ARSALAN (MIGRATION)

ARSALAN (MIGRATION) [2019] AATA 2587 (22 MAY 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad Arsalan
CASE NUMBER:  1719310
HOME AFFAIRS REFERENCE(S):           BCC2017/2473223
MEMBER:Michael Biviano
DATE:22 May 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 22 May 2019 at 10:39am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study history – unsatisfactory course progress – enrolment cancelled – value of course – Diploma of Automotive Management – length of time onshore – poor knowledge of proposed course – income disparity – strong ties to Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 7 August 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 12 July 2017. 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 (the Regulations) because the applicant was not a genuine applicant for entry and stay as a student because he did not intend to stay in Australia temporarily.
The applicant appeared before the Tribunal on 22 March 2019 to give evidence and present arguments.
It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student because he did not intend to stay in Australia temporarily.
Genuine applicant for entry and stay as a student (cl.500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The applicant is a 28 year old Pakistan national, who came to Australia on 11 November 2012. He entered Australia after obtaining on 7 November 2012 an initial Student visa (subclass TU 572) which was valid until 15 January 2014.
The decision record of the delegate of the Department of Immigration and Border Protection dated 7 August 2017, which was provided to the Tribunal by the applicant, confirms that the applicant was granted two further Student visas (subclass TU 572), the last of which was valid until 14 July 2017 (Decision Record) .
On 12 July 2017, the applicant applied for a student visa subclass TU 500 visa and he enrolled to study a package of courses comprising Certificate IV in Automotive Mechanical Diagnosis and a Diploma of Automotive Technology which was due to be completed by 1 November 2018.
Prior to the hearing, on 1 February 2019, the applicant filed with the Tribunal a Response within time pursuant to an invitation to supply student visa information about the course(s) he was studying and his circumstances in accordance with section 359(2) of the Act (Response).
The applicant in his Response amongst other things set out the courses he had studied and enrolled in while both in Pakistan and Australia.
Between March 1997 and June 2009, the applicant completed primary school, secondary school and his Higher Secondary Certificate in Pakistan. Before coming to Australia, he studied English back in Pakistan.
Since arriving in Australia, the applicant undertook and completed the following courses:
(a)Between 11 November 2012 and 14 December 2012, he studied five weeks of a General English Course – Intermediate level, and obtained a Certificate at Menzies Institute of Technology;
(b)Between January 2013 and December 2013, he studied a Diploma of Business at Technical Education Australia and he completed the course and obtained the Diploma;
(c)Between February 2015 and February 2016, he studied a Certificate III in Light Vehicle Mechanical Technology at Central Australian College and he completed the course and obtained the Certificate.
(d)Between June 2017 and November 2017, he studied a Certificate IV in Automotive Mechanical Diagnosis at Acumen Education Pty Ltd and he completed the course and obtained the Certificate; and
(e)Between December 2017 and September 2018, he studied a Diploma of Automotive Technology at Acumen Education Pty Ltd and he completed the course and obtained the Certificate.
In January 2019, the applicant commenced studying a Diploma of Automotive Management which is due for completion in December 2019 at the Australian Institute of Technical Training Pty Ltd.
The applicant submitted with the Response a Confirmation of Enrolment certificate for the Diploma of Automotive Management course.
However the applicant in the Response also set out a number of uncompleted courses that he did not complete. They were:
a.Between February 2014 and June 2016, he enrolled in and did not complete a Certificate III in Automotive Electrical Technology, Certificate IV in Automotive Mechanical Diagnosis, and a Diploma of Automotive Technology at Education Access (Australia) Pty Ltd;
b.Between February 2015 and August 2015, he enrolled in and did not complete a Certificate IV in Automotive Mechanical Diagnosis at Central Australia Institute of Technology Pty Ltd; and
c.Between February 2016 and May 2017, he enrolled in and did not complete a Certificate IV in Automotive Mechanical Diagnosis and a Diploma of Automotive Management at Central Australia Institute of Technology Pty Ltd.
The applicant was questioned about why he had not completed those uncompleted courses at Education Access (Australia) Pty Ltd and Central Australia Institute of Technology Pty Ltd.
He gave evidence that he started the Certificate III in Automotive Electrical Technology at Education Access (Australia) Pty Ltd and attended for a few months after the Christmas break. He gave evidence that on one particular day, he paid the fees to the college and went to class, but on the same day, they informed him that his enrolment in the course had been cancelled. The applicant gave evidence that he was shocked by the fact that his course was cancelled without notice.
However the Decision Record confirms that Education Access (Australia) Pty Ltd reported the applicant to the Department as not having achieved satisfactory course progress for the purposes of section 19 of the Education Services for Overseas Students Act 2000 and standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National Code 2007). The Decision Record confirms that that the applicant’s enrolment was cancelled in January 2015. Shortly after the cancellation of enrolment, he enrolled in Certificate III in Light Vehicle Mechanical Technology at Central Australian College, which he completed. The Tribunal that the applicant’s enrolment was cancelled as stated in the Decision Record.
The applicant gave evidence that he enrolled in studies with Central Australia Institute of Technology Pty Ltd during February 2016 and June 2017, but he was unable to complete those courses because of the stress he was suffering and issues with his family that he had to sort through, as his father was ill. The applicant did not submit any evidence of his medical condition at the time and whether he was able to undertake study at that time. The applicant conceded he did take time off from his studies to overcome his stress. The Tribunal accepts this evidence.
The applicant gave evidence that he came to Australia to study an English course and Diploma of Business, but he after obtaining a Diploma of Business changed his course of study from business to focus on the automotive industry because he had a passion for cars and was concerned the Diploma of Business was a very general course. In this case, the Tribunal accepts that the applicant has reasonably changed his study path to the automotive industry.
The Tribunal recognises that it is important to allow for reasonable changes to career and study pathways. However this is not the case where an applicant has merely decided to change careers through undertaking short VET courses. The applicant is now seeking to study a Diploma of Automotive Management, another short VET course to supplement the automotive and business qualifications he has achieved.
The applicant was questioned about the value of studying the course he is currently enrolled in, being a Diploma of Automotive Management, when he has already completed a Diploma of Business. The applicant claimed there is a substantial difference between his Diploma of Automotive Management and the Diploma of Business that he has completed. He gave evidence that the Diploma of Automotive Management is more connected to managing a work shop, dealing with customers, staff and suppliers, and running a workshop. The applicant’s explanation of the difference in the courses was not compelling especially in light of the fact that the applicant had also completed a Diploma in Automotive Technology.
The applicant gave evidence that he wants to open an automotive repair workshop back in Pakistan and he needs the skills to talk to customers and employees and manage the workshop. He gave evidence that the Diploma of Automotive Management will assist him with developing those skills. The applicant gave evidence that he requires the qualifications in order to get a job or open a workshop. However when questioned about work he would do if he returned to Pakistan, he said that he would work for his father, who operates a transport business, or alternatively seek an alternative automotive job. The applicant conceded that he would not be seeking a job in management immediately.
The applicant has already obtained accredited trade qualifications in automotive courses and business. The Tribunal finds that the applicant’s present studies of a Diploma of Automotive Management in the VET sector may only marginally improve his employment prospects and ability to commence his own business in the automotive industry when considered alongside the qualifications and experience that the applicant has already obtained in Australia.
The Tribunal is not satisfied that the Diploma of Automotive Management in which the applicant is enrolled to study is likely to substantially increase his employment prospects and remuneration in his own country in light of the courses that he has previously completed.
When questioned about whether there are other similar courses he could study in Pakistan, the applicant gave evidence that there are trade courses in Pakistan such as a diploma for electric automotive and electrical engineering which would enable him to work as a mechanic in Pakistan but they are very different to the courses he has studied in Australia. He claims that if he leaves his enrolled course now, without completing the Diploma of Automotive Management, the courses he has undertaken would be worthless. The Tribunal finds that in light of the applicant completing courses and diplomas in both Business and Automotive Technology, such conclusion is without foundation.
Further the applicant was questioned about when he decided to study the Diploma of Automotive Management and he gave evidence that he decided to study the Diploma of Automotive Management a few years ago when he obtained a Confirmation of Enrolment at Central Australian College which from the Confirmation of Enrolment Certificates supplied by the applicant appears to have been in 2015.
The Decision Record confirms that when the applicant applied for the student visa the subject of this review, the applicant had enrolled to study a package of courses comprising a Certificate IV in Automotive Mechanical Diagnosis and a Diploma of Automotive Technology extending his stay in Australia, if granted, until 1 November 2018. Further the Decision Record set out a submission made by the applicant to the delegate in support of the visa application about his plans:
I am already studying in automotive course in Australian Education Institution and during my previous studies I am quite satisfied and comfortable to continue my trade education with the education provide I am enrolled. The standard of teaching in college and general reputation of the colleges is fine and satisfactory.
………………………………………………..
After completing the course, I want to become an automotive mechanic/technician and later want to establish my own business/workshop when sufficient experience and skill is achieved. I feel that my courses are relevant to my ambitions because this Automotive trade courses will give me sufficient skill and knowledge which I can utilise in any work place environment and can achieved expertise in the aforesaid field as I have the required skill and knowledge and when this is applied in the practical filed I will be able to get expertise in short time.”
The applicant’s submissions to the Department make no reference to the applicant’s intentions to study the Diploma of Automotive Management or that such course is necessary for his future. Rather the applicant’s submission to the Department suggests that after the completion of the course he was going to work as an automotive mechanic and technician. In light of the applicant’s submissions to the Department, his evidence as to when he decided to study the Diploma of Automotive Management is inconsistent with what he had previously stated to the Department.
The Tribunal finds that the applicant has during his studies over six and a half years in Australia, completed two diplomas and three certificates, and he now wishes to study a further diploma. The applicant has stayed in and studied in Australia for a long period of time which is inconsistent with the stay being on a temporary basis.
When asked about the units in the current Diploma – he struggled to recall the number of units in the course and finally gave evidence that there are 12 units in the Diploma of Automotive Management. When asked what units in the course he was studying, he could not remember the name of the subjects he was currently studying. He claims that he had submitted two assignments in the course. After extensive questioning he confirmed that they related to relationships with customers, employees and suppliers. In light of his evidence, the applicant’s knowledge of the proposed course was poor and inconsistent with a student who was engaged and has genuine interest in the course of study.
The applicant has given evidence that since coming to Australia, he has worked in short term temporary casual positions, but the costs associated with living and studying expenses in Australia have been met by his parents. The applicant has since January 2018 worked as a trainee at S & S Truck Repairs, getting work experience in a workshop. The applicant confirms that he does not get paid for his work but they do feed him when he works.
The Tribunal has made this decision having regard to the applicant’s circumstances in that he has not completed any higher education courses in the six and a half years he has been in Australia and instead he has completed a number of low level vocational courses. If the applicant completes the Diploma of Automotive Management, which he is proposing to complete in January 2020, he will have been in Australia for nearly seven and a half years. The Tribunal finds that the applicant’s proposed course of study and undertaking various vocational courses over a long period of time indicates an intention to maintain ongoing residence and remain in Australia permanently.
The applicant gave evidence that if he returned home to Pakistan, he expected that he would be able to earn $AUD2,000 to $AUD2,500 per calendar month, with his qualifications. His evidence was inconsistent with a statement in the Response where he stated that he would expect to earn 40,000 rupees per month which equated to $400 per calendar month in Pakistan. He accepted in evidence that this amount is substantially less than he would earn if he were to remain in Australia in a comparable position.
The applicant gave evidence that after he completed his studies he would return home to Pakistan and get a good job either with his father’s transport company or an automotive company. He stated that after getting experience and confidence in working in an automotive repair workshop, he would commence his own workshop.
The applicant during the six and a half years he has stayed in Australia has not returned home to Pakistan. The applicant gave evidence that he booked flights to return home in January 2019, but due to the hearing in this Tribunal, he postponed the trip. Notwithstanding the applicant’s intentions, his conduct in not returning home to Pakistan in six and a half years is consistent with the applicant wanting to stay in Australia permanently and not return home.

The applicant’s circumstances in his home country are that while he had completed secondary education in Pakistan, he had not obtained employment before coming to Australia. He has not identified any assets that he has in Pakistan. Instead in his Response, the applicant confirmed that the only substantial asset is his car, which is in Australia. The applicant has been living and subsiding in Australia for the last six and a half years. The Tribunal finds that his circumstances in Pakistan do not present an incentive to return to Pakistan.
Further the applicant has previously completed three Certificates and two Diplomas. The applicant is now undertaking a further Diploma. The applicant did not complete any tertiary studies or bachelor degrees in Pakistan. The Tribunal accepts that the applicant’s current course of study is consistent with his level of education.
The applicant has submitted that studying in Australia would provide him with better opportunities in Pakistan as employers prefer the services of foreign graduates who have obtained their degree in an advanced country. Further he submitted that there are issues with teaching standards in Pakistan and studying in Pakistan due to load shedding and traffic jams. The Tribunal finds that such conditions or concerns on their own are not a reasonable motive for not studying in Pakistan.
The applicant gave evidence that he could not complete Diploma of Automotive Management in Pakistan as the course was not offered in Pakistan. However it is common knowledge that there are other management courses that are available in Pakistan which could be studied and utilised by the applicant, in support of the diplomas and certificates he has obtained. The Tribunal is not satisfied that there are reasonable motives for not studying in Pakistan.
The applicant has ties both in Australia and home in Pakistan.
The applicant gave evidence that his parents and his brother reside in Pakistan and he has not seen them in person since November 2012 but he remains in contact with them by telephone everyday at least once a day. He also remains in contact with friends at home by telephone. Whilst the applicant has family ties in Pakistan, he does not have any assets in his own name in Pakistan. Given the period of time he has stayed in Australia and that he has not returned home to visit his parents in the six and a half years he has been in Australia, even when his father was unwell, such ties do not provide a strong incentive to return home to Pakistan.
Further the applicant has strong ties to Australia. He has lived in Australia for six and a half years during which time he has lived with a friend continuously for three to four years in Glenroy. The applicant gave evidence that he has numerous friends in Australia who he has met through work or study, most of whom are from multicultural backgrounds. The applicant owns a car in Australia. During his six and a half years in Australia, he has not travelled outside Australia. The Tribunal finds that such conduct demonstrates that he has a strong incentive to remain in Australia rather than to return home.
The applicant in the Response confirmed that he selected studying at the Australian Institute of Technical Training Pty Ltd after making enquiries with friends. As discussed above his knowledge of the subjects in the Diploma of Automotive Management was poor. Considering the applicant’s history of living in Australia for the past six and a half years, the Tribunal finds that he has a substantial degree of knowledge with regard to living in Australia.
The applicant in the Response did not have any concerns about returning to Pakistan and no concerns about military service commitments and political and civil unrest in his home country.
There is no relevant evidence regarding the applicant’s circumstances in his home country relevant to others in that country and the Tribunal makes no findings concerning the applicant in that respect.
The applicant in his Response has not identified any visa refusal or cancellation in Australia or elsewhere. There is nothing before the Tribunal from the delegate’s Decision Record to indicate that the applicant has experienced any other visa refusals or any immigration issues.
Based on the above matters, the Tribunal is not satisfied that the applicant has made this application to gain a student visa on a genuine basis and that it considers that the primary objective of the application is to maintain an ongoing residence in Australia and to remain in Australia permanently.
The Tribunal considers that the above circumstances are consistent with the applicant’s motivations to remain in Australia on a permanent basis and not on a temporary basis.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
Accordingly, the Tribunal is not 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 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. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Michael Biviano
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.

[2019] AATA 2587

22 MAY 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction