Dwivedi (Migration)

Dwivedi (Migration) [2023] AATA 2699 (24 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Shudhanshu Dwivedi
REPRESENTATIVE:  Ms Jolanta Vasquez (MARN: 1462471)
CASE NUMBER:  2202764
HOME AFFAIRS REFERENCE(S):          BCC2021/70284
MEMBER:Noelle Hossen
DATE:24 July 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 24 July 2023 at 4:43pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – lack of academic progress – applicant has not passed any approved courses since his arrival in Australia – suffered severe depression – no evidence provided –applicant was not a genuine applicant for entry and stay as a student – 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 10 February 2022 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 7 December 2021. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
Confirmation of Enrolments attached to the current application refers to the applicant studying Graduate Diploma of Management.
On 10 February 2022 the delegate decided to refuse to grant the visa because the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations on the basis that he is not a genuine applicant for entry and stay as a student.
On the 28 February 2022 the applicant lodged an appeal to the Tribunal and attached the decision of the Department.
On the 28 November 2022 the Tribunal wrote to the applicant a s.359(2) letter as follows.
As you applied for the visa on the basis of undertaking a course of study in Australia, it is a //requirement of the visa for you to be:
·enrolled in a registered course of study; and
·a genuine applicant for entry and stay as a student.
Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below.
The Tribunal also advised that in considering whether the applicant is a genuine applicant for entry and stay as a student the Tribunal must have regard to ‘Ministerial Direction No.69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ and attached a copy.
The letter also noted the following:
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
The applicant was given until 12 December 2022 to provide the information requested. The
The applicant responded to the request on the 8 December 2022. The applicant provided the following information and documents: Current Certificates of enrolments, Previous Certificates of Enrolments, Evidence of qualification being Diploma of Business and Advanced Diploma in Business, Statutory Declaration and a Response to the questionnaire being MR17 Form (mostly incomplete).
The Tribunal caused a search of PRISMS, being the Provider Registration and International Student Management System register, to be undertaken. The purpose of this search was to ascertain whether the first named applicant was enrolled in a registered course.
According to the PRISMS website, the Department of Education, Skills and Employment is responsible for the Commonwealth Register of Institutions and Courses for Overseas Students. It is recorded that PRISMS is a computer system developed by the Department in association with the Department of Home Affairs for the purpose of receiving and storing information about accepted overseas students that is given to the Secretary under the Education Services for Overseas Students Act 2000. It is further noted that PRISMS provides a secure system for providers of registered educational institutions to comply with legislative requirements by issuing confirmations of enrolments as ‘evidence of enrolment’ in a registered full-time course as required by the Department of Home Affairs and reporting changes in course enrolment, particularly where study ceases, or the duration of the study changes.
It is therefore apparent that PRISMS is a business record of the Department of Education, Skills and Employment and is used by the Department of Home Affairs as evidence of enrolment for the purposes of assessing the grant of student visas. While it is possible providers may not update PRISMS as required, the Tribunal accepts that PRISMS is a reliable record of enrolments, unless there is specific evidence to the contrary in relation to a particular case.
The PRISMS search revealed that the applicant did hold a current confirmation of enrolment in a registered course as of 14 March 2023, being the date of the search.
On the 7 June 2023 the Tribunal sent the following s.359A letter to the applicant:
Recent checks of the PRISMS records indicate that 8 of your Certificates of Enrolment had been cancelled. The records show that four of your courses were cancelled for non-payment of fees, one course was cancelled for unsatisfactory course progress and one was cancelled for non-commencement of studies.
Overall, your PRISMS records suggest that you have not been enrolled in any full-time study in any approved courses between 31/07/2017 and 23/01/2023 – Your PRISMS record does not contain any information about you enrolling in a Diploma of Business or an Advanced Diploma of Business.
The Tribunal requested that he provide evidence of his enrolment in online courses in Business including receipts for payment. He was to provide evidence of when he started and finished these courses.
The Tribunal requested receipts for payments that he had made to enrol in other courses in Western Australia. He was also to provide evidence of medical issues that he suffered in 2019, 2020, 2021 and 2022. It was noted that he had no academic progress between 31/07/2017 and 23/01/2023.
The applicant was given until 22 June 2023 to comment on or respond to the information.
The applicant responded on the 22 June 2023 and provided copies of 3 documents without an explanation as follows:
Evidence of paid fees dated the 27/02/2018 for 9821 USD from Indian Bank to standard Chartered Bank in New York through Western Union Sydney for Edith Cowan University.
Receipt dated the 4/09/2019 from Skills Institute for $2000.00
A receipt from ANZ Access to Ever thought Education for $724.00 dated the 16 September 2019.
The applicant appeared before the Tribunal on 6 June 2023 to give evidence and present arguments.
The applicant was assisted in relation to the review.
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.
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.
In the search dated the 14 March 2023 of the PRISMS record it is recorded as follows:
Master of Business Administration International 31/07/2017 to 15/07/2019 Cancelled (change to student enrolment)
Master of Professional Accounting 31/07/2017 to 15/07/2019 Cancelled (Non-Payment of fees)
Certificate III in Bricklaying/ Block laying 21/01/2019 to 15/01/2021 Cancelled (Unsatisfactory course progress)
Certificate III in Light vehicle Mechanical Technology 14/10/2019 to 15/01/2021 Cancelled (non-payment of fees)
Certificate IV in Automotive Mechanical Overhauling 12/10/2020 to 9/04/2021 Cancelled Non-payment of fees
Graduate Diploma of Management 24/01/2022 to 19/01/2024 cancelled non commencement of studies
Graduate Diploma of Management 23/01/2023 to 19/01/2015 studying.
At the hearing, he was asked why he had not paid his tuition fees for the second semester in 2018 for his Master of Professional accounting. He said he had evidence that he had paid the fees. He did provide some evidence that there was a payment to Edith Cowan University being a direct transfer from India on the 27 February 2018, in answer to the Section 359A letter. There was no explanation accompanying the transfer of funds. In the Student Course variation note attached to the PRISMS record it is stated that his last day was 17/10/2018. The Tribunal did not receive an explanation from him as to whether the evidence produced related to the first or second semester fees so the Tribunal cannot place any weight on that evidence in favour or against the applicant’s case.
He was then enrolled in Certificate III in Bricklaying/ Block laying. The records indicate that his Certificate was cancelled because of unsatisfactory course progress. The records state that the student was absent from the college from the 8/4/2019 to 4/06/2019. He said that he had enrolled because he thought that he could join his brother’s construction firm in India, as his brother is a civil engineer, after finishing the Course. However, he said that he found the course hard and could not follow through as it was also physically demanding. He said he left to visit India for 15 days and decided to change his Course.
He was then enrolled in Certificate III in Light Vehicle Mechanical Technology. The records indicate that he did not pay the fees. He did provide some evidence that he had paid $2000 to Skills Institute. His last day of study appears to be the 18 /01/2020 so the Tribunal is unable to place any weight on the document provided by the applicant as to a record of payment to Skills Institute as he did not explain whether $2000.00 is the total cost of the course or a portion of it.
He was then enrolled to complete a Graduate Diploma of Management from the 24/01/2022 which is the Course that he told the Department that he would be studying when he made his application for his student visa, the subject of this review application. It is stated that the Course was cancelled for non-commencement of studies and that he did not undertake any study. The records state as follows:” This is a non-genuine student. His deposit was never received by the school. A fraud receipt was submitted by the student. When he was contacted for the payment issue, he refused to settle the deposit.”
The applicant’s oral evidence was difficult to follow, and he spent most of the time complaining about his agent and even stated that he was planning to report her. He was given 14 days to explain the position through documents but provided minimal evidence.
The fact of the matter remains that save for the courses, that are not approved, the applicant has not finished or passed any other approved courses in Australia since his arrival in July 2017.
If the student visa is granted with a prospective end date of January 2025, the applicant will have been onshore as a Temporary Visa holder for more than 8 years. In the Tribunal’s view his academic history is less than satisfactory. He has not completed any courses over a 6-year period and is at the time of this decision enrolled in a Graduate Diploma of Management. He enrolled in Certificate III in light Vehicle Mechanical Technology, and Certificate III Bricklaying and Block laying. In addition, the Tribunal does not consider that his academic progress over the last 5 to 6 years supports a finding that he has been a satisfactory student who has progressed academically. If this Visa is granted the applicant will not have progress beyond VET level study and will only have achieved a Diploma level qualification.
The Tribunal finds that the applicant is not a genuine student because of his lack of academic progress. The Tribunal places a lot of weight on those facts against the applicant’s case.
The applicant provided the Tribunal with copies of Certificates of Completion of 2 courses being a Diploma of Business dated the 18 March 2018 and an Advanced Diploma of Business dated the 12 April 2023 with a statement on the Certificate stating that “the Qualification is recognised within the Australian Qualifications framework from Sandhurst Institute Pty Ltd trading as Sydney Business and Technology College.”
The Tribunal questioned him about the courses as they do not appear as approved courses for international students and were not included in his PRISMS record. He did not provide information about his enrolment to the Tribunal and stated in oral evidence that he had completed them online. He did not expand on how he had completed them in a short space of time. He confirmed that he could have completed them in India. He stated that he paid $14,000 towards their cost. His evidence was very unclear at the hearing. The Tribunal was not satisfied with his explanations and he did not provide any further proof of enrolment etc as required by the Tribunal after the hearing.
The Certificates of completion stated that he completed them in March and April 2022. The delegate’s Decision was delivered on the 10 February 2022. At that time the applicant was enrolled in a Graduate Diploma of Management and did not mention to the Department as it is not referred to in the Decision of the Delegate, that he was enrolled in online Courses. The Tribunal asked him why he had not mentioned those facts to the Department. The Applicant did not provide a satisfactory answer to the Tribunal. The applicant blamed his previous migration agent.
The applicant was granted time after the hearing to provide further clarification but failed to do so.
As they are not registered courses the Tribunal does not apportion any weight on the completion of the Courses in favour of the applicant’s case.
When the Tribunal asked him why his course was cancelled for non-payment of fees, he stated that he had an agent and that he would pay her and that he did not trust the migration agent. He said the agent had misappropriated his funds.
At the time of the Delegate’s Decision on the 10/02/2022 the applicant had represented to the Delegate that he was intending to study a Graduate Diploma of Management and it is stated as follows:’ I have given regard to the applicant’s circumstances in Australia. The applicant is intending to study a graduate diploma of management. I have taken into consideration whether the applicant has demonstrated a reasonable level of knowledge regarding their proposed courses of study and education provider in Australia. I am not satisfied the applicant has clearly outlined the reasons for choosing the proposed education provider in Australia and there is no evidence the applicant has undertaken any comparisons with similar courses in their home country. I also note the applicant has not provided any details of core subjects and how they are relevant to their future career aspirations. I find based on the information before me the applicant has undertaken minimal research regarding the proposed course of study and hold concerns regarding their motivation and genuine intentions for seeking to undertake study in Australia. I give strong weight to the applicant’s potential circumstances in Australia”
The evidence before the Tribunal is that the applicant has not passed any approved courses since his arrival in Australia in 2017. When asked about the reason why he had not passed any courses the applicant stated that he suffered severe depression and was very stressed. He was asked to provide evidence but did not do so. The Tribunal does not accept that the applicant had a medical reason for not passing his courses because there is no evidence before the Tribunal. After the hearing the Tribunal requested that the applicant provide evidence of medical issues that he suffered from in 2019 2020 2021 and 2022 but the applicant failed to provide the information to the Tribunal.
The Tribunal gives regard to the applicant’s circumstances in his home country. The applicant is unmarried with no dependents. The applicant states that his highest level of education completed outside of Australia is a Bachelor of Commerce in India.
The applicant has personal ties in his home country in the form of his parents and siblings. At the hearing the applicant stated that he had travelled to his home country on 3 occasions since his arrival to Australia being on 2 occasions in 2018 and on one occasion in 2019. The Tribunal accepts that the applicant has family ties in his home country and places some weight in favour of the applicant’s case as it is likely that those family ties will provide a significant incentive for the applicant to return to his home country after he finishes his courses.

The Tribunal has given regard to the applicant’s circumstances in Australia. The applicant is intending to study a Graduate Diploma of Management. The applicant gave vague answers to the Tribunal in response to questions about his circumstances in Australia. He said that he was not working presently. He said he has lived in a shared house since 2021. He said he never thought of working and he has not tried to get a job. He then changed his story to say that in the beginning when he first arrived in Australia he did work in restaurants. He said that his family provide for him by sending him $2000 to $3000 per month. However, provided no proof of the transfers of funds from his family monthly, to the Tribunal.
The applicant submits that he has chosen to study in Australia because of the quality of education. The applicant had previously completed a Bachelor of Commerce in his home country. It is reasonable to think that if the applicant had considered or chosen to study in his home country, he would have been able to gain some valuable work experience while studying a relevant course to progress his career goal. He explained that he had been doing an article clerkship as an accountant in his home country. There has been no evidence provided that the applicant has any work experience in any other field other than the 4-month period that he worked for the company in his home country. The Tribunal does not accept the oral evidence about his plans in his home country, as credible.
The applicant told the Tribunal that he has developed some friendships in Australia. He said that he presently lives in a share house and has been doing so since 2021. The Tribunal is satisfied that the applicant has developed friendships in Australia and considers this social and emotional connection to Australia may be a strong incentive for him to wish to remain here. The Tribunal places some weight on those factors against the applicant’s case.
He was involved in an accident and his first hearing before the Tribunal had to be postponed until he felt better as he had been hospitalised. He said that he was not working or studying.
The Tribunal has given regard to the value of the course to the applicant’s future. The applicant has not provided strong reasons in his personal statement as to how his proposed course will benefit his future employment or increase his remuneration level in his home country.
The Tribunal questioned the applicant about his future career plans in his home country. He said that he was planning to work for a company called Jacco Motors in his home country as he had previously worked there for 1.5 years. He said he was doing an articled clerkship. It was not clear what benefits and remuneration he would be entitled when resuming his employment with the company. When the Tribunal pointed out to him that the letter lodged on his behalf, from the company dated the 8 December 2022, indicated that he had only worked for them for a total of 4 months, he tried to explain the situation but to no avail as his evidence was clearly at odds with the letter provided to the Tribunal. The Tribunal was not satisfied with his evidence as it was inaccurate, and the applicant vacillated in his evidence. He could not explain why he left the employment to pursue studies in Australia. The Tribunal considers that if, the applicant did have a plan to pursue a career outside of Australia, then he could have already left Australia to implement the plan. The Tribunal places some weight on the facts contained in this paragraph against the applicant’s case.
The Tribunal is not satisfied that the applicant has established that the present study will provide him with significant benefits in his proposed career plan, especially considering the cost of the study. The Tribunal is not satisfied that the applicant has demonstrated that the proposed additional study has a realistic prospect of providing significant value to his future beyond the qualifications he already holds.
On balance the Tribunal is not satisfied the information the applicant has provided regarding his circumstances in his home country, potential circumstances in Australia, the value of the proposed course to his future, are sufficient to demonstrate that the applicant is a genuine temporary entrant.
The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. In the Tribunal’s view the applicant demonstrated an intention to remain in Australia but did not articulate or suggest a lawful means of doing so outside of the student Visa program. It follows that the Tribunal is concerned that the applicant proposes to use the Student Visa program primarily to maintain ongoing residence in Australia.
There is no evidence before the Tribunal regarding the following factors indicated by Direction No. 69: economic circumstances of the applicant, any potential military service in India, political or civil unrest circumstances in India, applicant’s immigration history, remuneration the applicant could expect to receive in India or third country compared with Australia, the applicant’s circumstances in India relative to Australia or any other country, and the applicant circumstances in India relative to others in that country.
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).
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Noelle Hossen
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.

[2023] AATA 2699

24 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction