicative of a person who is only a temporary entrant who has an incentive to return to India.
Of concern in relation to him being a temporary entrant is that he has been married to an Australian citizen since February 2022. While he has not applied for a spouse visa and the applicant says it is his spouse’s plan to return with him to India on completion of his study, the Tribunal is of the view that the fact that he is married to an Australian citizen currently resident in Australia is indicative of a person who is not a temporary entrant.
The Tribunal also accepts that the applicant is enrolled to study a Graduate Diploma of Management (Learning) from 19 September 2022 to 15 September 2024. It accepts he previously successfully completed a Certificate III in Light Vehicle Mechanical Technology from 19 December 2015 to 29 January 2017, a Certificate IV in Automotive Diagnosis from 15 February 2017 to 14 August 2017, a Diploma of Automotive Technology from 11 September 2017 to 3 June 2018 and an Advanced Diploma of Business to 24 January 2019. The Tribunal accepts that the successful completion of courses is indicative of a genuine student. It accepts he was enrolled in a Certificate IV and Diploma of Accounting prior to enrolling in and completing the above courses, but despite his attempts he could not successfully complete these courses. However, the successful completion of courses and enrolment in the periods above are 2 of many considerations relevant to the assessment of whether the applicant, in regard to the current visa application, intends genuinely to stay in Australia temporarily.
The above information indicates the applicant has been in Australia since November 2013, when he arrived on a Subclass 573 student visa to undertake a bachelor’s degree, a period of approximately 8 and a half years. His evidence indicates he has returned to India on one occasion from 17 March 2019 to 11 April 2019. The Tribunal views his extended stay in Australia from November 2013, and his desire to remain until September 2024, being a period of almost 11 years in total and 8 and a half years as at the date of this decision, having only returned to India on one occasion, to be of significant concern as to whether he is a temporary entrant. While the Tribunal accepts that he has had a matter before the Tribunal/Federal Court, the Tribunal views his extended length of stay in Australia as indicative of a person who does not intend to genuinely stay in Australia temporarily, and who is using the student visa program to maintain ongoing residence. It also views his length of time in Australia as undermining his claim as to his circumstances in India being a motivation to return. While it accepts that he was unable to return to India from March 2020 to early 2022 due to COVID-19 and travel restrictions, due to his length of time in Australia, the Tribunal views his limited trips to India in the whole period of his time in Australia as of concern as to whether he is in Australia temporarily, even taking the COVID-19 factor into account.
The above information indicates that despite the applicant arriving in Australia 8 and a half years ago, in November 2013, on a Subclass 573 student visa to undertake a bachelor’s degree, and repeatedly indicating he is in Australia for the purpose of study, including enrolling in further bachelor level courses, he has only successfully completed 4 vocational courses. Further, as raised with him via s 359AA, a matter of concern in relation to whether he is a genuine student and in Australia for the reasons he claims is that, since he completed the Advanced Diploma of Business on 24 January 2019, he has not successfully completed any course or unit in any course, as he advised at hearing. In addition, he had the following poor study history and periods of non-enrolment as follows:
·He was not enrolled in a course of study from 6 January 2022 until he submitted a CoE in the Graduate Diploma of Management (Learning) dated 14 July 2022, to commence on 19 September 2022.
·He was enrolled in a Bachelor of Business (Leadership and Management) from 22 March 2021 to 24 February 2023 but the enrolment was cancelled on 6 January 2022 for unsatisfactory course progress.
·He was enrolled in a Bachelor of Busines (Leadership and Management) from 22 March 2020 to 22 October 2021 but the enrolment was cancelled for unsatisfactory course progress on 4 November 2020.
·He was enrolled in a Bachelor of Business (Business Management) from 4 March 2019 to 22 October 2021 but the enrolment was cancelled on 5 July 2018 when he did not commence studies.
·He was not enrolled in any course from 24 January 2019 to 23 March 2020.
The Tribunal has considered his reasons as to his slow rate of course progress and lack of enrolment, and why he wishes to study the Graduate Diploma of Management (Learning) from September 2022, including its value to his future career aim. However, for the reasons set out below, the Tribunal finds that he proposes to study this course to prolong his stay in Australia rather than for its value to his future or to enhance his future career or for any of the reasons claimed.
As to the reason for his slow course progress and lack of enrolment as outlined above, the applicant said that since COVID-19 he could not study as he is not used to studying online, he had difficulty obtaining a CoE on a bridging visa, and that he was looking for the right course and there were fewer options presently. While the Tribunal accepts the COVID-19 situation would have been difficult, it notes that his lack of enrolment from January 2019 to March 2020 was prior to COVID-19, and it does not explain why he did not commence the Bachelor of Business on 4 March 2019. It also does not explain his lack of enrolment from 6 January 2022 until his recent enrolment in the graduate diploma programme, as courses are in-person this year. The applicant said Laneway, where he is enrolled, is face to face learning. The Tribunal is also of the view that a genuine student would have studied online and overcome any issues. As to his claim he had difficulty obtaining a CoE, the evidence is he has been able to enrol in 2 bachelor courses and a graduate diploma course while the holder of a bridging visa, and the Tribunal does not accept this as the reason for his lack of study and course completion since January 2019, a period of over 3 years. As to his claim he was looking for the right course, the Tribunal is of the view that if he was a genuine student he would have found the right course earlier, and not only just before the recent hearing. The Tribunal is of the view that if he was in Australia to study for the reasons he claims, including to obtain a degree higher than the Advanced Diploma of Business, he would have stayed enrolled and studied, completing units. The Tribunal views his lack of course completion, including the failure to successfully complete any subjects as he advised at hearing, and periods of non-enrolment, since January 2019, as undermining his claim he is a genuine student in Australia studying for the reasons he claims. It is of the view that a genuine student would continue to study and achieve course progression. It is of the view this adds to the finding he is using the student visa program to maintain residence in Australia.
The Tribunal also views as of concern his lack of detailed evidence as to why he is studying the Graduate Diploma of Management (Learning) and its relevance to his future career aim. At the recent hearing the Tribunal asked why he now wishes to study the Graduate Diploma of Management and he said he has completed the Advanced Diploma of Business but needs a higher degree so he can have more skills and knowledge of the market for his automotive business. The Tribunal asked for more detail as his reasons appeared vague and lacking in detail, particularly considering the cost and length of the course; the CoE indicates that it costs $16,000 and takes 2 years to complete . He said he needs more business skills to run his business. He said the knowledge learned would assist him to run his automotive business. He said he needs strategy and knowledge to run a profitable business and the Tribunal noted that these appeared to be skills he would have gained in the Advanced Diploma of Business. He said he needs a level up from the Advanced Diploma of Business and the Tribunal asked why, and he said he needs more skills and strategy. When the Tribunal asked why he is now doing this course and he said he did not know it existed before, and the Tribunal noted that his evidence appeared vague as to the value of the course to his future, he said he wanted to do a bachelor’s degree but it is harder. While he indicated in his pre-hearing submission that he wants to study this course to obtain a high level position on return to India in an automotive company, he did not refer to this at hearing, despite being repeatedly asked why he is studying the course.
Further, as raised with the applicant, a review of the course flyer online[2] for the Graduate Diploma of Management (Learning) at Laneway College notes the following:
Our Graduate Diploma of Management (Learning) qualification has been designed to give you highly specialised knowledge and skills in the field of organisational learning and capability development. Individuals in these roles generate and evaluate complex ideas. They also initiate, design and execute major learning and development functions within an organisation. Typically, they would have full responsibility and accountability for the personal output and work of others. This qualification may apply to leaders and managers in an organisation where learning is used to build organisational capability.[3]
[2] BSB80120 Graduate Diploma of Management (Learning) | Laneway, >
The Tribunal referred to the above and again questioned the value of the course to his future, raising with him that it did not seem to align with his aim of opening a garage or mechanic business on return. He confirmed that he plans to open a garage on return, and he repeatedly indicated at the recent hearing that this would be his future business. He said he had done research and he had the technical knowledge from his work and previous study, but needs more knowledge about how to run a business, how to expand the business and he needs more business knowledge generally. While the applicant was able to provide more evidence as to this course and its value to his future in the pre-hearing submission, the Tribunal places significant weight on his oral evidence provided at hearing as to its value to his future.
Further, despite claiming since the application for the visa that he is studying in Australia to open an automotive busines on return to India, which he confirmed at hearing, the Tribunal views the evidence provided regarding his plans for this business as vague and lacking in detail, particularly his evidence given at hearing. As outlined above, when asked as to the plans his evidence was lacking in any detail.
The Tribunal is therefore of the view that the applicant has enrolled in the Graduate Diploma of Management (Learning) not as a genuine student for any of the reasons he claims, but rather that he is using the student visa process to maintain residence, and he is not a genuine applicant for entry and stay as a student.
As to the applicant’s immigration history, he gave evidence he had applied for a temporary skilled visa previously, but he said this had been refused as he holds a bridging visa. While he is married to an Australian citizen, there is no evidence he has applied for a permanent visa. The Tribunal has above considered his length of time in Australia.
In making its decision, the Tribunal has considered all the evidence before it, including: that he is currently enrolled in a course; that he has completed the courses he claims; his family ties in India; his evidence he will return home after the completion of his course; that he will inherit property in India; that he is working in Australia as a mechanic at Sandu Motors in the same area as his future career aim; and that his parents support his education. However, for the reasons outlined above, the Tribunal does not accept he is undertaking the current study for the reasons he claims, but rather is using it as a pathway to maintain residence in Australia. The Tribunal is therefore not satisfied that he is a genuine applicant for entry and stay as a student and is of the view that the student visa program is only being used to maintain ongoing residence.
On the basis of the above, the Tribunal is therefore not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Gabrielle Cullen
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.

[2022] AATA 3044

26 July 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction