Abdi (Migration)

Abdi (Migration) [2023] AATA 1754 (16 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Fatuma Jelagat Abdi
REPRESENTATIVE:  Mrs Navneet Kaur Walia (MARN: 1802602)
CASE NUMBER:  2205118
HOME AFFAIRS REFERENCE(S):          BCC2020/2271190
MEMBER:Noelle Hossen
DATE:16 April 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 16 April 2023 at 2:24pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Ministerial Direction No.69 – lack of academic progress – traumatic birth economic incentives – value of the course – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 18 March 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 9 September 2020. 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 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
On the 25 November 2022 the Tribunal wrote to the applicant a s.359(2) letter as follows.
As you applied for the visa on the basis of undertaking a course of study in Australia, it is a //requirement of the visa for you to be:
·enrolled in a registered course of study; and
·a genuine applicant for entry and stay as a student.
Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below.
The Tribunal also advised that in considering whether the applicant is a genuine applicant for entry and stay as a student the Tribunal must have regard to ‘Ministerial Direction No.69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ and attached a copy.
The letter also noted the following:
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
The applicant was given until the 9 December 2022 to provide the information requested.
On the 9 December 2022 a response was received by the applicant to the request for information. The applicant provided the following information to include but not limited to the following:
Request for student visa information
Current Confirmation of Enrolments
Statement of purpose
Birth Certificate of Myles, Damien and Annabella
Passport of Annabella
Current Enrolment and Attendance Records
Fee account Statement
Written Submissions
Letter King Edward Hospital being Discharge Certificate and Premature Delivery
Letter to Department
Current Course Progress Letter
The Tribunal caused a search of PRISMS, being the Provider Registration and International Student Management System register, to be undertaken. The purpose of this search was to ascertain whether the first named applicant had progressed satisfactorily in her Courses whilst the holder of a Student Visa.
According to the PRISMS website, the Department of Education, Skills and Employment is responsible for the Commonwealth Register of Institutions and Courses for Overseas Students. It is recorded that PRISMS is a computer system developed by the Department in association with the Department of Home Affairs for the purpose of receiving and storing information about accepted overseas students that is given to the Secretary under the Education Services for Overseas Students Act 2000. It is further noted that PRISMS provides a secure system for providers of registered educational institutions to comply with legislative requirements by issuing confirmations of enrolments as ‘evidence of enrolment’ in a registered full-time course as required by the Department of Home Affairs and reporting changes in course enrolment, particularly where study ceases, or the duration of the study changes.
It is therefore apparent that PRISMS is a business record of the Department of Education, Skills and Employment and is used by the Department of Home Affairs as evidence of enrolment for the purposes of assessing the grant of student visas. While it is possible providers may not update PRISMS as required, the Tribunal accepts that PRISMS is a reliable record of enrolments, unless there is specific evidence to the contrary in relation to a particular case.
The PRISMS search revealed that the applicant did hold a current confirmation of enrolment in a registered course as at the 27 March 2023, being the date of the search.
On the 27 March 2023 the Tribunal sent the following s.359A letter to the applicant:
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
A recent check of the Provider Registration and International Student Management System (PRISMS) indicates that the courses that you were enrolled in from the 29 January 2021 to the 2 January 2023 were cancelled for non-commencement of studies or non-payment of fees.
The PRISMS records also indicates that you do not appear to have passed any course in its entirety since your arrival in Australia.
The records showed that you did not appear to have completed any courses between the 21 June 2017 to the 11 May 2020 and the 29 January 2021 to the 2 January 2023.
The applicant was given until the 10 April 2023 to comment on or respond to the information.
On the 6 April 2023 the applicant responded by providing submissions.
The applicant appeared before the Tribunal on the 22 March 2023 to give evidence and present arguments.
The applicant was assisted in relation to the review.
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.
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 was born on the 6 December 1994. She said that she arrived in Australia on the 4 July 2017. She was the holder of a Student subclass 500 Visa from June 2017 to September 2020. She applied for the Student subclass 500 Visa the subject of this Application on the 9 September 2020.
She said that she has never applied for a Visa that has been rejected in Australia or any other country before and she has not travelled to any country, save and except, for Australia. There is, therefore, no evidence available to the Tribunal to make findings in respect of the history of compliance with the migration laws of other countries, so the Tribunal does not make a finding in respect of that issue.
She set out in writing that her parents, 2 brothers and 2 sisters live in Kenya. She said that she has a son named Allan that she has not seen since 2017 who also lives in Kenya. Allan’s father also lives in Kenya. She said that she contacts her family being her father and mother every day by direct call. She said that she contacts her sister and brother weekly. She has not seen her extended family since 2017.The Tribunal does consider that the fact that a lot of her family members do reside in Kenya and that this may provide her with a significant incentive to return to her home country. The Tribunal does place a little weight on those factors in favour of the applicant’s case.
The father of her eldest daughter Annabella also lives in Kenya. She said that he is also the father of her other child Allan who lives in Kenya.
She lives in Australia with 3 children who were born in Australia. Annabella has never met her father.
She had 2 children born in Australia namely Myles and Damien Kiprono.
She said that the father of the 2 youngest children lives in the same house as she does presently. He is named Douglas Kiprono Kandie. She said that Douglas is studying a Course in Community Service. She said that she did not know a lot of detail regarding Douglas’s studies or visa status as he is very secretive. She said that she was his girlfriend, and they were in a relationship from 2018. She moved into the home that he lived in, to be with him when she was pregnant with Myles in September 2020. She said that the relationship deteriorated when she was pregnant with Damien. She said that she moved out of the bedroom and sleeps in the same room as the children. She said that he does not speak to her in a respectful manner, and he is only nice to her when he wants something from her.
She said that she is no longer in a committed defacto relationship with him, although he lives in the same home and is the father of 2 of her children. She said that Douglas helps her with the care of the 2 children but not with the care of Annabella as she is not his child. He does the shopping and helps her with the bills. He will take the children to their appointments.
She said that Annabella attends Our Lady of Mercy Catholic school in Girrawheen and that she pays the full costs of her education as she does not receive any child support from her father who resides in Kenya.
She said that she works for Amana Living and works 3 days in one week and 4 days of the next week. She said that she does not work on Sundays. She said whilst the restrictions have lifted regarding the number of hours that she can work in a fortnight as a holder of a Student Visa she works about 67 hours a fortnight. She was asked who looked after the young children when she worked as she said that she works night shifts from 9 pm. She said that Douglas was always home by 9 pm. The Tribunal finds it hard to believe that she and Douglas can continue to cohabit, study, work long hours, and look after 3 young children without much communication or commitment.
She said that her relationship with Douglas was not good and that she decided to end the relationship as he answers her questions rudely. She said that he is a very good father to the boys. Although Douglas comes from the same home country, she said she did not know him in Kenya and met him in Australia.
The Tribunal found some of her evidence hard to believe as she wanted to give the impression that Douglas was difficult to negotiate with, yet they are both able to coordinate their working hours as he cares for the children whilst she is working. She said that she works 67 hours a fortnight and mainly does night shifts. She trusts him with the care of all 3 children.
She said that she has savings of $18,000 in her account and that she has a car. She plans to travel to her home country in December and leave her children behind in Kenya, in the care of her mother so she can return to Australia to study. She was asked whether Douglas consented to the fact that his children would be sent to Kenya and placed in the care of her family. She said that he had consented as he was going to be doing a placement next year and that they would both struggle to look after the children, work and study. This evidence confirms for the Tribunal that she can effectively communicate with Douglas regarding the needs of the children and the care of the children.
She has not returned to her home country since 2017. She left behind her son Allan who is being cared for by her mother. She said that Allan had not seen his father. However, that is hard to believe as she had obviously had a relationship with his father 6 months before the birth of Annabella as she is his daughter. Annabella was born prematurely in Australia at 26 weeks gestation.
She said that Annabella was born on the 27 December 2017.She said that she was in the hospital care unit and could not inform the college about her medical condition.She summarised it as follows: “Psychosocial issues, paralytic ileus, HELLP syndrome , Anaemia, Respiratory distress Syndrome and Haematoma these are issues I was dealing with and above all the suffering of baby was the last nail which ended my courage and ability to be normal. I believe God is strongly denying the existence of myself and my new born baby it took me months to win the battle against the will of the nature. This episode of personal misery disorganised everything and interrupted my study plans.”
The applicant has remained in Australia for the last 6 years. In that time, she has given birth to 3 children. She has made no attempt to return to her home country since the Covid restrictions have lifted. The Tribunal accepts that she may have had difficulties returning to her home country because of the Covid pandemic, but the travel restrictions were in place for only 2 years of those 6 years.
Annabella is now 5 years of age. She said that she lived with a housemate who was able to assist her to look after her during that time. The Tribunal accepts her evidence that it was difficult for her to be expected to recover quickly after the birth of Annabella and accepts that her studies were thwarted in 2017 and 2018 due to the traumatic birth. The Tribunal has taken those facts into consideration and is mostly concerned with the lack of progress in her studies from 2019 to 2023.
She has been struggling in Australia with the birth of 3 children for 6 years with no family support, save from the support that she receives from the father of 2 of the children.
The Tribunal does have some concerns about her lack of progression in her studies. She has finished courses but not passed all the units, so she does not have a Certificate of Completion. It appears that she is doing the Certificate III in Commercial Cookery for the third time and she assured the Tribunal that she would receive credits for some of the Units that she had already completed and therefore she will complete the Course before December 2023. She did provide a transcript which showed that she had been given 3 credits for 3 different units in her course. Although she said that the credits would be given to her as she progressed in the Course there was no evidence that this is what would happen before the Tribunal.
The Tribunal is concerned that despite the evidence of the applicant that she may finish and complete her Certificate III before the end of this calendar year that this is likely to occur as the applicant has been unable to complete and pass a Course in its entirety since she arrived in Australia in 2017 ( even taking into consideration the fact that she suffered trauma in the first 2 years).
If the student visa is granted and the applicant remains in Australia with a prospective end date of her course being 01/01/2027 being the end date of the Graduate Diploma of Management Learning, the applicant will have been onshore for more than 10 years. In the Tribunal’s view her academic history is less than satisfactory. The Tribunal does not consider that her academic progress, over the period, to support a finding that she has been a satisfactory student who has progressed academically.
The Tribunal’s strongly held view is that the applicant is motivated to remain in Australia to work until such time as she can find a pathway to a more permanent arrangement. The Tribunal is not satisfied, in her circumstances, considering her study history and the time that she has lived in Australia now 6 years- indicates that she considers residing in Australia to be temporary.
The applicant provided written evidence that she works in aged care at Amana Living and Mercy Care Aged care and earns $55,000 per year. She set out that her living expenses in Australia is $22,100 per year so she has saved funds whilst employed in Australia. The Tribunal considers that this will provide her with a significant incentive to remain living in Australia. The Tribunal places weight on those factors against the applicant’s case.
The applicant has provided submissions where she attempts to address the reasons why she has cancelled courses and not progressed academically, in response to the Section 359 A invitation dated the 27 March 2023 from the Tribunal enclosing her PRISMS record.
In summary she said that she was unable to complete the Certificate III in Commercial Cookery commencing on the 7 January 2019 and it is recorded that it was due to non-payment of fees. She said that the delay in starting the Course was due to medical reasons. In respect of the Certificate III in Commercial Cookery commencing the 5 August 2019 it is recorded that she failed to pay the required agreed fees by the due date. She said that her agent in Kenya had promised her a scholarship. She said that the agent had cheated her, and she was a victim of uncontrolled forces. She said that she was unable to complete the Certificate III in Commercial Cookery commencing on the 6 January 2020 as she was unable to cope due to a personal reason. She said that she did not receive her Completion Certificate for Certificate III in Commercial Cookery as she could not submit her assignments in due time. She said that she could not continue with her enrolment in Diploma of Hospitality from the 1 February 2021 due to financial hardship. She could not commence the Bachelor of Business as she did not meet the academic requirements on the 23 August 2021. The Tribunal has taken those submissions into account.

The Tribunal is not satisfied that the applicant has established that the continued study will provide her with significant benefits in her proposed career plan, especially considering the cost of the study. The Tribunal therefore is not satisfied that the applicant has demonstrated that the proposed study has a realistic prospect of providing significant value to her future beyond the qualifications she already holds.
She said that she expects to open a Continental Food restaurant in Kenya after completion of her studies. She said that in Kenya Continental Food is famous and there are many continental restaurants present. She stated that she expects to receive $70,000 to $80,000 in the First year and that she expects her business to grow. She provided no other evidence of her plans regarding the restaurant and the Tribunal does not accept her evidence and considers that if she did indeed have such a plan, she should have provided more details of how she would implement the plan. Her estimate of what she expects to earn from the business was not explained and the Tribunal does not accept her evidence as being correct or true. The Tribunal places a lot of weight on those facts against the applicant’s case.
The Tribunal has considered all the information provided with the Visa application after weighing up these factors as a whole the Tribunal finds that the applicant has not been able to satisfy the Tribunal that the applicant genuinely tends to stay temporarily in Australia as a student.
The Tribunal has considered the evidence being the applicant’s economic ties to her country and the applicant has been unable to demonstrate substantial economic ties or personal assets in her home country of Kenya which diminishes her incentive to return to Kenya.
The applicant stated that she is an active member of the Kenyan community in Western Australia and participates on many occasions by practicing her culture. The Tribunal finds that this may be provide an incentive for her to wish to remain in Australia and places some weight on those facts against the applicant’s case.
The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from her study to date or the proposed study which will outweigh the significant time and monetary commitment the courses will require. Therefore, the Tribunal was not satisfied that the applicant has demonstrated the value of her proposed course to her future. The Tribunal places weight on those factors against the applicant’s case.
The factors indicate that the applicant appears to have enrolled in the present course for the purposes of securing a further student Visa rather than due to a genuine interest in study and overall academic progress. The applicant appears to be using the student Visa program as a means of maintaining ongoing residence in Australia and does not have a genuine intention to stay in Australia temporarily.
The applicant has stated that she does not have any potential military service in Kenya and that there is no political or civil unrest presently in Kenya.
There is no evidence before the Tribunal regarding the following factors indicated by direction number 69: economic circumstances of the applicant save and except for the fact that she has $18,000 in a savings account, any remuneration the applicant could expect to receive in Kenya or a third country compared with Australia, the applicant’s circumstances in Kenya relative to others in the country.
The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. Given the amount of time the applicant is now spent in Australia the tribunal is concerned the student Visa may be used primarily for maintaining ongoing residence.
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).
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Noelle Hossen
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;
d.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
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.

[2023] AATA 1754

16 April 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Intention

Statutory Construction