Daming (Migration)

Daming (Migration) [2020] AATA 3224 (31 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Geromy Marcos Daming
Mrs Jovielyn Salvatierra Daming
CASE NUMBER:  1920843
HOME AFFAIRS REFERENCE(S):          BCC2019/2342166
MEMBER:Justin Meyer
DATE:31 July 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 31 July 2020 at 2:16pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – residence, study and work history – brief returns to home country – vague plans for study in Australia and work in home country – wife and children in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 360(2)(b), (3)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.512(a)
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 16 July 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 1 May 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas on the basis that the applicant did not satisfy the requirements of cl.500.512 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because she was not satisfied that the applicant intends genuinely to stay temporarily in Australia.
On 28 April 2020 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information about his being enrolled in a registered course of study; and being a genuine applicant for entry and stay as a student. He was informed that he would need to provide sufficient information to satisfy the Tribunal that he met both of these visa requirements and was invited to give, in writing, all relevant information about the course(s) of study that he was undertaking and his entry and stay in Australia as a student. in writing.
In his response, the applicant (who was granted an extension of time to respond until 9 June 2020) provided the Tribunal with a completed questionnaire and confirmed that he had a current Confirmation of Enrolment (CoE).
The Tribunal has read and had regard to each of these documents.
In completing his response to the Tribunal’s section 359(2) letter, the applicant provided written consent for the Tribunal to make a decision without a hearing.
The Tribunal is satisfied that the necessary consent has been given under s.360(2)(b) of the Act and that, pursuant to s.360(3), the applicant is no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal
In these circumstances, the Tribunal has proceeded to make a decision. At the outset however, 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 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 (cl.500.212).
Genuine applicant for entry and stay as a student (cl.500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Tribunal has on file a Confirmation of Enrolment (CoE) from the applicant, and it is prepared to accept that he is presently enrolled and studying at Central Australia Institute of Technology (trading as Central Australian College) for an Advanced Diploma of Management until 14 March 2021.
Turning to the genuine temporary entrant criterion for Student visas, the Tribunal considers the applicant’s circumstances in his home country of the Philippines and potential circumstances in Australia. It notes from the applicant’s submitted questionnaire response and visa application that:
·The applicant is a 38-year-old Philippines national. He is married to the secondary applicant, a 43-year-old Philippines national. He has two sons and a daughter, who, like the secondary applicant has been noted as under ‘Country of Residence’ as: ‘Philippines’.
·The applicant’s spouse has been declared as accompanying family member in this application.
·His two sons and daughter have been declared as unaccompanied family members in this application.
·His father resides in the Philippines and his mother resides in Japan.
·His brother resides in Saudi Arabia.
·His stepmother, stepbrother and a stepsister reside in the Philippines. Another stepsister resides in Japan.
·The applicant has a secondary school Year 12 equivalent from the Philippines and a Bachelor of Science degree from STI college in the Philippines.
·He has a Masters’ degree in accounting from Holmes Institute in Melbourne.
·He has worked since 2014 in Australia as a housekeeper in the accommodation industry and as an office assistant.
·In March 2014 he came to study in Australia.
·He picked up his children in the Philippines to bring them to Australia in late August to early September 2017.
·He went back to the Philippines for two weeks in April 2019 for family reunion reasons.
In his Tribunal questionnaire reply the applicant wrote in response to the question:
‘Please give details of how and why the Main Applicant chose the education provider(s) for the Australian course(s) they are currently studying and/or propose to study in the future’:
“The courses I am supposed to enrol in are Diploma of Applied Blockchain and Advanced Diploma of Applied Blockchain.
I searched online to find a course related to Blockchain for international students and I was able to find what I was looking for through the Blockchain Australia website where I was forwarded to Blockchain Collective.
Upon contacting Blockchain Collective, I was able to speak to one of it's founders, Austin and asked him how I can enrol.
He asked for my details and advised me to enrol with Pacific Training Group for the courses. As the course is relatively new, Pacific Training Group has contacted the C RIC OS body for approval to include these courses to their curriculum.
Pacific Training Group advised me that they are going to change my CoE upon approval of the courses from the C RIC OS body that is why I enroled in the courses Diploma of Social Media Marketing and Advanced Diploma of Marketing and Communication throught Pacific Training Group.”
[as submitted]
In his questionnaire the applicant wrote in response to the question:
‘If there are similar courses available in the Main Applicant’s home country or region to the course(s) they are currently studying and/or propose to study in Australia, please give details of the Main Applicant’s reasons for not undertaking the course(s) in their home country or region.’:
“There are shortages in skilled workers worldwide of Blockchain Managers/Strategists. I have spoken with one of Blockchain Collective's founders, Austin and there is a possible partnership when I go back to the Philippines.
Blockchain Collective offers the first nationally recognised courses in Blockchain and they are the benchmark in this field.
After I finish the courses Diploma of Applied Blockchain and Advanced Diploma of Applied Blockchain here in Australia, I will be ahead of other Filipinos.
Since Blockchain Collective has partnered with organisations and institutions here in Australia, I will take home a lot of learning experience especially the part where I will get a placement to apply the blockchain technology to real life through their tie-ups.
Then I will use that knowledge and experience to teach my fellow Filipinos this emerging technology called blockchain or DLT (Decentralised Ledger Technology)”
In his questionnaire the applicant wrote in response to the question:
‘Please give details of the Main Applicant's work experience in Australia (paid and unpaid)’
“Hotel Grand Chancellor Hobart Room Attendant 10/2018-03/2020 AUD22,000 P.A.
Roquette Catering Kitchen Staff/Office Assistant 10/2016-06/2018 AUD15,000 P.A.
NAKS Hospitality Office Assistant   11/2017-03/2018 AUD 4,000 P.A.
ISS Facility Services MC G Event-day Cleaner   05/2014-01/2018 AUD 8,000 P.A.
Hoban Recruitment Housekeeper/Houseman     12/2014-05/2016 AUD 10,000 P.A.”
He estimated his weekly costs as being (in AUD):
Housing/accommodation                   1,000
Food and groceries       500
Utilities   50
Entertainment and recreation               100
Motor vehicle & public transport           200
Health care   1,000 (annual)
The applicant estimated his ‘annual equivalent total’ as AUD22,100.
In answer to the question ‘Please give details of the Main Applicant's property or other significant assets,’ the applicant left the section blank from which I conclude he has no such assets.
Analysis
The applicant’s circumstances in the Philippines are that he has departed the country to study in Australia some six and a half years ago and plans to stay away in Australia until March 2021, based on his course enrolment.
His claimed plan is to be involved in, or work in, a Blockchain business but is presented in ill-defined terms other than be involved in such an enterprise. The Tribunal knows little more than this and that he intends it to be successful and ahead of other Filipinos.
The Tribunal notes that the applicant claims to have had discussions with a founder of ‘Blockchain Collective’ who advised him to commence Blockchain courses at another institution. There is no indication of when this conversation took place and that the applicant has in fact done so. As such the Tribunal finds that the applicant at least for now is enrolled in his existing course, which does not appear to directly relate to his plan.
The application and relevance of his studies to this enterprise is unclear. The particular subjects undertaken in professional accounting and economics for example are not detailed as being relevant to particular aspects of his future business or role. There is little detail as to his planned new role, where in the Philippines will be, how many people will work in it, and its specialisation is not mentioned.
The Tribunal finds that the evidence proffered to support the contention that the applicant is a genuine temporary entrant is scant and minimal and his contention is unconvincing to the Tribunal.
The applicant has his immediate family with him, having indicated that he went to the Philippines to pick them up to take them to Australia to be with him. His wife, the secondary visa applicant, remains with him. Having resided together in Australia there is a prima facie incentive to stay and not an incentive to return to his home country in order to be reunited with his immediate family. The Tribunal notes that the applicant has other family in the Philippines which is potential incentive to return on the other hand. On balance though his immediately family would tend to be the greater incentive and it is not apparent that the parties wish to return.
It is also unclear why he will spend another year away from the Philippines studying a course that seems only somewhat related to his future plans. The Tribunal is dubious that this qualification is needed to work in Blockchain (and if so, how) and is concerned that particulars are not spelt out as to why Australian college-taught knowledge is necessary or desirable. The Tribunal contemplates that much of today’s higher education learning is online in any event and cannot see a satisfactory reason why the applicant needs to be outside of the Philippines to achieve this end. Even if he does not have that option and is guided by an Australian institution, it is not clear where this institution is based and where he would have to physically attend studies. He resides in Tasmania I note, and it is not clear that his classes would be there. The Tribunal concludes that this claimed need for an Australian-based college course is poorly evidenced and it weighs against the applicant.
The applicant stated that after he finishes the courses Diploma of Applied Blockchain and Advanced Diploma of Applied Blockchain in Australia, he will be ahead of other Filipinos. He added that since Blockchain Collective has partnered with organisations and institutions in Australia, he will take home a lot of learning experience especially as he will get a placement to apply the blockchain technology to real life through tie-ups. He went on to say that he will

“use that knowledge and experience to teach his fellow Filipinos this emerging technology called blockchain or DLT (Decentralised Ledger Technology)”
Although it is possible that he might do this, it is puzzling to the Tribunal that this is not a course he is already enrolled in, and why he has departed from his previous line of study. This leads the Tribunal to conclude that his studies are less likely to be motivated by a desire to gain skills in order to start a business or being employed in the Philippines. It is a reasonable hypothesis that the applicant is more desirous of remaining with his family in Australia permanently rather than return.
The applicant arrived in Australia in 2014 and per his response made brief returns to his home country. He plans to be in Australia for another year to study. With the demands of study I draw the conclusion that the applicant will only spend a small proportion of his time, if any, in his home country in the foreseeable future.
The applicant sates he has no declared income or assets and states that he is unemployed.
He is 38 years old.
It is apparent that he had passed his courses to date.
It is apparent how the applicant has supported himself in the past - though catering and hospitality employment.
His other ties to the community in either country are not other otherwise described.
It is not apparent that the applicant has reasonable reasons for not undertaking the study in his home country or region in a similar course. He has not proffered clear reasons why he has not investigated similar option there, other than to imply that Australian education is better. I have concerns about whether a formal education is needed or even recommended to be involved in Blockchain, but even if it is, why he cannot study in his home country is unclear. I find that the applicant does not reasonable reasons for not undertaking the study in his home country or region.
The applicant has personal ties to his home country in the form of family and community. Those circumstances would typically serve in many situations as a significant incentive to return to his home country, yet the applicant does not plan to do so for at least another seven months.
There are no declared military service commitments, and I find that this is not an issue for him.
There is no evidence of political and civil unrest in his home country that affects him. This is not a factor here.
The applicant’s potential circumstances in Australia as such that he has strong ties with Australia – he has studied in Australia for several years and lives with his immediate family here and has had a career here. His future income level may well be higher and present as a strong incentive to remain in Australia.
The level of research the applicant has undertaken into their proposed course of study appears quite low. He has confined himself to general remarks here.
While his courses are consistent with his current school completed level of education it is difficult to see whether the course will assist the applicant to obtain employment or improve employment prospects in his home country for his stated preferred occupation. There is nominally some kind of relevance in his current course to the applicant’s proposed future employment, but the Tribunal is still concerned about the low level of future detail for his further work. There is also no evidence of what work, if any, he has done in the past in his home country.
The Tribunal considers the remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained. This would be prima facie a reduction in income compared to what he might earn Australia with its higher incomes (however his prior work is unknown) and is prima facie a financial disincentive to return. In the absence of harder evidence on his income, the Tribunal draws a general inference that it would typically be less advantageous for him to be in the Philippines.
The Tribunal also has concerns about the shifting reasoning and justifications over time for the applicant’s choice of studies. His application to the department included reasons such as:
·He decided to gain foreign degree to have a competitive advantage over other business graduates.
·He was alone in Australia with no one to go to with his problems. He could not find anyone reliable to turn to at Kaplan Business School. As a result, his scores suffered badly especially in complex units.
·He changed to Holmes Institute in the Dual Masters’ program, passing with two high distinctions and three distinctions and credit grades.
·Despite this he could not obtain a suitable accounting or business job, lacking practical experience as well as I was unable to answer some interpersonal skill questions.
·The standards for job candidates have risen. One cannot expect to land a suitable job with lucrative salary package with just academic degrees. Previous experience or practical skills are needed.
·Having a foreign degree, especially an Australian degree, was ‘implemental’ (sic) in getting an offer for a job in Philippines. Unfortunately, the salary and benefit package were ‘not worth it as per my consideration’. His relatives counselled him that he needed to obtain a relevant degree.
·In the accounting sector he would have to deal with different aspects as well as different types of accounts in an organization, in a team. Coordination, cooperation, planning, organizing etc. are the basic functions of a team. Without proper guidance from the leader or proper management of the whole team, the team could end up in a haphazard situation. As organizations keep making financial decisions and transactions, one wrong move in the accounting team could put the whole organization off balance.
·He decided to pursue a Leadership and Management degree to improve my skills in the sector. He started classes for Diploma of Leadership and Management at CAC and making good progress, and he wished to study Advanced Diploma of Leadership and Management after completing Diploma.
·Central Australian College allows students to ‘secure their career by offering structured courses designed to assist students build a reputable career path with quality industry-based training. The training programs have been designed with the current and future workplace environment in mind, therefore seeking to provide our students with not only academic support but also assisting in personal welfare and career opportunities. Its in-house workshop is well equipped with modern technology for students’ practical work. The course is designed to have face to face delivery in the classroom with tutorials, analysis of case studies, interactive learning including discussion on key points, presentation. Simulated workplace environment is created to provide learners with business or industry learning environment simulated as companies. Altogether it has the best environment to study any course.’
·He went on to state that “Dynamic and progressive education program with a reputation for excellence, globally recognized courses and qualifications along with an enjoyable, relaxed and safe lifestyle are unavoidable features of Australia. Such a great collection of natural beauties made Australia more attractive destination. The atmosphere alone is enough to spellbind any tourist and students to stay here. The people here are the most amazing and helpful people of the world. The graduates from Australia are highly sought in the working zones all around the world. A student can choose almost any program to study to their heart’s content. Australia is reputed because of its quality education and that is why I decided to gain an international degree from Australia, and I am happy with this chosen destination of mine for higher education.”
·“My TR period did not go as I had planned but I am still hopeful about my future. I believe that after I have equipped myself with the leadership skills, my value as a job candidate would rise greatly both in Australia and Philippines. However, I plan to return to Philippines after my graduation to join a reputed organization. I hope to achieve what I have planned, and I think my degrees will aid me in doing so”

I do not consider that the applicant has reasonable reasons for not undertaking the study in their home country or region. I find that the courses or courses that he is presently enrolled for have only marginal relevance to is aim of being in the Blockchain field. It is not apparent that he could not study Blockchain in his home country for the reasons outlined above.
The applicant has personal ties to his home country (including family). However his immediate family are accompanying him, an I find them to be his priority. Other family members remain in his home country and he has visited them but I am not led to conclude that they are prioritised over his immediate family because of his actions. I am not aware of community and other ties that otherwise might draw him to the Philippines.
His economic circumstances and potential circumstances might well include a significant salary in Blockchain in Australia with higher standard of living. While Blockchain may be reasonably lucrative in The Philippines the ill-defined nature of future employment as described above mitigates against me finding in his favour here. This would present as a significant incentive for the applicant not to return to his home country.
There is no evidence about military service commitments that would present as a significant incentive for the applicant not to return to his home country.
There is no evidence about political and civil unrest in the applicant’s home country that would present as a significant incentive for the applicant not to return there.
I have had regard to the applicant’s circumstances in his home country relative to the circumstances of others there.
The applicant's immigration history is not problematic and that there is no evidence of non-compliance with visa conditions or unlawfulness, relationships of concern, or a lack of knowledge about Australia, and this weighs in his favour.
Yet, having weighed up and considered all matters cumulatively the applicant is not in the Tribunal’s view a genuine temporary entrant for stay in Australia.
I have balanced these factors and, cumulatively, I find the evidence to be against his claim that he intends genuinely to stay in Australia temporarily.
I consider that the Student visa is being used to maintain ongoing residence.
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).
Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?
For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)). The Tribunal finds that there are no other relevant matters.
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 decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Justin Meyer
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.

[2020] AATA 3224

31 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction