Deegallalage (Migration)

Deegallalage (Migration) [2019] AATA 1806 (31 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Palitha Premawansha Deegalla Deegallalage
Ms Rasika Nilmini Angoda Liyanage
Master Thinuga Vinmeth Deegalla
CASE NUMBER:  1722979
HOME AFFAIRS REFERENCE(S):           BCC2017/2690845
MEMBER:Michael Biviano
DATE:31 May 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 31 May 2019 at 1:14pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – change of career path – regression in level of study – value of course – length of stay in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.212, 500.311
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 8 September 2017 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 28 July 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the main 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 main applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (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.
Further, the delegate refused to grant a visa to Ms Rasika Nilmini Angoda Liyanage, the main applicant’s wife and Thinuga Vinmeth Deegalla, the main applicant’s son (secondary applicants), pursuant to cl.500.311 of Schedule 2 to the Regulations. The delegate was not satisfied the main applicant had been found to have met the requirements of cl.515.212(a) of Schedule 2 to the Regulations.
The main applicant appeared before the Tribunal on 2 April 2019 to give evidence and present arguments on behalf of the applicants.
The applicants were 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 applicants’ case. It is for the applicants 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 applicants, 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 main 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 main applicant is a 39 year old Sri Lankan national, who came to Australia on 27 March 2008. He entered Australia after obtaining an initial Student visa (Subclass TU 573).
The decision record of the delegate of the Department of Immigration and Border Protection dated 8 September 2017, which was provided to the Tribunal by the main applicant, confirms that the main applicant made the application for the current Student (Class TU Subclass 500) visa on 28 March 2017 (Decision Record). Further the Decision Record confirms that the main applicant had resided in Australia for more than 11 years on five further temporary visas, a bridging visa and a Temporary-Skilled (Provisional) Skilled (VC 485) visa.
At the time of the current visa application, the main applicant was enrolled to undertake the completion of the Advanced Diploma of Management (Human Resources), which was to commence on 17 July 2017 and was due for completion by 18 February 2018.
Prior to the hearing, on 6 March 2019, the main 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 stay in accordance with s.359(2) of the Act (Response).
The main applicant in the Response amongst other things set out the courses he had studied and enrolled in while in Sri Lanka and Australia together with his employment on those countries.
Between 1990 and 1999, the main applicant completed secondary schooling in Sri Lanka. In his studies between 2001 and 2006, he obtained:
a.    Diploma of Computer Hardware, Engineering & Networking from Turnkey Computer Networks between 2001 and 2002;
b.    Bachelor of Science (Statistics & Computer Science) at University of Kelaniya, Sri Lanka between 2003 and 2007; and
c.    Diploma in Hardware & Networking from Winsys Networks in 2006.
In addition to studying those courses, between 2000 and 2008 he worked as a graphic designer and assistant manager with Shanthi Foto, his family’s business, earning approximately $5,000 per annum and between 2006 and 2008 he worked as a demonstrator and lecturer at University of Kelaniya earning approximately $6,000 per annum.
Since arriving in Australia, the main applicant has claimed in the Response that he studied the following courses:
(a)Between March 2008 and July 2008, he obtained a Certificate of General English at Swinburne University of Technology;
(b)Between August 2008 and June 2011, he studied a Masters of Science (Network Systems) at Swinburne University of Technology, and he obtained his masters;
(c)Between September 2011 and November 2012, the main applicant enrolled in but did not complete a Diploma of Management at Australian Industrial Systems Institute. The applicant’s evidence and the Decision Record confirm that during that time the applicant completed a Certificate III and IV in Business;
(d)Between October 2012 and December 2013, he completed a professional year with the Australian Computer Society working in accordance with the Temporary-Skilled (Provisional) Skilled (VC 485) visa he had obtained;
(e)Between March 2014 and March 2016, he studied a Masters of Science (Information Technology) at Federation University, and he obtained his masters;
(f)Between May 2016 and May 2017 he studied an Advanced Diploma in Management (Human Resources) at National Training College of Australia (NTCA), but he did not complete the course because he failed;
(g)Between May 2017 and May 2018 he studied an Advanced Diploma in Management (Human Resources) at NTCA and again he did not complete the course because he failed;
(h)He was not enrolled between May 2018 and February 2019 and there is a gap in his studies. The applicant in evidence claimed that he was not enrolled as his father became ill and had multiple heart attacks. He returned home for one and a half months in August 2018 and in October 2018 his father passed away on the operating table during surgery. He then returned home for the funeral. He claimed that in those traumatic circumstances he was unable to study. The Tribunal accepts those reasons for not being enrolled during this time; and
(i)From February 2019, he was enrolled in a Diploma of Leadership & Management at Danford College but did not start the course.
The main applicant gave evidence that on 27 March 2019, he enrolled in a Diploma of Information Technology Networking which is expected to finish in April 2020 and an Advanced Diploma of Network Security at the Imperial College of Australia and the advanced diploma course is due for completion on 1 January 2021. The applicant submitted a Confirmation of Enrolment certificate and evidence of enrolment for those courses.
The main applicant gave evidence that he was unable to pass the Advanced Diploma in Management (Human Resources) twice because he was distracted at the time with the birth of his child in December 2013, a diagnosis that his child was autistic and there were concerns with his son’s health until the doctors gave the all clear with his health in mid-2017. The Tribunal does not accept the main applicant’s evidence and such reason for failing the course having regard to:
a.The main applicant had completed a Masters of Science in March 2016, a higher level course, while he was subject to these troubling events; and
b.The main applicant failed the Advanced Diploma in Management (Human Resources) he was studying between May 2017 and May 2018, after these troubling events had passed.
The main applicant gave evidence that he had intended to return to Sri Lanka and obtain a position in the information technology industry after completing his masters degree in 2016, but due to limited opportunities and having spoken to his father about expanding and working in the family business, his father encouraged him to commence a Diploma in Management and develop management skills. However in October 2018 his father passed away and he decided to revert back to studying information technology courses, as there would be no expansion in the family business without his father in the business. The main applicant claims that the courses he is now studying focus on security in computer networks and systems which will improve his knowledge and ability to gain employment in Sri Lanka.
The main applicant has changed his career path from information technology to business to management and now back to information technology.
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 main applicant’s last three courses and the two courses he is enrolled in are all short VET courses. The applicant is seeking to study a diploma and advanced diploma in the same areas of study in information technology for which he has already obtained two masters’ degrees. While there may be changes due to updates in technology since 2016, the main applicant could reasonably update his knowledge without undertaking a further two years of study in completing a diploma and advanced diploma in information technology.
The applicant was questioned about the value of studying the course he is currently enrolled in, and the applicant gave evidence that he seeks to complete the diploma and advanced diploma by January 2021. The applicant gave evidence that after completing those courses he would return home to Sri Lanka. However the applicant has previously made similar statements when he applied for the visa the subject of this appeal. The Decision Record contains a statement made by the main applicant about GTE requirements to the Department. In part he stated:
Coming from a close knit family, my upbringing has inculcated family values that foster togetherness and caring for each other. My wife shares the same sentiment and we miss our family back home. Since coming to Australia in 2008, we have visited our family in Sri Lanka four times. Being an international student I have always devoted most of my time on my studies. However, have always been in regular contact with my family back home via various communication modes. We look forward to going back to Sri Lanka after completing my intended course of study and the course is expected to complete on 18/02/2018. We have also made arrangements regarding the commencement of my son’s kindergarten at Pahana Kindergarten, Sri Lanka on 07/05/2018. Also, my wife has property back home in Sri Lanka that she needs to attend to.
Additional Evidence Attached:
1. Travel Stamp in Passport
2. Confirmation of Son's Enrolment in Kindergarten
3. Evidence of Wife’s Property
Notwithstanding his submission to the delegate, the main applicant has remained in Australia. The Tribunal does not accept his evidence that he will return to Sri Lanka after completing his studies in Australia.
The main applicant has already obtained higher education qualifications including a bachelor’s degree in Sri Lanka and two masters’ degrees in computing and information technology in Australia. The Tribunal finds that the applicant’s present studies of a Diploma of Information Technology Networking and Advanced Diploma of Network Security may only marginally improve his employment prospects and remuneration in Sri Lanka when considered alongside the qualifications and experience that the applicant has already obtained in Australia.
When questioned about whether there are other similar courses he could study in Sri Lanka, the applicant gave evidence that he had not researched whether there are similar courses he could study, but the facilities and standards in Australia were far superior to those in Sri Lanka. The Tribunal accepts that evidence but without the main applicant having researched and considered what other similar courses exist in Sri Lanka, it is unable to make any finding as to whether the main applicant had reasonable motives to study these courses in Australia rather than in his home country.
The Tribunal finds that the main applicant during his studies in Australia (over more than 11 years) has completed two masters’ degrees, two certificates and he now wishes to study a diploma and advanced diploma. The main applicant, if he completes the diploma and advanced diploma, will have remained in Australia for nearly 13 years. 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.
The main applicant has lived in Australia for the last 11 years and he has a substantial degree of knowledge of living in Australia. When questioned about the courses he was intending to study the main applicant was able to provide details about the course and its focus on network security. When pressed about the content of the courses, the main applicant conceded the Advanced Diploma in Network Security, is the course which provides him with detailed education about security in networks whereas the diploma is merely a general course. The Tribunal accepts that the main applicant has a substantial degree of knowledge about the course and its provider.
The applicant has given evidence that since coming to Australia, he has worked:-
a.between August 2008 and December 2010 as a kitchen hand at Bayview Eden earning approximately $10,000 per annum;
b.between January 2014 and May 2014 as a delivery driver at Waverley Industries earning approximately $19,000 per annum; and
c.since January 2014 and at present he is working at Domain Gracedale aged care facility providing general services, earning approximately $28,000 per annum. The income that the main applicant has received and is receiving from that position is a significant level of income and provides a substantial economic incentive to remain in Australia.
The Tribunal has made this decision having regard to the applicant’s circumstances in that since 2016 he has not completed any higher education courses and VET courses. If the main applicant now completes the diploma and advanced diploma, which he is proposing to complete in January 2021, he will have been in Australia for nearly 13 years. The Tribunal finds that the applicant’s proposed courses of study and undertaking various vocational courses since completing a masters degree in March 2016 indicates an intention not to remain in Australia temporarily but to maintain ongoing residence and remain in Australia permanently.
The main applicant gave evidence that if he returned home to Sri Lanka, he would live near his wife’s family and seek to obtain employment in the information technology industry. The applicant gave evidence that if he did not complete the diploma and advanced diploma, he would only be able to obtain a job earning approximately $700 per calendar month. Such evidence is inconsistent with his evidence at the hearing when questioned about the level of income that would currently be payable for his former position of demonstrator and lecturer at the University of Kelaniya, he gave evidence that the level of income would be $12,000 per annum, which equates to $1,000 per calendar month.
The main applicant gave evidence that if he completed both the diploma and advanced diploma courses he could get a job in Sri Lanka in security for information receiving good pay. He gave evidence that a friend of his in a similar position is earning $2,000 per calendar month in Sri Lanka, which is less than what he is currently earning in Australia working part-time providing general services in a nursing home. The main applicant after completing his qualification would be able to earn substantially more in Australia than in Sri Lanka. The Tribunal is also unable to rely on such anecdotal evidence about likely earnings in Sri Lanka and has difficulty accepting evidence that the main applicant’s income without the diploma and advanced diploma courses would only be 35% of the income he would receive with them, notwithstanding his two masters’ degrees and bachelor’s degree in the computer and information technology field. The main applicant’s evidence is not credible on these matters and not accepted by the Tribunal.

The main applicant has made six trips to Sri Lanka during his stay in Australia and he has spent a total of five months in Sri Lanka out of the 11 years in Australia. He has spent on average less than two weeks per year in Sri Lanka. The main applicant had not travelled elsewhere out of the country during his stay in Australia. Considering the relatively short period of time that the applicant has spent in Sri Lanka over the last 11 years, the Tribunal finds that the main applicant’s conduct is consistent with him wanting to stay in Australia permanently and not return home.
The main applicant’s circumstances in his home country are that before coming to Australia, he had obtained employment and during 2006 to 2008 he was working two jobs and earning approximately $900 per month before obtaining his current qualifications.
The main applicant in the Response gave evidence that his mother has substantial property holdings but they are not in his name. His wife owns a property in Sri Lanka. The main applicant has been living in Australia for the last 11 years with his wife and son, and he intends to stay and study for a further one year and eight months. When coupled with his long-term employment in Australia, the economic circumstances in Australia present the main applicant with a significant incentive to stay in Australia.
Further the main applicant has previously completed one bachelor degree in Sri Lanka, two masters’ degrees and two certificates in Australia. He has failed two advanced diploma courses in management and his proposed studies in Australia in undertaking a diploma and advanced diploma, do not reveal academic progression since the main applicant completed his masters degree in March 2016. The Tribunal finds that the current diploma he is undertaking and the advanced diploma he proposes studying are inconsistent with his current level of education.
The main applicant both in the Response and in evidence did not have any concerns about returning to Sri Lanka and no concerns about military service commitments and political and civil unrest in his home country. The Tribunal finds that they do not present as a significant incentive for the applicant not to return home.
The Tribunal finds that, based on the main applicant’s and his wife’s circumstances in their home country (including their financial position and the support they have from their families) relevant to others in that country, they are in a good position and it would not provide a significant incentive not to return home. The Tribunal accepts that the main applicant and his wife are not in a relationship of concern for a successful visa outcome.
The main applicant has personal ties both in Australia and home in Sri Lanka.
The main applicant gave evidence that his mum, three brothers, his parents in law and brothers in law reside in Sri Lanka and they would ordinarily provide the main applicant with incentive to return home. He has not seen them in person since November 2018 but he remains in contact with them by telephone, emails and messaging such as WhatsApp and Viber. In addition to the personal ties, the main applicant‘s wife also has property in her own name in Sri Lanka. However given the period of time the main applicant has stayed in Australia, that he has returned home to visit his family infrequently in the 11 years he has been in Australia, he intends to stay in Australia for a further one year and eight months, and his circumstances in Australia, the Tribunal finds that such ties do not provide a significant incentive to return home to Sri Lanka.
Further the main applicant has substantial ties to Australia. He has lived in Burwood, Australia for seven to eight years and he is living with his wife and child, who are now his immediate family. He also has friends from Sri Lanka in Australia that he is in contact with and sees regularly. The duration and stability of his living arrangements and his employment demonstrates his strong ties to Australia. The Tribunal finds that such conduct demonstrates that he has a strong incentive to remain in Australia rather than to return home.
The main 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 main applicant has experienced any other visa refusals or any immigration issues either in or outside Australia.
Based on the above matters, the Tribunal is not satisfied that the main applicant has made this application to gain a student visa to study temporarily 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 main 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 main 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 main 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 main applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
Further, as the main applicant has not met the requirements of cl.515.212 of Schedule 2 to the Regulations, then the secondary applicants do not meet the requirements of cl.500.311 of Schedule 2 to the Regulations, and they do not meet the criteria for the grant of a student visa.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
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 1806

31 May 2019

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction