Singh (Migration)

Singh (Migration) [2020] AATA 4453 (12 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mehtabbir Singh
CASE NUMBER:  1906529
HOME AFFAIRS REFERENCE(S):          BCC2018/5820920
MEMBER:Peter Booth
DATE:12 August 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 12 August 2020 at 8:57am
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine temporary entrant criterion not met– failed to explain in any meaningful detail how current set of courses will assist him to achieve future plans –no strong incentive to return to home country –use the student migration program to maintain ongoing residence– decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, Schedule 2, cl 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 Home Affairs on 15 March 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 25 December 2018. 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.
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 (the Regulations) because the applicant was not a genuine temporary entrant.
The applicant appeared before the Tribunal on 22 July 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was assisted in relation to the review by his registered migration agent.
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 is a genuine temporary entrant.
Genuine applicant for entry and stay as a student (cl.500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather are intended only to guide decision makers when considering the applicant’s circumstances as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The applicant gave evidence at the hearing, the substance of which was as follows.
The applicant had read the delegate’s decision dated 15 March 2019 refusing his application for a student visa. The applicant understood that the issue for determination was whether he was a genuine temporary entrant.
The applicant provided a confirmation of enrolment document in a Diploma of Leadership and Management course which commenced on 9 September 2019 and was due to be completed on 2 August 2020, although he stated that he had commenced this course on 10 January 2019 and was continuing although it was supposed to have been completed in March. He said that the “ COE had changed”; he added that he “will finish on 17 October 2020”. He had also provided a confirmation of enrolment in a Diploma of Leadership and Management course which started on 6 July 2020 and is due to be completed on 11 November 2020. The applicant also provided a confirmation of enrolment document in respect of an Advanced Diploma of Leadership and Management course which is due to commence on 2 November 2020 and be completed on 17 October 2021. It appears therefore that the applicant is currently studying a Diploma of Leadership and Management course which will finish on or about 17 October 2020. The applicant did not explain the discrepancy between the dates on the confirmation of enrolment documents. Thereafter it appears that he is enrolled in an Advanced Diploma of Leadership and Management course due to commence on 2 November 2020 and be completed on 17 October 2021.
The applicant had also provided a narrative statement in support of his application for review dated 27 April 2020. He did not have a copy in his possession at the hearing but said that he did not want to add to or vary that document.
The applicant had also provided information to the Tribunal in the form of a response to a request to do so pursuant to s.359(2). The applicant confirmed that he did not want to add to or vary this document. In summary, the information provided by the applicant was as follows.
The applicant was born on 22 December 1989. Prior to arriving in Australia, he completed secondary education in March 2007, a Bachelor of Science in computing between July 2007 and November 2013, and a Master of Arts between July 2014 and May 2016. He stated that his employment prior to arriving in Australia was “transport business” and added “own business”. He did not provide any income details. The applicant arrived in Australia on 20 October 2018 and since that time has returned to India on one occasion in March 2020. He did not disclose the length of his stay in respect of that trip. The applicant stated that he arrived in Australia as the holder of a “visitor visa” which was granted on “10/2018” and which ceased on “01/2019”. Thereafter he stated that he was granted a “bridging visa” on “12/2018”. The applicant stated that he has not been refused a visa to any country including Australia other than the current student visa application. The applicant stated that he had completed a Certificate IV in Leadership and Management between January 2019 and August 2019, that he was currently studying a Diploma of Leadership and Management and had a future enrolment in an Advanced Diploma of Leadership and Management; the latter is expected to be completed in “10/2021”.
As to whether the applicant could study these courses in India, he stated:
After I arrived in Australia I observed a different world and experienced great pleasure while exploring Australia.
During my stay, I recognized that the Australian study is renowned in the whole world as Australia has many world famous universities. I was also attracted towards Australian vocational and technical education as this is among the best most innovative worldwide.
As India is still developing nation the education providers there do not have global exposure and knowledge. Moreover, the education provider in India emphasis on theoretical course delivery and the course structure is not up to the date with today's world. While on other hand I experienced a totally different education system here, while I spoke to students here and on further research I also came to know that the courses are more practical and the education providers here emphasis more on skill development so the graduates can be more confident and ready for the global job market.
The applicant did not disclose any employment history in Australia. The applicant stated that his brother resides in Australia, his mother and father reside in India, and his two sisters reside in Canada. The applicant stated that he has land and savings in India, the estimated value of which is approximately AU$1.2 million.
As to his future employment plans, he stated:
After completion of my studies, I will return to my home country India. We have our own heavy goods truck with trailer. With leadership and management skills, I will be able to research and implement new and creative ideas as per the current market on my transport business. With support of my father and good profit, we can buy more truck and hire more employees. In this way, with own profit we can also contribute in India’s economy. India has made many infrastructural changes in past few years and has built national highways that is further giving rise to transport business including trucking industry. With few years of continuous profit, we can also plan to include tyres, lubricants and OES parts of truck with partnership of big suppliers from bigger cities in my city. People and other businesses rely more on truck transport than railway transport because they have more and better access to remote areas. There has also been a rapid growth in e-trucking business in India. I can also launch truck trading website of my own business to introduce a platform of connecting with the seekers who will need delivery services. Being the owner, I will be able to opt for the best deal based on payment rates and load size or load weight. I will definitely be able to triple the profit that we made earlier.
As to his expected remuneration he stated: Approximately 9–10 Lakh per annum in India and increased with experience and extra skills of management.
The Tribunal proceeded to ask the applicant some questions in relation to this information. In summary, the substance of the questions and his responses were as follows. The applicant said that he had conducted his own transport business prior to arriving in Australia. He added “in 2015 my father retired, I have a talk at, I wanted to upgrade it”. As to the income from this business, he said “depends on loading, approximately is 15 Lakh, AU$30,000”.
He confirmed that he has returned to India on one occasion since arriving in Australia for a period of 21 days.
He confirmed that he arrived in Australia on 20 October 2018 as the holder of a tourist visa valid for three months and which expired on approximately 20 January 2019. When asked when he applied for the student visa in question he said “I don’t recall”. The Tribunal observes that the application for a student visa was made on 25 December 2018 as disclosed in the delegate’s decision record. When asked when the applicant had applied for enrolment in courses of study he said “I don’t remember”. When asked how long he had been in Australia when he applied to be enrolled in courses of study he said “about one half months”.
When asked as to the purpose of travelling to Australia he said “I wanted to explore and upgrade myself”. He did not elaborate. When asked how long he intended to stay in Australia he said “less than three months”. He did not elaborate.
He confirmed that he is not now and has not been employed in Australia.
When asked whether he had any assets India he said “we have 20 acres of land, plots, residential house”. When asked whether these assets were registered in the applicant’s name he said “some under my name”. He did not elaborate. When asked what assets were in his name he said “residential house, 8 acres of land, one plot of land and another plot”.
When asked how many trucks were utilised in his trucking business he said “one big truck”. He did not elaborate. when asked how many employees were in the trucking business he said “one driver”. When asked as to his role in the trucking business he said “I manage the accounts and loading”. When asked how long he had in undertaking that role he said “between 2015 and 2018”.
When asked whether he had been involved in the trucking business prior to 2015 he said “in 2015 I was more aware of the business”. When the question was repeated he said “I used to do but very less”.
When invited to add anything further to his application for review he said “we have been doing agriculture, an ancestral thing, in 2009 started truck business”.
The applicant also provided several documents to the Tribunal in addition to those referred to above. A letter from a course provider dated 20 September 2019 confirming that he had completed a Certificate IV in Leadership and Management between 10 January 2019 and 24 August 2019, a valuation certificate in respect of a residential property located in India, a valuation certificate in respect of agricultural land located in India, a valuation certificate in respect of an “open plot” in India, and a valuation certificate in respect of a “residential open plot” located in India. With the exception of the last valuation certificate, the land is stated to be registered in the applicant’s name solely. The certificate in respect of the “residential open plot” is in respect of a joint ownership with another person. The applicant also provided an “income certificate” dated 16 July 2020 which appears to certify the income derived from real property in the applicant’s name. The applicant also provided bank account statements from an Indian bank in respect of an account in his name. The applicant did not refer to these documents in his evidence at the hearing. Nonetheless the Tribunal has taken them into account and given them appropriate weight.
The applicant’s narrative statement in support of his application for review is in the following terms:
I am writing this letter to support my student visa application (subclass 500) and to ensure that I am genuine student with genuine intention to complete my enrolled studies in Australia.
My name is Mehtabbir Singh and I am a citizen of India. My father owns a transport business and my mother is a homemaker. I have completed Bachelor of Science in 2013 and Master of Arts in Religious Studies with Honours in 2016 from Guru Nanak Dev University. I joined my father’s business during my master’s studies to help him and understand the responsibilities before my father’s retirement. We also have agriculture business that is being taken care by my father.
During my visit to Australia, I noticed that my brother’s transport and logistics business was performing efficiently and growing. My previous studies were not helping me to run our transport business independently and I always had to take my father’s advice and rely on his decisions to ensure there was no loss in business. I realized that it was my lack of business and management skills and knowledge that was stopping me from running business independently and contributing in its growth.
I discussed it with my brother, and he advised to acquire an academic qualification in leadership and management skills that can help me to lead and run our transport business in India efficiently. In my home country, individuals with highly advanced and international qualification are mostly looked for further advice and services. I further discussed it with my father, and he supported me in my decision to study in Australia and assured that till my return he will take care of our transport as well as agriculture business.
Since my arrival to Australia, I have been impressed with the business ideas and leadership and management skills of businessmen. Other than my brother, I have met some international students who were from my village and nearby villages. It was their reviews and my research that helped me to decide to attain highly advanced and globally recognized qualification in Australia. Besides having famous tourist spots, natural habitat, international cuisine and diverse culture, Australia is known for its technology advanced academic qualification. There are international students from different countries who visit Australia every year with dreams to acquire globally recognized academic qualification. Along with studies, student also get opportunity to improve their communication and interpersonal skills and get knowledge about different culture, traditions and cuisines. The natives here in Australia are welcoming. Above all, already being in Australia on visit, helped me to experience all these qualities and to confirm myself that studying in Australia will be better than any other country. Having studied in India, I have not experienced the practical, independent and innovative exposure. India is still developing and requires many changes in terms of making class technology equipped, changing teaching method and not grading students only through exams. Hence, I decided to study in Australia.
I have already completed Certificate IV in Leadership and Management on 24^th August 2019 and currently enrolled in Diploma of Leadership and Management that was about to finish on 2nd August 2020, but unfortunately I got stuck in India now due to COVID-19 and my CoE has been extended until 1st Nov 2020 . Following the completion of Diploma, I will start Advanced Diploma of Leadership and Management. I am studying at Australian Vocational Education & Training Academy (AVETA) in Melbourne. Certificate IV in Leadership & Management has helped me gain knowledge about accepting responsibilities of own performance while leading, guiding and supporting others and organizing and monitoring the work of team.
Diploma and Advanced Diploma of Leadership and Management will elaborate my knowledge, practical skills and experience to independently take initiative and judgment in planning, organising, implementing and monitoring of my own workload and the workload of my team. I will learn to be accountable for my own and teams’ outcomes. I will be able to develop and use my cognitive and communication skills to identify, analyse and synthesize information from different resources essential for business success. The course will help me to be creative and use conceptual skills to come up ideas to respond to complex problems that can have impact on business performance.
I decided to study in AVETA because it has an environment that not only helps the international students to adjust to the study environment but also helps them to understand the requirements of the chosen study and to fulfil these requirements. The institute has courses hospitality, business, English and leadership and management. The institute has Professional and highly qualified teachers, well known reputation, comfortable, friendly campus community and provides students individual guidance and attention. All these things also provide the education friendly environment to learn and gather things quickly and also enhance your personality along with the professional growth. The campus is in the Melbourne CBD which is easily accessible by public transports and has many facilities nearby such as cafes, restaurants, malls & entertainment and library.
After completion of my studies, I will return to my home country India. We have our own heavy goods truck with trailer. With leadership and management skills, I will be able to research and implement new and creative ideas as per the current market on my transport business. With support of my father and good profit, we can buy more truck and hire more employees. In this way, with own profit we can also contribute in India’s economy. India has made many infrastructural changes in past few years and has built national highways that is further giving rise to transport business including trucking industry. With few years of continuous profit, we can also plan to include tyres, lubricants and OES parts of truck with partnership of big suppliers from bigger cities in my city. People and other businesses rely more on truck transport than railway transport because they have more and better access to remote areas. There has also been a rapid growth in e-trucking business in India. I can also launch truck trading website of my own business to introduce a platform of connecting with the seekers who will need delivery services. Being the owner, I will be able to opt for the best deal based on payment rates and load size or load weight. I will definitely be able to triple the profit that we made earlier.
I have been able to confidently write this based on my research skills that I have learned so far from enrolled courses. I am looking forward to complete my enrolled courses within the time period of my confirmation of enrolment.
All my siblings are well settled in their life and away from my parents. My two sisters are settled in Canada and my brother is settled in Australia. My parents are have always supported me till date and I am looking forward to support them the same way. I want to be my parent’s strength in their old age. It is my responsibility to look after our transport and agriculture business in India. Above all, we have many movable and immovable assets in India that needs to be looked after and taken care off. I have always been very attached to my parents and feel being responsible towards them I am aware about student visa condition and I assure to abide by them all the time. I am aware that, I should:
 Maintain eligibility to satisfy the grant of student visa
 Meet course requirement by being enrolled in full time course and maintain course level, course progress and course attendance
 Maintain health insurance
 Work limitation of not engaging in more than 40 hours biweekly
 Inform education provider of change of address.
I am currently in India on Bridging Visa B. Even though I am in India, I have stayed enrolled in my courses and continuing my studies. At the end, I would like to confirm that I am a genuine student with genuine intention to complete my enrolled studies. I would like to request my member to remit my case and give me an opportunity to return and legally study in Australia.

The applicant did not refer to this narrative statement but, in response to a question from the Tribunal, confirmed that he did not want to add or vary this document. Nonetheless the Tribunal has taken the statement into account and given it appropriate weight. The Tribunal observes that the narrative statement confirms that the applicant completed a Bachelor of Science degree and also a Master of Arts in religious studies with honours in India prior to arriving in Australia. He stated in general terms that he has undertaken study in Australia to acquire business and management skills and to conduct the trucking business. However, the Tribunal observes the trucking business comprises one truck and one driver. Utility of the vocational courses in leadership and management is not explained save that he has vague plans to expand the business. The applicant also states in the narrative that he is “stuck in India now due to COVID-19”; he did not state that there were technical or other obstacles to remote study whilst residing in India.
In considering whether the applicant has met the genuine temporary entrant criterion, the Tribunal had regard to the following factors consistent with cl.500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole in reaching a finding about whether he has satisfied the genuine temporary entrant criterion.
The Tribunal has considered the applicant’s circumstances in his home country. The applicant is unmarried and is from India. The applicant has provided evidence of social, direct family and financial ties to his home country or other economic incentives to return. When considering the applicant’s circumstances in his home country, the Tribunal therefore finds that he has been able to demonstrate ties which act as an incentive to return to his home country at the completion of the proposed study. The Tribunal accepts that the applicant may have family ties to India, however given the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to India.
The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 20 October 2018 as a holder of “tourist” visa valid to approximately 20 January 2019. The proposed study would extend the applicant’s stay until at least 17 October 2021. The Tribunal finds that the length of this proposed additional stay creates serious concerns that the applicant is studying for the purposes of staying in Australia. Whilst the Tribunal accepts that plans can change, this is not the conduct of a genuine temporary student. Rather, it suggests the applicant has decided to extend his stay in Australia by utilising the student visa programme.
The Tribunal does not place substantial weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. There are several reasons for this. First, the applicant has completed a Bachelor of Science degree and a Master of Arts in India. It is reasonable to assume that the applicant is intelligent and capable of logical thought and organisation. Secondly, whilst it is said that management skills are required for the conduct of the business, the Tribunal notes that the trucking business comprises one truck and one driver. Further, the applicant has been involved in the business since approximately 2015 following the retirement of his father. It appears that the applicant’s role in the business was that of manager. It is reasonable to expect that the applicant has acquired practical skills necessary to conduct the operations of the business. Thirdly, the applicant has already completed one vocational course in leadership and management in Australia. Lastly, the utility of further leadership and management courses to future conduct of the business was not the subject of significant evidence by the applicant. He made vague reference to a desire to expand the business in the future in his narrative statement. The Tribunal is not convinced that there is significant utility in taking these courses.
The Tribunal has considered the applicant’s study history since arrival and notes that he commenced study within several months of arriving in Australia. He has completed one course in leadership and management since arriving and appears on track to complete the next vocational course in leadership and management soon.
The Tribunal notes that this course plan is inconsistent with the applicant’s academic qualifications obtained India prior to arriving in Australia and is inconsistent with his plans when he initially entered Australia. The applicant now wishes to pursue a further vocational course in leadership and management in Australia. The course is asserted to have relevance to very vague future plans.
The applicant has provided a statement in which he attempts to address the genuine temporary entrant criterion. As discussed above, it has been taken into account.
The Tribunal is not satisfied that the applicant has established that study will provide him with significant benefits in his proposed career plan, considering the cost of the study and the fact that the applicant already has tertiary qualifications obtained in India, experience in conducting the trucking business in India prior to arriving in Australia, and has completed one vocational course in leadership and management and is about to complete the second such course. The Tribunal therefore is not satisfied that the applicant has demonstrated that the proposed additional study has a realistic prospect of providing significant value to his future beyond the qualifications he already holds.
The Tribunal has had regard to whether there are any other relevant matters. The Tribunal notes that the applicant is currently in India. He informed the Tribunal at the hearing that he is currently studying a vocational course in leadership and management notwithstanding that he is not residing in Australia. He has apparently been doing so for several months. He did not state either in oral evidence or in the narrative statement that there are technical or other obstacles to such remote learning. The Tribunal is concerned, having regard to all the circumstances of the case, that the applicant’s desire to return to Australia is motivated by reasons other than continuing study.
The Tribunal has considered all the information provided with the visa application. After weighing up these factors as a whole, the Tribunal finds that the applicant has not been able to satisfy it that the applicant genuinely intends a temporary stay in Australia as a student.
The Tribunal has considered the evidence and has taken into account the applicant’s economic circumstances in his home country relative to his potential circumstances in Australia. Given the disparity in economic circumstances between India and Australia, the Tribunal cannot be satisfied that the applicant has significant incentive to return to India. The Tribunal acknowledges that the applicant has family in India and also owns assets. However, the Tribunal notes that within a few months of arriving as a tourist, the applicant decided to stay in Australia until late 2021 and has only returned to India on one occasion. He now desires to return to Australia, notwithstanding he is remotely studying from India.
The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from his proposed study which will outweigh the significant time and monetary commitment this course will require. Therefore the Tribunal is not satisfied that the applicant has demonstrated the value of his proposed course to his future.
On balance, the Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. Whilst the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant was previously granted a visa specifically to enable him to achieve that goal. The applicant was granted a “tourist” visa which would have facilitated the applicant’s purpose of travelling to Australia. The applicant lodged this application approximately four weeks prior to expiry of the visa. It therefore appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study. The Tribunal has also had regard to whether there is any other relevant matter and finds there to be no other relevant matter to the assessment of the applicant’s intentions to stay in Australia temporarily. The Tribunal has considered all information provided by the applicant in support of his application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in his home country, potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.
On the contrary, the factors indicate that the applicant appears to have enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study and overall academic progress. The applicant appears to be using the student visa programme as a means of maintaining ongoing residence in Australia, and does not have a genuine intention to stay in Australia temporarily.
There is no evidence before the Tribunal regarding the following factors indicated by Direction No.69: economic circumstances of the applicant; any potential military service in India; political or civil unrest circumstances in India; remuneration the applicant could expect to receive in India or a third country compared with Australia; circumstances in India relative to Australia or any other country; and the applicant’s circumstances in India relative to others in that country.
The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time, to utilise lawful means to remain in Australia. Given the amount of time the applicant has now spent in Australia, the Tribunal is concerned the student visa may be used primarily for maintaining ongoing residence.
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.
Peter Booth
Member

Attachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton

Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

[2020] AATA 4453

12 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction