Ahsan (Migration)

Ahsan (Migration) [2023] AATA 1538 (15 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad Ahsan
REPRESENTATIVE:  Mr Muhammad Rafi (MARN: 1700370)
CASE NUMBER:  2116195
HOME AFFAIRS REFERENCE(S):          BCC2019/941857
MEMBER:David Thompson
DATE:15 March 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.

Statement made on 15 March 2023 at 11:45am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No 69 – circumstances in home country – reason to study in Australia – circumstances in Australia – value of the course – immigration history – decision under review remitted
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 21 October 2021 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 17 January 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) because they were not satisfied that the applicant genuinely intended a temporary stay in Australia as a student.
The applicant appeared before the Tribunal on 15 June 2022 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 matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant meets the requirements of cl 500.212.
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.
Evidence
As well as giving evidence at hearing, the applicant provided the following items of documentary evidence to the Tribunal:
a.the delegate’s decision record and notification letter, both dated 21 October 2021;
b.a completed ‘Request for Student Visa Information’ form (M17), provided in response to a request made by the Tribunal on 5 April 2022 pursuant to s 359(2) of the Act;
c.Confirmation of Enrolment (CoE) CF26EB84, in respect of the applicant’s enrolment in a Graduate Diploma of Strategic Leadership at Southern Cross School of Business, scheduled to run from 15 May 2023 to 10 May 2024;
d.CoE CF26D339, in respect of the applicant’s enrolment in a Graduate Diploma of Management (Learning) at Southern Cross School of Business, scheduled to run from 9 May 2022 to 5 May 2023;
e.the applicant’s certificate of marriage, dated 19 March 2021;
f.academic transcript issued by Elite Education Institute on 20 December 2017, giving the applicant’s results for a Bachelor of Business (Professional Accounting) course;
g.a letter dated 17 January 2018 from the Department of Immigration and Border Protection, notifying the applicant of the grant of a Temporary Graduate (subclass 485) visa, valid until 17 January 2020;
h.a certificate of completion issued to the applicant by Australian Ideal College on 11 October 2019, certifying completion of a Diploma of Leadership and Management, with transcript and statement of achievement attached;
i.CoE A0751446, in respect of the applicant’s enrolment in his Diploma of Leadership and Management course with Australian Ideal College, between 8 October 2018 and 6 October 2019;
j.CoE B3CD0D98, in respect of the applicant’s enrolment in a Graduate Diploma of Management (Learning) at Australia Institute of Business and Technology, scheduled to run from 2 March 2020 to 26 February 2021;
k.An email to the applicant from Australia Institute of Business and Technology dated 18 January 2021, repeating notice originally given on 16 December 2020 of an intention to cancel the applicant’s enrolment if course fees are not paid;
l.an invitation to the applicant’s wedding, to be held on 19 March 2021;
m.a letter dated 22 December 2018 from the Deputy Director, PHATA Sub Region, Multan, Pakistan, informing the applicant of the grant of approval of an application for the transfer of residential land into his name; and
n.a property evaluation and valuation report dated 16 June 2022, issued to the applicant by a firm known as ‘Projects’ in respect of the abovementioned property.
Prior to hearing, the Tribunal obtained the Departmental file relating to the applicant’s visa application. That file contained the following relevant document not already mentioned above:
a.the applicant’s visa application, lodged on 17 January 2020;
b.a letter dated 20 December 2017 from Elite Education Institute, confirming the applicant’s completion of a Bachelor of Business (Professional Accounting);
c.the applicant’s degree certificate for his Bachelor of Business (Professional Accounting) issued by Elite Education Institute and dated 1 August 2018;
d.a Commonwealth Bank of Australia account balance confirmation, showing funds standing in the applicant’s name as at 16 January 2020;
e.a genuine temporary entrant statement prepared by the applicant, undated; and
f.identification pages from the applicant’s Pakistani passport.
In addition, prior to hearing I obtained copies of the applicant’s movement record and his record from the Provider Registration and International Student Management System (PRISMS). It was not necessary to put these records to the applicant in the course of hearing, as they were generally consistent with the evidence the applicant gave. I also note that applicant’s representative provided the Tribunal with detailed written submissions dated 8 June 2022. I have considered those submissions, along with all of the other document listed above, in making my decision.
Consideration
The applicant’s circumstances in his home country
The applicant is a citizen of the Islamic Republic of Pakistan. He gave evidence at hearing that he has family in Pakistan, being both of his parents, his brother, and his 2 sisters. He stated that he contacts them daily by social media and video calls. He gave evidence of ongoing involvement with a small community group in his home country that engages in charitable works, stating that he stays in contact with the other members of the group (which includes his brother and childhood friends) and collects donations to send to them. I accept that evidence, and am satisfied that the applicant has personal ties to his home country that would provide him with a significant incentive to return there once he has finished his studies in Australia.
The applicant gave evidence that he completed his secondary education in Pakistan in or about August 2013. He stated that he had not worked in Pakistan between finishing secondary school and coming to Australia to study in August 2014. He gave oral evidence of owning real estate in Pakistan, namely a house and land at New Multan, in the Punjab. That evidence was supported by documentary evidence provided after hearing, and in light of those documents I accept it. I find that the applicant has reasonably strong economic incentives to return to Pakistan. Certainly, there is nothing in the evidence before me to suggest that he has any incentive positively to avoid returning to that country once he has finished his studies.
The applicant stated at hearing that he has no military service obligations to perform on his return to Pakistan, and that he has no concerns regarding civil or political unrest in that country. There is nothing in the evidence before me to contradict those statements, and I accept the applicant’s evidence in that regard.
I asked the applicant at hearing why he had chosen to study in Australia, rather than in Pakistan. His response was that he had been unable to find any Graduate Diploma level courses in that country in business management. He stated that the closest course he had found was a 36-week Post Graduate Diploma in Business offered by an institution known as the Virtual University of Pakistan, a public university specialising in distance education. He stated that that course was focussed on the basics of business, and as such was not being offered at a sufficiently advanced level, especially given his previous studies in professional accounting. He also stated that he was motivated to continue studying in Australia by the regard in which Australian qualifications are held in Pakistan, and by the fact that the possession of Australian qualifications would allow him to earn 3 to 4 times the wage that would be available to him with purely domestic qualifications. I find that these are reasonable motives for deciding to study in Australia.
Taking these matters together, I find that the applicant’s circumstances in his home country give considerable support to his claim to intend genuinely to return their once he has finished his studies in Australia.
The applicant’s potential circumstances in Australia
The applicant gave evidence that he is married and that his wife lives in Australia, but that otherwise he has no family members in this country. As to his wife, the applicant’s evidence was (in essence) that he married her in March 2021, but that shortly afterwards tensions became apparent in their relationship and that finally they separated. He stated that although they remain married, they now live in different cities. The applicant also gave evidence that he has no community ties to Australia beyond a small number of friendships he has formed during his time in this country. . I accept this evidence, and find that such minimal personal ties to Australia as the applicant has are not strong enough to give him any incentive to remain in this country once he has finished his studies.
The applicant gave evidence that his only asset in Australia is a car. He has some work history in Australia. His evidence in that regard is that he was employed on a casual basis as an assistant account by a firm known as ‘Chlorine Discounters’ between October 2014 and September 2016, and (again on a casual basis) as a security officer with SNP Security Group between October 2016 and July 2017. He could not remember his income from the first of those positions, apart from the fact that it was minimal, and stated that he earned $15 - $19 per week in the second of those positions, working approximately 20 hours per week. He was employed by a business known as YA Motors in August 2017 and remained working for them until July 2018, when he moved to Tasmania. The applicant’s evidence at hearing was that he initially worked for YA Motors to gain experience, and was not paid, but later worked for them as a fleet manager and roster manager for 2 to 3 days per week, and was paid $25 per hour. The applicant stated at hearing that since he moved to Tasmania, he has been doing some online work for a company known as SS Smash Repairs. He did not state how much he is being paid for that work. I find that the applicant’s work history in Australia is such as would (visa issues to one side) assist him to obtain further employment in this country. For that reason, I find that he has some economic incentives to remain in Australia once he has finished his studies. I find, however, that those incentives are not nearly as strong as his economic and personal incentives to return to his home country on the completion of his studies.
There is no direct evidence before me (as opposed to evidence from which an inference might possibly be drawn) that the applicant is using the student visa programme to maintain ongoing residence, or that he has been using it to circumvent the intentions of the migration programme in any other way. The applicant gave evidence at hearing that he married whilst in Australia, as mentioned above. His evidence was that his wife has Australian residency rights of some kind (he was unclear as to the basis of those rights, beyond stating that she was born in Australia). He went on to state both that they had been intending that he would apply for a partner visa, and that they had been intending to try living in Pakistan but that the COVID-19 pandemic had interfered with that plan. The applicant’s evidence at hearing was that he did not intend to apply for a partner visa whilst his wife had doubts about their marriage. There is no evidence before me to suggest that the applicant’s marriage was entered into in order to obtain a better visa outcome than would otherwise be available to him, or indeed was anything but sincere. The documentary evidence (see paragraph 11(l) above) strongly suggests that it was treated very seriously by all concerned, including the applicant’s and his wife’s families. It is also significant that, despite the possibility of applying for a partner visa, the applicant has in fact applied for a temporary student visa. Taking these matters together, I am satisfied that the applicant’s marriage does not qualify as a relationship of concern for the purposes of Direction No 69.
At the date of the applicant’s visa application (17 January 2020), the applicant had lived, worked, and studied in Australia for some 5 ½ years. He had therefore had ample opportunity to learn about life and study in Australia through experience, and hardly needed to research these matters before making his application. It is not, therefore, relevant or helpful to consider whether or how he researched these matters before making his visa application, or (more generally) his level of preparedness for life in Australia at that date.
It is, however, relevant to consider how the applicant came to enrol at his current course provider (Southern Cross School of Business), as an applicant’s preparations for study in Australia may say a good deal about his or her intentions in undertaking that study. The applicant’s evidence on that point was that his representative had recommended it to him, and that on the strength of that recommendation he had researched it online and visited its campus to satisfy himself as to its curriculum and facilities. I accept the applicant’s evidence in this regard. The fact that he does not appear to have considered any other education provider is troubling, but nonetheless I find that his evidence is consistent, if only barely, with his claim to be a genuine temporary entrant.
For these reasons, I am satisfied that the applicant’s potential (and indeed actual) circumstances in Australia support his claim to intend genuinely to remain in Australia only temporarily.
The value of the applicant’s course for his future
The applicant’s highest level of academic achievement to date is the completion of his Bachelor of Business degree. He is now studying at the graduate diploma level. There is no evidence before me that would allow me to find that his graduate diploma studies do in fact represent a higher level of study: there is no evidence before me, for instance, of the entry requirements for his course, or its curriculum. However, the course is in a related, although different, area to his bachelor’s degree, and I take this into account in finding that the level at which the applicant is presently studying is consistent with the level at which he has previously studied. As an adjunct to a degree in professional accounting, the applicant’s current studies in management and leadership should assist him to obtain employment or improve his employment prospects in his home country.
The applicant stated at hearing that his intention on finishing his studies was to return to his home country and seek employment, preferably at management level, in an accounting firm. He also stated that his longer-term plan is to establish his own accounting firm. The applicant’s course is directly relevant to those plans.
The applicant gave evidence that the national average monthly base salary for an account in Pakistan is PKR 35,000, which is equivalent to AUD 187.39 at exchange rates prevailing at the date of this decision, or an annual salary equivalent to AUD 2,248.68. My own online research confirms that this evidence is reasonably accurate as a statement of the lowest end of the pay scale for such positions . He also gave evidence that he could expect to command an annual salary of 3 – 4 times that amount with Australian qualifications, which would sit at the higher end of the average range of salaries, and well above the average overall annual salary in Pakistan. He could obviously earn considerably more in absolute terms working in Australia, although the difference between cost of living between the two countries would tend to close the gap to some extent.

Taking these matters together, and despite the reservations induced by the large discrepancy between Pakistani and Australian accountants’ salaries, I find that the applicant’s course does have value for his future in his home country. This supports his claim to intend genuinely to remain in Australia only temporarily.
The applicant’s immigration history
The applicant gave evidence at hearing that he has never been refused a visa by any country, although he has travelled to Thailand, has never had a visa issued to him cancelled, and has no other Australian visa application on foot. There is no evidence before me to the contrary, and I accept the applicant’s evidence on these points. Further, there is no evidence before me to suggest that the applicant has ever breached the immigration laws of Australia, or indeed of any other country.
The applicant first arrived in Australia on 30 September 2014. He has therefore resided in Australia for just under 7 ½ years. That is a significant length of stay for a person claiming to intend to remain in Australia only temporarily, and is capable of grounding an inference that he in fact intends to stay in this country indefinitely or even permanently. Before reaching any such conclusion, however, it is relevant to consider the manner in which the applicant has used his time in Australia.
On the evidence before me, the applicant was enrolled in a Bachelor of Business degree when he arrived in Australia. That course was scheduled to run from 3 November 2014 to 21 October 2017. The applicant changed course providers in the middle of his studies, but that appears to have deferred completion of his bachelor’s degree by only 2 months. Around the time he was completing his bachelor’s degree, the applicant applied for a VC-485 Skilled – Graduate (Temporary) visa. He was granted such a visa on 17 January 2018, valid until 17 January 2020. Whilst the applicant was resident in Australia on his VC-485 visa, he completed a Diploma of Leadership and Management. He applied for a further student visa on or about 17 January 2020, in order to undertake a Graduate Diploma of Management. He has completed that course and has started his current course, a Graduate Diploma of Strategic Leadership. There have been some delays in the applicant’s completion of his studies after he completed his Bachelor of Business, but he has persisted in his studies even so. I note also that the applicant has returned to his home country 4 times (at least) since his first arrival, in each case for reasonably substantial periods. In these circumstances, I do not consider that the length of his stay in Australia implies in itself an intention to remain in this country indefinitely or permanently, or on any basis other than temporarily.
For these reasons, I find that the applicant’s immigration history supports his claim to be a genuine temporary entrant.
Conclusion on cl 500.212(a)
On the basis of the above, I am satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).
Does the applicant intend to comply with visa conditions?
For the applicant to meet cl 500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl 500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed in some cases (cl 500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).
At hearing, the applicant demonstrated an awareness of the conditions that would be imposed on any visa issued to him, and gave a positive undertaking to comply with them. There is nothing in the evidence before me to suggest that the applicant has ever breached a condition place on any of the visas he has previously held.
On the basis of the above, I am satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl 500.212(b).
Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?
For the applicant to meet cl 500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl 500.212(a) and (b)).
It is appropriate at this point to consider whether the applicant intends to remain in Australia temporarily as a student, as required by the chapeau to cl 500.212. I have recorded my findings regarding the applicant’s study record in paragraph 31 above. It is a noteworthy feature of that record that the applicant has persisted in his studies even at periods where he is not required by conditions on his visa to maintain enrolment. I am satisfied that the applicant intends to remain in Australia temporarily as a student.
No other relevant matter arises for consideration on the evidence before me.
Accordingly, I am satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
DECISION
The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.
David Thompson
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 1538

15 March 2023

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