Acharya (Migration)

Acharya (Migration) [2022] AATA 301 (11 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Amogh Acharya
REPRESENTATIVE:  Mr Suraj Khatri (MARN: 0747797)
CASE NUMBER:  2006057
HOME AFFAIRS REFERENCE(S):          BCC2019/5480697
MEMBER:T. Quinn
DATE:11 February 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 11 February 2022 at 11:33am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa, residence, study and work history – lengthy residence with one brief return – completion of some courses and non-completion and cancellation of others – enrolment in lower-level courses – current full-time work – community ties – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 338(2), 347, 359(2), 499
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
CASES
Baker v MIAC [2012] FCAFC 145
Chen v MIBP [2017] FCA 46
Cockrell v MIAC (2008) 171 FCR 345
FKP18 v MIBP [2018] FCA 1555
Jagroop v MIBP (2014) 225 FCR 482
Kaur v MHA [2019] FCCA 1372
Khan v Minister for Immigration [2019] FCCA 565
MIAC v Obele (2010) 119 ALD 358
Tshering v MHA [2019] FCCA 2667
Williams v MIBP (2014) 226 FCR 112
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 (‘the delegate’) on 6 March 2020 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).
The applicant applied for the visa on 31 October 2019 (‘the application’). At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
On 6 March 2020, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that the applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.
On 25 March 2020, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.
Approximately 22 months have elapsed since the making of the delegate’s decision and the applicant’s application for review with the Tribunal. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed during that time. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information to the Tribunal for the purposes of determining the outcome of their application for review. To this end, on 18 October 2021, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’). The applicant responded to the s359(2) letter on 2 November 2021 which was within the prescribed timeframe.
The applicant appeared before the Tribunal via telephone hearing on 9 February 2022 to give evidence and present arguments. The applicant was assisted in relation to the review but their agent did not attend the hearing.
It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.
The Tribunal has proceeded to a decision having regard to all the information before it, including the material and evidence provided by the applicant on the day of the hearing.
For the following reasons, the Tribunal has concluded that the decision under review ought to be affirmed in this case. In reaching its decision, the Tribunal has had regard to:
a.the oral evidence of the applicant given at the hearing;
b.all written material filed by or on behalf of the applicant both before and after the hearing; and
c.other relevant documents on the Tribunal and Department files.
The Tribunal notes that not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference only to that information that the Tribunal has been found to be fundamental or materially significant to the determination of the issues in the case.
STATUTORY FRAMEWORK
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant.
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 clause 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’ (‘the Direction’), made under section 499 of the Act. The Direction 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 Direction is a lawful direction of the Minister made in accordance with section 499 of the Act. The Tribunal is therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[1] Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before the Tribunal. The Tribunal, however, recognises that it is an independent statutory body. It must therefore reach its own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate. In this regard, the Tribunal also notes the decision of Judge McNab in Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]), wherein his Honour referred to the decisions of Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]) and Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) in relation to the proper approach to the consideration of guidelines such as the Direction. Most pertinently, his Honour endorses the view espoused in those cases, that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.
[1]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant in this case is a 26-year-old male Nepalese citizen who first arrived in Australia on 28 June 2014 on a student visa and then remained onshore on one further student visa which expired on 30 October 2019.[2] The applicant made the application which is the subject of this review the day after his previous student visa expired. This timing raises concerns for the Tribunal about the true nature of the applicant’s intentions and, taken together with other evidence as set out in this decision, raises concerns about whether the applicant is using the student visa migration programme to maintain residence which is in circumvention of the intentions of the migration programme.
[2] See delegate’s decision and applicant’s response to the s359(2) letter.
The applicant has remained onshore from the time of his arrival in 2014 until present, with the exception of one brief trip to Nepal 2017.[3] Prior to coming to Australia, the applicant completed High School in 2013 in Nepal.[4]
[3]See delegate’s decision and applicant’s response to the s359(2) letter.
[4] See applicant’s response to the s359(2) letter.
The applicant’s application which is the subject of this review was to undertake a Certificate III and IV in Commercial Cookery and a Diploma of Hospitality Management with a cumulative completion date of 20 January 2022.[5] Due to delays in this matter coming before the Tribunal, the applicant ought now to have completed these courses, returned to his home country and put into motion his future plan. Instead, he remains onshore, working but not having completed his study as initially proposed. In his response to the s359(2) letter, the applicant listed his study with a completion date in January 2021 (which he clarified at hearing should have been January 2022) and the confirmations of enrolment he supplied at that time (November 2021) also indicated the courses would be complete on 20 January 2022. The Tribunal enquired about whether the applicant had completed his courses and whether he was enrolled. The applicant gave evidence that he had completed his Certificate III and IV in Commercial Cookery but that due to the COVID19 Pandemic and all the associated lockdowns the completion date for his Advanced Diploma of Hospitality Management had been delayed until June 2022, stating he started this course about one month ago.
[5] See delegate’s decision.
The Tribunal enquired about when he stopped studying and the applicant gave evidence that during 2021 the study was moved to online and he was supposed to finish in October 2021. He said that after everyone had been vaccinated the course was moved from remote learning to in person and he was allowed back to finish this course in December 2021. The Tribunal indicated that the applicant had not supplied corroborating evidence such as completion certificates for his Certificate III and IV in Commercial Cookery and gave the applicant until the close of business on 10 February 2022 to file same. To date, no post-hearing submissions have been filed by the applicant.
The Tribunal then enquired about the applicant’s study progress between June 2016-February 2019 as even based on his own response to the s359(2) letter, it appeared he had made no academic progress in that time. The applicant’s response was difficult to follow as he said he had enrolled in an Advanced Diploma of Leadership and Management for three or four months but he did not enjoy it and so enrolled in an Advanced Diploma of Business for one month which he also did not enjoy. He said he was considering returning to Nepal but at the start of 2017 his enrolments were cancelled and he re-enrolled in a Bachelor of Business. The Tribunal found the applicant’s evidence for a period of over two years difficult to follow and determined to undertake a search in relation to the applicant’s enrolment history.
All registered courses and course providers are listed in the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’), an online register kept in accordance with the requirements of the ESOS Act.[6] Details of courses listed in CRICOS are integrated into the Provider Registration and International Student Management System (‘PRISMS’), a database maintained by the Australian government.[7] The PRISMS database is the principal means by which registered course providers comply with legislative requirements relating to the monitoring of international students studying in Australia. Upon enrolling an international student into a registered course of study, the course provider enters the details of that enrolment into the PRISMS database. The database then records a Confirmation of Enrolment (‘COE’) for the student. The COE functions as a record of the student’s enrolment status in the course and as proof of enrolment for the purposes of clause 500.211 of Schedule 2 of the Regulations. The PRISMS record also lists the status of particular enrolments, such as having been ‘cancelled’ or ‘studying’ or ‘finished’ or ‘future enrolment’. The Tribunal undertook a PRISMS search in relation to the applicant during the hearing.
[6]Section 10 of the ESOS Act.
[7]See generally, Department of Education and Training, Provider Registration International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018).
The Tribunal explained to the applicant what a PRISMS search is and how it could be adverse to his case and the Tribunal’s obligations to formally put such information to the applicant. The Tribunal then took the applicant through the adverse information contained in the PRISMS search. The PRISMS search indicates that the applicant’s Certificate IV in Commercial Cookery was not completed and was, in fact, cancelled in May 2021 for unsatisfactory course progress. The Tribunal asked for the applicant’s comment on this and the applicant stated he was enrolled and need to speak to his college. He gave evidence that he did submit his assignments and he has not been sent a completion letter yet but that he understood that his offer letter to study the Advanced Diploma of Hospitality Management indicated he could only commence that course if he had finished his Certificate IV in Commercial Cookery and on that basis, he thought he had completed the course. The Tribunal did not find this explanation persuasive and is concerned that the applicant may not be being forthright with the Tribunal.
The applicant has previously completed an Advanced Diploma of Engineering Technology in June 2016 and the PRISMS search indicates he also completed a Diploma of Leadership and Management from September 2018-September 2019 which the applicant did not list in his questionnaire filed in response to the s359(2) letter.[8] This study progress is to the applicant’s credit and the Tribunal commends him in this regard. The Tribunal is troubled, however, by the significant change in study and career pathway reflected in the applicant’s package of cooking and hospitality courses. The applicant gave evidence at hearing that he was only eighteen when he arrived in Australia and that and engineering was more his parents’ choice that his choice. He said he did well but did not enjoy it and realised engineering was not for him. He gave evidence that he tried other courses in Business but did not like them either and that he finally tried cooking because he h ad been working part time casually while studying engineering and was enjoying it. The Tribunal allows for reasonable changes to study and career pathways and considers this explanation is plausible regarding the applicant’s change in study.
[8]See delegate’s decision, applicant’s response to the s359(2) letter and PRISMS search.
The applicant plans to pursue a career in hospitality and run his own restaurant which his father is supportive of.[9] The applicant anticipates earning remuneration of NPR65-70,000 per month plus bonuses using the qualifications gained.[10] The Tribunal accepts that these courses are relevant to and may assist and improve the applicant in his future career. The Tribunal is somewhat troubled by the downgrade these courses represent from the applicant’s Advanced Diploma education level.
[9] See applicant’s response to the s359(2) letter and evidence at hearing.
[10] See applicant’s response to the s359(2) letter.
The applicant stated at hearing that holding an Australian certificate and work experience from Australia will give him a step up in his career. He also submits Australian qualifications are considered superior in the industry compared to Nepalese qualifications.[11] The Tribunal considers the applicant has provided reasonable reasons for undertaking his study in Australia as opposed to his home country or region.
[11] See applicant’s response to the s359(2) letter.
The applicant states ‘no’ in his questionnaire filed in response to the s359(2) letter in relation to his community ties to Australia.[12] However, the applicant has now been living in Australia for more than seven years, which has included considerable time working and studying onshore (and necessarily engaging in those respective communities). The length of the applicant’s stay in Australia, for more than seven years, indicates that the applicant has a preference to remain onshore. It is reasonable to conclude that after over seven years onshore the applicant has cultivated a satisfactory life and established strong ties to the Australian community acting as a strong incentive for him to remain onshore. As each day passes, those ties strengthen.
[12] See applicant’s response to the s359(2) letter.
The applicant has returned to Nepal once since his arrival – for twenty days to visit family in 2017.[13] The Tribunal acknowledges that the COVID19 Pandemic has made international travel virtually impossible since early 2020 and does not place any weight against the applicant in relation to not travelling home since early 2020. The applicant’s parents and brother live in Nepal and he speaks to his parents every day and his brother three times per week.[14] He has otherwise provided minimal information in relation to his community ties to Nepal.[15] The Tribunal accepts that the applicant has personal ties to Nepal acting as an incentive for him to return but considers those ties appear to be outweighed by his incentives and desires to remain onshore and are not acting as a significant incentive for him to return.
[13] See applicant’s response to the s359(2) letter.
[14] See applicant’s response to the s359(2) letter.
[15] See applicant’s response to the s359(2) letter.

The applicant has been working onshore as a chef since October 2014.[16] In his questionnaire filed in response to the s359(2) letter he did not provide information in relation to his annual salary regarding his work in Australia. This troubles the Tribunal. It raises concerned about whether he is being selective in the information he has provided. The Tribunal enquired about why the applicant did not provide this information at hearing and the applicant said he did not know and was sorry. At hearing, the applicant gave evidence that from October 2014-September 2020 he was earning AUD350-400 per week (AUD18,200-20,800 per annum) and that in his most current employment (which commenced in October 2020), since the rules in relation to international students have changed and he can work full time, he was been earning AUD900-1,000 per week (AUD46,800-52,000 per annum).[17] The applicant has expenses in Australia of AUD16,380 per annum.[18] The applicant’s father owns a house worth AUD500,000 equivalent in Nepal and the applicant owns a car and Crypto worth a total of AUD6,000 equivalent.[19] The Tribunal notes that the United Nations Human Development Index, which is a statistical comparison of life expectancy, education and per capita income indicators by country, ranks Nepal as 142^nd in the world as compared to Australia’s ranking of 8^th in the world.[20] The Tribunal considers that, taking the evidence as a whole, the applicant’s economic circumstances onshore are likely to be acting as a significant incentive for him to remain onshore.
[16] See applicant’s response to the s359(2) letter.
[17] See applicant’s response to the s359(2) letter and evidence at hearing.
[18] See applicant’s response to the s359(2) letter.
[19] See applicant’s response to the s359(2) letter and evidence at hearing.
[20]See Table 1 of United Nations’ Human Development Report 2020 commencing at page 343 < See also: Rathor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1187 at [42]-[44].
There is no evidence that the applicant has had any travel, visa or immigration issues in the past.[21] The applicant stated he does not have any potential military service obligations or political or civil unrest concerns in Nepal.[22]
[21] See applicant’s response to the s359(2) letter.
[22] See applicant’s response to the s359(2) letter.
The applicant made submissions at hearing that he just needs four more months in Australia to complete his Diploma of Hospitality management and that he is likely to return to Nepal at that time for his birthday in August. The Tribunal has considered these submissions.
The Tribunal is very concerned by the sheer length of time the applicant has been onshore for. It is difficult to reconcile a period of over seven years with the definition of ‘temporary’ as required by the Act and Regulations in relation to student visas, particularly given the applicant has only engaged in vocational level courses.
Ultimately, the factors weighing against the applicant in this case are greater than those falling in his favour and the Tribunal is concerned that the applicant is motivated by factors other than study and is using the student visa program as a means of maintaining residence in Australia. The Tribunal cannot be satisfied on the material and evidence before it that the applicant genuinely intends to stay in Australia temporarily.
The applicants’ application and submissions do not satisfy the Tribunal that the applicant genuinely intends to stay in Australia temporarily. The Tribunal is concerned that the visa is being sought primarily to maintain residence in Australia.
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 clause 500.212 and the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by clause 500.212.
Having had regard to the applicant’s circumstances, his immigration history and all other relevant matters, the Tribunal cannot be satisfied that the applicant is a genuine applicant for entry and stay as a student temporarily as required by clause 500.212. Accordingly, the applicant does not meet clause 500.212.
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. Therefore, the decision under review must be affirmed.

DECISION

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

[2022] AATA 301

11 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice