Tshering (Migration)

[2020] AATA 6157

Tshering (Migration) [2020] AATA 6157 (7 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gado Tshering

CASE NUMBER:  1920135

HOME AFFAIRS REFERENCE(S):          BCC2019/2538407

MEMBER:Peter Booth

DATE:7 September 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 07 September 2020 at 12:53pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – relevance of communication studies to teaching career or support for a monastery – employer granted extra leave for studies – arrival on a tourist visa – maintaining ongoing residence in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 July 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 May 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was not a genuine temporary entrant.

4. The applicant appeared before the Tribunal by telephone on 31 July 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter.

5. The applicant was assisted in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary entrant.

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

8. 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?

9. 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.

10. 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.

11. The applicant gave evidence at the hearing, the substance of which was as follows. The applicant had read the delegate’s decision dated 4 July 2019 refusing his application for a student visa. The applicant understood that the issue for determination was whether he was a genuine temporary entrant.

12. The applicant said that he is currently enrolled in a “degree in communication.” When asked to provide the names of the courses and the start and finish dates he said “Diploma in Marketing and Communication, Certificate IV, May 14 2020, I am going to school.” The applicant had also, prior to the hearing, provided several confirmation of enrolment documents. They were as follows: a Certificate IV in Marketing and Communication which commenced on 18 May 2020 and is due to be completed on 14 May 2021, a Diploma of Marketing and Communication due to commence on 17 May 2021 and to be completed on 13 May 2022 and an Advanced Diploma of Marketing and Communication due to commence on 16 May 2022 and to be completed on 12 May 2023.

13. The applicant had also provided information to the Tribunal in the form of a response to a request to do so pursuant to s.359 (2). The applicant confirmed that he did not want to add to or vary this document. In summary the information provided by the applicant was as follows.

14. The applicant was born on 1 January 1975 and prior to arriving in Australia completed a Bachelor of Arts Degree in June 2004. He stated that he was employed prior to arriving in Australia at a high school as a teacher. He stated that this employment commenced in January 2016 but otherwise provided no details except that his income from that endeavour was AU$7404 annually.

15. He arrived in Australia on 11 February 2019 and since that time has not returned to his home country, Bhutan.

16. He stated that he was granted a visitor visa on 1 January 2019 and that the application for the student visa in question was made in May 2019.

17. Regarding his study history in Australia he stated that he had completed a vocational English course between May 2019 and July 2019, another vocational English course between July 2019 and November 2019, a course described as “pre-intermediate” was completed between November 2019 and January 2020 and that he was “studying now” a course described as “intermediate” which commenced in February 2020 and was due to be completed in April 2020. He stated that he had a future enrolment in a Diploma of Leadership and Management due to commence in May 2020 and to be completed in June 2021.

18. As to the availability of similar courses in his home country he stated “There are hardly any colleges that teach these English courses at this level. Most of the English is learnt at schools and not after. For example English proficiencies are not taught much in Bhutan. IELTS is at most the one taught which is only for a few weeks.”

19. As to his employment history in Australia he stated “None”.

20. He stated that his “parent, spouse and child” resided in Bhutan and that his sister resides in Australia.

21. He stated that his assets in his home country comprise a truck, a car and “family land”. He provided estimated values of the vehicles but no estimation of the value of the land.

22. As to his future employment plans he stated “I intend to return home after my study so that I can go back and contribute to my country in the education sector where i can help children develop to better future leaders. Financial, I will be able to attract a higher pay package which will also contribute to my family well-being.”

23. As to his future expected remuneration he stated “After completion I will attract a salary of approximately NU35,000-40,000 per month. Between AUD 700-800 which is a significant salary within Bhutan standards.

24. The Tribunal proceeded to ask the applicant some questions arising from the information paraphrased above. The questions and the applicant’s responses, in summary were as follows.

25. The applicant confirmed that prior to arriving in Australia he was employed as a teacher and had been so for three years.

26. The applicant confirmed that he arrived in Australia on 11 February 2019 as a tourist. When asked as to the purpose of his visit he replied “Came on tourist visa, decided to study.” When the question was repeated he responded “Came as intention as tourist.” When asked how long he intended to stay when he arrived the applicant responded “Was to go back after completing his study”. When the question was repeated the answer was “Three months”. When I asked when he applied to be enrolled in courses of study the applicant said “April 15, 2015.” When the question was repeated he answered that he don’t know.

27. The applicant confirmed that he has not been employed whilst in Australia.

28. When invited to add anything further to his application for review the applicant said “Intent on study doesn’t have anything to say”.

29. The applicant’s migration agent was invited to make submissions. He said that he relied on the written submissions which had been provided to the Tribunal and added that the applicant “was working as a monk.”

30. The applicant provided a large number of documents to the Tribunal prior to the hearing. None of them were referred to by the applicant or his representative. Nonetheless the Tribunal has had regard to them to the extent relevant and given them appropriate weight. The documents are as follows:

    ·A letter from the applicant’s former employer stating that he would be offered a promotion upon return to work at the school, following his successful completion of studies. The letter is dated 20 March 2020 from a high school in Bhutan stating that the applicant had worked as a “regular language teacher” since 2016. It goes on to state that he was granted leave for one year “to pursue his further studies in Australia since January 2019.” However that he “recently expressed his interest in continuing his studies so we have decided to grant him another year.” The letter also states that “we intend to promote him to the next higher grade” when he completes his studies.

    ·Two completion certificates for ‘General English’ attaining the levels of Beginner and Elementary and a reference letter from one of his tutors.

31. On 27 July 2020 an email with 19 attachments was sent to the Tribunal. The first is titled “Monastery Support Letter – Gado Tshering”. It appears from this letter that the applicant has some association with a monastery and that the monastery considers there to be value in the applicant pursuing study. However the applicant’s role at the monastery is somewhat unclear and the value of marketing and communication to the monastery difficult to ascertain. The second attachment is titled “Photo ID – Gado Tshering” and contains a scanned image of the applicant’s citizenship card, as a citizen of Bhutan. The third attachment is titled “passport – Gado Tshering” and contains the applicant’s Bhutanese passport which was valid until 24 August 2025. The fourth attachment is titled “Motor Vehicle Registration – Gado Tshering” and contains three scanned pages of Bhutanese vehicle registration paperwork. The fifth attachment is titled “National land commission – Dry land – Gado Tshering – Phub Pem MOTHER” indicating that Phub Pem owns a total of 2.4 acres of dry land. The sixth attachment is titled “relationship proof – Gado Tshering (father Dawa Gyeltshen and Mother Phub Pem)” and contains a certificate issued by the Ministry of Home & Cultural Affairs which indicates that the applicant is the son of Phub Pem (mother) and Dawa Gyeltshen (father). The seventh attachment is titled “Vehicle Valuation – $34000 AUD – Gado Tshering” and contains the registration papers from the purchase of the vehicle in January 2016, the document indicates that the vehicle is a 2016 year model and indicates that the price was 18,09,000 (currency not identified). The eighth attachment is titled “Birth Cert. – Gado Tshering” and contains the applicant’s birth certificate, reflecting the same parents as the earlier ‘proof of relationship’ document. The ninth attachment is titled “Bachelor of Art certificate in Buddhist Studies – Tago Buddhist University – Gado Tshering” and contains a statement of attainment and results for the applicant having completed a Bachelor of Art in Buddhist Studies from Tago Buddhist University. The tenth attachment is titled “Business registration – Sonam (Gado Wife)” which appears to be the licence of a business registered to conduct small scale, general retail trade, the license is dated 20 July 2020. The eleventh attachment is an Overseas Student Confirmation of Enrolment for an Advanced Diploma of Marketing and Communication, the course start date is 16 May 2022 and the course end date is 12 May 2023. The twelfth attachment is an Overseas Student Confirmation of Enrolment for a Cert. IV of Marketing and Communication, the course start date is 18 May 2020 and the course end date is 14 May 2021. The thirteenth attachment is an Overseas Student Confirmation of Enrolment for a Diploma of Marketing and Communication, the course start date is 17 May 2021 and the course end date is 13 May 2022. The fourteenth attachment is titled “Gado Photo” and is a photograph of the applicant. The fifteenth attachment is titled “General English – Elementory – Stanley College – Gado Tshering” and contains a completion certificate for ‘General English’ attaining the level of Elementary and provided previously on 23 March 2020. The sixteenth attachment is titled “General English – Beginner – Stanley College – Gado Tshering” and contains a completion certificate for ‘General English’ attaining the level of Beginner and provided previously on 23 March 2020. The seventeenth attachment is titled “General English – Pre-intermediate-level – Stanley College – Gado Tshering” and contains a completion certificate for ‘General English’ attaining the level of Pre-intermediate. The eighteenth attachment is titled “Marriage Certificate – Gado Tshering and Sonam Wangmo” and contains an affirmation of marriage registered 2 October 2015, the document appears to refer to a marriage certificate dated 6 December 2013. The nineteenth attachment is a 16 page submission from the applicant’s representative which is undated.

32. The applicant’s representative provided the applicant’s 36 page “Statement of Purpose”, undated, attached to an email dated 30 July 2020.

33. On 31 July 2020 the applicant’s representative provided a 15-page submission dated 27 July 2020.

34. The applicant’s statement is 36 pages in length, it has no paragraph numbers and is undated. The Tribunal makes several observations in relation to that document. As to the relevance of his courses of study he stated that his plan is to establish “an initiative to support our monastery and connecting monks to general public and Bhutanese citizens overseas mainly… To organise our works, teaching or representations of monastery to be heard via social media or video marketing over Internet so that I can arrange the donation to fund our religious programs.” The applicant proceeds in the statement to expound upon fundraising for nonprofit organisations at some considerable length. However the applicant is employed as a teacher in a secondary school. Whilst he may have some association with a monastery in his home country the utility of spending approximately four years studying in Australia in the field of marketing and communication is not immediately apparent. As to his future plans the applicant stated: “my only dream is to finish my studies in Australia and then start my own business in the home country Bhutan and start to live with my family”. The nature of his intended business or career is not stated.

35. The representative’s first submission is undated and without page numbers or paragraph numbers. It was not referred to by the representative however it has been taken into account by the Tribunal and given appropriate weight. The Tribunal makes several observations in relation to this document. First it is replete with assertions of fact as to the applicant’s circumstances and intentions which were not contained in the applicant’s narrative statement nor the subject of oral evidence. Those matters are given little if any weight. Secondly it gives little further insight into the utility of the current and proposed courses of study.

36. On 31 July 2020, after conclusion of the hearing, the representative provided a second version of the undated submission. This was provided at the Tribunal’s request. This document is paginated and has numbered paragraphs. It is dated 27 July 2020. Although it appears to be slightly longer than the undated submission, it otherwise appears to be the same insofar as the content is concerned. The Tribunal proceeds on the assumption that it is the same document but is now paginated, dated and with paragraph numbers.

37. Whilst not diminishing the applicant’s evidence given both orally and in writing, his circumstances can be summarised as follows. He completed a Bachelor of Arts Degree in his home country and then has worked as a language teacher at a secondary school since 2016. He apparently has some association with a monastery in his home country. He arrived in Australia on 11 February 2019 as the holder of a tourist visa. His intentions in travelling to Australia remain unclear notwithstanding he was asked to explain. One day prior to the expiry of the tourist visa he applied for a student visa, on 14 May 2019. He did not touch upon this in his oral evidence or in his undated narrative statement. It is tolerably clear that at the time of applying for the student visa he intended to study several vocational marketing and communication courses. These will occupy him until at least 12 May 2023. It appears that he has leave of absence from his teaching position for two years. His former employer has offered him better employment, as a teacher, when he returns. The applicant has not explained the relevance or utility of vocational courses in marketing and communication to his employment as a teacher. However the courses are asserted to be of some relevance to his role at the monastery, apparently he seeks to engage in fundraising activities for the benefit of the monastery. Although in other documents he refers to an intention to start his own business but does not state the nature of that business.

38. In considering whether the applicant has met the genuine temporary entrant criterion, the Tribunal had regard to the following factors consistent with cl.500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether he has satisfied the genuine temporary entrant criterion.

39. The Tribunal has considered the applicant’s circumstances in his home country. The applicant is married and is from Bhutan. The applicant has provided evidence of social, direct family and financial ties to his home country or other economic incentives to return. When considering the applicant’s circumstances in his home country, the Tribunal therefore finds that he has been able to demonstrate ties to act as an incentive to return to his home country at the completion of the proposed study. The Tribunal accepts that the applicant may have family ties to Bhutan, however, given the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to Bhutan.

1. The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 11 February 2019 as a holder of tourist visa valid to 15 May 2019. The proposed study would extend the applicant’s stay until at least 12 May 2023. The Tribunal finds that the length of this proposed additional stay creates serious concerns that the applicant is studying for the purposes of staying in Australia. Whilst the Tribunal accepts that plans can change, this is not the conduct of a genuine temporary student. Rather, it suggests the applicant has decided to extend his stay in Australia by utilising the student visa programme.

2. The Tribunal does not place weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. There are several reasons for this. First he has already obtained a tertiary degree in his home country. Secondly he has worked as a language teacher in a secondary school in his home country for three years and has an offer of employment with better conditions with the same employer when he returns. The applicant has not explained the relevance or utility of vocational courses in marketing and communication to do with his teaching career. He asserts such courses are generally relevant to an undefined role at a monastery in that he intends to pursue fundraising activities for the monastery. But in other respects he has referred to an intention to study for his own business but has not identified the nature of that business.

3. The Tribunal has considered the applicant’s study history since arrival and notes that he commenced study in 2019 shortly after his arrival in Australia and completed a series of vocational courses in English.

4. The Tribunal notes that this course plan is inconsistent with the applicant’s qualifications obtained in his home country, inconsistent with his work history (as a secondary school language teacher) and is inconsistent with his plans when he initially entered Australia. The applicant now wishes to pursue vocational courses in marketing and communication in Australia. The courses are asserted to have relevance to very vague future plans.

5. The applicant has provided a statement in which he attempts to address the genuine temporary entrant criterion. It has been taken into account as discussed above.

6. The Tribunal notes that the applicant worked as a secondary school language teacher in Bhutan and apparently intends returning to the same employment. The Tribunal is not satisfied that the applicant has established that study will provide him with significant benefits in his proposed career plan, considering the cost of the study and the fact that the applicant already has experience as a secondary school language teacher. The Tribunal therefore is not satisfied that the applicant has demonstrated that the proposed additional study has a realistic prospect of providing significant value to his future beyond the qualifications he already holds.

7. The Tribunal has had regard to whether there are any other relevant matters. The Tribunal finds that there are no other relevant matters to consider that may be beneficial or adverse to the applicant, and that this aspect is not relevant.

8. The Tribunal has considered all the information provided with the visa application. After weighing up these factors as a whole, the Tribunal finds that the applicant has not been able to satisfy it that the applicant genuinely intends a temporary stay in Australia as a student.

9. The Tribunal has considered the evidence and has taken into account the applicant’s economic circumstances in his home country relative to his potential circumstances in Australia. Given the disparity in economic circumstances between Bhutan and Australia the Tribunal cannot be satisfied that the applicant has significant incentive to return to Bhutan. The applicant has been unable to demonstrate substantial ties or personal assets in his home country which diminishes his incentive to return to Bhutan.

10. The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from his proposed study which will outweigh the significant time and monetary commitment this course will require. Therefore the Tribunal is not satisfied that the applicant has demonstrated the value of his proposed course to his future.

11. The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 11 February 2019 the applicant has spent more than 16 months in Australia and no time outside of Australia which indicates that he does not appear to have strong personal ties to Bhutan. The Tribunal acknowledges that the applicant’s wife and child and other members of his immediate family reside in his home country. Further that he appears to have assets in his home country. However he intends to stay in Australia and study until 12 May 2023. Based on this evidence the Tribunal assesses the applicant’s incentive to return to Bhutan to be reasonably evenly balanced.

12. On balance, the Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. It appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study. The Tribunal has also had regard to whether there is any other relevant matter and finds there to be no other relevant matter to the assessment of the applicant’s intentions to stay in Australia temporarily. The Tribunal has considered all information provided by the applicant in support of his application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in his home country, potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.

13. On the contrary, the factors indicate that the applicant appears to have enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study and overall academic progress. The applicant appears to be using the student visa programme as a means of maintaining ongoing residence in Australia and does not have a genuine intention to stay in Australia temporarily.

14. There is no evidence before the Tribunal regarding the following factors indicated by Direction No.69: economic circumstances of the applicant; any potential military service in Bhutan; political or civil unrest circumstances in Bhutan; remuneration the applicant could expect to receive in Bhutan or a third country compared with Australia; circumstances in Bhutan relative to Australia or any other country; and the applicant’s circumstances in Bhutan relative to others in that country.

15. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time, to utilise lawful means to remain in Australia. Given the amount of time the applicant has now spent in Australia, the Tribunal is concerned the student visa may be used primarily for maintaining ongoing residence.

16. 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).

17. 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.

18. 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

19. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Peter Booth
    Member

    
    

    Attachment – Direction No.69

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

    (Section 499)

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

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

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

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

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

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

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

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

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

    Regulations mean the Migration Regulations 1994.

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

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

    Student visa means a Subclass 500 (Student) visa

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

    Application

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

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

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

    Preamble

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

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

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

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

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

    d.any other relevant matter.

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

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

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

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

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

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

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

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

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

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

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

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

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

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

    The applicant’s circumstances

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

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

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

    The applicant’s circumstances in their home country

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

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

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

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

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

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

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

    The applicant’s potential circumstances in Australia

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

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

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

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

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

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

    Value of the course to the applicant’s future

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

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

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

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

    The applicant's immigration history

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

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

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

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

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

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

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

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

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

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

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

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

    Any other relevant matters

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