Ybanez (Migration)

[2019] AATA 3669

Ybanez (Migration) [2019] AATA 3669 (1 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Geoffrey Jr Ybanez
Ms Marisa Ybanez

CASE NUMBER:  1802958

HOME AFFAIRS REFERENCE(S):           BCC2017/4214171

MEMBER:Glenn O’Brien

DATE:1 July 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 01 July 2019 at 12:33pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – does not genuinely intend to stay temporarily in Australia – significant incentives to remain in Australia – family – financial support – economic circumstances – lack of business plan or prospective employment – limited return travel to home country – intends to use student visa to maintain residence in Australia – dependent on wife’s student visa for four years – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), 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 30 January 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 10 November 2017. 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.

3. The applicant provided the Tribunal a copy of the delegate’s decision record with the application for review. 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) because the delegate was not satisfied the applicant intends genuinely to stay temporarily in Australia.

4. The applicants appeared before the Tribunal on 27 June 2019 to give evidence and present arguments.

5. The applicants were 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 cls.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary applicant for entry and stay as a student.

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.

   9.Adopting the procedure in s.359AA of the Act, the Tribunal put to the applicant that it had on the Tribunal file a copy of the applicant’s enrolment records from the Provider Registration International Student Management System (PRISMS) database.  For completeness, the Tribunal provided the applicant with a copy of the PRISMS summary of enrolment.  The Tribunal explained to the applicant the relevance of the records to the review before the Tribunal. The Tribunal explained the consequences of relying on the information and confirmed the applicant understood the consequences of the information being relied upon. The Tribunal offered the applicant an opportunity to seek an adjournment to consider the information and comment on or respond to the information.  The applicant did not seek an adjournment and elected to respond to the information during the course of the hearing.

   10.The applicant arrived in Australia on 4 January 2012 on a dependent student visa.  The applicant did not commence study in Australia until applying for a TU572 Student visa which was granted on 23 January 2016.

   11.The Tribunal considered whether the applicant had reasonable reasons for not undertaking the proposed course of study in his home country if a similar course is already available there. 

   12.In written submissions to the Tribunal the applicant told the Tribunal that there was a lack of equivalent courses in the Philippines as tertiary providers do not offer short term diplomas and to attain the same skills and knowledge the applicant would have had to undertake a long term course such as a bachelor’s degree taking up to four times longer.  Given  the applicant has been studying in Australia since January 2016 and that the proposed courses of study would extend the applicant’s period of study in Australia to over four years the Tribunal does not accept this constitutes reasonable reasons for studying in Australia.  This is particularly so when, as noted in the decision record, the applicant held a dependent student visa since 2012 and did not study until 2016 although he was permitted to do so.  Notably, the applicant told the Tribunal at the time he did not believe he could study on a dependent visa and relied upon advice of his friends rather than seeking independent advice.

   13.The applicant told the Tribunal his mother, two sisters and a brother live in the Philippines.  His father has passed away.  The applicant also maintains contact with his extended family and has a video call with his mother and siblings at least once a week.

   14.The applicant’s wife is resident with the applicant and has been since 2012.  The applicant’s sister-in-law is an Australian citizen and resides permanently in Australia.  The applicant’s wife is expecting a baby in the next few months with a caesarean delivery booked for 18 September 2019.

   15.Since arriving in Australia the applicant has returned to the Philippines once in 2013 for approximately one month for the purposes of a vacation and visiting family.  The applicant told the Tribunal he intended to return however due to his wife’s miscarriage he did not.

   16.The applicant told the Tribunal that he is supported financially by his sister-in-law in Australia and also undertakes part-time employment )and has so since February 2012) with Limson Investments and is currently head cashier and earns approximately $24,000 per annum on the basis of approximately 20 hours per week part-time work.

   17.Prior to travelling to Australia the applicant completed tertiary studies and obtained a Bachelor of Science in Business Accounting and worked as a technical support representative, most recently for Convergys earning approximately AUD$11,000 per annum.

   18.In written submissions the applicant told the Tribunal that his plan is to return to the Philippines on completion of his studies and open his own call centre business operating out of the applicant’s home.  At the hearing the applicant told the Tribunal he intends to return to the Philippines to seek work in the same company or industry and would basically do the same job for at least 12 months.  He envisages earning approximately AUD$600 to AUD$700 per month.

   19.The applicant explained to the Tribunal that his home based business will not be a call centre but will provide secretarial support to companies that engage him.  Effectively, he will operate a freelance business and advertise his services.  Once persons or companies engage him he will undertake that work from home.  The applicant envisages targeting US and Australian based customers.  The applicant told the Tribunal he has no business plan but has spoken to several previous work colleagues that have established a similar business model for web-based services and have been successful to the extent they now have their own home and car.  The applicant intends to speak with these colleagues upon his return to further develop his plan.

   20.The applicant told the Tribunal he anticipates earning approximately AUD$1500 per month once the business is established.  While the Tribunal accepts the applicant’s living expenses in the Philippines are likely to be less than in Australia, the income and employment of the applicant in Australia since 2012 on a part-time basis is comparatively higher than the applicant expects to earn in the Philippines on the basis of full-time work and subsequently from a business to be run from the applicant’s home.

   21.The applicant told the Tribunal he owns land in Bacolod City valued at approximately AUD$10,000 on which the applicants intend to build their family home. 

   22.The applicant told the Tribunal he does not have any military service commitments and there are no circumstances of civil or political unrest in the Philippines that would induce him to apply for a visa to stay in Australia indefinitely.

   23.In considering the applicant’s circumstances in his home country, on the basis of the matters set out above and the evidence before the Tribunal, the Tribunal finds:

   a.In considering the applicant’s period of residence in Australia since 2012, and time of study since 2016, the applicant has not provided reasonable reasons for not undertaking the proposed course of study in his home country.

   b.The applicant does have family ties to his home country in particular his mother, and siblings, and his desire to return to his extended family including his grandparents for the purposes of raising his expectant child.   In considering the period of time the applicant has been in Australia, the continual presence of his wife in Australia, the presence of the applicant’s sister-in-law in Australia as a permanent resident, the limited return travel to the Philippines since arriving in 2012, the lack of any developed business plan or prospective employment other than to commence his own business to be run out of a home that is not yet constructed, and the fact the applicant is financially supported in Australia during his study, these circumstances are not a significant incentive to return.

   c.The applicant is supported financially during his study in Australia by his sister-in-law. The applicant has been in part-time employment in Australia since arriving in 2012 and earns approximatelyAUD$24,000 per annum on the basis of part-time work of 20 hours per fortnight.  The applicant’s previous income in the Philippines working on a full-time basis was approximately AUD$11,000 per annum and the applicant anticipates earing approximately AUD$1,500 per annum on his return on establishing his own business.  In considering these matters as a whole, the applicant’s economic circumstances present as a significant incentive not to return home.

   d.The applicant does not have military service commitments which would provide a significant incentive not to return home.

   e.There is no evidence before the Tribunal of political and civil unrest in the applicant’s home country of such a nature that may induce the applicant to apply for a student visa to obtain entry to Australia to remain indefinitely.

   f.There is no relevant evidence regarding the applicant’s circumstances in his home country relative to others in that country and the Tribunal makes no findings concerning the applicant in that respect.

   24.The applicant told the Tribunal he lives with his wife in a home provided by his sister-in-law and makes a small contribution for rent.

   25.The applicant has been with the same employer since arriving in Australia in 2012.  The applicant’s sister-in-law is an Australian permanent resident and the applicants are expecting the birth of their child in Australia in a few months.  The applicant told the Tribunal he has close friends in Australia developed through study and work.

   26.Given the period of time the applicant has been in Australia, and the residence of his wife in Australia since 2012, his study since 2016, the expected birth of the applicant’s child in Australia, and the continual employment with the same employer since 2012 the Tribunal is satisfied that the applicant has developed friendships and social connections in Australia.

   27.The applicant told the Tribunal that he previously completed tertiary study in the Philippines but equates that qualification to an Australian diploma level course. The Tribunal considers a four year course of study for a Bachelor of Science in Business Administration with a major in entrepreneurship to be a higher level qualification from the diploma and advanced diploma level courses the applicant has or is studying in Australia in the vocational training sector.   The Tribunal was concerned in relation to the applicant’s pattern of enrolment since arriving in 2012.  The applicant was permitted to study while holding a student TU-572 dependent visa between 2012 and 2016 and chose not to.  The applicant then applied as the primary applicant for a student visa with his wife being the secondary applicant before the cessation of the applicants then visas.  The applicant told the Tribunal that his wife had a miscarriage in 2015 which limited her capacity to keep studying.  Notably however, the applicant told the Tribunal the secondary applicant had completed a Certificate III in Aged Care and a Diploma of Community Service which were her intended courses of study.

   28.After the cessation of the secondary applicant’s study, the applicant enrolled in a Diploma of Leadership and Management and a Diploma of Business and was granted a visa on 23 January 2016.  On completion of those courses of study, the applicant sough the further student visa under review by the Tribunal for further study for a Diploma of Social Media Marketing and an Advanced Diploma of Leadership & Management extending the applicant’s period of residence until March 2020.  The applicant told the Tribunal that he has now completed the Diploma of Social Media Marketing but has not been able to produce evidence of completion as he is challenging his results. 

   29.The Tribunal notes the applicant has completed the previous courses in which he has enrolled except for the courses cancelled due to provider default upon which the Tribunal places no weight.   The applicant completed the Diploma of Business earlier than anticipated.  The Tribunal considers the benefit of the applicant completing another course in the same field of study (but at Advanced Diploma level) in the vocational training sector to be of limited value to the applicant given the qualifications already attained, and the applicant’s intention to return to the Philippines to first work in the same industry in which the applicant previously worked before establishing a business to be run from his own home in that same industry.

   30.While the Tribunal accepts that students will change their career aspirations and study pathways, the applicant’s further study intentions arose and were timed to coincide with the completion of the studies for which he was initially granted a student visa before enrolling in further courses of study in social media marketing and an identical field of study at advanced diploma level.  On questioning the applicant, as to his reasons for commencing the Advanced Diploma of Leadership and Management in March 2019 the applicant told the Tribunal the primary reason for doing so was to enable the applicants to continue residence in Australia until the birth of their child and to arrange necessary documents and registrations such as a birth certificate and Philippine passport.

   31.The applicant demonstrated a good knowledge of his proposed courses and the competencies and skills likely to be achieved through that study.

   32.       In considering the applicant’s potential circumstances in Australia the Tribunal finds:

   a.The applicant has ties to Australia due to the period of time the applicant has been resident in Australia, the residence of his wife, the permanent residence of his sister-in-law, the provision of a home provided by his sister-in-law with nominal rent, the expected birth of the applicant’s child in Australia, his continual part-time work since 2012, and his study.   The Tribunal is satisfied the applicant has developed friendships in Australia through study and volunteering and considers this social and emotional connection to Australia provides a strong incentive to remain.

   b.The applicant spent four years in Australia as a dependent student visa holder and chose not to study.  The subsequent application by the applicant for a primary student visa with his wife as a secondary applicant, the enrolment in further courses of study in a similar field to that at the completion of the study for which the applicant’s initial student visa was granted, the regression from the applicant’s bachelor level studies in the Philippines to vocational training in Australia, and the applicant’s intention to return to the Philippines work in and then establish a home based business in the same industry the applicant previously worked without requiring such qualifications, evidences the student visa programme is being used to circumvent the intentions of Australia’s migration programme.

   c.In considering the matters set out in these reasons for decision including the applicant’s period of time in Australia, the residence of the applicant’s wife and sister-in-law in Australia, change in study intentions at the completion of a course of study, the limited development of the applicant’s business plan, the intention to return to seek employment and then establish a home based business in the same industry and occupation in which the applicant previously worked without attaining the proposed qualifications,  is evidence the applicant is using the student visa primarily to maintain ongoing residence in Australia.

   d.The applicant has a good knowledge of living in Australia, primarily through the period of time the applicant has been in Australia living with his wife, the permanent residence of the applicant’s sister-in-law who provides financial support to the applicants, his work since 2012, and his study.

   e.The applicant has a good understanding of the proposed course of study, education provider and his current study and living arrangements in Australia which he intends to continue.

   33.The applicant’s proposed course of study is at a lower level to the tertiary level studies the applicant completed in the Philippines.  The proposed course is a progression to the applicant’s previously attained qualifications in Australia.

   34.The applicant does not have prospective employment arranged and told the Tribunal that he intends to return to the Philippines to work for a period of approximately 12 months in essentially the same position he used to work in and then establish a home based business on a freelance model providing secretarial services.

   35.The applicant has some three years of previous work experience in the Philippines in a call centre environment.  While the Tribunal accepts the applicant’s proposed courses of study in the vocational sector are generally relevant to his previous experience and future career intentions, the applicant worked in the industry previously without requiring those qualifications.  The applicant told the Tribunal that his Australian qualifications would also enable him to apply for management positions.  The applicant’s already attained tertiary qualifications in business administration (majoring in entrepreneurship) and a Diploma of Leadership and Management, a Diploma of Business and a Diploma of Social Media Marketing that would enable the applicant to return to the Philippines to implement his plans without further delaying those plans for a further course of study in a similar field which the Tribunal considers will provide the applicant with limited further value.

   36.The applicant’s evidence in relation to the remuneration he expects to receive in the Philippines is approximately AUD$600 to AUD$700 on obtaining employment and then AUD$1500 per month operating his own business which is speculative and based upon the prospective success of a business yet to be established.  While the Tribunal accepts the applicant’s living expenses in the Philippines are likely to be less than those in Australia the applicant has been working in Australia since 2012 in the same position earning approximately AUD$24,000 per annum on the basis of approximately 20 hours per week.

   37.In considering the value of the proposed course of study to the applicant’s future the Tribunal finds:

   a.The applicant’s current course of study is a regression to the applicant’s previous tertiary level studies in the Philippines but is consistent and represents a progression to the qualifications already obtained in Australia.

   b.In considering the applicant’s previous work experience and intention to return to the same occupation and industry in the Philippines, the applicant’s proposed course of study is relevant to both his previous and future employment. 

   c.In considering the applicant’s already attained qualifications, his intention to return to the same job and industry the applicant previously worked in, the limited business plan of the applicant, the qualifications already held by the applicant and those attained by the applicant in Australia, the period of time the applicant has been resident in Australia and the time and investment required to undertake a further course of study extending the applicant’s period of residence in Australia to March 2020 to almost eight years, the applicant’s proposed courses of study is of limited value to the applicant in improving the applicant’s career and employment prospects in the Philippines.  If the applicant genuinely holds the career aspirations claimed, the applicant’s existing qualifications and experience would enable him to return to the Philippines to pursue those aspirations without the attainment of further qualifications which the Tribunal considers will provided limited further value to the applicant.

   d.The Tribunal considers the applicant’s further enrolment in additional courses on completion of those courses for which his original student visa was obtained, which are similar or related to the courses already completed in Australia and the tertiary qualifications previously attained by the applicant, is for the primary purpose of maintaining his residence in Australia rather than being undertaken to assist the applicant in pursuing his career aspirations.  The applicant’s existing qualifications and experience would enable the applicant to pursue his intentions of establishing a home based business without requiring the applicant to further delay his return to the Philippines. 

   e.The remuneration the applicant may expect in his home country on completion of his course is comparatively less than what the applicant obtains in Australia working on a part-time basis of 20 hours per week.

   f.There is no evidence before the Tribunal in relation to the comparative remuneration the applicant would receive in Australia and the Philippines utilising the qualifications sought to be obtained by the applicant and the Tribunal makes no findings in that regard.

   38.Other than the applicant’s immigration history set out in the delegate’s decision record and the applicant’s travel to the Philippines in 2013 the applicant told the Tribunal he has not applied for other visas to Australia or any other country.

   39.The applicant told the Tribunal he has not been subject to or considered for any visa cancellation or refusal other than the subject visa application presently before the Tribunal.

   40.The applicant has been in Australia since 2012 and has been studying since 2016 undertaking a series of vocational level courses which are a regression from the tertiary level studies the applicant completed in the Philippines.  The applicant has enrolled in further courses of study in an identical or related field after completing the courses for which his initial student visa was granted.  The Tribunal was concerned that the applicant was enrolling in these courses for the primary purpose of maintaining his residence in Australia.  The applicant told the Tribunal this was not the case and his current courses would enable him to return to the Philippines with four qualifications which would assist him in establishing his own business and in applying for management positions in his previous industry.  The applicant also told the Tribunal that he has not sought to undertake courses that would provide opportunities to apply for further visas such as a 485 visa.  While the Tribunal accepts the course will be of some benefit to the applicant, considering the applicant’s previously attained tertiary qualifications in business administration majoring in entrepreneurship, the three vocational training courses already completed by the applicant in Australia, and the applicant’s previous work experience in the Philippines in the same industry, it considers the applicant is using his student visa for the primary purpose of maintaining his residence in Australia.

   41.In considering the applicant’s immigration history for the purposes of this application, the Tribunal finds:

   a.Other than the matters set out in the delegate’s decision record the applicant has not applied for other visas to Australia and (other than the student visa under review by the Tribunal) there are no instances where visa applications have been undecided, or considered for refusal or cancellation to Australia.

   b.The applicant has not applied for visas to other countries and the applicant has not had a visa refused in other countries.

   c.Prior to arriving in Australia in 2012 the applicant has not previously travelled to Australia and other than the visa application under review the applicant has not held a visa that has been cancelled or considered for cancellation.

   d.Other than the applicant’s return travel to the Philippines the applicant has not travelled to other countries from Australia or to Australia from other countries since arriving in 2012.

   e.The applicant has been in Australia since 2012 and has been pursuing vocation level education since 2016 which is a regression from the applicant’s previously attained tertiary qualifications in the Philippines.  On completion of the courses for which the applicant was initially granted a student visa the applicant enrolled in further similar or related courses of study.  Notably, the applicant has not undertaken courses that would enable the applicant to apply for other visas such as a 485 visa.  However, the applicant’s proposed course of study would extend the applicants temporary residence in Australia to more than eight years with the highest level of qualification obtained being at advanced diploma level. The Tribunal considers the applicant’s current courses of study will provide the applicant limited value in improving the employment and career prospects of the applicant given his already attained qualifications and experience.    For these reasons the Tribunal considers the applicant’s enrolment in his current courses of study is for the primary purpose of maintaining his residence in Australia.

   f.The applicant has complied with the immigration laws of other countries to which the applicant has travelled. 

   42.The applicant is not a minor and it was not necessary to consider the intentions of his parent, legal guardian or spouse of the applicant.  There was no evidence before the Tribunal in relation to these matters and the Tribunal makes no such findings.

   43.As required by Ministerial Direction No.69, the Tribunal invited the applicant to make submissions in relation to any other relevant matter for the purposes of assessing the application.  The applicant told the Tribunal that he has not sought to complete a course that would enable him to apply for future visas extending his residence such as a 485 visa.  This matter was taken into account in considering the application under review.  No other relevant matters were raised by the applicant at the hearing.

   44.The applicant also told the Tribunal his primary intention of enrolling in his current course of study was for the purpose of maintaining his residence in Australia to enable the birth of the applicant’s child and to arrange necessary documents and registrations.  The Tribunal considers this matter evidences the applicant’s intention to use his student visa primarily for the purpose of maintaining the applicant’s residence in Australia until the birth of the applicant’s child.

   45.The Tribunal had regard to all the factors in Ministerial Direction No.69 in considering the applicant’s circumstances as a whole and in making its findings and is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

   46.For cl.500.212 to be satisfied, paragraphs (a), (b) and (c) must all be satisfied. Given the Tribunal has found that paragraph (a) is not met, it is not necessary to consider paragraphs (b) and (c). 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.

   47.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.

   Secondary applicant

   48.Given the applicant does not satisfy the criteria for grant of a Subclass 500 visa, the Tribunal finds that the secondary applicant does not satisfy cl.500.311 because she is not  a member of the family unit of a person who holds a Subclass 500 visa granted on the basis of satisfying the primary criteria.

   DECISION

   49.The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

   Glenn O'Brien
   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.