Bahadir (Migration)

Bahadir (Migration) [2021] AATA 4781 (26 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Emrah Bahadir
CASE NUMBER:  1930443
HOME AFFAIRS REFERENCE(S):          BCC2019/4303462
MEMBER:Michael Biviano
DATE:26 November 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 26 November 2021 at 11:00 am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – lengthy stay in Australia – applicant completed multiple courses – gap in studies – plans to start a business in home country – courses unrelated to career path – extensive employment in Australia – maintaining ongoing residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, 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 14 October 2019 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 29 August 2019. 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(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) for the reason that he 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 1 September 2021 to give evidence and present arguments.
The applicant was assisted in relation to the review by their registered migration agent.
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 was a genuine applicant for entry and stay as a student.
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 36-year-old Turkish national who first came to Australia on 15 April 2009 pursuant to a student visa. The applicant has remained in Australia since that time for a total period of 12 years and 7 months.
The Decision Record of the delegate of the Department of Home Affairs dated 14 October 2019, which was provided to the Tribunal by the applicant, confirms that the applicant made the current application for a Student (Class TU) Subclass 500 visa on 29 August 2019 (Decision Record).
The Decision Record confirms that the applicant has undertaken studies in various courses whilst in Australia on a student visa and has also obtained a UC457 visa to work as a restaurant manager at Olivo Restaurant. The Decision Record confirms that the applicant obtained the UC457 visa between 29 August 2017 and 29 August 2019. The Decision Record also confirms that the applicant has made the application for the student visa on the day of the expiration of the UC457 visa which maintains the applicant’s ongoing residency in Australia with work rights.
At the time of the decision, the applicant was enrolled to undertake a Diploma of Leadership and Management.
On 29 July 2021, prior to the hearing, the applicant filed with the Tribunal a Response within time pursuant to an invitation to supply student visa information about the courses he was studying and information about his entry and stay in Australia in accordance with s 359(2) of the Act (Response).
In addition to the Response, the applicant filed a significant amount of supporting documentation which comprised:
a.Diploma of Hospitality Management from Cairns College of English & Business dated 9 November 2020 together with Statement of Results and letter confirming completion;
b.Submission filed on behalf of the applicant dated 25 August 2021 (Submission);
c.translation of property holdings for Fazli Bahadir together with original documents;
d.details of vehicle registration for Fazli Bahadir both in English with interpretation and the original document;
e.Statement of Attainment from Lloyds International College confirming that the applicant had obtained a Certificate in Intensive General English dated 19 February 2010;
f.Advanced Diploma of Management for the applicant from Clarendon Business College dated 8 May 2012;
g.Diploma of Management for the applicant from Clarendon Business College dated 8 May 2012;
h.Certificate IV in Small Business Management for the applicant from Clarendon Business College dated 8 May 2012;
i.Certificate III in Business from Clarendon Business College for the applicant dated 8 May 2012;
j.Certificate II in Business from Clarendon Business College dated 8 May 2012 together with financial academic transcripts for the Advanced Diploma of Management, the Diploma of Management, the Certificate IV in Small Business Management, the Certificate III in Business and the Certificate II in Business;
k.Bachelor of Commerce from Charles Darwin University for the applicant dated 13 May 2014 together with the award and academic transcripts and letter of completion of the course;
l.Statement of Attainment from Clarendon Business College for the Advanced Diploma of Accounting for units completed dated 4 January 2016;
m.Confirmation of Enrolment (COE) No. C6A5A134 for the applicant to study an Advanced Diploma of Hospitality Management at Imagine Education Australia commencing on 26 July 2021 and concluding on 15 July 2022, and the enrolment was created on 23 July 2021.
The applicant in evidence confirmed that prior to coming to Australia, he had completed secondary school education in Turkey in 2004 and undertook studies at university in the Bachelor of Public Relations. The applicant gave evidence that he was 2 subjects from completing the course but he failed to complete those studies. At the time he was undertaking those studies, he worked as an assistant manager at Koyum Restaurant back in Turkey from November 2005 to February 2009. The applicant gave evidence that he decided he wanted to improve his language skills and study here in Australia. Consequently, the applicant applied for and obtained a student visa and arrived here in April 2009 for the purposes of undertaking studies in Australia.
The Decision Record confirms that whilst in Australia, the applicant has completed a Certificate of Upper Intermediate English, a Certificate II and III in Business, a Certificate IV in Small Business Management, a Diploma and Advanced Diploma of Management and a Bachelor of Commerce which was conferred on 30 May 2014. Between 13 January 2014 and 8 December 2015 the applicant studied an Advanced Diploma of Accounting at Clarendon Business College. The applicant gave evidence that he undertook the Diploma so he could specialise in accounting but he could not pass the first 2 semesters and undertook further studies in 2015 but was unable to complete the Advanced Diploma.
Between March 2016 and January 2017 the applicant enrolled in and studied a Masters of Professional Accounting at Kaplan Business School. The applicant claimed that he studied 3 subjects in that particular course and he only passed one and failed the remaining subjects.
In December 2016 the applicant enrolled in a Master of Business Administration at Universal Business School, a course which he was supposed to complete in September 2017.
The applicant claims that he studied 2 terms of the Master of Business Administration at Universal Business School but did not complete the course. In February 2017 he was approached for the purposes of gaining sponsorship to work here in Australia pursuant to a UC457 visa. The applicant gained the UC457 visa on 29 August 2017 for the purposes of working as a restaurant manager. Between January 2017 and August 2019 the applicant worked for Olivo Restaurant as a restaurant manager and his annual salary was approximately A$51,000 per annum. The UC457 visa provided the applicant with substantial work experience which would assist him in gaining employment on his return to Turkey.
Shortly after applying for the student visa, the applicant commenced studies of a Diploma of Hospitality Management at Cairns College of English & Business which he completed on 9 November 2020. The applicant did not study from November 2020 to July 2021 which is a gap in studies of more than 8 months. The applicant in the Response claimed that he had difficult times during the COVID-19 pandemic and after he completed his last study he could not enrol. The applicant did not submit any documentary evidence that supported those claims and the Tribunal notes that the interruption to study caused by the COVID‑19 pandemic during that time across Australia was somewhat minimal. Further, the Tribunal notes from the applicant’s evidence that after completing his course in Cairns, the applicant took a Christmas break at Noosa Heads and eventually relocated with friends. The applicant in the Submission claims that he sought to find an enrolment in an Advanced Diploma of Hospitality Management in Brisbane but did not get accepted due to his bridging visa status. Again the applicant did not submit any documentation to that effect.
The applicant then returned to Sydney and stayed with a friend of his who had lost his wife. Whilst in Sydney, he caught up with friends and spoke to his education agent and they were able to secure an offer at Imagine Education for an Advanced Diploma of Hospitality Management commencing in July 2021 and concluding in July 2022 which he is currently undertaking at the Gold Coast campus. If he completes that course, his stay in Australia will extend beyond 13 years which is inconsistent with his stay being temporary.
The Tribunal notes that the gap the applicant has had in his studies is inconsistent with the purpose of a student visa and the Tribunal does not accept his explanation as a reasonable basis for not undertaking studies during that 8-month period. The applicant had ample opportunity to gain enrolment and the Tribunal notes that the enrolment he took in the Advanced Diploma of Hospitality Management was taken at around the time that he filed the Response with the Tribunal for his hearing in this matter.
The applicant whilst in Australia has had 5 student visas and one temporary work visa Subclass 457 and has had ample opportunity to complete the studies he wanted to undertake in Australia.
The applicant gave evidence that he wishes to complete the Advanced Diploma of Hospitality Management so that he can return home to work in a hotel chain in Turkey with a view to opening his own restaurant. The applicant in evidence claimed if he was to obtain employment back in Turkey with the qualifications he would receive then he would expect that his income would be in the vicinity of 8,000 to 12,000 Turkish lira per calendar month which equates to A$970 to A$1,450 per calendar month.
Considering the extensive qualifications the applicant has already obtained in Australia coupled with the experience he has achieved here whilst working as a restaurant manager, the Tribunal finds that the course that the applicant is currently undertaking would only marginally improve his employment prospects and remuneration back in Turkey.
The applicant has changed his career path initially from customer relations to business to small business management and then management to commerce to accounting to business administration and now to hospitality management. The applicant has obtained 3 Certificates, 3 Diplomas, an Advanced Diploma and a Bachelor’s degree.
Whilst the courses studied are somewhat connected involving business management and commerce, predominantly they are not complementary and do not lead to a career path, and the studies in hospitality management are a departure from the business courses he has previously obtained. The Tribunal considers that the applicant is suitably qualified having regard to the extensive qualifications that he has already obtained to work as a restaurant manager back in Turkey.
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 vocational education training (VET) courses. The courses in which the applicant has enrolled since holding the temporary work visa granted in 2017 are all short VET courses and do not reveal any progression in his course of study. Further, the applicant has previously obtained a Bachelor’s degree in Australia from a university and the Tribunal finds that his present course of study, the Advanced Diploma of Hospitality Management, is inconsistent with his level of education.
The applicant was asked as to why he wanted to undertake studies in Australia instead of hospitality studies in Turkey. The applicant claimed it was difficult to obtain hospitality qualifications in Turkey and the course was somewhat theoretical. The applicant in the Response outlined:
“The hospitality is a very large industry in Australia. Based the industry the education is developed and improved. I would like to return with Australian education to be able to open my own business”.
Whilst the applicant may wish to open his own business, having regard to the fact that he has previously worked as a restaurant manager and has extensive qualifications in business together with a Diploma in Hospitality Management, there would appear to be nothing preventing him from commencing work in Turkey with those qualifications. If he so desires to undertake further studies, he would be able to undertake those in Turkey and there would be nothing preventing him from doing that. In those circumstances, the Tribunal does not accept he has a reasonable incentive to undertake these studies here in Australia.
The applicant has lived in Australia for the last 12 years and 7 months which is more than a third of the applicant’s lifetime. He has a substantial degree of knowledge about living in Australia and has completed a Diploma of Hospitality Management and undertaken studies at Imagine Education Australia since July 2017. In those circumstances, the Tribunal accepts he has a substantial degree of knowledge about both the course and the education provider.
Whilst in Australia, the applicant has had various jobs involved in various industries including as a sales assistant at Paul’s Warehouse where he was earning approximately $19,000 per annum, as a catering supervisor at About Life Pty Ltd earning $17,000 per annum, as an assistant manager at Phillips Heritage Restaurant for a period of 6 months where he was earning A$11,000 per annum, as a restaurant manager at Olivo whilst on a temporary work visa where he was earning $51,000 per annum, and then from October 2019 to April 2020 as a restaurant supervisor at Buffalo Cairns earning $16,000 per annum. The applicant gave evidence that whilst he expects his level of income as a restaurant manager back in Turkey would equate to between A$970 and A$1,450 per calendar month, he was hopeful that once he is able to commence his own restaurant he would expect to earn A$75,000 per annum, however that level of income is an aspiration and there is no role currently available at that level of income. The levels of income that the applicant has received whilst in Australia especially whilst working full-time as a restaurant manager are high levels of income and substantially higher than the levels of income he would expect to receive in Turkey. The Tribunal notes that if the applicant is able to remain in Australia on a full‑time basis, then the minimum wage in Australia if he obtained full‑time employment as at 1 July 2021 as set out by the Fair Work Commission is A$772.60 per week which equates to A$40,175.20 per annum,[1] which is a high level of income.
[1] National Minimum Wage Order 2021 – PR729671.
Further, the applicant gave evidence that the levels of income in Australia are higher than those in Turkey. For those reasons, the applicant would have a substantial financial incentive to remain in Australia rather than to return home to Turkey.
The applicant gave evidence that the economic circumstances in Australia are better than those in Turkey which would also provide him with a significant incentive to remain here rather than to return home.

The applicant has returned home to Turkey on 5 occasions for a total stay of 24 weeks. The applicant has not returned home since 2017 and the Tribunal notes he has had several trips away to other countries including Thailand and Ukraine for leisure activities for a period of a total of 15 days. Considering the relatively few visits that the applicant has made to his home and that he has not returned home since 2017, the Tribunal finds that his conduct is consistent with him wanting to remain in Australia permanently and not return home. The applicant gave evidence that his family has property holdings and a vehicle back home. Documentary evidence was provided to the Tribunal which supported that evidence. In the Response, the applicant claims that the value of those assets are approximately A$59,000. When compared with the levels of income that the applicant could earn here in Australia and the higher levels of income that can be earnt here, the Tribunal finds that those circumstances present the applicant with a significant incentive to remain here rather than to return home.
The applicant in the Response and in evidence did not have any concerns about returning to Turkey and he had no concerns about military service commitments as he had completed military service in his home country. Further, the applicant confirmed he was not concerned about returning home due to either political or civil unrest in his home country. Accordingly, the Tribunal finds they do not present as a significant incentive for him not to return home.
The applicant in evidence confirmed that he was not, as at the date of the hearing, working and had been able to support himself here with savings and support from his family. Ultimately, the Tribunal finds that based on the applicant’s evidence and circumstances in his home country, including his education and support from his family and their assets, that relative to others in that country he is in a very good position and it would not provide a significant incentive for him not to return home.
The Tribunal notes that the applicant does not appear to be in any committed relationship. Accordingly, the Tribunal is satisfied he is not in a relationship of concern for a successful visa outcome.
The applicant gave evidence that his mother and father reside in Turkey and that would ordinarily provide him with a significant incentive to return home. However he has not seen them in person since 2017 but he claims he remains in contact with them on a regular basis by video or voice call twice or three times a week. The Tribunal notes that having regard to the applicant’s circumstances here in Australia, as he has been here for more than 12½ years and for a further 9 months, he is in stable accommodation, has supportive friends here and is able to earn higher levels of income, the Tribunal finds that such ties to his home country do not provide a significant incentive for him to return home especially having regard to the duration of his stay in this country of more than a third of his lifetime, being 12 years and 7 months.
Further, the applicant has substantial ties to Australia. He has a number of friends who he has met here in Australia and some of whom he has lived with who have provided support. The duration of his living arrangements coupled with the duration of his stay here and the ability to obtain employment in well paid jobs including as a restaurant manager demonstrate his strong ties to this country, which are confirmed by the fact that he wishes to remain here for at least a further 9 months. The Tribunal finds that such ties demonstrate he has a strong incentive to remain in this country rather than to return home.
The applicant in the Response has not identified any visa refusals or cancellations in Australia or elsewhere. There is nothing before the Tribunal from the delegate’s Decision Record to indicate the applicant has experienced any other visa refusals or any immigration issues either in or outside of Australia.
The applicant has been in this country for a very long period of time and has completed many, many courses and obtained substantial work experience which has empowered him to work as a restaurant manager. In the circumstances, the qualifications that the applicant is seeking to obtain in his current studies are inconsistent with his level of education and are not necessary for the purposes of working as a restaurant manager back in Turkey.
Based on the above matters, the Tribunal is not satisfied the applicant has made this application to gain a student visa to study temporarily, and it considers that the primary objective of the application is to maintain an ongoing residence in Australia and to remain here permanently.
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;
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.

[2021] AATA 4781

26 November 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction