Razon (Migration) [2022] AATA 1574 (23 February 2022)

Last Updated: 10 June 2022

Razon (Migration) [2022] AATA 1574 (23 February 2022)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANTS: Mrs Shiela Rivera Razon
Mr Mark Anthony Vitug

CASE NUMBER: 1931640

HOME AFFAIRS REFERENCE(S): BCC2019/4391894

MEMBER: Penelope Hunter

DATE: 23 February 2022

PLACE OF DECISION: Sydney

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

Statement made on 23 February 2022 at 1:44pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant was not a genuine applicant for entry and stay as a student – has members of her immediate family in Australia – lack of demonstrated value of her proposed courses – change in career pathway from education to hospitality –use the student migration program to maintain ongoing residence – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 October 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 3 September 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. 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 (Cth) (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay in Australia temporarily as a student.

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

BACKGROUND

5. The applicant is a citizen of the Philippines, and she applied for the visa in order to undertake a course of study including a Certificate IV in Commercial Cookery and a Diploma of Hospitality with a completion date scheduled for 24 November 2021.

6. The second named applicant is her husband. He has sought the visa on the basis of being a member of the family unit of the applicant. The applicant initially also included her three children in the visa application.

7. In support of their application, the applicants provided to the Department copies of identity documents, Overseas Student Health Cover, birth certificates and passport extracts for their three children and a selection of family photographs. In a statement supporting the visa application, the applicant also set out the following relevant information (in summary):

1. She has strong family ties in the Philippines, including her parents and siblings. She has a Bachelor of Elementary Education from Bataan Peninsula State University, which she completed in April 2014. She came to Australia on a Visitor visa and studied English with Townsville International English School from July to September 2019. She had been abiding by the conditions of their visa and will continue to do so if granted a Student visa.
2. In the Philippines she had worked as a day care worker with Municipal Social Welfare and Development in Pampanga, from May 2013 to March 2015. Following that, she worked as an elementary teacher (kindergarten/nursery) from June 2017 to July 2019.
3. During her short English language studies, she found out that Australia has a quality education system. She was also encouraged by some of her friends to obtain an Australian qualification, because it would greatly enhance her job prospects in the Philippines. Based on her career expectations, she decided to study a Certificate IV in Commercial Cookery, followed by a Diploma of Hospitality Management. She found that the opportunities for finding stable employment with good remuneration conditions are great for suitably qualified people in the hospitality industry in her country.
4. She believed that her studies could provide her with a rewarding career and good prospects of stable employment with greater job security. She could potentially set up her own business and work independently in the future. Hospitality is a career that she would enjoy. It is flexible and in demand, with good pay conditions. She could also balance her family and work life better. The hospitality sector in her country is robust and continuously developing. This is supported by World Travel and Tourism Council reports on the Philippines.
5. During the certificate course, she aims to gain hands-on experience in the commercial cookery environment. Axial Training College (ATC) allows students to gain unique experience within their on-site restaurant facilities. It would enable her to acquire an in-depth understanding of kitchen, finance and team management, and work health and safety practices. It would also make her job-ready at the time of graduation.
6. She decided to undertake a Diploma of Hospitality Management to advance her knowledge and skills further, and acquire a broad range of hospitality skills combined with specialised managerial skills and substantial knowledge of the hospitality industry. By doing so, she could undertake highly skilled senior manager positions to co‑ordinate hospitality operations. The course opens up opportunities for her to be employed in various hospitality establishments including restaurants, motels, hotels and clubs. She also chose this course as it allows her to specialise in accommodation services, cookery, food and beverage or gaming.
7. Upon completion of her studies, she is planning to seek employment with one of the internationally renowned hotels and resorts in the Philippines like the Marriott or the Shangri‑La. After gaining sufficient employment experience, she is planning to open up a family restaurant and manage it with her partner.
8. She chose to study in Australia because it has a reputable education system. The qualifications obtained in Australia are recognised internationally and regarded highly in her country. Australia will also provide her with the opportunity to practise her English on a daily basis and improve her language skills even further. Having completed her studies in Australia, it would add prestige to her resume and enhance her job prospects.

8. By letter, dated 14 October 2019, the applicant consented to the withdrawal of her three children as dependent family members in her visa application.

9. The delegate, in their decision record, a copy of which the applicant has submitted to the Tribunal, provided the following reasons for the visa refusal (in summary):

1. The delegate was concerned that the applicant had arrived in Australia with the intention of extending her stay. She had travelled on a Visitor visa with her immediate family and studied English with Townsville International English School commencing on 9 July 2019 and was now proposing to extend her stay onshore until 24 November 2021.
2. The delegate noted that it was the original intention of the applicant to include her children in her visa application. Although they were withdrawn, if she was granted the visa, her children would be eligible to join her in Australia in the future. It was considered that the future eligibility to bring her children onshore reduces her incentive to return to her home country upon completion of the nominated course.
3. The applicant declared that she was last employed as an elementary teacher (kindergarten) until July 2019, and this indicated that she may have had prior intentions of extending her stay onshore upon arrival.
4. The applicant’s highest level of study completed offshore was a Bachelor of Elementary Education, completed in April 2014. The delegate found that the applicant was studying for vocational (lower) level qualifications, and it was not consistent with the behaviour of a genuine temporary entrant to seek a change in pathway shortly after arriving in Australia on a Visitor visa. On balance, the delegate did not accept that the intention behind lodgement of the current application was for academic reasons as claimed.
5. When considering the applicant’s statement, the delegate was unable to reconcile how a vocational course package of two years would assist her to commence employment with ‘internationally renowned hotels and resorts in the Philippines’. This is especially since she has never been employed in this industry previously, or had prior educational qualifications related to this field. The applicant had also presented no evidence to indicate that she researched employment opportunities in the field of hospitality to explore after completion of the proposed course.

10. The Tribunal received an application for review from the applicant on 7 November 2019.

11. In response to a request by the Tribunal pursuant to s 359(2) of the Act, on 28 July 2021, the applicant provided a completed Student Information form. In this form, the applicant disclosed that she had completed her Certificate IV in Commercial Cookery in April 2021. She did not commence her Diploma of Hospitality Management but had a future enrolment commencing in October 2021. She had to defer her studies as she gave birth to a further child on 16 April 2021. At this time the Tribunal also received the following additional documents:

1. Statement of Completion of Bachelor of Elementary Education by the applicant and transcript of records given on 2 April 2014, dated 7 March 2014 and 26 May 2014.
2. Transcript of records for the applicant in the Master of Arts in Education.
3. Letter of certification of employment for the applicant with Municipal Social Welfare and Development Office as a day care worker issued on 14 January 2016.
4. Letter of certification of employment for the applicant with St Anthony Academy as an elementary teacher issued on 25 January 2018.
5. Letter of certificate of employment for the applicant with Sitio Culubasa Elementary School as an elementary grade’s teacher and kindergarten teacher, from 4 June 2018 to 30 June 2019.
6. Birth certificate of the applicant’s son, born 16 April 2021.
7. Letter from Axial International College, confirming the applicant’s enrolment in a Certificate IV in Commercial Cookery and Diploma of Hospitality from 30 September 2019.
8. Letter from Axial International College, confirming the applicant’s vocational placement at The Ville Resort & Casino dated 27 July 2021 and AIC Vocational Placement Shifts Log of the applicant.
9. Statement of Attainment of Certificate IV in Commercial Cookery and record of results dated 20 July 2021.
10. National Certificate II in Housekeeping issued on 9 August 2015.
11. Confirmation of Enrolment (CoE) in a Certificate IV in Commercial Cookery with course dates from 30 September 2019 to 9 April 2021 at Axial Training Pty Ltd created on 20 August 2019.
12. CoE in a Diploma of Hospitality Management with course dates from 26 April 2021 to 24 September 2021 at Axial Training Pty Ltd created on 20 August 2019.
13. Identity documents for her family including her parents’ marriage certificate, birth certificates, and birth certificates of her siblings.
14. CoE in a Diploma of Hospitality Management with course dates from 11 October 2021 to 8 April 2022 at Axial Training Pty Ltd created on 2 July 2021.

12. The applicant and second named applicant appeared before the Tribunal on 15 November 2021 by telephone to give evidence and present arguments. The hearing was scheduled during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicants were assisted in relation to the review by their registered migration agent, who also participated in the hearing.

CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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 satisfies cl 500.212 of Schedule 2 to the Regulations.

14. 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?

15. 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.

16. 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.

17. It is accepted that the applicant has completed part of her scheduled program of study. She has provided evidence that she has attained the award of the Certificate IV in Commercial Cookery, and the Tribunal accepts that she has completed one of her proposed courses. It is also the general expectation of Student visa applicants seeking to remain in Australia for the purposes of study that they will enrol in and complete their nominated courses. The applicant has not proceeded with her scheduled study of the Diploma of Hospitality due to the birth of her son in April 2021, and now is proposing to extend her stay until April 2022. It is of concern for the Tribunal that she would seek to expand her family while she is in Australia rather than focusing on the completion of her studies.

18. As to her circumstances in her home country, it is acknowledged that her three children would provide an incentive for her to return to the Philippines. The applicant told the Tribunal that they were currently being cared for by her parents and two brothers. Although she initially included her three children in the visa application, the applicant told the Tribunal that they had not travelled to Australia with her and her husband when she arrived on the Visitor visa. She said that she included her children in the visa application as they were her dependants and it was anticipated that they would come to visit them in Australia. She claimed that it was not her intention for them to remain in Australia while she studied. In any event the children have not been able to travel to Australia and she has not had the opportunity to return to the Philippines due to COVID-19 travel restrictions. The applicant denied that she would seek to bring her children to Australia once granted the visa, and having spent time here she believed that it would be expensive to have her elder children with her in Australia. It is accepted that the presence of her children and other family ties in the Philippines would act as an incentive for the applicant to return at the completion of her studies.

19. As to her economic circumstances in her home country, the applicant initially said that she did not have any assets with her husband. She later provided evidence that they owned the family home. The applicant claimed that the property had been built on land gifted to them by her in-laws, and was not subject to any mortgage or finance. The applicant has not provided any evidence of this property ownership and it is noted that she did not declare it as an asset in her Student Visa Information form provided in response to the Tribunal’s request for information pursuant to s 359(2) of the Act. However, the applicant has not produced any evidence of this property ownership. Her children were currently residing in the home while they are cared for by her parents. Her husband worked buying and selling cars and they would also sell rice from their house. There is no evidence of any economic circumstances of the applicant that would present a significant incentive for her not to return to her home country.

20. There is no evidence that the applicant has any military service commitments. Furthermore, there is no evidence of any civil or political unrest in the applicant’s home country that would induce her to apply for a Student visa for the purposes of remaining in Australia indefinitely. Overall, her circumstances in her home country are favourable for the visa grant.

21. The applicant claimed that she chose to study in Australia as it has a better quality education system to the Philippines, with better facilities and work placement opportunities. She maintained that it was also an opportunity to improve her English which would be of benefit while working in the hospitality industry. The Tribunal acknowledges that these are reasonable reasons for the applicant wishing to undertake study in Australia. Although, the Tribunal must balance this with the cost of study in Australia, the costs of providing for her children while she is studying and the extended absence from her family.

22. As to the applicant’s circumstances in Australia, it is noted that she has members of her immediate family in Australia in the form of her husband and youngest child. The applicant denied that the fact that she had expanded her family while in Australia was an indicator of an intention not just to stay temporarily. She said she would be applying for a passport for her child in January so they were ready to return to the Philippines. While staying in Australia they are living with her mother-in-law in Townsville. Her mother-in-law has lived in Australia for 10 years and is married to an Australian citizen. She owned land of approximately seven acres and her husband is assisting her mother-in-law to produce vegetables on the property, which are sold at the local markets. The applicant claimed that her husband had intended to return to the Philippines to be with their children when she decided to study, but he was unable to do so due to COVID-19 travel restrictions. The Tribunal questioned whether it was the genuine intention of her husband to return permanently rather than to just visit the children, as the visa application had been made in September 2019, several months prior to the pandemic, and with sufficient time make travel plans before any restrictions came into effect. In reply, the applicant said that they had made plans for him to travel to the Philippines for the birthday of one of their children in April 2020, but due to the pandemic, this could not proceed. In addition, the applicant also has a sister who is an Australian citizen living in Canberra. Her husband has an aunt and a brother and sister living in Australia. His siblings live in Wodonga, Victoria. Clearly the applicant has some supportive family in Australia, and while they are not all located in the same state, she has stable and supportive accommodation which it is considered could act as an incentive for her to remain. It is also of concern that the applicant’s husband is remaining in Australia, not earning an income for a number of years, when their children in the Philippines are requiring the care of others. The Tribunal has concerns that he may also have reasons to remain in Australia other than for the purposes of providing support for the applicant during her studies.

23. The Tribunal questioned the applicant about her change in career pathway from education to hospitality, considering she already held bachelor qualification and had undertaken masters study in the education field, although she had not completed her masters qualification. The Tribunal asked the applicant why she had chosen to leave teaching and she offered that she changed her mind. Under further questioning, she said that there was a lot of administration. The applicant further stated that they were living in the culinary capital of the Philippines, although she has not supplied to the Tribunal any evidence to support this claim. The Tribunal questioned the applicant about the veracity of her claims of obtaining a better life balance in hospitality compared to teaching as the mother of young children, and the applicant replied that as she loved cooking, the hours did not matter. While working as a day care worker, she discovered her love for cooking, and she would often have the role of preparing the meals for the children and she claimed that this experience caused her to reconsider her career. However, the Tribunal noted from her work experience she still went to teach for several years after her childcare position. It is not the case that the role saw her change or undertake any work in hospitality at the time. The Tribunal was not persuaded by the applicant’s evidence as to her reasons for her change of mind, or that she has supplied any evidence to support her claims that she would have stable employment, greater job security and be able to balance her family work life better.

24. The Tribunal noted the finding of the delegate that it was not consistent with the behaviour of a genuine temporary entrant to seek to change pathway shortly after arriving in Australia on a Visitor visa. She said that it was her intention to only study English when she came to Australia. She wanted to learn English because she claimed that it was hard for her to understand the accent in Australia. The Tribunal did not understand why the applicant would need to better understand the Australian accent if she had genuinely intended to return at the end of her permitted stay on her Visitor visa. It concurs with the delegate’s concern that the stated change in career intention would have required a greater level of planning and preparation before arriving in Australia. The applicant also maintained that it was her classmates during her English course who convinced her to undertake studies in cookery; she claimed that she had brought them food during the course and they commented on her cooking skills. While it is accepted that reasonable changes to study or career plans should be accommodated for visa applicants, the Tribunal did not consider this a persuasive explanation for the applicant’s change in career or intentions, particularly as she had a young family in her home country, was just starting her career as an educator and had not studied for over five years, and aside from preparing meals for children in day care had no actual experience in the hospitality industry.

25. When asked whether she was regressing in her academic qualifications, the applicant only offered that she believed she would be able to use the qualifications that she has obtained in Australia in her home country. The applicant maintained that even during the pandemic, although hospitality workers had lost jobs in her area, culinary jobs were still available. However, the applicant has not demonstrated any research of actual positions she could obtain or interest from potential employers. In fact, when asked whether she had taken any steps to find employment, the applicant said that in the future she was planning to send out resumes with the goal of finding employment when she returned. It is further noted that these were issues also raised by the delegate, the applicant has had the opportunity to obtain such evidence, and the Tribunal remains unsatisfied that without relevant experience, solely on the basis of Australian qualifications, she would be able to obtain a well remunerated position as she claims. The applicant has referenced in her Student Information form salary information for chefs in the Philippines, through salaryexplorer.com. The same site demonstrates greater remuneration on average for teachers.^[1] Overall, the Tribunal is not satisfied that the applicant’s proposed course of study will greatly improve her remuneration or career prospects compared to her existing qualifications.

26. As to her future plans to open a restaurant, the applicant did not persuade the Tribunal that this was a genuinely held intention. When asked about the type of restaurant, the applicant was initially hesitant, and then said it would serve international cuisine as they lived in a culinary capital with many international visitors. The Tribunal noted that an international style restaurant for overseas visitors would require some capital and the applicant was asked about her resources to set up this business. The applicant did not identify a particular location or premises but said they had discussions with her mother-in-law and she had indicated that she would advance them approximately $20,000 when she is ready to start the business. Other relatives will be able to work in the restaurant and she claimed that they will perhaps borrow the rest from the bank. Once more it is noted that the applicant has not demonstrated any assets for potential security. The applicant denied that an international restaurant would be expensive to establish, yet the Tribunal was not persuaded; the applicant has claimed that she intended to initially work in the industry for a time to obtain experience, and it is considered that she would have considerably developed plans as she is seeking to change her career, and she has an obligation to assist in providing for her young family and has disrupted the lives of several of her family members to embark upon this change in pathway. The Tribunal had concerns that the applicant was not seeking to study in Australia for the reasons that she had claimed.

27. It is accepted that the applicant was able to answer, when questioned, questions about her study. She identified that she was currently undertaking two units of study: Prepare and Monitor Budgets, and Manage Customer Service Practices. She claimed that she was undertaking her study full-time and attended her college twice a week. The Tribunal has received no information corroborating her coursework or that she is on track with the progression of her studies. She maintained that she had an intention to work in an international hotel upon her return to the Philippines and build her career. However, once more the Tribunal is struck by the fact that the applicant has not demonstrated that she has explored any employment opportunities at this level in her home country. In the absence of any actual experience, the Tribunal shares the concerns of the delegate that a vocational course package of two years would assist her to commence employment in internationally renowned hotels.

28. The Tribunal has also considered the evidence of the applicant that she did not think that Australia was a safe country to live because several months prior to the Tribunal hearing, her car had been stolen overnight. While it is accepted that this was an upsetting event for the applicant, it did not change her intention to proceed with her updated enrolment in the Diploma of Hospitality, and the Tribunal is not satisfied that any weight could be attributed to the event as demonstrating the applicant’s intention to return to her home country.

29. Other than the decision of the applicant to extend her stay in Australia for approximately an additional 30 months, having arrived on a Tourist visa for a short stay, there are no other issues of concern in the applicant’s migration history. There is no evidence that the applicant has been refused or had any other visa considered for refusal or cancellation, and there is also no evidence that she is not abiding by the conditions of her visa.

30. While the Tribunal accepts that the applicant’s children would act as an incentive for her to return to the Philippines, it must also balance this with the fact that she has family members with her in Australia. On balance, given the time, cost and extended separation from her family, it is not satisfied that she has reasonable reasons for undertaking study in Australia. It is also not satisfied that the applicant has demonstrated her potential for greater career prospects and remuneration. Considering the totality of the evidence, it is not persuaded of her intention to establish her own restaurant in the Philippines or of the future she could provide for her family. The Tribunal is not persuaded by the reasons offered by the applicant for her sudden desire to change careers and extend her stay in Australia and has concerns that she may be using the Student visa for purposes of maintaining residence for herself and her husband in Australia. Overall, the Tribunal places greater weight on the applicant’s circumstances in Australia and the lack of demonstrated value of her proposed courses compared to her existing qualifications. Therefore, having considered the evidence and submissions of the applicant, and having regard to the factors specified in Direction No.69, the Tribunal considers that the applicant is using the Student visa to maintain residence in Australia, rather than due to a genuine interest in study and a career path, as claimed.

31. 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).

32. 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.

33. 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 for both the applicant and the second named applicant.

DECISION

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


Penelope Hunter
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:

1. the applicant’s circumstances; and
2. the applicant’s immigration history; and
3. if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
4. 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:

1. considering the applicant against all factors specified in this Direction; and
2. 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:

1. information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
2. the applicant or a relative of the applicant has an immigration history of reasonable concern;
3. the applicant intends to study in a field unrelated to their previous studies or employment; and
4. 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:

1. 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;
2. 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;
3. 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;
4. military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
5. 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:

1. The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
2. evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
3. whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
4. whether 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
5. 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:

1. 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
2. relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
3. 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:

1. Previous visa applications for Australia or other countries, including:
   1. 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
   2. 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.
2. Previous travels to Australia or other countries, including:
   1. 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;
   2. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
   3. 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
   4. 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.

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^[1] Teacher Average Salary in Philippines 2022 - The Complete Guide (salaryexplorer.com) accessed on 16 February 2022