Agnihotri (Migration)

Agnihotri (Migration) [2021] AATA 5449 (27 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Harman Agnihotri
CASE NUMBER:  1935778
HOME AFFAIRS REFERENCE(S):          BCC2019/4671988
MEMBER:T. Quinn
DATE:27 September 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 27 September 2021 at 10:57am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment status – not currently enrolled in a course of study – genuine temporary entrant – Direction No.69 – credibility concerns – downgrade from existing qualifications – strong familial presence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.212
CASES
Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372
Khan v Minister for Immigration & Another [2019] FCCA 565
Tshering v Minister for Home Affairs [2019] FCCA 2667

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 28 November 2019 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 18 September 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 28 November 2019, 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 18 December 2019, 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 21 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 4 March 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 17 March 2021 which was within the prescribed timeframe.
The applicant appeared before the Tribunal via telephone hearing on 8 September 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indian and English languages.
The applicant was assisted in relation to the review by their registered migration agent.
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 submissions made and written material filed by or on behalf of the applicant; 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
Enrolment (clause 500.211)
Clause 500.211 relevantly requires that, at the time of decision, the student visa application in question be founded on evidence that the applicant is enrolled in a course of study.[1] The applicant does not claim to meet any of the alternative criteria in clause 500.211 of the Regulations.
[1]Clause 500.211(a) of Schedule 2 to the Regulations.
‘Course of study’ is defined as a ‘full-time registered course’ and a ‘registered course’ is a course provided by an institution which has been registered under the Education Services for Overseas Students Act2000 (Cth) (‘the ESOS Act’) to provide that course to overseas students.[2]
[2]Regulation 1.03 of the Regulations.
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.[3] 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.[4] 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.
[3]Section 10 of the ESOS Act.
[4]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 determinative issue before the delegate was whether the applicant met the genuine temporary entrant criteria under clause 500.212 of the Regulations. The applicant’s submissions and evidence at hearing made it clear that he is not currently enrolled in a course of study. However, the applicant also gave evidence at hearing that he has been onshore on a Bridging visa E which prohibits the holder from studying. Therefore, the Tribunal did not consider it appropriate to change the determinative issue in this case in the circumstances.
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.[5] 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.
[5]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 35 year old male Indian citizen who first arrived in Australia on 15 July 2019 as a secondary applicant on his then wife’s student visa.[6] The applicant has explained in written and oral submissions that his wife left him shortly after his arrival in Australia and cancelled his visa. He explained that this was a big shock and very upsetting and that it also meant he was onshore unlawfully for a brief time while he worked out how to proceed. The timing of the notice of intention to consider cancellation (NOICC) and the cancellation of the applicant’s visa and the applicant’s enrolment in a Diploma of Leadership and Management and subsequent application which is the subject of this review are consistent with the evidence and submissions made by the applicant. Whilst the Tribunal is bound to consider the applicant’s immigration history under the Direction, it also considers the surrounding circumstances are highly relevant and that no weight should be placed against the applicant in relation to his unlawful residence in Australia in the circumstances, particularly given the very short periods of time between his wife leaving him, the NOICC and cancellation itself and his relatively prompt application for a student visa which is the subject of this review.
[6] See delegate’s decision and applicant’s response to the s359(2) letter.
The applicant made the application which is the subject of this review to undertake a Diploma of Leadership and Management and a Graduate Certificate in Management (Learning). However, due to his visa conditions he was unable to undertake these courses. He explained at hearing that study for three months was permitted under this visa and so commenced his Diploma of Leadership and Management. He gave evidence that he completed two or three units in this course. His questionnaire in response to the s359(2) letter also states in relation to ‘Information about current and proposes courses of study’ ‘I have completed 2 units of this course here in Australia successfully’. The Tribunal sought corroborating evidence of this and allowed the applicant additional time after hearing to produce same. On 26 September 2021, the applicant filed a Statement of Attainment dated 22 September 2021 indicating he had completed one unit in in his Diploma of Leadership and Management. Whilst the Tribunal acknowledges that the applicant has undertaken this unit it is very concerned by the applicant’s evidence in this regard.
The Tribunal Guidelines in relation to assessing credibility dictate that evidence is to be assessed in its entirety, not just in isolated parts.[7] The guidelines also state that Members should focus on what is objectively or reasonably believable in the circumstances. The Tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.[8] Where evidence is incoherent, vague or lacking the detail or knowledge where greater detail or knowledge might be expected of a person in the applicant’s claimed position, the weight placed on the applicant’s evidence may be limited and the applicant’s credibility may be questioned.[9] The Tribunal is troubled by the fact that the applicant gave sworn evidence that he had completed two or three units in this course when in fact he had only completed one. It raises concerns about whether the applicant is being forthright with the Tribunal.
[7]Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, von Doussa, Moore and Sackville JJ, 7 November 1997); Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220 per Sackville J, with whom North J agreed, at [50]; Sein v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 370
[8]Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALR 347 at 348.
[9]Nejad v Minister for Immigration and Multicultural Affairs [1999] FCA 1827 per Tamberlin J at [9], upheld on appeal, Nejad v Minister for Immigration and Multicultural Affairs [2000] FCA 741; Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 963 per Goldberg J at [20] to [23]; “T” v Minister for Immigration and Multicultural Affairs [2000] FCA 467 per Drummond, Matthews and Mansfield JJ at [27]-[47]
Prior to his arrival in Australia, the applicant completed a Bachelor of Commerce in 2007, a Post Graduate Diploma in Computer Application in 2008, a Certificate in French in 2009, a Post Graduate Diploma in Business Management in 2011 in India and a Diploma in Business in New Zealand in 2013.[10] He has undertaken work: as a Customer Service Representative in New Zealand from July 2012-December 2013 earning between NZ240-500 per week depending on his study commitments and visa conditions; as a Store Manager in New Zealand from November 2012-March 2015 earning AUD30,000 equivalent per annum; as Restaurant Manager in New Zealand from April-November 2015 earning AUD30,000 equivalent per annum; and as a Restaurant Manager in India from January 2016-July 2019 earning AUD4,500 equivalent per annum.[11]
[10] See applicant’s response to the s359(2) letter.
[11] See applicant’s response to the s359(2) letter and evidence at hearing.
The applicant’s application which is the subject of this review was to undertake a Diploma of Leadership and Management and a Graduate Certificate in Management (Learning).[12] Due to the applicant’s visa conditions he has not progressed in this study, with the exception of one unit in his Diploma.[13] The Tribunal enquired as to why the applicant did not seek to vary his visa conditions at hearing and he gave evidence that he did not know he could do this.
[12] See delegate’s decision.
[13] See applicant’s response to the s359(2) letter and submissions of 26 September 2021.
The applicant submits that after he completes his courses, he will return to his home country to continue his career in the same field as he previously worked: Business and Management and submits he can do this more effectively by getting international exposure through courses in Australia.[14] he claims he will seek work as part of a growing organisation.[15] He claims that internationally qualified staff get a higher salary in reputed companies and he expects he will be able to achieve an annual income of AUD11,172 using the qualifications gained.[16] The Tribunal allows for reasonable changes to study and career pathways but is concerned by: the downgrade the Diploma represents from applicant’s existing qualifications; the fact that the applicant already holds a Diploma in Business from New Zealand and a Post Graduate Diploma in Business Management; the fact that the applicant has considerable work experience in Management; the vague, generic and general nature of the applicant’s stated career goals – his submissions lack specificity or any research or job offers. The applicant made submissions at hearing that these qualifications are in a different field of study to the qualifications he already holds, and he wants specialised skills in leadership which is in high demand in multinational companies in India. The Tribunal did not find these submissions persuasive. Although the Tribunal accepts that these qualifications are relevant to a career in Business, Leadership and Management, taking the evidence as a whole it does not consider the evidence supports a conclusion that the proposed qualifications are likely to offer anything more than marginal assistance and improvement to his future career.
[14] See applicant’s response to the s359(2) letter.
[15] See applicant’s response to the s359(2) letter.
[16] See applicant’s response to the s359(2) letter.

The applicant states he is not working in Australia.[17] The applicant’s expenses onshore are AUD12,000 per annum.[18] 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 Indonesia as 131^st in the world as compared to Australia’s ranking of 8^th in the world.[19] The Tribunal considers the applicant’s economic circumstances onshore do not appear to be acting as a significant incentive for him to remain at this time.
[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 Table 1 of United Nations’ Human Development Report 2020 commencing at page 343 <>
The applicant submits that similar courses are available in India but that the learning environment is different and completely based on theoretical knowledge.[20] He claims students do not get the same practical exposure as in Australia.[21] The Tribunal accepts the applicant has provided reasonable reasons for undertaking this study in Australia.
[20] See applicant’s response to the s359(2) letter.
[21] See applicant’s response to the s359(2) letter.
The applicant has left the section of the questionnaire filed in response to the s359(2) letter blank in relation to community ties to Australia. However, the applicant has two siblings living in Australia: his brother is an Australian citizen and lives in Australia with his wife, next door to the applicant.[22] The applicant lives with his sister, her husband and her son in Australia but does not help with the care of his nephew.[23] The Tribunal is concerned that the applicant’s strong familial presence in Australia are acting as ties to the Australian community acting as a strong incentive for him to remain onshore.
[22] See applicant’s response to the s359(2) letter and evidence at hearing.
[23] See applicant’s response to the s359(2) letter and evidence at hearing.
The applicant has left the section of the questionnaire filed in response to the s359(2) letter blank in relation to community ties to India. However, the applicant’s parents live in India and he speaks to them twice a week via phone and every day via text message.[24] He gave evidence at hearing that he has responsibility to take care of his parents in the future. He has not travelled home to India since his arrival but the Tribunal notes that the COVID19 Pandemic and associated travel restrictions have made such travel virtually impossible since early 2020. The Tribunal accepts that the applicant has ties to India which may serve as an incentive for him to return but does not consider the evidence supports a finding that those ties are acting as a significant incentive for him to return.
[24] See applicant’s response to the s359(2) letter.
The applicant has travelled to New Zealand: for study for two years and seven months in 2012; and for twelve months on a working visa in December 2014.[25] Outside of the aforementioned cancellation of his previous student (dependant) visa, there is no evidence that the applicant has had any travel, visa or immigration issues in the past.[26] The applicant does not have any potential military service obligations or political or civil unrest circumstances in India.[27]
[25] See applicant’s response to the s359(2) letter.
[26] See applicant’s response to the s359(2) letter.
[27] See applicant’s response to the s359(2) letter.
Taking the evidence as a whole, 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.
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;
dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

[2021] AATA 5449

27 September 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction