Winoto (Migration)

[2020] AATA 1708

Winoto (Migration) [2020] AATA 1708 (25 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Eric Setiawan Winoto

CASE NUMBER:  1723016

HOME AFFAIRS REFERENCE(S):          BCC2017/1575715

MEMBER:Peter Newton

DATE:25 February 2020

PLACE OF DECISION:  Sydney

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

Statement made on 25 February 2020 at 2:04pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine temporary entrant – applicant’s strong ties with Australia – family issues in Indonesia – limited academic progress – enrolment in a registered course ceased – maintaining ongoing residence in Australia – benefits to proposed career plan – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
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 Immigration and Border Protection on 15 September 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (Act).

2.    The applicant applied for the visa on 2 May 2017. 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 (Regulations) because the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

4.    The applicant appeared before the Tribunal on 11 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

5.    The applicant completed and submitted to the Tribunal the Request for Student Visa Information (Request).  At the time of the hearing he was enrolled in the Bachelor of Business course with Group Colleges Australia Pty Ltd (Group Colleges) commencing 7 May 2018 and ending 23 April 2021.  The applicant provided to the Tribunal: -a copy of the Overseas Student Confirmation of Enrolment (CoE) for that course of study; a Result History document recording the applicant’s results for 6 subjects in his current course of study covering the period 7 December 2018 to 17 August 2019; a written Genuine Temporary Entrant Submission (GTE); and three letters from Greig Phillpot, psychologist and psychotherapist dated 14 August 2014, 28 October 2014 and 14 August 2017.  After the hearing, the applicant provided to the Tribunal on 5 July 2019 and on 30 August 2019 two further Result History documents recordings the applicant’s results for 18 further subjects in his current course of study. 

6.    I have read all of the documents submitted by the applicant to the Department and the Tribunal and considered the evidence given and submissions made by the applicant at the hearing on 11 June 2019.  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 meets the genuine temporary entrant criterion.

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 (Direction). The 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.

1. 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’s circumstances in his home country 

1. In relation to paragraph 9(a) of the Direction, the applicant was born in Indonesia and first arrived in Australia on 18 October 2013.  In the Request, the applicant disclosed that since first arriving in Australia, he has completed only a General English course at Kingsway College.  He disclosed that that course started in October 2013 and ended in January 2014.  As stated, the applicant provided to the Tribunal the CoE for the Bachelor of Business course at Group Colleges which course started on 7 May 2018 and is due to end on 23 April 2021.  In the Request, the applicant provided the following information in response to request for information shown below:

1. I infer from the above information, that there are similar courses to the applicant’s current course of study available in his home country or region.  During the hearing, the applicant indicted that his wife, members of his church and his family encouraged him to study his current course of study in Australia.  The applicant did not give any evidence about enquiries he made in relation to similar courses available in his home country or region.  He did not provide any evidence that enabled him to make an informed assessment that the value of study in Australia is “much higher” than in his home country or region.  I am not satisfied that any information provided to the applicant about the same or similar courses available in his home country or region was based on any of research.  Nevertheless, I give some but no significant weight in the applicant’s favour for the reasons provided by the applicant.  

2. In relation to paragraph 9(b) of the Direction, the applicant was born in Indonesia on 9 June 1991.  In the Request the applicant indicated that completed year 12 and/or a science course in June 2009.  He disclosed that he worked in his home country in administration from August 2009 to August 2013.  The Decision of the delegate made 15 September 2017 records that the applicant first came to Australia on 18 October 2013.  In the Request the applicant disclosed that he has no community ties in his home country.  At the hearing, the applicant said his parents continue to live in Indonesia and run a rice farm.  He said they sell rice, oil and sugar.  He said he has worked in the family business.  The applicant said his parents want him to complete his studies in Australia and return to Indonesia.  The applicant is the eldest of three siblings.  He has two younger brothers.  At the hearing, he said one brother lives in China and his other brother lives in Japan.  In the Request, the applicant declared that it is the Indonesian/Chinese tradition that the oldest son “take the responsibility of the parent, family, and the business.”  In the GTE statement, the applicant states:  “. . . I want to look after and continue my family business that’s why I want to study business course in Australia . . .  My family business is one of the big wholesaler in my area and we want to expand it to another place or island in Indonesia, that will increase the family’s financial and open more opportunity to my brother in the future also I have a plan to make my own family with my wife which is will need more money to achieve that.  I have confident to grow the business to other level for future of our family business. . . ” During the hearing, the applicant said he has no assets in his home country.  In the Request the applicant disclosed that he has property or other significant assets in his home country comprising the family house, land, a truck and van.  Having regard to the applicant’s evidence at the hearing that he has no assets in his home country, I infer that the assets disclosed in the Request are his parents. 

3. In the Request, the applicant disclosed that since first arriving in Australia he has returned to his home country for the following periods and reasons:

4. The evidence establishes that the extent of the applicant’s personal ties to his home country are his parents, the family home, land, business and assets, friendships or acquaintances he has developed through the studies and work he completed prior to coming to Australia and the traditional expectation that he will take over the family business.  However, having regard to the facts that: - the applicant has been in Australia since 18 October 2013; if he completes his current course of study (due to end on 23 April 2021) he will have been in Australia for approximately 8 years; since first arriving in Australia he has only completed one short English course of study; since first arriving in Australia he married on 17 July 2017 (as stated by the applicant in his GTE statement) and he lives with his wife in Australia, - there are grounds for questioning whether the extent of the applicant’s personal ties to his home country would serve as a significant incentive to return to his home country. On balance, I give this factor some but no significant weight in favour of the applicant. 

5. In relation to paragraph 9(c) of the Direction, the evidence does not enable me to make an assessment of whether the economic circumstances of the applicant would present as a significant incentive for the applicant not to return to his home country.  Accordingly, on the evaluative exercise I am required to undertake, I assess this factor as neutral.

6. In relation to paragraph 9(d) of the Direction, in the Request, the applicant disclosed that he has no concerns about military service commitments.  Accordingly, I consider that this factor is neutral.

7. In relation to paragraph 9(e) of the Direction, in the Request the applicant disclosed that he has no concerns about political and civil unrest in the applicant’s home country.  In the circumstances, I consider that this factor is neutral.

8. In relation to paragraph 10 of the Direction, the evidence does not allow me to assess the applicant’s circumstances in his home country relative to the circumstances of others in her home country. 

The applicant’s potential circumstances in Australia

1. In relation to paragraph 11(a) of the Direction, the applicant first arrived in Australia on 18 October 2013.  The Request discloses that since first arriving in Australia, the applicant has only completed one short general English course over a period of approximately three months.  The applicant commenced his current course of study on 7 May 2018.  During the hearing, the applicant said he is married and lives with his wife, who is studying accounting and is on a student visa.  In his GTE statement, the applicant said he married on 17 July 2017.  The applicant said she commenced her studies in or about October/November 2018 and will complete her studies in another two years.

2. In the Request, the applicant disclosed he has held the following jobs in Australia for the periods shown:

1. During the hearing, the applicant indicated that he was encouraged to commence his current course of study by his wife, church members, who I infer are in Australia, and family.

2. The evidence establishes that the applicant has ties with Australia, in the form of his wife, friendship or acquaintances I infer he has established through the study and work he has undertaken in Australia and the church he is a member of. I consider that the applicant’s ties with Australia would present as a strong incentive for the applicant to remain in Australia.  I give this factor some weight against the applicant.

3. In relation to paragraph 11(b) of the Direction, the evidence does not establish that the student visa program is being used to circumvent the intentions of the migration program.  I would expect applicants to comply with their visa obligations and not to use the student visa program for ulterior purposes.  Accordingly, I consider this factor neutral.

4. In relation to paragraph 11(c) of the Direction, the evidence does not establish that the student visa is being used to maintain ongoing residence.  I would expect applicants to comply with their visa obligations and not to use the student visa program for ulterior purposes.  Accordingly, I consider that this factor is neutral.

5. In relation to paragraph 11(d) of the Direction, in the Request, the applicant disclosed the following in response to the request for information shown:

1. During the hearing, the applicant said he is married and his wife is in Australia on a student visa.  I am unable to determine what, if any, connection the reason for refusal of the applicant’s prior application for a dependant visa has to the applicant’s wife.  I accept the applicant’ evidence that he is married.  Overall, the evidence does not establish that the applicant has entered into a relationship of concern for a successful student visa outcome.  I do not think the applicant should be given credit for not contriving a relationship for a successful student visa outcome.  Accordingly, I consider that this factor is neutral.

2. In relation to paragraph 11(e) of the Direction, the evidence establishes that the applicant commenced studying the Bachelor of Business course at Group Colleges on 7 May 2018.  During the hearing, the applicant said and I accept that he has completed 8 subjects (the Result History provided prior to the hearing records the applicant has completed 6 subjects).  Since the hearing, the applicant has provided to the Tribunal two further Result History forms recording that he has successfully completed a further 18 subjects.  In an email to the Tribunal sent 30 August 2019, the applicant said he has “14 subjects more to go.”’

3. Having regard to the length of time the applicant has been in Australia, the work he has done since first arriving in Australia and the subjects the applicant has completed in his current course of study, I am satisfied that the applicant has a sound knowledge of living in Australia and of his current course of study and the associated education provider.  I give this factor some weight in favour of the applicant.

Value of the course to the applicant’s future

1. In relation to paragraph 12(a) of the Direction, the fact that the applicant has successfully completed 26 subjects of his bachelor of Business course indicates that he is undertaking a course consistent with his current level of education.  During the hearing, the applicant indicated that his current course of study will assist him in developing his family’s rice business in Indonesia.  He said he will learn about accounting, profit and loss, how to expand the business, management, electronic business management and organisational behaviour.  The applicant has provided to the Tribunal details of the subjects he has completed up to August 2019.  I am satisfied that the applicant’s current course of study will assist the applicant in obtaining employment or improve employment prospects in his home country in the form of returning to work in his family’s business or outside his family’s business.  I give these factors some weight in favour of the applicant.

2. In relation to paragraph 12(b) of the Direction, I consider that the Bachelor of Business course is relevant to the applicant’s proposed future employment in his family’s business in Indonesia.  I give this factor some weight in favour of the applicant.

3. In relation to paragraph 12(c) of the Direction, in the Request the applicant gave the following information in relation to the request shown:

1. This evidence does not allow me to assess the remuneration the applicant could expect to receive in Indonesia or a third country, compared with Australia, using the qualifications to be gained from the Bachelor of Business course.  Accordingly, on the evaluative exercise I am required to undertake, I assess this factor as neutral. 

The applicant’s immigration history

1. In relation to paragraph 14(a) (i) of the Direction, the decision under review records that the applicant arrived in Australia on 18 October 2013 after being granted his initial Student (Class TU subclass 573) visa which was valid until 3 May 2017.  The applicant applied for a Student (Temporary) (Class TU) Student (subclass 500) visa on 2 May 2017.  This application was refused on 15 September 2017 and is the subject of the current application for review.  On the evaluative exercise I am required to undertake I consider that this factor is neutral.

2. As stated above, in the Request, the applicant disclosed the following in response to the request for information shown:

1. On the evaluative exercise I am required to undertake, I give significant weight against the applicant for this factor.

2. In relation to paragraph 14(a) (ii) of the Direction, in the Request, the applicant disclosed that in October 2017 he travelled to Singapore for one week for a holiday and in August 2017 he travelled to China for two weeks for a holiday.   There is no evidence that the applicant has previously applied for visas to other countries that were refused.  On the evaluative exercise I am required to undertake, I assess this factor as neutral. 

3. In relation to paragraph 14(b) (i) of the Direction, in the Request the applicant disclosed the following information in relation to the request shown:

1. In his GTE statement, the applicant said he did not study from 17 August 2014 until 6 October 2015 and from 5 May 2016 until 10 April 2017 because he was “depressed and stressful of my family issue in the Indonesia, I provided the medical doctor to support my reason.  The doctor said to take some break and find any activity like helping in the church to go out with the friends, , following some positive social activity like charity for homeless, an make sure the emotion and mind calm.”

2. The applicant provided to the Tribunal three letters from Greig Philpot, psychologist and psychotherapist dated 14 August 2014, 28 October 2014 and 14 August 2017. The letter from Dr Phillpott dated 14 August 2014 states:

1. The letter does not indicate that the applicant was unable to continue with his studies.  The letter states:  “I believe we came up with some good strategies today to help him cope with the family situation and to help get him back on track.”  The applicant did not seek to defer his studies if he was having difficulties studying, as I consider a genuine and responsible student would do.

2. The letter from Dr Phillpott dated 28 October 2014 is almost identical to the letter of 14 August 2014 and records that the applicant again saw Dr Philpott on 28 October 2014    for the same reasons.  The letter states:

   “. . .

   “I believe we came up with some good strategies today to help him cope with the family situation and to help get him back on track.  However, because he is far away and this is a problem that he cannot directly control.  He is considering going home to address the problems more directly.  He imagines being away for a number of months and return back to study next April.”

3. The letter does not indicate that the applicant was unable to continue with his studies.  The letter states: “I believe we came up with some good strategies today to help him cope with the family situation and to help get him back on track.”  The applicant did not seek to defer his studies if he was having difficulties studying, as I consider a genuine and responsible student would do.

4. During the first period that the applicant disclosed in the Request that he was not enrolled in a registered course of study and in his GTE statement that he did not study (from August 2014 to October 2015), the applicant did not seek to defer his studies as I consider a genuine and responsible student would do.  So far as “going home to address the problems more directly”, the Request discloses that the applicant returned to his home country: - in February 2015 for a holiday for one month; in February 2016 for a holiday for one; and from July 2016 to October 2016 for “fixing family issue.” I do not consider that the evidence establishes any mitigating circumstances or justification for breaching the conditions of the applicant’s visa by not continuing to study or not being enrolled in a registered course of study from August 2014 to October 2015.  I give this factor significant weight against the applicant.

5. In relation to the second period the applicant disclosed in the Request that he was not enrolled in a registered course of study and in his GTE statement that he did not study (from May 2016 to April 2017), the letter from Dr Phillpot dated 14 August 2017 states:

6. The evidence establishes that the applicant consulted Dr Phillpot on 14 August 2014 and 28 October 2014.  The Request discloses that the applicant returned to his home country during July 2016 and October 2016 for the purpose of “fixing family issue”.  The applicant did not consult Dr Phillpot between 28 October 2014 and October 2016.  The letter from Dr Phillpot dated 14 August 2017 indicates that the applicant only “recently” consulted Dr Philpott to explain that “on July 21, 2016 he decided to return to Indonesia because the family problems were creating such stress for him and ruining his opportunity to study successfully.”  The letter from Dr Philpott dated 14 August 2017 merely records what the applicant informed him well after returning from Indonesia in October 2016.  The letter records that at the time the applicant consulted Dr Pillpot, the applicant “appears to be very focused on his studies now.”

7. There is no medical evidence that the applicant was unable to continue with his studies or was unfit to study during this second period (from May 2016 to April 2017).  The applicant did not seek to defer his studies if he was having difficulties studying, as I consider a genuine and responsible student would do. So far as the applicant’s decision to “return to Indonesia because the family problems were creating such stress for him and ruining his opportunity to study successfully”, this was not a medical diagnosis but what the applicant told Dr Philpott when he “recently consulted” Dr Philpott prior to 14 August 2017.  Overall, I do not consider that the evidence establishes any mitigating circumstances or justification for breaching the conditions of the applicant’s visa by not continuing to study or not being enrolled in a registered course of study from May 2016 to April 2017.  I give this factor significant weight against the applicant.

8. In relation to paragraph 14(b) (ii) of the Direction, there is no evidence the applicant has previously held a visa that was cancelled or considered for cancellation. Accordingly, on the evaluative exercise I am required to undertake, I assess this factor as neutral. 

9. In relation to paragraph 14(b) (iii) of the Direction, the applicant first arrived in Australia on 18 October 2013.  The applicant disclosed in the Request that since arriving in Australia, the applicant has completed one short General English course (during October 2013 and January 2014) and commenced studying the Bachelor of Business course on 7 May 2018.  The length of time the applicant has been in Australia and the little progress he made until commencing his current course of study, bring into question whether the Student visa may have been used primarily for maintaining ongoing residence. I think in the past it has been from the time he completed the General English course up until the time the applicant commenced his current course of study.  I give this factor some weight against the applicant.  So far as the applicant’s current course of study is concerned, the applicant’s progress indicates he is genuinely applying himself to his studies.  I give this factor some weight in favour of the applicant.

10. In relation to paragraph 14(b) (iv) of the Direction, in the Request the applicant disclosed that since first arriving in Australia he has travelled to Singapore and China.  There is no evidence that the applicant did not comply with the migration law of those countries.  I expect all applicants to comply with the migration laws of all countries they travel to.  I do not think applicants should be given credit for acting lawfully.  Accordingly, I consider that this factor is neutral.

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

1. In relation to paragraph 15 of the Direction, the applicant is not a minor.  Accordingly, the consideration of the intentions of a parent, legal guardian or spouse are not relevant to my determination.

Any other relevant matter

1. I do not consider that there is any other relevant matter to the assessment of the applicant’s intention to temporarily stay in Australia. 

Conclusion

1. I have found this application difficult because of the applicant’s progress in his current course of study.  However, having regard to the evaluative exercise I am required to undertake, the factors I have assessed against the applicant outweigh the factors I have assessed in favour of the applicant. 

2. 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) and 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.

3. 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

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

Peter Newton
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

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

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

3. 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

1. 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.

2. 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

1. 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

1. 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

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

2. 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

1. 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

1. 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.