Singh (Migration)

Singh (Migration) [2022] AATA 3313 (29 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Dharminder Singh
Mrs Jasmeet Kaur
REPRESENTATIVE:  Mr Harpal Singh Bajwa (MARN: 0955800)
CASE NUMBER:  2003700
HOME AFFAIRS REFERENCE(S):          BCC2019/6376848
MEMBER:Robert Cumming
DATE:29 August 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.

Statement made on 29 August 2022 at 2:23pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – lengthy stay in Australia – course cancellations for compassionate reasons – family ties in India – family health issues – future employment offer – impact of the COVID19 pandemic – maintaining ongoing residence in Australia – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 359, 499; Direction No 69
Migration Regulations 1994, Schedule 2 cls 500.212, 500.311
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the now Minister for Immigration, Citizenship and Multicultural Affairs on 12 February 2020 to refuse to grant the applicants Student (Temporary) (Class TU) Subclass 500 visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 29 November 2019. At the time of application, Class TU contained 2 subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied the applicant intended genuinely to stay in Australia temporarily.
The applicant appeared by telephone before the Tribunal on 4 November 2021 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic, however the more practical reason for holding the hearing by telephone was that the Tribunal, as constituted, was sitting in Brisbane, and the applicant was resident in Melbourne, Victoria. As such, a remote attendance would have been necessary anyway, even though it is the fact that face-to-face hearings have largely been put on hold because of the pandemic. In any event, the applicant and his representative actively participated in the hearing by telephone, and, when asked at the outset of the hearing, the applicant did indicate that he agreed to and accepted the hearing to be undertaken by telephone. The Tribunal is satisfied, therefore, that the applicant was given a fair opportunity 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 representative, Mr Harpal Singh Bajwa.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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 intends genuinely to stay in Australia temporarily.
Genuine applicant for entry and stay as a student – cl 500.212
Clause 500.212 of the Regulations 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, a copy of which was provided to the applicant in the course of the application process by the Tribunal and another copy of 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 Tribunal has had regard to all the information supplied to the Department with the visa application, which is on the Departmental file provided to the Tribunal, and all the information supplied to the Tribunal by the applicant. In particular, the Tribunal notes the application and supporting documents received by the Tribunal on 26 February 2020, the completed Request for Student Visa Information form (information form) and supporting documents received by the Tribunal on 28 September 2021, the submissions and supporting documents received by the Tribunal on 27 October 2021, the submissions and supporting document received by the Tribunal on the morning of the hearing on 4 November 2021 together with the further submissions and supporting documents received by the Tribunal on 19 November 2021 after the hearing which were supplied in accordance with the leave granted in that regard by the Tribunal at the hearing on 4 November 2021, and the oral evidence and submissions given by and on behalf of the applicant at the hearing.
The Tribunal notes that it has on its file certain information which was not provided by the applicant. These were printouts from the Provider Registration and International Student Management System (PRISMS) and the Departmental Movement Record. The Tribunal notes that the information contained in these printouts was largely to similar effect as the information already supplied to the Tribunal, most notably in the information form completed by the applicant. In any event, out of fairness, the applicant and his representative were sent these printouts prior to the hearing and had them available at hearing and were given time to consider them.
The applicant, on receipt of the printouts prior to the hearing, took the time to make detailed written submissions in relation to those printouts. The applicant also made detailed oral submissions at hearing. Having had regard to the applicant’s submissions (addressing certain entries in the PRISMS record (a couple of cancellations which were largely compassionate in character) and noting the travel that the applicant had undertaken, really leads the Tribunal not to have any significant concerns about the information in those printouts. What did amount to a concern, however, and which was put to the applicant was the pace of the applicant’s academic progress since gaining his Bachelor’s degree in 2017. While this was more a generic concern, it did relate to information regarding enrolments and, to that extent, the Tribunal did put the concern about the particular issue just noted and the applicant took the time to give a detailed explanation which was supported by written submissions. More will be said of this later in this decision.
Based on all the information available to the Tribunal, most notably the material supplied by the applicant, the applicants’ circumstances may be summarised as follows:
(a)The applicant is a 27 year old citizen of India who first arrived in Australia on 6 October 2013 as the holder of a Subclass 573 Student visa.
(b)The applicant has links to his home country in the form of his father, mother and sister. From the family’s premises, the applicant’s father operates a drill machine manufacturing factory employing 8 staff which supplies equipment all over India.
(c)The applicant keeps in regular contact with his family on a daily basis.
(d)The applicant says his family is an upper middle-class family who operate a successful factory business.
(e)While the applicant at this stage does not own any property in his own name in India, it would be expected in the due course of family succession that property would come to him. He also has a brother who is resident in Australia and more will be said of that situation later in this decision.
(f)As a result of the family financial situation, the applicant said he would not have a concern for financial security reasons on returning to India.
(g)In his completed information form, the applicant indicated that he has no concerns with respect to military service commitments or political or civil unrest in the area of India where his family lives.
(h)In Australia, the applicant has his wife whom he married in India on 15 January 2018 during one of his visits to his home country. His wife has business accounting qualifications and is working part-time as a receptionist, of the order of 20 hours per week, earning in the order of $300.00-$400.00 per week.
(i)The applicant also has his brother living in Melbourne, however, that relationship has soured. The applicant says he has little contact with his brother now. His brother arrived in Australia in approximately 2008 and studied here doing Commercial Cookery and Hospitality Management studies.
(j)As far as a social network is concerned, the applicant says he has little social contact in Australia. He has his wife but most contact is online with his old friends in India.
(k)The applicant has worked while he has been in Australia. Between March 2014 and February 2016, he was employed in a housekeeping role at Citadines Hotel. Then he was a cook between March 2016 and March 2020 at Mez Mez Café. With the onset of the COVID-19 pandemic he lost that job, however, in December 2020 he secured a job as a security guard with a business known as The Security Hub. The applicant says he works part-time in that employment, approximately 20 hours per week. The applicant says this is because he also has study commitments that he wishes to fulfill. He earns net approximately $350.00 per week from that employment. It would appear those earnings and the earnings of his wife which can be supplemented, the applicant said in evidence, by funds from his father in India, that the expenses of the applicant as set out in the information form of $28,920.00 per annum can be met from those joint earnings.
(l)As far as the applicant’s education is concerned, he arrived in Australia with only his high school education, the most recent of which is Senior Secondary studies he had completed at DAV College in March 2012. The initial studies the applicant undertook in Australia were towards a Diploma of Information Technology which he duly completed and has supplied the requisite testamur evidencing completion of that course in 2014. The applicant thereafter undertook studies towards a Bachelor of Information Technology degree which again he completed and has again provided to the Tribunal a copy of the relevant testamur from Federation University showing completion of that course on 1 August 2017. The applicant then completed postgraduate studies by way of a Professional Year following those studies undertaking them by way of a placement for some 11 months to the latter part of 2018.
(m)By that stage the applicant had been granted a Subclass 485 Temporary Graduate visa and he sought work based on his professional qualifications. The applicant has indicated this was difficult largely by reason of his lack of leadership skills. As a result he enrolled at the beginning of 2020 in a Diploma of Project Management. For various reasons which will be discussed later in this decision, those studies were not duly completed. However, shortly before hearing in September 2021 the applicant commenced studies towards an Advanced Diploma of Leadership and Management at Nova Institute of Technology and just after hearing the applicant produced a Statement of Attainment from that Registered Training Organization (RTO) evidencing attainment of 2 units of competency towards that course. That course is due for completion in September 2022.
(n)On completion of those studies, the applicant intends to return to his family to live in India. The applicant has provided a job offer from a business Zanetine situated in Amritsar. More will be said of this later in this decision.
(o)Based on the information supplied to the Tribunal by the applicant, and as confirmed by the Movement record, since the applicant’s initial arrival in Australia on 6 October 2013 he has returned on 3 occasions to India. The first occasion was between 21 January 2015 and 3 February 2015, a total of 14 days. He next travelled to India between 20 January 2017 and 5 February 2017, a total of 17 days. Then between 25 December 2017 and 5 February 2018 he returned to India (as noted during which time he married) which was a total of 43 days. Overall, therefore, the applicant has been absent from Australia for a period of 74 days.
(p)In the material the applicant supplied to the Tribunal and in his answers and submissions, the applicant was able to give sufficient evidence of his knowledge of living in Australia and his RTO. More will be said, however, concerning his knowledge of his current course of study.
(q)In relation to previous visas, the applicant has previously been granted 2 Student visas, one Subclass 485 Temporary Graduate visa and 5 Bridging visas (being 3 Bridging visas A and 2 Bridging visas B).
(r)In his completed information form, the applicant stated that, apart from his current visa refusal, he has not otherwise had a visa in any other country (including Australia) refused or cancelled and he has not made an application for any other visa for which he is still awaiting a decision.
(s)The applicant said that he had been complying with his visa conditions.
(t)In his completed information form, the applicant did not declare travel to any other countries apart from Australia and his home country of India.
(u)Apart from dealing with issues of concern and explaining the situation regarding his studies in greater detail and his general statement of intention for his future career, which will be discussed later in this decision, the applicant did not suggest that there were, or give evidence concerning, any other matters which may relate to his genuine temporary entrant status in Australia.
During the hearing, the Tribunal put to the applicant possible concerns it may have in respect to several issues.
In no particular order, the first issue dealt with the combined nature of the applicant’s Movement records and PRISMS records. Although not formally put to him citing s359AA of the Act, the concerns the Tribunal put to the applicant did go to the issue of whether the applicant was a genuine student or whether he was merely maintaining enrolment for the purposes of maintaining residence in Australia. The issue of concern that the Tribunal put to the applicant was that, in effect, since the end of 2017 when the applicant completed his Bachelor of Information Technology, he had not, to the date of hearing, actually completed any further studies. The Tribunal accepted that there were enrolments however in that almost 4 year period since completion of the Bachelor's degree, but no further academic success has been forthcoming for the applicant.
The applicant took the time to give a detailed explanation of that supplemented by the further material he was given leave to provide to the Tribunal after the hearing. The explanation largely was to the effect that in 2018 the applicant was engaged in his Professional Year and then, in 2019, having married not so long before he did wish to have some time for that. Also, this coincided with a visit by the applicant’s parents from India to visit him in Australia. The applicant sought then to acquire employment noting from his work experience to date that a lead or project manager role would be the most fulfilling for him personally and also remuneration wise. However, by reason or the fact that he did not have particular qualifications in that field, the applicant says he struggled to gain that employment. Nevertheless, at the commencement of 2020 having had some advice in that regard, the applicant enrolled in studies leading towards Project Management qualifications. The applicant said that he was then hit by a series of unfortunate events. Firstly, his visa application was refused which had a destabilising effect on his life. Shortly thereafter the COVID-19 pandemic hit and that severely added to his stress. That stress was compounded by concerns for his parents in India and travel between the 2 countries was not possible. Indeed, his parents did contract the COVID-19 virus which added to his stress. Then his wife’s grandmother died from COVID-19 related complications and his father also had another heart attack. This led to a high level of anxiety and depression that the applicant suffered. He sought medical treatment for that and has presented medical certificates verifying that situation. Those certificates have largely been from Dr Ansari at Tarneit Central Medical Centre at Tarneit in Victoria. While the reports are less than comprehensive, they are consistent throughout 2020 and 2019 pointing to a level of anxiety and stress that Dr Ansari confirmed that the applicant was suffering. This resulted in the applicant obtaining compassionate extensions for his studies.
The studies became too much and when the applicant felt that he was capable of returning to study in September 2021 he opted to take a shorter 12 month course which would allow him to complete his studies by September 2022 and then return to India.
The next issue of concern related to the applicant’s reasons for studying in Australia rather than in his home country of India. The applicant highlighted the fact that from his investigations and discussions, he is able to say that Indian graduates in Leadership and Management studies receive approximately half what graduates who have international qualifications receive. He highlighted the fact that the salary he was being offered for the job at Zanetine evidenced that. The applicant also highlighted that the type of study undertaken in Australia was more practically focused and included such matters as having to undertake case studies and work placement and also indeed the ability in Australia to have an internship like he did which would not realistically be possible in India. To obtain employment in India required having the qualifications already, so there was not the scope, the applicant told the Tribunal, for a situation like in Australia for internships or such like employment of candidates with incomplete qualifications.

Another issue of concern was the nature of the job offer that the applicant had received and had presented to the Tribunal. This was for employment commencing in January 2023 a little over 12 months into the future. The concern was how a business could make an employment decision some 12 months in advance of the expected commencement date. That is to say, how could they predict what business conditions would be like and their ability to go ahead with employment at some future time. The applicant said that he had discussed this in some detail with the employer. He had had a series of interviews online and explained his situation concerning the work experience he had, the studies he was undertaking and other skills, knowledge and attitudes he had gained from his studies in Australia. This he said, in the employer’s eyes, made him stand out from the locally qualified candidates, particularly given that international exposure he had by studying in Australia and that he was the sort of employee that the firm wanted but they were content to defer his employment until he had completed his studies in Australia and was able then to return to India.
A related concern to the studies the applicant was undertaking was the description that the applicant gave for the studies. The description he gave did not seem to match the course outline as disclosed on the RTOs website for that particular course. The applicant indicated he had been undertaking some study already in subjects he said related to management of people’s performance and management of risk. Subjects named to that effect do not appear in the course outline. The applicant did not really explain the difference and so it was that the Tribunal, out of fairness, considered that he should be given the opportunity to explain that difference as there seemed to be a talking at cross-purposes between the Tribunal and the applicant as to his current course of studies. With the leave of the Tribunal, the applicant subsequently provided information which did coincide with the course outline as published by the RTO and provided evidence of attainment by the applicant of 2 competencies as provided by the RTO.
As stated above, the key issue the Tribunal has to decide in this case is whether the applicant intends genuinely to stay in Australia temporarily. On that issue, the considerations set out in cl 500.212(a) of Schedule 2 to the Regulations govern the matters the Tribunal needs to consider.
In assessing whether an applicant meets the genuine temporary entrant criterion, the Tribunal must have regard to Direction No.69. As also noted above, that Direction is not to be used as a checklist, but rather is intended to guide decision makers in considering the applicant’s circumstances as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
In adopting that process in this case, and having considered all the factors in the Direction, on the basis of which the Tribunal has made certain findings which are about to be set out, the Tribunal finds that some of those factors and the findings based on those factors are not of such significance, importance or materiality to its decision so as to tip the balance away from the view the Tribunal has taken of the applicant’s circumstances. This is not to suggest that those factors and the findings based on those factors have been overlooked. Rather, the Tribunal, in considering its decision, has found these factors and findings of lesser weight in balancing all the factors and findings and coming to its decision overall on the merits of the review application.
Having had regard to the applicant’s evidence and submissions, including oral and written submissions on hisr behalf by his representative, Mr Bajwa, and the applicant’s responses to the possible concerns raised by the Tribunal, which have been discussed above, and giving consideration to all the factors specified in Direction No.69, the Tribunal makes the following findings:
(a)The Tribunal notes that the applicant initially came to Australia for Information Technology studies. Between 2014 and 2017 he duly completed a Diploma of Information Technology followed by a Bachelor of Information Technology. In 2018 through the auspices of the Australia Computer Society he completed his Professional Year. He then had some down time and then, as has been referred to earlier in this decision, he suffered stress and his attempts at study in 2020 and early 2021 were not successful. He has now set upon a course of study for approximately 12 months to gain qualifications by way of an Advanced Diploma of Leadership and Management. The issue is whether he could be undertaking those studies in India rather than Australia. The applicant pointed to the salary differential in his favour if he obtained his qualifications in Australia rather than in India. He suggested in evidence that his earnings would be approximately double locally qualified candidates. He also pointed to the difference in tuition methods with Australian learning being based more on practical case studies and work placements rather than more theoretical offerings were he to study in India. To a large extent, of course, this evidence was self-serving, and no actual independent evidence was led to corroborate those submissions.
(b)In the absence of that independent evidence, it is difficult for the Tribunal to accept the reasons given by the applicant for not studying in India. At worst, the Tribunal’s view would be that the applicant has not satisfactorily explained why he was studying in Australia rather than India. At best, the Tribunal would take a neutral view of the explanation given by the applicant.
(c)Overall, in this instance, there are factors which may not be regarded as being adverse to the applicant. There is the applicant’s demonstrated successful progress in his studies in Australia between 2014 and 2018. There is then the downtime when the applicant was the holder of a Subclass 485 Temporary Graduate visa which does not actually require study and the attempts thereafter by the applicant to study for which he has provided medical evidence as to stress factors preventing him successfully pursuing studies at that time. The applicant has now returned to study and has demonstrated completion of 2 competencies in his course over the first 2 months duration of those studies. Moreover, while the applicant’s evidence is largely self-serving and uncorroborated, nevertheless it is not countered by any substantial contrary evidence or concerning conduct by the applicant. This then is a matter where the Tribunal will not make an adverse finding against the applicant on this particular ground but instead view this in a neutral fashion as to the applicant’s ability to provide reasonable reasons for studying in Australia rather than in his home country of India.
(d)The applicant has links to his home country in the form of his parents and his sister. He is in regular daily contact with his family. He also says that he has a wider circle of friends in India with whom he maintains online connections. The applicant has had 3 trips home and also received a visit from his parents in Australia. The applicant was very keen to be able to travel to India, and indeed he obtained a Bridging visa class B, but the COVID-19 pandemic prevented that. The Tribunal acknowledges that the COVID-19 pandemic has constrained travel in 2020 and 2021. There is also the situation that an examination of the applicant’s PRISMS records show that he has been largely consistently studying although in 2020 and 2021 this was not successful, however, he obtained compassionate extensions for those studies based on medical evidence. In addition, there is no evidence of any extensive social network that the applicant has in Australia. There is close family contact in the form of his brother, but the applicant says that he has little contact with his brother now.
(e)The applicant has expressed an intention to return to India and his representative in submissions pointed to the fact that the applicant had pursued a study regime which did not really set himself up for permanent residence as many other students do, for instance, by undertaking Cookery and Hospitality Management studies. While intentions may change, it would seem that, at the time of decision, there is no evidence to suggest that the applicant has any intention to seek visas which would lead to his stay in Australia being anything other than temporary. The applicant has progressed reasonably satisfactorily academically and has explained periods of downtime or lack of academic success leading to deferment of studies on compassionate grounds. There is also the evidence that the applicant considers his studies in Australia as noted previously will enhance his earning abilities in India and he has the advantage of returning to live in India where he has family support and will not be required to pay rent as he would have to do in Australia.
(f)All this leads the Tribunal to find that the conduct of the applicant at this stage is not inconsistent with his stated intention of returning to India and, accordingly, the Tribunal therefore finds that the extent of the applicant’s personal ties to his home country would serve as a significant incentive for him to return to his home country.
(g)As to economic circumstances in the applicant’s home country, the Tribunal notes that the applicant comes from a well to do business owning family who can support him on return to India. Accordingly, the Tribunal considers the economic circumstances of the applicant in his home country, India, would not present a significant incentive for him not to return to his home country.
(h)There is no evidence of any requirements for military service commitments affecting the applicant which would present a significant incentive for him not to return to his home country.
(i)There is no evidence of any circumstances of political or civil unrest in the area of India where the applicant’s family are located which would present a significant incentive for him not to return to India.
(j)In considering the applicant’s circumstances in his home country relative to the circumstances of others in that country, the Tribunal finds that the applicant comes from an upper middle class business owning family, but otherwise does not make any findings in that regard which are other than entirely neutral towards the applicant.
(k)The applicant has ties in Australia being his wife and his studies and work. The applicant has a limited social network, but he and his wife are both working and seem able to cover their expenses of living, studying and working in Australia reasonably well. If indeed that becomes a problem, the applicant has financial support available from his father in India. The question is whether these outdo the links the applicant has to India, a detailed consideration of which has already been undertaken in this decision. While reasonable minds may differ, in weighing up the evidence both for and against the applicant in respect of this particular criterion, the Tribunal does not consider the evidence points to the applicant being a person who is using his visa to circumvent the intentions of the migration program.
(l)For similar reasons, the Tribunal finds that the conduct of the applicant at this stage is not that of a person who is using his Student visa to maintain ongoing residence.
(m)As the applicant, by marrying the secondary applicant in India, does not thereby gain any advantage in an Australian citizenship sense, the Tribunal finds that the applicant has not contrived to enter into a relationship for a successful Student visa outcome.
(n)As to the applicant’s level of knowledge of living in Australia, his intended course of study at his associated education provider, the Tribunal is satisfied with the evidence in respect of the knowledge of living in Australia and the associated education provider by reason of the evidence given at hearing but as has been noted already in this decision, there was some concern about the applicant’s level of knowledge of his course of study. The supplementary material that the applicant provided is sufficient in this instance, the Tribunal considers, to satisfy it that the applicant has demonstrated sufficient knowledge of his course of study.
(o)As to the applicant’s current undertaking of Leadership and Management studies, it is noted that he arrived in Australia with secondary school qualifications only and then built on that by gaining, firstly, a Diploma and then a Bachelor of Information Technology. In his oral and written submissions, the applicant give a detailed account of how his experience in the workforce in Australia led him to the conclusion that obtaining Leadership and Management qualifications or indeed Project Management qualifications was the key to him obtaining higher levels of employment and managerial roles. He attempted to undertake Project Management studies but for the reasons already set out in this decision, stress prevented him from completing his studies. He has now returned to study and is doing a 12 month course only so that he can get his qualifications and then return to India as he said in evidence. While his current level of studies is at a lower level than the Bachelor’s level he has already obtained, it is in a different subject matter area and the applicant was able to establish that he had not studied that subject matter in his previous courses. The studies the applicant is undertaking he says will fit him for a management role and he presents the evidence of the job offer he has obtained from Zanetine as an IT Manager as evidence of the value of his studies. Overall, for all those reasons, the Tribunal considers that the studies the applicant is now undertaking would assist the applicant obtaining employment or improve his employment prospects in his home country.
(p)For similar reasons, as the applicant intends to work in a leadership role, the Tribunal considers the studies the applicant is undertaking are relevant to that future employment in the applicant’s home country.
(q)As to remuneration, the applicant gave the evidence of his earnings on his employment contract which show they are perhaps equivalent to what he would be earning currently in Australia. The applicant points to the different cost of living and the reduced living expenses that offset that particular situation and earning differential. Overall, this is a factor in which the Tribunal is prepared to make a neutral finding rather than a negative finding towards the applicant as to this particular criterion.
(r)At the date of hearing, the applicant had been in Australia for a period of 8 years 32 days during which time the applicant had been absent from Australia for a total period of 74 days. Were the applicant to remain in Australia, just counting that time to the last day of the applicant’s currently enrolled course as per the Confirmation of Enrolment (CoE), namely 26 September 2022, the applicant will have been in Australia for a period of 8 years 358 days.
(s)As for previous visa applications of the applicant, but for the current visa application under review, the applicant has successfully been granted 2 prior Student visas, one Subclass 485 Temporary Graduate visa, 3 Bridging visas class A and 2 Bridging visas class B. There is no evidence that any other visas the applicant has applied for in any country (including Australia) have been cancelled or that any other visas he has applied for in any country (including Australia) apart from the current visa under review have been refused. There is no evidence to suggest that the applicant is awaiting an outcome of a visa application for another class of visa for which he has applied and a decision has not yet been made.
(t)As to compliance with visa conditions, similarly, there is no evidence before the Tribunal to suggest that the applicant has failed to comply with his visa conditions.
(u)There is no evidence that the applicant has travelled to any other countries apart from Australia and his home country of India which makes it unnecessary for the Tribunal to consider whether the applicant has complied with the migration laws of any other countries.
(v)As noted, were the applicant to remain in Australia just to the completion of his currently enrolled studies, counting that to the last day of the course as per the CoE, he will have been in Australia for a period of 8 years 358 days. This is in circumstances where the Tribunal has carefully considered the conduct of the applicant. By and large, the applicant has maintained satisfactory academic progress. He has provided evidence which the Tribunal accepts, explains his lack of academic success in 2020 and 2021 but it appears he has now resumed studies and is progressing satisfactorily. A number of his academic cancellations were for compassionate or compelling reasons. Overall, therefore, and while reasonable minds may differ, the Tribunal is not prepared to find that the applicant’s conduct at this time amounts to that of someone who is not genuinely studying and then has an intention to leave Australia to return to his home country. Weighing up that evidence, the Tribunal is not prepared to find that the conduct of the applicant is of someone who is using his Student visa primarily for the maintenance of ongoing residence in Australia.
(w)As there is no secondary applicant who is an infant, it becomes unnecessary for the Tribunal to consider the intentions of a parent, legal guardian or spouse of an infant applicant.
(x)There are no other relevant matters that bear upon the conduct of the review as to the applicant’s status as a genuine temporary entrant.
Balancing all of these findings, the Tribunal considers the weight of the evidence points more to those factors and findings which are in favour of the applicant’s case rather than those factors which are negative or neutral to his case. In weighing up all of the evidence, the Tribunal considers it can be satisfied that the balance tips in favour of the applicant and, while reasonable minds may differ, in carefully looking at the evidence, the Tribunal is not prepared to find that the conduct of the applicant is that of a person who is using his Student visa to maintain residence in Australia.
Having had regard to all matters, including the Direction No.69 requirements, to which regard is required, the Tribunal is satisfied the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).
Noting the findings in paragraph 26(t) and (x) above, the Tribunal is satisfied that the applicant meets cl 500.212(b) and (c) of the Regulations.
Conclusion on cl.500.212
The Tribunal is 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 appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
Secondary applicant
The secondary applicant’s visa application is dependent on the success or otherwise of the applicant’s visa application. In particular, cl.500.311 of Schedule 2 to the Regulations requires that the secondary applicant, namely the applicant’s wife Jasmeet Kaur, is to be a member of the family unit of a person who satisfies, or has satisfied, the primary criteria for a Student visa.
It follows that because the applicant has been found to meet the criteria for the grant of a Student visa, the secondary applicant meets the secondary criteria for the grant of a Subclass 500 (Student) visa and the matter ought to be remitted to the Minister for reconsideration.
DECISION

The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.212 of Schedule 2 to the Regulations.
Robert Cumming
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 3313

29 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Remedies

Statutory Construction