Garatti (Migration)

Garatti (Migration) [2019] AATA 1825 (3 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Cristina Garatti
Mr Marco Daniele
CASE NUMBER:  1728652
HOME AFFAIRS REFERENCE(S):           BCC2017/3339708
MEMBER:Glenn O'Brien
DATE:3 June 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 03 June 2019 at 4:31pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – length of stay in Australia – partner’s presence in Australia – limited travel home – developed ties in Australia through work and study – value of course – change of career goals – 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 15 November 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 13 September 2017. 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 applicant provided a copy of the delegate’s decision record to the Tribunal on making the application for review. The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant intends genuinely to stay temporarily in Australia.
The applicants appeared before the Tribunal on 30 May 2019 to give evidence and present arguments.
The applicants were assisted in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary entrant for entry and stay as a student.
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The applicant filed with the Tribunal written submissions including a copy of her confirmations of enrolment, certificates of courses completed and her transcript of results.
The applicant originally arrived in Australia on 3 December 2012.
The Tribunal considered whether the applicant had reasonable reasons for not undertaking the proposed course of study in her home country if a similar course is already available there.
In the applicant’s response to the Tribunal’s letter sent pursuant to s.359(2) of the Act the applicant told the Tribunal she chose Australia to continue her studies as an Australian qualification in the English language is highly regarded in Italy. Further, as the applicant intends to open her own business, she told the Tribunal that learning a different set of management and leadership standards will give her a competitive edge over her competitors in Italy. At the hearing the applicant told the Tribunal it was important to study in an English speaking country and learning new ways of doing business.
The applicant completed high school in Italy in 2008 and her mother, father and brother live in Italy. Her partner’s family are also in Italy. The applicant told the Tribunal she has regular contact with her mother and speaks with her every day via WhatsApp. The applicant video calls her brother monthly and has less contact with her father. The applicant told the Tribunal she has no personal assets in Italy but will receive an inheritance from her mother.
The applicant has a partner in Australia with whom she travelled to Australia in 2012. She arrived in Australia on a visitor visa and then obtained a working holiday visa which was extended to January 2015 and then obtained a student dependent visa as a secondary applicant to her partner.
As set out in the delegate’s decision record, the applicant’s student dependent visa expired on 14 September 2017 and the applicant applied for her own student visa on 13 September 2017, the day before her student dependent visa expired. The applicant told the Tribunal she did this as she didn’t know if she could before speaking with family.
The applicant previously worked in Italy as a barista and shop assistant in a leather shop with her last job ending in October 2012. The applicant earned approximately $12,000 in this role.
The applicant has been employed in Australia on several occasions from October 2013 to April 2014 and from June 2016. The applicant told the Tribunal she currently works at Dejavu Café as a barista and earns approximately $21,600 per annum. The applicant told the Tribunal she has developed into a supervisory role and is involved in ordering from suppliers.
The secondary applicant worked at Bella Venzia as a senior waiter and was a highly regarded employee. The company has provided the Tribunal with a reference. The secondary applicant told the Tribunal that he is in casual employment at a coconut factory and earns approximately $450 per week.
The applicant told the Tribunal that she wants to open her own Australian themed café in Sesto San Giovanni, Milan and provide vegan sandwiches and coffee. Prior to undertaking this venture the applicant intends to return to Italy to work at her uncle’s business at Comites. The applicant provided the Tribunal with a letter from Comites dated 16 January 2019 which stated that the applicant’s qualifications in English and leadership and management are very much appreciated during a recruitment session but it did not provide the applicant with an offer of employment. The applicant told the Tribunal she is sure she will get a job there as other family members work in the business. The applicant anticipates earning approximately $2,500 per month working for her uncle in the short term and $3,000 per month in profit from her café on the basis that it will be shared income between the applicant and secondary applicant and it is an estimate of profit from the business. The applicant told the Tribunal her living expenses will be less in Italy as she will live with her parents. The Tribunal accepts the applicant’s living expenses in Italy are likely to be less than in Australia; however the comparative income of the applicants in Australia on the basis of part-time and casual employment is higher than the anticipated income likely to be obtained in Italy.
The applicant told the Tribunal that she has returned to Italy in 2015 and 2017 for the purpose of visiting friends and family. Her last return visit was prior to her partner completing his studies in September 2017.
In considering the applicant’s circumstances in her home country, on the basis of the evidence before the Tribunal, the Tribunal finds:
a.The applicant provided reasonable reasons for not undertaking the proposed course of study in her home country.
b.The applicant does have family ties to her home country and an expected inheritance. In considering the period of time the applicant has been in Australia, her partner’s presence in Australia with her, the limited travel home since 2012, the applicant’s return to Australia after returning to Italy upon completion of her partner’s study, the absence of any arranged prospective employment and the preliminary nature of the applicant’s plans to open a café, these circumstances are not a significant incentive to return.
c.The applicant is supported financially during her study in Australia. The applicant does not have arranged employment although she does have a prospective opportunity with her uncle’s company. The applicant does not have arranged prospective employment for her return. The applicant’s plans to open a café, although considered, are preliminary and dependent upon further research and planning upon the applicant’s return to Italy. The applicant’s income in Australia on a part-time basis is more than the applicant previously earned in Italy and more than the applicant anticipates earning from her planned business at least initially. In considering these matters as a whole, the applicant’s economic circumstances present as a significant incentive not to return home.
d.The applicant does not have any military service commitments which would provide a significant incentive not to return home.
e.There is no evidence before the Tribunal of political and civil unrest in the applicant’s home country of such a nature that may induce the applicant to apply for a student visa to obtain entry to Australia to remain indefinitely.
f.There is no relevant evidence regarding the applicant’s circumstances in her home country relative to others in that country and the Tribunal makes no findings concerning the applicant in that respect.
The applicant told the Tribunal she does not belong to community groups and does not actively participate in community events. The applicant told the Tribunal she has developed a circle of friends and provided the Tribunal of a number of photographs with others socialising, holidaying and dining which indicates to the Tribunal that the applicant has developed community ties through the friendships she has formed in working and studying in Australia.
The applicant rents a home in Australia with her partner and the lease expires around September 2019 and she will either seek to extend that lease until completion of her studies or find short term alternative accommodation. In considering the period of time the applicant has been in Australia both in study and in part-time employment, her partner’s presence in Australia, and the applicant’s limited travel from Australia to Italy, the Tribunal is satisfied that the applicant has developed friendships and financial and social connections to Australia through both work and study.
The applicant travelled to Australia for an initial visit and then obtained and extended a working holiday visa. The applicant was granted a dependent student visa and supported her partner during his study. The applicant did not seek to study in Australia during any time from 2012 to 2017.
The applicants returned to Italy prior to the completion of the secondary applicant’s study and told the Tribunal that she applied for a number of positions in tourism but due to her language skills was not successful. The applicants then decided to return to Australia to enable the applicant to study English to improve her English language skills and return to a job in the tourism sector.
The applicant told the Tribunal she enrolled in a Certificate III and IV in Written and Spoken English which commenced in September 2017 and she completed those courses of study in 2018. At the time of applying for the student visa the applicant told the Department of Immigration and Border Protection that working in tourism will provide her much better opportunities and improving her reading, writing and speaking skills will give her the best chances of getting a job in the tourism industry. The secondary applicant told the Department that the applicant studying English in Australia would take a short time that would make the world of difference.
On completion of the applicant’s English language courses the applicant told the Tribunal she enrolled in a Diploma of Leadership and Management that would extend the applicant’s temporary stay in Australia to April 2020, being some seven years.
The applicant’s reasons for enrolling in her courses of study after returning to Australia in 2017 from a holiday in Italy and applying for a student visa one day prior to the expiration of her student dependent visa suggests the applicant is using the student visa for the primary purpose of maintaining residence. The applicant worked as a barista in Italy prior to travelling to Australia in 2012 and while in Australia both before and after she told the Tribunal her career plans had changed. The applicant told the Tribunal that her plans had changed to opening her own café because of her work experience at Dejavu Café after returning to Australia in 2017. While the Tribunal accepts that students may change their career goals and aspirations, the applicant has worked in café’s for a considerable period before her sudden change of career plan upon completion of her English language courses. The enrolment in further courses shortly before the expiration of her visa indicates to the Tribunal that the applicant’s now stated career goals and aspirations are formulated to justify the applicant’s current course of study.
In considering the period of time the applicant has spent in Australia since 2012 on a working holiday and dependent student visa, in study and the applicant’s living arrangements in Australia with her partner the Tribunal assesses the applicant as having a good knowledge of living in Australia which the applicant intends to continue. The applicant demonstrated a sound knowledge of the course in which she is currently enrolled.
In considering the applicant’s potential circumstances in Australia the Tribunal finds:
a.The applicant has ties to Australia through the period of time the applicant has spent living in Australia, her living arrangements and her partner in Australia as well as her study and work. The Tribunal is satisfied the applicant has developed friendships in Australia through study and considers the financial, social and emotional connection to Australia provides a strong incentive to remain.
b.In considering the applicant’s reasons for enrolment in her chosen courses, the changing intentions in relation to her future career goals and aspirations, her stated reasons for completing English courses, and her enrolment in additional courses shortly before the expiration of her visa, the student visa programme is potentially being used to circumvent the intentions of Australia’s migration programme.
c.On the basis of the matters set out in these reasons for decision, including the applicant’s period of time in Australia, visa history, reasons for enrolment in her courses of study, changes in fields of study, lack of any prospective arranged employment or progressed business plan, and remuneration the applicant expects to receive in Italy on completion of her course in comparison with what the applicant earns in Australia, the applicant is using the student visa primarily to maintain ongoing residence in Australia.
d.The applicant has a good knowledge of living in Australia, primarily through the length of time the applicant has been in Australia and has a reasonable understanding of the proposed course of study, education provider and her current study and living arrangements in Australia.
The applicant’s proposed course of study is a progression to her previous study in Australia. It is noted the applicant already holds a Diploma qualification in Italy which the applicant told the Tribunal is akin to a high school education.
The applicant does not have prospective employment arranged in Italy, but does have potential employment in her uncle’s business and a plan to open a café which requires further development.
The applicant’s stated career aspirations of opening a café is different to what the applicant told the Department. The applicant told the Tribunal that working as a barista in Australia has led to her desire to no longer want to pursue a career in tourism but to open her own café and this has strengthened through her developing role in her current part-time employment. Notably, the applicant worked as a barista in Australia from 2016 and prior to the applicant returning to Italy before deciding to come back to Australia to improve her English language skills to enable her to seek a better job in tourism.
The applicant had already spent a substantial period of time in Australia before returning to Australia to complete English language qualifications to improve her prospects of obtaining employment in the tourism industry in Italy. The applicant told the Tribunal that she wanted to add to her skills as a partner in the business. While a Diploma of Leadership and Management provides the applicant with some additional skills, in considering the applicant’s plan to open her own business with the secondary applicant, and the secondary applicants existing qualifications in human resource management, the Tribunal considers the applicant’s proposed course of study is of further limited value to the applicant in improving her employment prospects or furthering her career aspirations given the further investment in both time and money which would extend the period of the applicant’s temporary residence in Australia to almost seven years.
The applicant’s evidence in relation to the remuneration she expects to receive is necessarily speculative in relation to her planned café and is based upon approximately $3,000 per month in profit between both the applicant and secondary applicant. This is comparatively less to the income the applicant has earned in Australia and continues to earn in Australia on a part-time basis of some 20 hours per week.

The Tribunal is concerned that the applicant’s now stated career goals and intentions have been formulated to justify the applicant’s current course of study and extend her period of residence in Australia.
In considering the value of the proposed course of study to the applicant’s future the Tribunal finds:
a.The course is a progression to the applicant’s qualifications held in Australia and consistent with the specialisation in the applicant’s Diploma of Tourism at high school.
b.In considering the applicant’s previous history of employment, the qualifications already obtained by the applicant, the reasons given for changing fields of study and career goals and aspirations, the preliminary nature of the applicant’s business plan and prospective nature of employment in her uncle’s business, the current proposed course of study is of limited value to the applicant.
c.The course is not relevant to the applicant’s original intentions in relation to travelling to Australia to complete English language studies for the purposes of improving her employment prospects in tourism and the applicant does not claim the course is relevant to those original plans.
d.The Tribunal does not consider the change in career paths reasonable or relevant to the original intentions for study in Australia. While the course appears relevant to the applicant’s now stated career aspiration of opening her own café, the Tribunal finds that those aspirations have been formulated to justify the current course of study and if the applicant genuinely holds those aspirations, the applicants already attained qualifications would enable the applicant to return to Italy to pursue her career and develop the plan to open a own café without further prolonging the applicant’s stay in Australia for a further qualification which provides limited further value to the applicant.
e.The remuneration the applicant can expect in her home country is speculative but comparatively less than what the applicant earns on a part-time basis in Australia
f.There is no evidence before the Tribunal in relation to the comparative remuneration the applicant would receive in Australia and Italy using the qualifications the applicant seeks to obtain and the Tribunal makes no findings in that regard.
Other than the applicant’s immigration history set out in the delegate’s decision record, the applicant told the Tribunal she has not applied for any other visas in Australia or any other country.
The applicant returned to 2015 and 2017 to visit family, the latter travel being shortly prior to the secondary applicant completing his studies in Australia. The applicant has not been subject to any visa cancellation or refusal other than the visa application presently before the Tribunal.
The applicant told the Tribunal she has travelled to New Zealand, Thailand and Indonesia from Australia, and Germany from Brazil, for the purposes of tourism and has complied with the immigration laws of all other countries to which she has travelled.
The applicant has spent a long period of time in Australia more recently undertaking a series of courses in the vocational education sector. The applicant has provided references and transcripts which evidence she is a good student, with high attendance, and is highly regarded by both her employers and tutors. The applicant has changed her field of study to management and leadership and provided differing reasons in relation to her future career aspirations and goals. The Tribunal was concerned that the applicant was enrolling in these courses for the primary purpose of maintaining her residence in Australia. The applicant told the Tribunal this was not the case and she has changed her aspirations because of her part-time work experience in Australia. While the Tribunal accepts the applicant’s work experience may have some influence on the applicant’s career goals and aspirations, in considering the applicant has been in Australia for some seven years and completed English studies with the stated intention to return to Italy to work in tourism, the Tribunal finds the applicant’s now stated career aspirations are formulated to justify the current course of study. The Tribunal considers this course provides the applicant with limited further value in relation to pursing the applicants combined intention of opening their own café.
In considering the applicant’s immigration history for the purposes of this application, the Tribunal finds:
a.Other than the matters set out in the delegate’s decision record, the applicant has not applied for other visas to Australia and there are no undecided, refused or cancelled visas to Australia or other countries.
b.Other than the applicant’s return travel to Italy and the countries to which she has travelled for the purposes of tourism disclosed in these reasons for decision the applicant has not travelled to any other countries from Australia and the applicant has not been subject to visa cancellation or non-compliance.
c.In considering the matters set out in these reasons for decision, in particular the applicant’s time spent in Australia, the reasons given for the applicant enrolling in her chosen courses of study, the applicant’s qualifications obtained over a period of seven years, the absence of arranged or prospective employment and preliminary business plan, the applicant’s return to Australia and proposed study after returning to Italy, and the limited value of the applicant’s current course of study in relation to improving employment or career aspirations, the applicant is using her student visa primarily to maintain ongoing residence in Australia.
The applicant is not a minor and it was not necessary to consider the intentions of her parent, legal guardian or spouse. There was no evidence before the Tribunal in relation to these matters and the Tribunal makes no such findings.
As required by Ministerial Direction No.69, the Tribunal invited the applicant to make submissions in relation to any other relevant matter for the purposes of assessing the application. No other relevant matters were raised by the applicant at the hearing.
The Tribunal had regard to all the factors in Ministerial Direction No.69 in considering the applicant’s circumstances as a whole and in making its findings and is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
For cl.500.212 to be satisfied, paragraphs (a), (b) and (c) must all be satisfied. Given the Tribunal has found that paragraph (a) is not met, it is not necessary to consider paragraphs (b) and (c). 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.
Secondary applicants
Given the applicant does not satisfy the criteria for grant of a Subclass 500 visa, the Tribunal finds that the second named applicant does not satisfy cl.500.311 because he is not a member of the family unit of a person who holds a Subclass 500 visa granted on the basis of satisfying the primary criteria.
DECISION
The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.
Glenn O'Brien
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 1825

3 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction