Uppal (Migration)

Uppal (Migration) [2020] AATA 3519 (24 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Gagandeep Kaur Uppal
Mr Sandeep Singh
Miss Shagundeep Kaur
CASE NUMBER:  1923810
HOME AFFAIRS REFERENCE(S):          BCC2019/2592247
MEMBER:Andrew George
DATE:24 August 2020
PLACE OF DECISION:  Darwin
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(a) of Schedule 2 to the Regulations.

Statement made on 24 August 2020 at 6:06pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa and study history – lengthy stay on student and bridging visas – lower-level courses in different subject areas – value of current course to applicant’s future – currently in third country and unable to travel because of COVID-19 restrictions – evidence of financial capacity – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.212(a), 500.214(3)
Administrative Appeals Tribunal Act 1975 (Cth), s 2A(b), (c)

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 5 August 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 17 May 2019. At the time of application, Class TU contained two 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 visas 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). Materially, the delegate found:
“In their application the applicant stated that they had undertaken Diploma of Community Service from 01 January 2010 to 01 January 2012 and provided evidence of the course completed. The applicant also completed Diploma of Management and Advanced Diploma of Management from 06 Feb 2012 to 12 May 2013. The applicant is now proposing to undertake a Diploma of Early Childhood Education and Care, which would require them to remain onshore until at least 25 July 2021. This will extend the applicant’s stay in Australia in access (sic) of eleven years as the holder of temporary visas or associated bridging visas. I find it difficult to reconcile the applicant’s extensive stay onshore with their claim they are a genuine temporary resident.”[1]
[1] Delegate’s decision/3.
On 12 March 2020, the applicant was invited to a hearing on 8 April 2020. The applicant’s registered migration agent, Mr Pickup of eVisas, wrote to the Tribunal on 18 March 2020 seeking a postponement until May. Disconcertingly, the applicant had departed Australia on 13 March 2020 on tickets that were issued on 12 March 2020.
On 18 March 2020, the Tribunal cancelled the hearing and the applicant was told that a telephone hearing would occur to minimise the risk of COVID-19 transmission. On 26 May 2020, the applicants were invited to a telephone hearing on 14 July 2020. This invitation gave the applicants an internet link to the COVID-19 Special Measure Practice Direction – Migration and Refugee Division (‘COVID-19 PD’). It also instructed the applicants as follows:
“Please provide all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English or accompanied by a translation from a qualified translator.
Additionally, please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible:
1. A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.
2. Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.
3. Documents that show your past studies in Australia, including copies of all your
attendance certificates, academic transcripts and certificates of completion as
well as documents evidencing any work related to past or intended studies in
Australia.
4. An explanation of any gaps in your enrolment/s and any documentary evidence
relevant to your explanation.
We will assess whether you intend genuinely to stay in Australia temporarily. Relevant to this requirement is a direction from the Minister known as Direction No. 69. A copy of which is attached.
Please provide a written statement addressing the issue of whether you are a genuine temporary entrant by referring to this Direction.”
On 27 May 2020, Mr Pickup requested a postponement for the following reason:
“Gagandeep is currently still stuck in Canada, due to the travel lockdowns from Covid 19. She said that she doesn’t have a phone there to communicate for the hearing and is requesting that the hearing be postponed until she is able to return to Australia.”
The Tribunal replied, on the same date, as follows:
“The Member notes your request for a hearing postponement and requests that you provide a sworn statement from the applicant to this effect.
In the sworn statement, please detail the circumstances surrounding the applicant's lack of a phone and her inability to get one by July.
The hearing will remain listed for 14 July 2020 at 2pm and any application for a postponement will be heard at the commencement of the hearing.”
On 22 June 2020, Mr Pickup provided a response to the hearing invitation providing a telephone number for the applicant and indicating that Mr Singh would appear as a witness and that he would attend the hearing.
On 14 July 2020 at 10:20am, being the morning prior to the hearing at 2pm, the Tribunal wrote to the Mr Pickup and reminded him of the COVID-19 PD. In particular, the Tribunal noted that no witness statements had been lodged (para [6.7]-[6.9]), nor had documents been provided in an indexed and paginated format (para 6.11)-[6.12]). The applicant and the second named applicant, Mr Singh, appeared before the Tribunal on 14 July 2020 to give evidence and present arguments. Mr Pickup did not attend.
At the commencement of the hearing, the Tribunal noted that the applicant had not complied with the hearing invitation of 26 May 2020 or the COVID-19 PD. Not only were no witness statements provided, but the Tribunal had no documentary evidence before it that the applicant was enrolled in a course of study. The applicant said that she could submit such material post-hearing, but the Tribunal indicated that this was unsatisfactory.
The Tribunal assessed that the applicant was not ready to proceed. In the interests of justice, as expressed in s.2A(b) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal adjourned to 21 July 2020 at 2pm to enable compliance with the COVID-19 PD, submit witness statements, and submit all relevant documentary evidence that the applicant sought to rely upon. A further hearing invitation was send accordingly, again containing an internet link to the COVID-19 PDs. The matter was listed for 21 July 2020. The matter again did not proceed on that date as the applicant was not ready.
On 27 July 2020, the matter proceeded. The applicant and the second named applicant appeared. Mr Pickup represented the applicant and relied on a sixteen-page submission that comprised the Hearing Book. The witnesses also submitted outlines of evidence that formed the basis of their oral evidence
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.
Enrolment (cl.500.211)
Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.
‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.
On 14 July 2020, the applicant gave evidence that she is currently studying a Diploma of Early Childhood Education and Care at the Australian Career College in Parap, Northern Territory. The applicant said that she commenced her studies on 23 July 2019 and was due to complete them in 2021. There was no corroborating documentation before the Tribunal at the time of that oral evidence. Had this matter proceeded to decision on that date then this application would have failed.
On 21 July 2020, the applicant relied upon the Hearing Book. From the Hearing Book, the Tribunal notes that the applicant has an Overseas Student Confirmation-of-Enrolment for a Diploma of Early Childhood Education and Care with a course end date of 25 May 2021.[2] Therefore, the Tribunal is satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is met.
[2] Hearing Book/4.
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 adopted a document entitled ‘Statement of Purpose’ as her evidence and, under oath, stated that it was true and correct.[3] The applicant’s evidence is that that she wishes to open a childcare centre in her home town of Mehmoodpura in India. The applicant would like to introduce playgrounds for younger children into a childcare business that she intends to start. The Tribunal accepts this evidence and is satisfied that the Diploma of Early Childhood Education and Care is relevant to the applicant’s future in India.
[3] Hearing Book/5.
The applicant says that there are not similar childcare course offerings in India, hence why she studies in Australia. The Tribunal accepts this evidence as a reasonable reason for not undertaking similar study in India.
The applicant has a Masters of Information Technology and a Post Graduate Diploma of Computer Application from Punjab University[4]. With this background, the Tribunal is concerned by the peripatetic approach to education that the applicant has adopted since arriving in Australia in 2010. The applicant has completed a Diploma of Community Service, a Diploma of Management, and an Advanced Diploma of Management. She has also been employed.[5] It is difficult to reconcile the applicant’s extensive stay onshore with her claim that she is a genuine temporary resident. This is particularly so since the applicant is accompanied by her husband in Australia, and has commenced a family. Such ties with Australia present as a strong incentive to remain in Australia. The Tribunal has considered these circumstantial factors but, in the absence of direct evidence that the student visa programme is being used to circumvent the intentions of the migration programme, the Tribunal makes no finding that the Student visa program is being used to maintain ongoing residence in Australia.
[4] Visa application/13-14.
[5] Visa application/14-16.
The applicant’s evidence has not demonstrated deep ties with her home country. Nevertheless, the Tribunal notes that the applicant is presently in Canada with her sister and may be there for some time into the future due to the current pandemic.[6] Given the disruption caused to the applicant by this pandemic, the Tribunal is unable to place weight on the applicant’s circumstances relative to her home country and to Australia as at the date of decision. This is likely to the applicant’s advantage, perhaps significantly so.
[6] Hearing Book/7.
The Tribunal expresses its deep concerns regarding the applicant’s lengthy stay in Australia and the way she has conducted her application. Nevertheless, and by the narrowest of margins, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily as at the date of this decision. Accordingly, the applicant meets cl.500.212(a).
Genuine access to funds (cl.500.214)
Clause 500.214 requires the applicant to meet certain financial requirements. If the applicant is required to do so by the Minister, they must give evidence of financial capacity that satisfies the requirements set out in an instrument: cl.500.214(3). All primary applicants must also satisfy the Tribunal that, while they hold the visa, sufficient funds will be available to meet their costs and expenses during their intended stay in Australia, as well as the costs and expenses of any members of their family unit who will be in Australia: cl.500.214(2). The Tribunal must also be satisfied that the applicant will have genuine access to the relevant kinds of funds.
In the present case, the Minister has required the applicant to give evidence of financial capacity in accordance with cl.500.214(3). The Tribunal notes that it received significant volumes of material addressing this issue following the hearing. No leave was granted for this filing. Given the extensive delays already caused by the applicant’s conduct in this matter, the Tribunal declines to hold yet another hearing for the applicant to explain her financial capacity. This would be inconsistent with the functions of the Tribunal under s.2A(c) of the Administrative Appeals Tribunal Act 1975 (Cth) and these issues are more properly for Departmental consideration given the findings already made.
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.
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(a) of Schedule 2 to the Regulations.
Andrew George
Member

Attachment – LIN 19/198 – Financial capacity instrument (extract)
6 Subclause 500 (Student) visa—primary applicants
(1)For the purposes of subclause 500.214(3) of Schedule 2 to the Regulations, a primary applicant must give to the Minister evidence of financial capacity that satisfies the requirements of subsections (2), (3), (4), (5) or (6).
Note: For primary applicant, see section 4 of Part 1 to this instrument.
(2)The evidence of financial capacity
(a)is in the form specified in section 10; and
(b)demonstrates that the primary applicant has sufficient funds available to meet the following costs and expenses of the primary applicant:
(i) travel expenses; and
(ii) the following living costs and expenses:
(A)if the primary applicant intends to stay in Australia for a period of 12 months or more – AUD21,041 (annual living costs); and
(B)if the primary applicant intends to stay in Australia for a period of less than 12 months – the pro rata equivalent of annual living costs, calculated as specified in section 11; and
(iii) the following course fees, minus any amount already paid:
(A)if the duration, or the remainder, of the primary applicant’s period of study in Australia is less than 12 months – the fees for the course of study or the remaining components of the course of study; or
(B)If the duration, or the remainder, of the primary applicant’s period of study in Australia is more than 12 months – course fees for the first 12 months of the period study in Australia; and
Note : The period of study is the period beginning at one of the following commencement periods and ending on the final day of the applicant’s final course of study:
(a)if the applicant’s first course of study commenced after the date of application – on the first day of the first course of study; or
(b)if the applicant’s first course of study commenced before the date of application – on the date of application.
(c)demonstrates that the primary applicant has sufficient funds available to meet the following costs and expenses of each secondary applicant making a combined application with the primary applicant:
(i) travel expenses; and
(ii) for each secondary applicant who intends to stay in Australia for a period of 12 months or more – the following costs (annual living costs):
(A)for a spouse or de facto partner - AUD7,362 and
(B)for a dependent child - AUD3,152; and
(iii) for each secondary applicant who intends to stay in Australia for a period of less than 12 months – the pro rata equivalent of annual living costs, calculated as specified in section 11; and
(iv) the following school fees for each school-age dependant:
(A)if the school-age dependant intends to stay in Australia for more than 12 months - AUD8,296 (annual school costs); or
(B)if the school-age dependant intends to stay in Australia for less than 12 months – the pro rata equivalent of annual school costs, calculated as specified in section 11; or
(C)if the school-age dependant is enrolled in a course of study at a State or Territory government school where the fees have been waived, and the Primary Applicant is enrolled in a course as a doctoral degree student, a Foreign Affairs student, a Defence student or a Commonwealth sponsored student – nil.
Note: For secondary applicant, see section 4 of Part 1 to this instrument
(3)The evidence of financial capacity:
(a)is official Government documentation of personal income that has been issued in the 12 months immediately before the application is made; and
(b)demonstrates that the primary applicant’s parent, spouse or de facto partner has a personal annual income, in the 12 months immediately before the application is made, that is:
(i)if there is no secondary applicant– at least AUD62,222; or
(ii)if there is a secondary applicant – at least AUD72,592.
(4)The evidence of financial capacity is the primary applicant’s completed AASES form.
Note: AASES form is defined in regulation 1.03 of the Regulations to mean for a secondary exchange student, an Acceptance Advice of Secondary Exchange Student form from the relevant State or Territory education authority, containing the following declarations:
(a) a declaration made by the student’s exchange organisation, accepting the student;
(b) a declaration made by the student’s parent, or the person or persons having custody of the student, agreeing to the exchange.
(5)If the primary applicant is a Foreign Affairs student – the evidence of financial capacity is a letter of support from the Department of Foreign Affairs and Trade.
(6) If the primary applicant is a Defence student – the evidence of financial capacity is a letter of support from the Department of Defence.
7 Subclause 500 (Student) visa—secondary applicants
(1)For the purposes of subclause 500.313(3) of Schedule 2 to the Regulations, a secondary applicant who is included in the primary student visa holder’s application, must give to the Minister evidence of financial capacity that satisfies the requirements of subsection (2), (3), (4), (5) or (6).
(2)The evidence of financial capacity:
(a)is in the form specified in section 10; and
(b)demonstrates that sufficient funds are available to meet the costs and expenses of the primary student visa holder set out in subparagraphs 6(2)(b)(i) to (iii) of this Part; and
(c)demonstrates that sufficient funds are available to meet the costs and expenses of each secondary applicant making a combined application with the primary student visa holder specified in paragraphs 6(2)(c)(i) to (iv) of this Part.
(3)The evidence of financial capacity:
(a)is official Government documentation of personal income that has been issued in the 12 months immediately before the application is made; and
(b)demonstrates that the primary student visa holder’s parent, spouse or de facto partner has a personal annual income that is at least AUD72,592.
(4)If the primary student visa holder is a Foreign Affairs student and has provided a letter of support mentioned in subsection 6(5) of this Part – the evidence of financial capacity is the letter of support if the letter of support indicates that the Department of Foreign Affairs and Trade will meet the living costs and expenses of each secondary applicant.
(5)If the primary student visa holder is a Defence student and has provided a letter of support mentioned in subsection 6(6) of this Part – the evidence of financial capacity is the letter of support if the letter of support indicates that the Department of Defence will meet the living costs and expenses of each secondary applicant.
(6)If:
(a)the primary student visa holder is a Foreign Affairs student or a Defence student and has provided a letter of support mentioned in subsection 6(5) or (6) of this Part; but
(b)the letter of support does not indicate that the relevant department will meet the living costs and expenses of each secondary applicant;
then the evidence of financial capacity:
(c)demonstrates that sufficient funds are available to meet the costs and expenses of the secondary applicant specified in paragraphs 6(2)(c)(i) to (iv) of this Part.
8 Subclass 500 (Student) visa – secondary applicants not included in the primary student visa holder’s application
(1) For the purposes of subclause 500.313(3) of Schedule 2 to the Regulations, a secondary applicant (the first secondary applicant), who is not included in the primary student visa holder’s application, must give to the Minister evidence of financial capacity that satisfies the requirements of subsection (2), (3), (4), (5) or (6).
(2) The evidence of financial capacity:
(a)is in the form specified in section 10; and
(b)demonstrates that sufficient funds are available to meet the costs and expenses of the primary student visa holder specified in subparagraph 6(2)(b)(ii) of this Part; and
(c)demonstrates that sufficient funds are available to meet course fees for any component of the primary student visa holder’s course of study which will be completed while the first secondary applicant is in Australia, up to an amount equivalent to fees for 12 months of the course of study, minus any amount already paid; and
(d)demonstrates that sufficient funds are available to meet the costs and expenses of each secondary student visa holder and that the first secondary applicant has sufficient funds available to meet their own costs and expenses, and the costs and expenses of each additional secondary applicant making a combined application with the first secondary applicant, specified in subparagraphs 6(2)(c)(ii) to (iv) of this Part; and
(e)demonstrates that the first secondary applicant has sufficient funds available to meet their own travel expenses and the travel expenses of all additional secondary applicants making a combined application with the first secondary applicant.
(3)The evidence of financial capacity:
(a)is official Government documentation of personal income that has been issued in the 12 months immediately before the application is made; and
(b)demonstrates that the primary student visa holder’s parent, spouse or de facto partner has a personal annual income that is at least AUD72,592.
(4)If the primary student visa holder is a Foreign Affairs student and has provided a letter of support mentioned in subsection 6(5) of this Part – the evidence of financial capacity is the letter of support if the letter of support indicates that the Department of Foreign Affairs and Trade will meet the living costs and expenses of each secondary applicant.
(5)If the primary student visa holder is a Defence student and has provided a letter of support mentioned in subsection 6(6) of this Part – the evidence of financial capacity is the letter of support if the letter of support indicates that the Department of Defence will meet the living costs and expenses of each secondary applicant.
(6)If:
(a)the primary student visa holder is a Foreign Affairs student or a Defence student and has provided a letter of support mentioned in subsection 6(5) or (6) of this Part; but
(b)the letter of support does not indicate that the relevant department will meet the living costs and expenses of each secondary applicant;
then the evidence of financial capacity:
(c)demonstrates that sufficient funds are available to meet the costs and expenses of each secondary student visa holder and that the first secondary applicant has sufficient funds available to meet their own costs and expenses, and the costs and expenses of each additional secondary applicant making a combined application with the first secondary applicant, specified in subparagraphs 6(2)(c)(ii) to (iv) of this Part; and
(d)demonstrates that the first secondary applicant has sufficient funds available to meet their own travel expenses and the travel expenses of all secondary applicants making a combined application with the first secondary applicant.
…
10 Evidence of financial capacity
The following forms of evidence of financial capacity are specified:
(a)money deposit with a financial institution;
(b)loan with a financial institution;
(c)government loans;
(d)scholarship or financial support.
11 Pro rata equivalent
In this Part, the pro rata equivalent of annual costs is calculated by:
(a)dividing the annual amount by 365; and
(b)multiplying the resulting number by the number of days the applicant is intending to stay in Australia.
Attachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton

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

[2020] AATA 3519

24 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Appeal