Zia (Migration)

Zia (Migration) [2021] AATA 3835 (20 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Asif Zia
CASE NUMBER:  1930002
HOME AFFAIRS REFERENCE(S):          BCC2019/4322018
MEMBER:Michael Biviano
DATE:20 July 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 20 July 2021 at 5:30 pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – lengthy stay in Australia – completion of multiple unrelated courses – value of course to future career – employment in Australia – maintaining residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 October 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 29 August 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) for the reason that he was not a genuine applicant for entry and stay as a student because he did not intend to stay in Australia temporarily.
The applicant appeared before the Tribunal on 12 April 2021 to give evidence and present arguments, but due to time constraints the hearing was adjourned to 17 May 2021.
It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant was a genuine applicant for entry and stay as a student.
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 is a 37-year-old Bangladeshi national who obtained an initial Student (Class TU 572) visa on 24 May 2007 to study in Australia. He first came to Australia on 3 June 2007. Since that initial student visa the applicant has stayed in Australia for more than 14 years.
The Decision Record of the delegate of the Department of Home Affairs dated 4 October 2019, which was provided to the Tribunal by the applicant, confirms the applicant made the current application for a Student Class TU Subclass 500 visa on 29 August 2019 (Decision Record).
Further, the Decision Record confirms that the applicant has resided in Australia on 8 different student visas and a temporary graduate visa.
The Decision Record confirms that at the time of applying for the visa, he was proposing to study a Diploma of Leadership and Management.
On 17 February 2021, prior to the hearing, the applicant filed with the Tribunal a response within time pursuant to an invitation to supply student visa information about the courses he was studying and information about his entry and stay in Australia in accordance with s.359(2) of the Act (Response).
In addition to the Response the applicant filed supporting documentation. The documentation comprised:
a.confirmation of enrolment (COE) certificate No. D1D85B68 for the applicant to study a Diploma of Building and Construction at Orange International College from 22 February 2021 to 20 February 2022, which was created on 15 February 2021;
b.Certificate IV in Building and Construction from Unity School of Education dated 27 January 2021 with results and statement of completion;
c.Letter from Melbourne Institute of Technology dated 24 July 2019 confirming that the applicant had met all course requirements for the Master of Networking together with academic transcript;
d.Diploma of Human Resources Management from Queens College dated 2 January 2017 with Record of results;
e.Certificate of Attainment from Performance Education for the ACS Professional Year Program dated 29 May 2015 with Statement of Achievement;
f.University of Ballarat Bachelor of Information Technology dated 26 July 2016 with academic transcript;
g.Diploma of Information Technology from Pacific College of Technology dated 5 July 2012 with Statement of Attainment;
h.Statement of Attainment from Pacific College of Technology dated 2 May 2011 for units in the Certificate II in Information Technology;
i.Diploma of Hospitality Management from the Illawarra Business College dated 29 March 2010 with academic transcript;
j.Academic results for the applicant in secondary school studies;
k.Decision Record; and
l.Statement from the applicant dated 16 February 2021 (Statement).
Prior to the hearing the applicant also submitted a payslip from the Unity School of Education which confirmed his income and further documentation to the Tribunal in support of his application.
The applicant arrived in Australia on 3 June 2007 pursuant to a student visa TU 572 to learn English. He has been in Australia for more than 14 years which is a long period of time and inconsistent with the stay being temporary.
The applicant in the Statement and the Response claims:
a.He came to Australia after obtaining a TU 572 visa on 24 May 2007 to undertake an English course, which led to a Certificate IV in Business Management, for the purpose of obtaining a Diploma;
b.Between April 2008 and March 2010, he studied and completed a Diploma of Hospitality Management at the Illawarra Business College;
c.Between February 2011 and June 2012 he studied and completed a Diploma of Information Technology at Pacific College of Technology;
d.Between July 2012 and November 2013, he studied and completed a Bachelor of Information Technology at University of Ballarat;
e.Between July 2014 and May 2015, while on a VC 485 Temporary Graduate visa, he completed the ACS Professional Year Program at Performance Education;
f.Between December 2015 and November 2016, he completed a Diploma of Human Resources Management at Queen Anne College;
g.Between March 2017 and July 2019, he completed a Master of Networking at Melbourne Institute of Technology;
h.Between September 2019 and December 2019 he studied a Diploma of Leadership and Management at Vocational Training Institute, which he did not complete;
i.Between January 2020 and December 2020 he studied and completed a Certificate IV in Building and Construction at Unity School of Education;
j.Since February 2021 he has studied a Diploma of Building and Construction at Orange International College.
The applicant gave evidence that after he completed his studies in the Master of Networking, he was seeking to undertake further study and obtain a further Master’s degree to be undertaken by research. The Statement confirms that the applicant received an expression of interest from Victoria University on 13 August 2019 to undertake a Master’s by research in the Business program, but he refused taking up the course due to time limitations and his area of interest did not match the course. He has since looked to undertake a research program in the IT field, but he claims that he needs at least 3 years’ experience before being admitted into the Research Program. Instead he took the advice of his Education Consultant to enrol in a Diploma of Leadership and Management to give him time to seek enrolment in a Research Program.
The applicant in the Statement confirmed that he enrolled in the Diploma of Leadership and Management at the Vocational Training Institute at Hobart, Tasmania, which he was enrolled in from September 2019 to December 2019.
The applicant claims that he lost interest in the course and that he did not believe it would improve his employment prospects. He spoke to his father who encouraged him to complete his studies in building and construction, due to demand in such trade back home and to return home.
However the applicant set out his reason for changing studies in the Statement as follows:
Unfortunately, lack of interest in that course and limitations of career prospect, I changed the course and enrolled to Certificate IV in Building Construction at Unity School of Education on January 2020 hoping for a part time career for Trade sector until I have started my research program. Then Covid-19 pandemic starts, the Australian Government shut the border and enforce strict lockdown and various restrictions. As a result, I was unable to get enroll myself to Research Program throughout 2020 due to severe uncertainty of everything. However, I did apply for my research program to University of Tasmania. Sadly, they refused to entry at this moment.
It is clear from the Statement that the applicant’s intentions were to undertake the Research Program. He tendered emails seeking a supervisor to undertake a Research Program. He claims that as he was located in Tasmania, which only has 1 university in which he could undertake a Research Program and due to the travel restrictions within Australia, he was unable to pursue the Research Program.
Instead he completed the Certificate IV in Building and Construction and is now undertaking the Diploma of Building and Construction, which he is scheduled to complete on 2 February 2022. The applicant claimed in evidence that he wants to complete the Diploma of Building and Construction, so that he can work with the family business in asset development and work as a project manager. He claims he requires the Diploma qualification so that he can voice an opinion and seek change in Bangladesh to adopt a National Construction Code, and also to work in construction in Bangladesh and have qualifications that were recognised internationally so that he could work overseas. However such evidence did not reconcile with his evidence that he wanted to undertake the Research Program and work in IT.
Further the Statement also confirmed that he wanted to work in Information Technology on his return to Bangladesh. The Statement confirmed:
Now, I am planning to do Diploma of Building and Construction for one year program since travel restriction in place. During my last study, I have met various career advisors and they advised me that I am doing the right thing. I also find this course very interesting, something new to me and I would like to change my career path at this moment. I have tried to get an IT related professional job in Australia to gain some experience to use in my home country Bangladesh, but it is so difficult to get a part time job offer while I am in student visa. Altogether, I have decided to continue this Diploma of Building Construction course because this course is recognized in Bangladesh and the certificate will help me to get a job as a Project Assistant Manager in Dhaka. Since I have completed Certificate IV in Building Construction, it is high demand in Tasmania and there are high possibilities that I will be able to get a casual or part time job to gain some hands on experience. Ultimately, my propose course and some experience will improve to secure a trade sector job in Bangladesh. I have researched for trade related job in Bangladesh, and Australia. All places are high in demand and I do not have to wait for a long time to get a part time job. Therefore, I need my Student visa to complete my Diploma of Building and Construction program and after completion of this course I would like to return Bangladesh.
…
There is a high demand for Networking and Information technology professionals globally. Project assistant manager for building and construction is also a highly demandable field in the local job market of Bangladesh. Since, overseas degree holders are highly valued in Bangladesh’s local job markets, and I have a Bachelor’s, Master’s degree in Information Technology & Networking with a Diploma in Human Resources Management, Certificate IV and Diploma of Building and Construction from Australian institutions, therefore; I believe that I am in a good position of receiving mid to upper level jobs or teaching positions in universities with good salary and benefits in public or private sectors in Bangladesh.
The applicant in evidence was candid that if he was given the opportunity to undertake the Research Program he would undertake those studies. Further he claimed but for the closed borders due to the COVID-19 pandemic, he would have left Australia with his Certificate IV in Building and Construction. Such evidence is inconsistent with someone wanting to undertake the Diploma of Building and Construction to improve his employment prospects and remuneration back at home. Rather the evidence is more consistent with someone wanting to extend his stay in Australia for the purposes of maintaining residency here.
Prior to coming to Australia he completed secondary school studies and did not work in Bangladesh.
In light of the applicant’s intentions in his Statement in gaining employment in a mid to upper-level position or teaching position at a university with a good level of remuneration, by reason of his extensive qualifications, the Tribunal does not accept that if the applicant completes the Diploma of Building and Construction it would improve his employment prospects and remuneration in Bangladesh.
Further the Tribunal considers that the applicant’s inability to return home due to travel restrictions is being used as a reason to undertake further studies and stay in Australia as a student.
The Tribunal recognises that it is important to allow for reasonable changes to career and study pathways. The applicant has changed courses from Hospitality Management, to Information Technology, to Human Resources Management, to Computer Networking, to Marketing, to Building and Construction. The courses are not connected or complementary and do not lead to a specific career or profession.
While the Tribunal recognises that it is important to allow for reasonable changes in career and study pathways, this is not the case where an applicant has merely decided to change careers through undertaking short vocational education training (VET) courses. The courses which the applicant has undertaken since completing the Master of Networking in July 2019 are short VET courses including the Diploma of Leadership and Management and the Certificate IV in Building and Construction and now the Diploma of Building and Construction. The Diploma he is studying does not reveal progression in his course of study and it is inconsistent with his level of education, as he has previously completed 3 diploma courses, a Bachelor’s degree and a Master’s degree.
The applicant has been in Australia for the last 14 years and if the Diploma of Building and Construction was such an essential qualification for his future development, he has had sufficient opportunity to undertake that study while in Australia.
There is nothing preventing the applicant from going home and seeking to obtain building qualifications in Bangladesh.
The applicant in the Statement outlined the following reasons why he preferred to undertake the Diploma of Building and Construction in Australia rather than obtain trade qualifications back in Bangladesh:
I would have taken the similar program in my own country. But the trade course certificate from Bangladesh is not recognized globally. Another reason why I preferred to complete my Diploma of Building and Construction program from a reputed institution like Orange International College in Australia is that to receive an internationally recognized certificate. My father is sponsoring my education since my first arrival in Australia. He is fully capable of bearing my educational cost, living expenses and all other expenses.
In light of the Statement discussed above about the employment he would be seeking on his return to Bangladesh which was unlikely to include building and construction, and in evidence about potentially working locally in building and construction in Bangladesh, and having considered his international qualifications which he has already obtained, the Tribunal does not accept that the applicant requires such qualifications from Australia to improve his employment prospects. Accordingly the Tribunal is not satisfied that the applicant has a reasonable motive to study the Diploma of Building and Construction in Australia.
While in Australia the applicant has undertaken limited employment as he has been supported by his family in Bangladesh. The applicant gave evidence that between September 2008 and November 2010 he worked at McDonald’s as a crew member. He claims he was earning approximately $300 per week, which equates to $15,600 per annum in that role. Between May 2014 and December 2016 he worked at Frontline HR on a casual basis and he claims that his income from that role was also around $300 per week, which equates to $15,600 per annum. On 7 April 2021 the applicant obtained employment working as a Trainer and Assessor at the Unity School of Education with a starting rate of pay of $23.00 per hour increasing to $25.00 per hour, working 20 hours per week, resulting in the applicant earning $500 per week, which equates to $26,000 per annum which is a high level of income. Such level of income would provide the applicant with a substantial incentive to remain in Australia.

The applicant gave evidence that the level of wages in Australia were higher than those in Bangladesh. The Tribunal notes that if the applicant obtained full‑time employment in Australia, the minimum wage in Australia as at 1 July 2021 as set by the Fair Work Commission is $732.60 per week, which equates to $40,175.20 per annum.[1] Having regard to the levels of income that the applicant could receive whilst in Australia and the minimum rate of pay in Australia together with his qualifications, the Tribunal considers that if he obtained full-time employment in Australia, he would earn substantially more than what he would receive in Bangladesh in a similar role and that would provide him with a substantial incentive to remain in Australia and not return home.
[1] National Minimum Wage Order 2021 – [PR729671]
The applicant conceded in evidence that the economic conditions in Bangladesh are not as favourable as those in Australia, which also would provide a significant incentive for him not to return home to Bangladesh and provide him with an incentive to remain in Australia.
The applicant has lived in Australia for the last 14 years and if he completes the Diploma of Building and Construction he is enrolled in, his stay will extend to 14 years and 9 months which is a very long period of time and not consistent with the stay being temporary. Further the applicant would if the opportunity arose undertake a further Master’s by research course which would extend his stay even longer. He has lived here for an extremely long period of time and, it is inconsistent with the purpose of the stay to study on a temporary visa.
Undoubtedly the applicant has a substantial degree of knowledge of living in Australia.
The applicant has studied at Orange International College for the last 5 months and the Tribunal accepts that he has a substantial degree of knowledge about the courses he is studying and the course provider.
The applicant gave evidence he has returned home to Bangladesh regularly. However the applicant in the Response stated that he had returned twice, once in 2011 for 14 days and once in 2017 also for 14 days. The Decision Record confirms that the applicant had been offshore 26 days over the course of his stay in Australia. The Tribunal prefers to accept the evidence in the Response and the Decision Record regarding his returns home. The Tribunal finds that the applicant’s conduct in returning home only twice during his stay and for such a short period of time, even having regard to the travel restrictions since March 2020 is consistent with him wanting to stay in Australia permanently and not return home.
The applicant has assets in Australia being a car – a Mitsubishi Mirage which was worth approximately $2000 – and while his father has substantial property holdings worth $657,000, he did not have any property in his own name, and he did not have substantial incentive to return home to Bangladesh.
The applicant confirmed in evidence that he did not have any concerns about returning to Bangladesh and he had no concerns about military service commitments or political and civil unrest in his own country. The Tribunal finds that they do not present as a significant incentive for him not to return home.
The applicant has his parents at home in Bangladesh who appear to have substantial assets and property holdings and they have supported him in his studies in Australia. The Tribunal finds that based on the applicant’s evidence and circumstances in his home country (including the assets of his family, including the business and substantial property holdings, together with his education and the support that he has and would receive from his family back home) relative to others in that country, he is in a good position and that would not provide a significant incentive for him not to return home.
The applicant has personal ties both in Australia and in Bangladesh.
The applicant gave evidence that his parents and sister reside in Bangladesh and that would ordinarily provide him with a significant incentive to return home, however, he has not seen them in person since February 2017. He claims that he speaks to them regularly, by Facebook Messenger Family Video Conference Group Call every day. However, he intends to stay in Australia for at least a further 6 months and possibly longer if he can undertake a Master’s by research course. When coupled with his circumstances in Australia, the long duration of his stay in Australia, the higher level of income that he could earn in Australia as compared to Bangladesh, being financially supported while in Australia, and his intention to remain in Australia to study for at least a further 6 months to undertake a VET course, the Tribunal finds that such ties do not provide a significant incentive for him to return home to Bangladesh.
The applicant has substantial ties to Australia. Those ties include his brother in Sydney, who is resident here, friends here with whom he keeps in regular contact, together with the higher levels of income and the duration of his stay and intended stay in Australia. Having regard to the income the applicant can earn in Australia, the Tribunal finds that those ties demonstrate that he has a strong incentive to remain in Australia rather than to return home.
The applicant in his Response has not identified that he was refused any other visa or had a visa cancelled in Australia or elsewhere.
The applicant gave evidence that he is not in breach of any of his visa conditions.
The applicant has lived in Australia for more than 14 years, and intends to stay in Australia for at least a further 6 months, possibly longer bringing his stay in Australia to at least 14 years and 9 months which is an extremely long period of time and inconsistent with his stay being temporary especially having regard to the fact that he has studied low-level VET courses since July 2019 and has completed 3 Diplomas, 1 Bachelor’s degree and 1 Master’s degree in multiple disciplines and his current studies will not improve his employment prospects and remuneration back home in Bangladesh. The Decision Record confirms that he has remained in Australia on 8 different student visas and 1 temporary graduate visa and he has had ample opportunity to complete the courses he has wanted to undertake in Australia. In all the circumstances the Tribunal is not satisfied that the applicant intends by making this application to obtain a student visa to remain here temporarily.
Based on the above matters, the Tribunal is not satisfied that the applicant has made this application to gain a student visa to study temporarily and it considers that the primary objective of the application is to maintain an ongoing residence in Australia and to remain in Australia permanently.
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) of the Regulations.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Michael Biviano
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.

[2021] AATA 3835

20 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction