Tripathee (Migration)

Tripathee (Migration) [2023] AATA 3838 (16 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Manisha Tripathee
CASE NUMBER:  2205911
HOME AFFAIRS REFERENCE(S):          BCC2022/1930
MEMBER:Frank Russo
DATE:16 October 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 16 October 2023 at 11:05am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No 69 – future career plans – presence of fiancé in Australia – no plans to return to home country – value of the course – immigration history – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 April 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 8 February 2022. 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 applicant is a 27-year-old Nepalese national. The Student visa under review was made in respect of the applicant’s enrolments in a Certificate IV in Hospitality Management and a Diploma of Hospitality Management.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.
The applicant appeared before the Tribunal by telephone on 9 October 2023 to give evidence and present arguments.
The applicant was assisted in relation to the review, although her representative did not attend the hearing.
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 applicant for entry and stay as a student.
In addition to her application for review, on 14 August 2023 the applicant provided the Tribunal with a response to an invitation to provide information under s.359(2) of the Act, including the following documents:
a.An undated genuine temporary entrant (GTE) statement;
b.Nepalese bank account details;
c.Letter of enrolment issued by Skyline International College (Skyline), dated 2 August 2023; and
d.Record of Results for the Certificate IV in Commercial Cookery, issued by Skyline on 11 January 2023.
The applicant also provided a response to the hearing invitation,
The Tribunal has had regard to these documents. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file, which include the applicant’s Nepalese passport, overseas student health insurance and an undated GTE statement.
The Tribunal notes that the applicant did not provide a copy of the delegate’s reasons for decision, however the Tribunal confirms that it does not rely on any of the information contained in the delegate’s decision in making its findings.
The Tribunal also notes for the sake of clarity that it has on file a copy of the applicant’s enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal does not however rely on the information contained within this document as it is consistent with the evidence the applicant provided at the hearing and in the written documents she provided to the Tribunal. The Tribunal confirms that it makes no adverse findings on the basis of the information in this document.
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, who is a Nepalese national, first arrived in Australia in December 2021, holding a dependant 485 visa, for which her then husband was the primary visa holder. In her GTE statement to the Department, she stated that she divorced her husband as things were not going well between them.
At the hearing, the applicant gave evidence that she decided to start studying when her 485 visa was cancelled in March 2022 due to the ending of her relationship. She confirmed that since commencing her studies, she has completed the Certificate III in Commercial Cookery and is currently enrolled in the Diploma of Hospitality Management, which is due to end on 24 March 2024. She stated that she would be attending her first class in the Diploma course on the day of the hearing.
When questioned about her plans after she completes the Diploma of Hospitality Management, the applicant initially stated that she will return to her home country. She then stated that she is engaged to a man from Pakistan, who is an Australian permanent resident. She stated that they will marry in Australia, and after some time she will return to her home country, though she has no plans for when she will do this. When questioned further, she stated that she is currently pregnant, and she will make plans after she has given birth to her child. She had planned to return to Nepal and to go to Pakistan for six months but has held off on these plans.
When questioned about her future career plans, the applicant stated that as she is studying Commercial Cookery, she would like to work in a restaurant, and that her family has told her they will assist her to open a restaurant in Parramatta or Granville. When questioned who she meant by ‘family’, she referred to her fiancé and again stated that she intends to marry him. When questioned if she has plans for how she will start the business, she stated that her plan is to go to see her parents, who will send her money from Nepal.
As to how the proposed course of study will assist her with her career plans, the applicant stated that she is studying Cookery and has done a three-month placement. She intends to get some experience in the field as she already has the Certificate III in Commercial Cookery.
The Tribunal noted that in July 2023 it had invited the applicant to provide information about her courses or study and her stay in Australia as a student, and that while she had provided some documents in response, including a GTE statement, she did not appear to have provided a completed ‘Request for Student Visa Information’ form as requested. The applicant stated that she was not aware of this form. The Tribunal indicated that it would ask her questions about her circumstances, which might otherwise have been provided in the form.
As to her employment, the applicant stated that she has not been working for the past six to seven months, and that she is bring supported financially by her parents. Prior to that she worked as a cleaner for about six to seven months, and before that, in the laundry of an aged care facility. In the laundry she earned $39 per hour and worked six-hour shifts. As a cleaner she earned about $30 per hour and worked four-to-eight-hour shifts.
The applicant gave evidence that she is engaged to Haroon Shukat, who is an international weightlifter. She gave evidence that she currently lives with him. She was unsure of how long he has been in Australia but stated it may be six to seven years. They met about one-and-a-half years ago, when she started studying, and they were engaged about three to four months prior to the hearing. She stated that he currently works in construction and as a trainer. She stated that she does not know what he earns.
The applicant gave evidence that her family in Nepal includes her parents and a brother. She has no property or assets in her own name, however her family has a house, some farming land, as well as a property which is used as a venue for wedding parties, and which her family runs as a business.
The applicant gave evidence that she worked as a beautician in Nepal and ran her own parlour, which she sold when she became a journalist. She completed a Bachelor of Journalism and Social Work in Nepal, and then worked as a manager for an internet news company, which included writing news stories. She earned approximately 40,000 to 50,000 Nepalese Rupees per month in her media role, which she stated is approximately AUD $500 to $600 per month.
The applicant stated that she has lots of cousins in Melbourne and Newcastle, though she has not met them until now. She has a ‘sister cousin’ who lives in Parramatta. She has no assets in Australia. When asked why she had chosen to Study at Skyline, she stated that the college is good with Cookery and her sister cousin had recommended it to her.
The applicant confirmed that there are no civil or political issues which would prevent her from returning to Nepal. She has not departed Australia since first arriving here, though she stated that she currently cannot travel due to the conditions of her Bridging visa.
The applicant gave evidence that she has always complied with the conditions of her visas. Her dependant 485 visa was cancelled in March 2022 as a result of the ending of her marriage. She stated that she has not had any visa applications refused, other than the Student visa application under review. She has not travelled to any other countries besides Australia.
The Tribunal raised a number of potential concerns with the applicant and gave her an opportunity to comment or respond to each concern as a matter of procedural fairness. The Tribunal put to the applicant that the presence of her fiancé, who is a permanent resident, may act as a strong incentive to remain in Australia. The Tribunal put to the applicant that his stay in Australia is independent of the outcome of her application for the Student visa, and he holds a different nationality from the applicant, which may act as incentives for the two of them to remain in Australia, rather than relocate to one of their home countries, particularly given her fiancé’s permanent residency. The applicant responded that her family accept her fiancé, and that one of the languages he speaks is Hindi, so she can understand him. She stated that after she gives birth to their child, she can return to Nepal ‘for some time’.
The Tribunal also put to the applicant concerns that she does not appear to have plans to return to Nepal, other than for an extended visit. The Tribunal put to her that in her evidence, she stated it had been her plan to return to Nepal and go to Pakistan for six months. In addition, when she gave evidence of her plans to open a restaurant, she stated that it would be in Parramatta or Granville, rather than giving any evidence of an intention to start a business in Nepal. The Tribunal put to the applicant that her evidence suggests she has established plans to live in Australia on an ongoing basis. The applicant responded that she and her fiancé did not have plans until now, and they are thinking of opening a business. She stated that they could open a business in Nepal, Pakistan or Australia, and that they have discussed plans to open businesses in all three countries. The Tribunal put to the applicant that this may suggest that she does not have strong plans in place for her future. The applicant confirmed this was the case and stated that they do not have fixed plans. She stated that they will make their plans after their child is born and they are ‘just thinking’ at this stage.
The Tribunal also put to the applicant that it may not be satisfied that the proposed course of study will be of value to the applicant’s future, given she has a Bachelor of Journalism and Social Work from Nepal, which is a higher qualification than the vocational course in which she is currently enrolled, and that she has previously worked in the media sector in Nepal, and may have enrolled in the courses of study to extend her stay in Australia, rather than because of a genuine interest in completing the courses of study and progressing academically. The applicant responded that in Nepal, many people study Journalism and Social Work. She stated that she always had a passion to study Cookery and was interested in this subject when she came to Australia.
The Tribunal questioned the applicant as to whether she has done any research into the remuneration she can receive in Nepal with the qualifications from her proposed courses of study. The applicant responded that her ‘sister cousin’ in Nepal has a restaurant and earns good money, though she cannot ask her how much she earns as this is a personal matter. The Tribunal put to the applicant that her response indicates that she has not done any research into the remuneration she could receive in her home country or into the opportunities that may be available. The applicant responded that she had done a lot of research, but then proceeded to give general responses which did not demonstrate such research. She stated that you can earn a lot of money from restaurants as people eat a lot of food, and that the profits are good. The Tribunal put to the applicant that her response was very vague and general. The applicant then stated that chefs in four-star hotels can earn 90,000 Nepalese Rupees per month.
The Tribunal put to the applicant that her immigration history may indicate that she has enrolled in her proposed courses of study to maintain ongoing residence in Australia. The applicant responded that when she came to Australia, it was for the purpose of working out things with her then-husband, and that she did not want to divorce, however her then-husband would not accept her calls and was very rude to her. Her sister cousin was already in Sydney and told her that there are good opportunities here and she could study. She stated that she wanted to give herself a bright future. She has wanted to cook since her childhood, and she intends to do something in her home country.
As to any other relevant matters, the applicant stated that she wishes to study, and that when everything is ‘fine’, she will return to her home country. She stated that she has cousins who have hotels in Nepal, and they may help her with her career in Nepal.
Findings regarding the factors in Direction No. 69
Having considered the applicant’s claims against all the factors specified in Direction No. 69, and taking into account all the relevant information, the Tribunal is not satisfied that the applicant meets the genuine temporary entrant criterion. This finding is based on adverse findings in relation to several of the factors in Direction No. 69.
The applicant’s circumstances in her home country
I accept that the applicant’s personal ties to Nepal include the presence there of her parents, brother and extended family. I also accept that the applicant’s evidence that her family has property in their names, including a house, land used as a business and farming land. The applicant has also provided evidence of funds in a Nepalese bank account. I accept that the applicant completed a Bachelor of Journalism and Social Work in Nepal and worked in the media sector in Nepal for four years, earning 40,000 to 50,000 Nepalese Rupees per month. I accept that prior to this she worked as a beautician and had her own salon.
While I accept the applicant’s evidence of her personal ties to her home country, both in the form of family and community ties and the property ownership and assets of her parents, and accept that these may serve as an incentive for the applicant to return to her home country, I have concerns with the applicant’s oral evidence at the hearing, which strongly indicates that she does not have a concrete plan to return to Nepal to live after she completes her studies, but rather is contemplating returning to Nepal and visiting Pakistan only for a period of approximately six months.
When questioned about her future plans, the applicant stated that she will marry her fiancé in Australia, and that after some time she will return to her home country, though she has no plans for when she will do this. While the Tribunal appreciates that the applicant gave evidence that she is currently pregnant and therefore wishes to defer making any decisions until after the birth of her child, it is concerned that the applicant has only vague plans for returning to her home country, including vague and generic plans regarding opening a business in Nepal, Pakistan or Australia. When the Tribunal put this concern to the applicant, she responded that she and her fiancé have discussed plans to open restaurants in all three countries, but then confirmed that they do not have fixed plans to open a business and that they are ‘just thinking’ of options and will not make any plans until after their birth of their child.
I have considered the applicant’s statement in her GTE statement to the Tribunal, provided in August 2023, in which she states that she intends to return to Nepal to open a catering business or restaurant which showcases Nepal’s cuisine. I have also considered her GTE statement to the Department, provided in February 2022, in which she states that she wishes to have a career centred on the hospitality industry, and again states that she wishes to have her own catering service or her own restaurant. However, I give greater weight to the applicant’s oral evidence at the hearing, given it is a more current representation of her intentions. Overall, while the I accept that the applicant has personal ties to Nepal which would present some incentive for her to return to her home country, given the vagueness of the applicant’s stated plans to return there, including a potential plan to return for only six months, I am not satisfied that these ties would act as a significant incentive for the applicant to return to her home country and I give them only some weight in weighing up the applicant’s circumstances as a whole.

I make no adverse findings regarding the applicant’s economic circumstances or whether they would present as a significant incentive for the applicant not to return to her home country. I note the applicant’s evidence that she has not worked for the past six to seven months, which I accept. She claims that she is currently being supported by her family in Nepal. The applicant gave oral evidence about her previous employment and salary, which on its face the Tribunal does not consider to be a significant incentive for the applicant not to return to her home country. There is no evidence that the applicant has been building a career in Australia. I have also taken into account the applicant’s evidence of her parents’ property ownership and assets in Nepal. I make no adverse findings about this factor.
I accept the applicant’s reasons for not undertaking the proposed study in her home country, as set out in her GTE statement to the Department. These include the education facilities and learning prospects in Australia, compared to those in Nepal. In her GTE statement to the Tribunal, the applicant also notes the practical training available in her chosen course in Australia and her desire to obtain an internationally recognised qualification.
There is no evidence of any military service requirements which would present as a significant incentive for the applicant not to return to her home country. The applicant gave evidence that there are no civil or political issues which would act as an incentive for her to remain in Australia, and I accept this. There is no adverse evidence before the Tribunal regarding the applicant's circumstances in Nepal, relative to others in that country, and the Tribunal makes no adverse findings in relation to these factors.
The applicant’s potential circumstances in Australia
The applicant first arrived in Australia in December 2021, holding a dependant 485 visa. She gave evidence at the hearing that she arrived to be with her then-husband, however their relationship soon broke down. I accept that this was the case. The applicant told the Tribunal that her cousin suggested to her that she could study in Australia and take the opportunity to improve her career. She enrolled in a Certificate IV in Commercial Cookery, which she completed in August 2023, and is enrolled in a Diploma of Hospitality Management which commenced on 25 September 2023 and is due to end on 24 March 2023. She gave evidence that she was about to commence her studies in the Diploma of Hospitality Management on the day of the hearing.
I give weight to the applicant’s progress with her proposed courses of study and her completion of the Certificate IV in Commercial Cookery. I find that on this occasion there is insufficient evidence to indicate that the applicant applied for the Student visa with the intention of maintaining ongoing residence or to circumvent the intentions of the migration programme.
However, I have concerns that at present the applicant has ties with Australia which would present as a significant incentive to remain in Australia after she completes her proposed courses of study. In particular, the applicant gave evidence that she is currently engaged to an Australian permanent resident with whom she lives, that she intends to marry him and that she is pregnant. I note that the applicant’s partner’s stay in Australia is independent of the outcome of the applicant’s Student visa application, and that her partner is from a different home country, namely Pakistan. I consider that these facts may increase the incentive for the applicant to remain in Australia. I have considered the applicant’s evidence that she and her partner both speak Hindi, and can therefore communicate with each other, and that her parents support their relationship, but nevertheless consider the different languages spoken in Pakistan and Nepal may be an incentive for the applicant and her partner to remain in Australia, particularly with the expected birth of their child and the applicant’s partner holding Australian permanent residency.
I also note that at the hearing, when first questioned about her future career plans, the applicant stated that she would like to work in a restaurant and that her family will assist her to open a restaurant in Parramatta or Granville. While the applicant later altered this evidence, in response to a concern raised by the Tribunal, I give weight to the applicant’s initial evidence about her intention to open a restaurant in Australia, given the spontaneous nature of her evidence in this regard, as well as the specific mention of the Sydney suburbs where she would open such a restaurant. I find that while the applicant has, on her evidence, not worked in Australia for six to seven months, that she has plans to start a restaurant business in Australia with the support of her fiancé and family in Nepal. While I have considered the applicant’s claim that she and her fiancé will not make any decisions for the future until after the birth of their child, I find that the applicant has ties with Australia which would present as a strong incentive to remain in Australia, including the presence of her partner and her stated intention to marry him, her pregnancy, as well as her stated plans to open a business in Western Sydney.
For the purposes of this decision only, I find that there is nothing to indicate that the applicant has entered into a relationship of concern for a successful Student visa outcome. I note the applicant’s evidence that her fiancé is not a Student visa holder and holds permanent residency.
Given the length of time the applicant has remained in Australia, I make no adverse findings regarding her knowledge of living in Australia. Given her successful completion of the Certificate IV in Commercial Cookery, I accept that she has a realistic level of knowledge about her intended courses of study and her education provider.
Value of the course to the applicant’s future
The applicant claims that the Certificate IV in Commercial Cookery and the Diploma of Hospitality Management will be of value to her in opening a catering business or restaurant in Nepal. I accept that these courses of study are relevant to such plans, and also accept the applicant’s evidence as set out in her GTE statements, that she has always had an interest in cooking. There is no evidence that the applicant has previously worked in the hospitality sector or has any experience relevant to her proposed courses of study.
I have concerns that the applicant has a Bachelor of Journalism and Social Work from Nepal, and on the basis of her oral evidence, she worked as a manager in a media company for four years, earning a salary of 40,000 to 50,000 Nepalese Rupees per month, which she stated is approximately AUD $500 to $600 per month. While I accept that qualifications in Commercial Cookery and Hospitality Management may broaden the applicant’s opportunities to obtain employment within the hospitality sector, I have concerns that she has a higher qualification from Nepal and has worked in the field of her existing qualification, and thus her proposed qualifications may only improve her employment prospects marginally over and above her existing qualification and work experience.
I also note that in her GTE statement to the Department, the applicant states that the average monthly salary of a chef is around 52,000 Nepalese Rupees, which is barely above her stated salary as a media manager up until 2021. I note the applicant’s oral evidence that chefs in four-star hotels can earn 90,000 Nepalese Rupees per month, however I find that at the hearing her evidence regarding her research into the employment and remuneration opportunities available to her in Nepal was of a general nature and demonstrated little, if any, research. In response to this concern, the applicant stated that people can earn a lot of money from restaurants as people eat a lot of food, and that the profits are good, which I find to be equally vague and general.
While I note that decision makers should allow for reasonable changes to career or study pathways, given the lack of convincing evidence of research into employment and remuneration opportunities in Nepal, and the applicant’s oral evidence regarding opening a restaurant in Parramatta or Granville, I have concerns that the applicant is not undertaking the courses of study because of the value they will provide in improving her employment or business prospects in her home country, but with a view to establishing a business in Australia. Overall, I am not satisfied with the value of the proposed courses of study to the applicant’s future in her home country and have concerns that the applicant may be undertaking her proposed courses of study with a view to maintaining ongoing residence in Australia, rather than for her stated reasons.
The applicant’s immigration history
As noted above, the applicant first arrived in Australia in December 2021, holding a dependant 485 visa. She applied for the Student visa under review in February 2022, following the breakdown of her marriage. Since that time, she has successfully completed a Certificate IV in Commercial Cookery and told the Tribunal that she would be attending her first class in the Diploma of Hospitality Management on the day of the hearing. If the Student visa were granted, it would extend her stay in Australia at least until March 2024. This would bring the applicant’s stay in Australia to approximately two years and three months. I do not consider this a lengthy period of time and note the applicant’s successful completion of the Certificate IV in Commercial Cookery and her evidence that she is proceeding with the Diploma of Hospitality Management. There is nothing to indicate that she has undertaken a series of short, inexpensive courses to maintain ongoing residence, or that she has been onshore for some time without successfully completing a qualification.
I make no adverse findings regarding the applicant’s immigration history as a whole, which includes her visa and travel history. There is nothing before the Tribunal to suggest that the applicant has not complied with the conditions of her visas. There is nothing to suggest that the applicant has applied for other visas which are yet to be determined and there is nothing adverse in the applicant’s ICSE records, and I make no adverse findings in this regard. There is nothing to suggest that the applicant has had other visa applications refused, other than the Student visa application under review. While the applicant’s dependant 485 visa was cancelled in March, I accept that this was due to the ending of her marriage. There is no evidence to indicate that the 485 visa was cancelled due to a breach of visa conditions, and I would otherwise accept on the basis of her evidence that the circumstances of the breakdown of her marriage were beyond her control. I make no adverse findings regarding this factor. There is also nothing to indicate that the applicant has an adverse visa history to other countries.
Any other relevant matters and conclusion regarding findings
The Tribunal has also given regard to whether there are any other relevant matters and finds there are no other relevant matters to the assessment of the applicant's intentions to stay in Australia temporarily in addition to the matters covered above. The Tribunal has considered all the information provided by the applicant in support of the application.
Overall, the Tribunal found the applicant to be a truthful witness, who gave her evidence in a spontaneous manner. 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. While the Tribunal has given weight to the applicant’s progress with her courses of study since commencing her studies in Australia, including the completion of the Certificate IV in Commercial Cookery, it has concerns that the applicant’s circumstances and her oral evidence indicate that she intends to remain in Australia on an ongoing basis after completing her proposed courses of study.
For the reasons set out above, the Tribunal has concerns regarding several factors set out in Direction No. 69, including the applicant’s potential circumstances in Australia and the value of the proposed courses of study to her future. After weighing up the applicant’s circumstances as a whole, I am not satisfied that the applicant intends genuinely to stay in Australia temporarily.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Frank Russo
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.

[2023] AATA 3838

16 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction