AJISEGBEDE (Migration)

AJISEGBEDE (Migration) [2024] AATA 3639 (1 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Temitayo Ayomiku AJISEGBEDE
REPRESENTATIVE:  Mr Charles Ukaegbu
CASE NUMBER:  2302066
HOME AFFAIRS REFERENCE(S):          BCC2021/412790
MEMBER:Penelope Hunter
DATE:1 October 2024
PLACE OF DECISION:  Sydney
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 01 October 2024 at 4:50pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – lengthy stay in Australia – course placement delayed – multiple family bereavements – studies changed to health and community management sector – course benefit to future career – decision under remitted
LEGISLATION
Migration Act 1958, ss 65, 359, 363, 499; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212
CASES
Hasran v MIAC [2010] FCAFC 40
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 1 February 2023 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 March 2021. 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 the delegate was not satisfied that the applicant was a genuine applicant for entry and stay temporarily in Australia.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The applicant is a 35 year old male citizen of Nigeria. He applied for the visa in order to undertake study in the higher education sector in a Bachelor of Nursing. In his visa application the applicant disclosed that he had been a student in Australia since 2016, and that he had also completed a Certificate III in Allied Health in 2018 and a Diploma of Project Management in 2017. The applicant also submitted evidence of his employment in Australia with Centacare and evidence of the residence of his brother in the United States of America,
In response to a request for information from the Department, on 5 April 2022, the applicant claimed that he was in the process of transferrin education providers. He set out that the previous three years has been tragic for his family. His aunt who was a dedicated nursed did in mid-May 2019. Then in June he lost two uncles, one to a tragic motor accident, the other due to medical complications. Then in May 2020, his cousin passed due to COVID-19 complications. He claimed that these events had a negative toll on him and his academic progress suffered. He pulled out his placement and could not study properly or write his exams. He then engaged with counselling. The applicant provided a letter from Samual Zimmer, psychologist and international student counsellor of the Queensland University of Technology dated 2 July 2019, death certificate of his uncle, and letter from Ms Kholoud Abdulla mental health social worker dated 30 October 2020.
The applicant also submitted to the Department the following documents:
·Financial documents
·An Australian Federal Police, National Digital Police Certificate.
·A completed Form 80.
·Police clearance information from Nigeria.
·A Confirmation of Enrolment in an IELTS Exam Preparation Course with course dates from 7 March 2022 to 1 July 2022, created on 7 March 2022.
·A Confirmation of Enrolment in a Bachelor of Nursing with the University of Southern Queensland with course dates from 11 July 2022 to 10 November 2023.
The delegate in their decision record set out the following reasons for the refusal of the visa:
i.The delegate was not satisfied that the applicant had demonstrated a strong incentive to return to his home country as he had not declared any previous employment, or provided any verifiable evidence of any assets or business ties.
ii.In respect of the applicant’s circumstances in Australia, he was working as a support worker with Centacare from August 2020 and this factor was found to reduce the applicant’s incentive to return home on the completion of his studies.
iii.It was considered that the applicant had not demonstrated sufficient knowledge of his education provider, course of study of the student visa conditions that would apply.
iv.It was considered that the applicant had not clearly demonstrated the benefit that undertaking his proposed course in Australia would provide to his career prospects, having only declared on his visa application that he would be seeking a nursing job on the completion of his course. While it was considered that the applicant’s employment may improve due to the completion of his course, he had not demonstrated a clear and substantial improvement that would outweigh the significant time and monetary commitment that his course would require.
v.With respect to the applicant’s immigration history, the delegate placed weight on the fact that the applicant had resided in Australia since 2016 and had not declared any movement outside Australia since that time. The proposed study of the applicant would see him in Australia until March 2024, which brought his total time on a temporary visa to 8 years which the delegate considered difficult to reconcile with his claim that he was a temporary resident.
The Tribunal received an application for review from the applicant on 16 February 2023, together with a copy of the decision record of the delegate under review.
On 9 April 2024, the Tribunal wrote to the applicant pursuant to s 359(2) of the Act, inviting the applicant to provide information about their enrolment and to complete a Student Visa Information form. The invitation was sent to the applicant’s registered migration agent and the advised that, if the information was not provided within the prescribed period, being 23 April 2024, or within any extended time as requested and granted, the Tribunal may make a decision without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
On 23 April 2024, the Tribunal received a request for an extension of an additional three weeks to provide the requested information.
On 24 April 2024, the Tribunal granted to the applicant an extension of time to respond, and the information was to be received by 14 May 2024. The correspondence included the warning that if the information was not received by 14 May 2024, the Tribunal may make a decision on review without taking further steps to obtain the information and the applicant would lose any right they might otherwise have had under the Act to give evidence and present arguments.
On 16 May 2024, the Tribunal received a request for a further extension of time until 21 May 2024. On 17 May 2024, the Tribunal responded and advised the applicant that a further extension was not granted as the due date had passed. As the applicant did not request an extension of time within the prescribed period s 359C of the Act applies. Pursuant to s 360(3) the applicant is not entitled to appear before the Tribunal. The effect of s 363A is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear; Hasran v MIAC [2010] FCAFC 40.
Nevertheless, the Tribunal has considered further information submitted by the applicant and invited comment on matters. On 19 May 2024, the applicant submitted;
·A completed Student Visa Information Form.
·A Confirmation of Enrolment (CoE) in a Bachelor of Nursing at the University of Southern Queensland with course dates from 11 November 2023 to 30 November 2024.
·Evidence of Overseas Student Health Insurance.
On 23 May 2024, the Tribunal received the following further documents:
·Submissions from the applicant’s representative.
·A copy of an article from the Lancet, Nigeria Commission: investing in health and the future of the nation, 19 March 2022.
·Copies of job advertisements for nurses in Nigeria.
On 11 June 2024, the Tribunal received a letter address to the applicant regarding potential recruitment as a registered nurse, from Luth Initiatives Limited dated 17 May 2024.
On 27 August 2024, the Tribunal wrote to the applicant pursuant to s 359A of the Act and invited to provide comment or response to information contained in their Provider Registration and International Student Management System records by 11 September 2024. The applicant was granted two further extensions and directed to provide their comment or response by 26 September 2024. The applicant also appointed a new representative in relation to the review application.
On 26 September 2024, the Tribunal received submissions from the representative of the applicant and a further statement of the applicant dated 26 September 2024. In his statement the applicant set out the following information:
i.The applicant acknowledged that he had to repeat some failed units of study in the Bachelor which resulted in his enrolment being extended. Additionally, he claimed to have missed out on placement as he had not completed required medical tests in time. As a consequence his placement was delayed and carried over.
ii.The applicant claimed that he desired to broaden his employment prospects in Nigeria, and had a strong interest in the healthcare sector. He acknowledged that this was in a different field to qualifications he had obtained in his home country. He had made a conscious decision to redirect his skillset towards emergency medical services and healthcare training, as these were areas where he saw potential for personal growth and contribution to his community. His work in Australia as a casual disability support worker had also exposed him to the critical role that healthcare plays in improving lives. It had fuelled his desire to apply these skills in Nigeria. He hoped to make a meaningful impact on the healthcare system in his home country through pursuing his qualification in Nursing.
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 satisfies cl 500.212 of Schedule 2.
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 108, ‘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.
While acknowledging that his initial proposed studies in the Bachelor of Nursing at did not proceed to completion, the applicant has nevertheless obtained a further enrolment and has less than 2 months left to the completion of his course. The Tribunal has considered the evidence and submissions provided by the applicant to the Department for his change in enrolment. It notes the evidence he has submitted of the deaths of several family members in 2022, and his contemporary evidence of obtaining psychological assistance. Further the impact of the death of another uncle due to COVID in 2022, and again his engagement with counselling. The applicant further has acknowledged that there were disciplinary consequences of his lack of focus upon his studies at the Queensland University of Technology. The Tribunal accepts that there is evidence that he had a substantial number of factors impacting upon him at the time and these had the potential to contribute to a disruption of his studies. The applicant has claimed his transfer to the University of Southern Queensland was in part moving forward with a fresh start. It is acknowledged that he has made a significant financial investment in the pursuit of his bachelor’s qualification, and the progression towards the completion of these proposed studies is in line with the general expectation of a student visa holder.
The applicant set out in his Student Visa Information form that an international degree would improve his career prospects in Nigeria, and that studying in Australia would provide him with a better remuneration package as foreign graduates were in high demand. He further set out in his form that his current studies had provided him with mentorships, internship, work placements and hands on learning, and that he will have the opportunity to gain more advanced skills than that delivered in his home country. He claims that he will benefit from studying in Australia because of the best practices and new technologies used in healthcare settings and the interaction with other international students will improve his skill set. The Tribunal accepts the applicant has reasonable reasons for seeking to pursuing his qualification in Australia.
The applicant has disclosed in the student visa application that he has family in Nigeria in the form of his parents and siblings. In submissions to the Tribunal it is claimed that he speaks to his family members regularly over social media. It is accepted that the applicant’s family members may provide an incentive for him to return to his home country. In measuring the significance the Tribunal notes that he has not returned since his initial arrival in 2016. The applicant has submitted that he intended to return to Nigeria in 2020, but this travel was postponed due to restrictions associated with the pandemic. When travel became more feasible in 2023, the applicant has submitted that his studies were more intensive the time and cost of travel became more difficult. The Tribunal acknowledges that while awaiting review, and as the holder of a bridging visa, the applicant would also be reluctant to travel offshore.
The applicant has not provided evidence of any economic ties he has personally, however he claims that Nigeria is a country with strong economic growth and a lot of foreign investment with and expanding workforce sectors. Furthermore, the applicant referred to an article submitted from the Lancet[1] with respect to Nigeria repositioning itself to achieve universal health cover. This he claimed would provide a greater pathway to prosperity for healthcare professionals. The applicant has also presented evidence that he is exploring potential employment in his home country. The evidence does not suggest that the economic circumstances of the applicant would be such that they present a significant incentive for him not to return.
[1] Lancet, Nigeria Commission: investing in health and the future of the nation, 19 March 2022.
The Tribunal accepts the submissions of the applicant that he has no fears of returning to his home country, and that he submits that there has been a peaceful transition of power in the country as a consequence of recent election. There is no evidence that he has any military service obligations or that there are any circumstances of political or civil unrest that would induce the applicant to apply for a student visa as a means of obtaining entry to Australia for the purpose of remaining indefinitely.
The applicant initially claimed in his visa application that he had a brother in Australia. Prior to the determination of the application he corrected this information and informed the Department that his brother was in fact in the United States. He further provided evidence to support his brother’s residency. The applicant claims that he has no family ties in Australia and there is no evidence to dispute this. He has been working since the visa application was lodged as a case worker with Centacare. The duration of this employment may, as the delegate concluded may indicate some incentive for him to remain. However, the Tribunal notes that it is also employment consistent with his proposed career pathway in nursing. There is no evidence before the Tribunal that the applicant has entered into a relationship of concern.
The Tribunal has considered whether the applicant is seeking to undertake a course that is consistent with his current level of education. The information is that the applicant already obtained qualifications in Mass Communication at the bachelor and masters level in Mass Communication. There is before the Tribunal a lack of information about any employment arising from these qualifications. In his response to the Tribunal on 26 September 2024, the applicant acknowledged this career change but claimed that he has a strong interest in the healthcare sector, that he saw opportunities for personal growth and contribution to his community. While holding his first student visa the applicant claims to have completed study in a Diploma of Project Management. It is submitted that this diploma together with the Bachelor of Nursing provide the applicant with a pathway into the health and community management sector. He has stated that his career choice is profoundly influenced by his desire to work in a global, humanitarian organisation where he can effect real change. Further, his courses combined offer greater career choices for example in the roles such as of Program Area Manager, Humanitarian Advocacy Advisor, Health Project Officer, Community Health Worker, Program Manager and Medical Coordinator. The Tribunal is satisfied that the applicant has demonstrated reasonable reasons for his change in career pathway and in the healthcare field his course is consistent with his current level of education.

The applicant claims that his Bachelor of Nursing qualification will improve his remuneration and has set out that he can expect to earn around or slightly above USD 48,000 gross annual salary as International NGO organisations' wages are generally higher. It is argued that his degree in nursing will set him on a path to a good income. He claims he will return because the cost of living is lower in Nigeria; he will also be closer to his family, and there will be more career opportunities because the population and economy are growing fast. The applicant stated that it was his intention to apply for nursing jobs in Nigeria on the completion of his studies. He has provided to the Tribunal evidence of the advertisement or relevant positions as well as initial responses to his enquiries about future employment. It would appear on the evidence that the applicant has good prospects of securing employment as a registered nurse in his home country. The Tribunal is satisfied that the course has value for the applicant for his future.
As to the applicant’s immigration history he claims that he has never breached a condition of his visa. The Tribunal does note the delay of the applicant in applying for the visa under review, and as identified by the delegate the applicant was 24 days without a valid visa. The delegate considered that this indicated that the applicant would not be likely to comply with the conditions of his visa in the future. The applicant has disputed this. The Tribunal notes the information in the Departmental file that the applicant experienced a delay in having a new passport issued by the Nigerian embassy due to the COVID-19 pandemic and he was unable to obtain a new copy to submit with his application. The applicant has made a valid visa application, the Tribunal accepts his intention was to continue his study as is demonstrated with the progress he has made towards the completion of his Bachelor of Nursing and makes no further adverse finding as a consequence of this delay. There is no evidence that the applicant has been refused any other visa in Australia or elsewhere. There is no evidence that he has previously held a visa that was cancelled or considered for cancellation. The applicant states that he intends to return to his home country on the completion of his course, he really misses his family and intends to return with an overseas qualification. On the basis that the applicant intends to just complete his Bachelor of Nursing course and on the evidence that he has substantially completed it, Tribunal places no weight on the immigration record of the applicant.
Considering the circumstances of the applicant overall, it is noted that the applicant has made several mistakes such as the delay in applying for the visa application and also incorrect answers in his initial visa application which have not put his application in a positive light. In weighing the relevant factors the Tribunal notes that the applicant has substantially completed his studies, he has not indicated he proposes any further study, and claims he intends to return to his home country. The Tribunal it accepts that this has been a significant investment. On balance, while the Tribunal notes what appears to be a change in the applicant’s career pathway, and accepting that the applicant’s intentions are as stated, that he just wants to complete his Bachelor of Nursing and then will return to his home country, the Tribunal accepts that there is criterion that weigh favourably to the grant of the visa for him to complete this qualification. He has family ties in his home country and sound reasons for seeking well-regarded qualifications in Australia. On the basis of the above discussion of evidence, findings and reasons regarding the applicant’s intentions, and having regard to the factors specified in Direction 108, the Tribunal is satisfied that the applicant genuinely intends to stay in Australia temporarily.
Accordingly, the applicant meets cl 500.212(a).
Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
Other matters
Contained within the applicant’s Department file was a Certificate issue in accordance with s 376 of the Act in relation to certain folios contained on the Department file.
A copy of the Certificate was sent to the applicant for comment on 28 August 2024. In submissions received on 26 September 2024, the representative of the applicant disputed the validity of the certificate on the basis that withholding information under a non-disclosure certificate created a real risk of subconscious prejudice towards the applicant.
The Tribunal has considered the response from the applicant’s representative, in its correspondence to the applicant inviting comment the Tribunal identified that it did not intend to place any adverse weight on the material covered by the Certificate. The Tribunal is aware of its obligation to afford the applicant procedural fairness in determining the review. The existence of the material has not otherwise affected the outcome of the review application. The representative’s submissions go to the substance of the material covered by the Certificate and not the Certificate itself.
The Tribunal finds that the Certificate is signed and dated and sets out the reasons for confidentiality being the disclosure of lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness or those methods and may disclose or enable a person to ascertain the existence or identity of a confidential source of information, or endanger the physical safety of a person. The Tribunal is satisfied that the Certificate is valid.
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(a) of Schedule 2 to the Regulations.
Penelope Hunter
Member

Attachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton

Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
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.

[2024] AATA 3639

1 October 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction