George (Migration)

George (Migration) [2023] AATA 4731 (4 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Philip George
CASE NUMBER:  2202005
HOME AFFAIRS REFERENCE:               BCC2021/1902814
MEMBER:Michael Biviano
DATE:4 December 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 04 December 2023 at 4:03pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No.69 – value of the course – financial incentives – unreasonable change to career path – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 24 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 6 October 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) for the reason that he was not a genuine applicant for entry and stay because he did not intend to stay in Australia temporarily.
The applicant appeared before the Tribunal on 7 August 2023 to give evidence and present arguments.
It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The applicant is a 28-year-old Indian national who first came to Australia on 16 August 2019 on a student visa for the purposes of undertaking a Master of Science at the University of Wollongong.
The decision record of the Delegate of the Department of Home Affairs dated 24 February 2022 which was provided to the Tribunal by the applicant confirms that the applicant made his application for a student (Class TU Subclass 500) visa on 6 October 2021 (Decision Record).
As at the date of the Decision Record the applicant was proposing to study a Certificate III in Light Vehicle Mechanical Technology and a Certificate IV in Automotive Mechanical Diagnosis.
Prior to the hearing, the applicant filed with the Tribunal a response within time pursuant to an invitation to supply student visa information about the courses he was studying and about his entry and stay in Australia in accordance with s 359(2) of the Act (Response).
In addition to the Response the applicant filed with the Tribunal a substantial amount of documentation in support of his application regarding the qualifications he had obtained and in relation to his financial circumstances. The applicant provided to the Tribunal:
a.confirmation of enrolment (COE) No. D572B481 for the applicant to study a Certificate IV in Automotive Mechanical Diagnosis at the Trinity Institute Australia with a course start date of 25 July 2022 and a course end date of 23 July 2023 which was created on 10 August 2022;
b.Certificate III in Light Vehicle Mechanical Technology from Trinity Institute Australia dated 17 October 2022 awarded to the applicant together with statement of results;
c.bank statement from Bank of Baroda dated 30 March 2023 for Immanuel Tyres & Thriveni Agencies together with bank statement for JK Tyre & Industries Limited also dated 30 March 2023 from the Bank of Baroda;
d.bank statement for George Philip who is the father of the applicant from the Bank of Baroda dated 30 March 2023;
e.registration certificate from Government of India for George Philip trading as Immanuel Tyres & Thriveni Agencies;
f.sponsorship affidavit sworn by Mr George Philip on 30 March 2023 agreeing to sponsor the applicant for his studies in Australia including paying his fees and living expenses;
g.statement of immovable and movable assets for George Philip and Mrs Salomi which confirms that they have both landholdings and bank accounts worth approximately 18,800,000 Indian rupees which equates to approximately A$350,000;
h.income tax returns for Varkey Salomi and Philip George for 2020–2021 and 2022–2023 financial years.
On the day of the hearing the applicant submitted to the Tribunal a further COE for the applicant to study a Certificate III in Automotive Electrical Technology with a course start date of 21 August 2023 and a course end date of 10 December 2023 in which he enrolled on 28 July 2023. The course is being undertaken at Trinity Institute Australia.
Prior to coming to Australia the applicant completed his secondary schooling back in India and completed a Bachelor of Commerce back home in India. He subsequently obtained employment in the family business Immanuel Tyres & Thriveni Agencies as a marketing executive and claims to have been earning A$40,000 per annum whilst in that role.
The applicant gave evidence that he came to Australia in 2019 to further his education by undertaking a Master of Science to become involved in a development project. He gave evidence that the project crashed and there was no longer a requirement for him to undertake the Master of Science. The applicant in evidence confirmed that he commenced studying the Master of Science at University of Wollongong in August 2019 and did not complete that course. He gave evidence he passed two of the three units that he had undertaken and that he couldn’t see the point in completing those studies in light of his circumstances with the project crashing.
The applicant subsequently studied a Master of Business Administration at the Universal Business School Sydney which he commenced in May 2020 in which he undertook three units but he did not complete that course.
In October 2020 he transferred education providers and undertook studies in a Graduate Diploma of Management (Learning) at the Richmond School of Business which he did not complete. He claimed that he passed seven units in that course. The applicant claimed that he decided to change his course of study to undertake studies in fields which would complement the family business which was involved in tyres and parts so that they could extend the business to undertake repairs to luxury motor vehicles. The applicant subsequently enrolled in a Certificate III in Light Vehicle Mechanical Technology and a Certificate IV in Automotive Mechanical Diagnosis at Trinity Institute Australia.
The applicant completed the Certificate III in July 2022 and the Certificate IV in July 2023.
The applicant subsequently enrolled in a Certificate III in Automotive Electrical Technology claiming that the course was different from the courses that he had done and would assist in the establishment of the automotive repair business in that he could undertake electrical repairs. The Tribunal notes that the Certificate III can lead to a Certificate IV in Automotive Electrical Technology. The applicant claims he is seeking to learn the basics of automotive electrics for the purposes of expanding the family business. The courses that the applicant is undertaking are at the lower vocational education and training (VET) level and the Tribunal notes that the applicant has previously completed courses at the bachelor’s degree level back in India. He has also completed courses at the Certificate III and IV level here in Australia and the Tribunal considers that the Certificate III course he is currently undertaking shows academic regression and is inconsistent with his level of education.
The applicant claims that the course he is undertaking will improve his prospects back in India however the Tribunal notes that the applicant has already completed automotive courses at Certificate III and Certificate IV level which would give him adequate qualifications to undertake automotive repairs back in India and would have given him the ability to develop his skills and obtain further education there in the automotive electrical field. In those circumstances the Tribunal considers that the courses he is undertaking would only marginally improve his employment prospects and level of remuneration back in India.
The applicant in the Response outlined that he is seeking to undertake the studies here in Australia rather than back home in India for the following reasons:
Automotive course is a very hands on course which provides practical skills to the students. India is a country which has a huge emphasis on the higher education courses such as Bachelors and Masters. Diploma or certificate level courses are more popular and very well delivered in Australia because of its huge emphasis on the vocational education. The Australian education is very engaging with its focus on practical training sessions for the students, such as organising group activities and role plays as well as simulation activities. Certificate level and diploma level courses, are not taught with the utmost dedication and are also taken less seriously when creating assessment for these ones. Therefore, I have chosen to study the automotive courses in Australia rather than in India.
The Tribunal notes that the courses that the applicant is undertaking are such that the applicant could undertake similar courses back home in India but chooses not to do so on the basis that he considers the courses here are more practical and would provide him essentially with better qualifications. However considering the level of the courses being undertaken in Australia, the Tribunal considers that they do not provide a reasonable motive for undertaking these courses in Australia rather than back home in India.
The applicant in evidence confirmed that once he completes the Certificate III in Automotive Electrical Technology he then wishes to return home. The applicant’s evidence on this matter was somewhat unconvincing in light of the fact that he has already been in this country for more than 4 years and is undertaking courses which are of a substantially varied nature than those that he had previously outlined to the Department and those that he had enrolled in.
Furthermore the applicant gave evidence that he has had a number of employment positions whilst in Australia and those employment positions indicate he is earning a very high level of income. The applicant both in the Response and in evidence confirmed that he had worked as a weighbridge operator from April 2021 to March 2022 in which he was earning A$30,000 per annum. From December 2021 to August 2022 he was working as a casual driver for CBD Waste & Recycling earning A$50,000 per annum. From May 2022 to October 2022 he worked as a weighbridge operator with Veolia Environmental earning A$55,000 per annum and from October 2022 to March 2023 he worked as a machine operator at Veolia Environmental earning A$70,000 per annum.
As at the date of the hearing the applicant confirmed he was working as a yard hand undertaking truck maintenance working 20 hours per week and receiving A$39 per hour after tax which resulted in his after-tax income being A$780 per week. When one considers that is a part-time role, if he was working on a full-time basis his level of income before tax is likely to approximate more than A$75,000 per annum. Such a high level of wages would provide a substantial financial incentive for the applicant to remain here rather than to return home.
The applicant in evidence confirmed that the level of wages in Australia was substantially higher than in India which would provide a substantive financial incentive for him to remain here rather than to return home.
The applicant also confirmed that the economic conditions in Australia were more favourable than those in India which would also provide a substantial financial incentive to remain here rather than to return home.
The applicant has changed his career path from commerce to science to business administration to management and now to the automotive industry. The courses that he has undertaken are not connected to each other and are not complementary to each other and do not in their totality lead to a career path or position in employment. The Tribunal accepts that the applicant has changed his career path and focus and is seeking to undertake automotive studies for the purposes of expanding his family business operations back home in India.
The Tribunal recognises that it is important to allow for reasonable changes to career and study pathways. However this does not occur when an applicant has merely decided to change careers through undertaking short VET courses for the purposes of extending their stay here. The Tribunal notes that the courses that the applicant has recently completed in the automotive field and the course that he is currently studying, the Certificate III in Automotive Electrical Technology, are short VET courses and do not reveal progression in his course of study especially having regard to the fact that he has already previously completed courses at bachelor level. As his present course of study is inconsistent with his level of education the Tribunal considers that the changes to his career and study pathways are not reasonable in the circumstances.
The applicant has lived in Australia for 4 years and 3 months and has a substantial degree of knowledge about living in Australia.
The applicant has been studying automotive courses at Trinity Institute Australia for nearly 2½ years and by reason of that duration of studies at the education provider, the Tribunal accepts that he has a substantial degree of knowledge about the course and the provider.
The applicant has indicated he wishes to complete the automotive electrical course and return home however the Tribunal considers that there is a real prospect that the applicant will seek to enrol in further courses and undertake further studies. The Tribunal notes that the applicant in his original visa application and as outlined in the Decision Record had merely identified that he was going to undertake the Certificate III in Light Vehicle Mechanical Technology and the Certificate IV in Automotive Mechanical Diagnosis and did not outline undertaking automotive electrical studies. There is a real prospect that the applicant may wish to continue undertaking further studies in that field if the visa is granted for the purpose of extending his stay here. In those circumstances there is a real prospect that the applicant may extend his stay in this country and his studies well beyond the conclusion of the course in December this year especially having regard to the high level of income that the applicant is receiving whilst in this country.
The applicant has not returned home during his stay in Australia. The Tribunal notes that whilst the applicant has been here, the COVID-19 pandemic caused there to be travel restrictions imposed from Australia from March 2020 until the commencement of 2022. The applicant’s failure to return home during that time is explained, but the failure to return home at all since August 2019 is consistent with someone wanting to maintain residency in this country on a permanent basis rather than someone who wishes to return home.
The applicant claimed in the Response that he is very close to his family and friends in India and maintains daily contact with them and is actively contributing to his community back home in making donations to underprivileged people back home in India.
The applicant in the Response confirmed that he has not travelled to any countries other than Australia. The applicant gave evidence that he does not have any assets in his own name and that the assets that he has identified in the Response which equate to the sum of approximately A$350,000 are assets held by his parents. The applicant’s failure to have any assets in his name coupled with the high level of income that he is currently receiving would provide a financial incentive for him to remain here rather than to return home.
The applicant in the Response and in evidence confirmed that he wished to return home to work in the family business. It is important to note he was working in the family business prior to coming to Australia in a marketing role. Whilst the automotive courses may have provided some assistance and understanding in automotive repairs, the applicant claims the Australian qualifications would help him to perform tasks with greater confidence and dedication and provide him with hands-on experience so that he can become a leader and take ownership of the business. Such a statement by the applicant is somewhat aspirational and the mere completion of the automotive courses will not provide him necessarily with the leadership and management skills the applicant is claiming they will provide him.

The applicant both in the Response and in evidence did not have any concerns about returning to India and has no concerns about military service commitments or political or civil unrest in his home country. The Tribunal finds that they do not present a significant incentive for the applicant not to return home.
The applicant filed substantive documentation about his family’s circumstances in his home country. When one considers his family’s financial position and assets coupled with the applicant’s education the Tribunal finds that relative to others in that country he is in a good position and that his family’s circumstances and his position would not provide a significant incentive for him not to return home.
The applicant in evidence confirmed that he was single and not in a relationship. Accordingly the Tribunal accepts that he is not in a relationship of concern for a successful visa outcome.
The applicant has substantial ties both to India and to Australia. The applicant has his mother, father and sister back in India however in the Response he claims he has not seen them in person since May 2019 which is in excess of 4½ years ago. Such family ties would ordinarily provide some incentive to return home. He claims he remains in regular contact with his family members via WhatsApp, phone calls and video chats and claims due to the highly practical nature of the automotive courses he has been unable to travel. The Tribunal does not accept that as an explanation for not visiting his family over the last at least 4 years and 3 months. The Tribunal notes the applicant also has a sister in the United Kingdom. The Tribunal notes that the applicant has been living in Granville for the last 1½ years in stable accommodation and has remained in constant and high-paid employment for at least the last 3 years which provide strong ties to Australia. The applicant claims he is also involved in donating to charitable causes back home in India and having extended family ties back in India. Whilst that may be the case, when one considers his circumstances in this country and the duration of his stay here the Tribunal finds that such ties back home do not provide a substantial incentive for him to return home to India.
Furthermore the ties to Australia including the high level of income, the duration and stability of his living arrangements and his circumstances here demonstrate strong ties to Australia which provide him with a strong incentive to remain here rather than to return home.
The applicant in his Response has not identified any visa refusals or cancellations in Australia or elsewhere. There is nothing before the Tribunal from the Delegate’s Decision Record to indicate that the applicant has experienced any other visa refusals or immigration issues either in or outside of Australia.
The applicant has been in this country for a long period of time. The applicant is earning a high level of income and based on the applicant’s varied study history and undertaking courses that are inconsistent with his level of education the Tribunal considers that the applicant has brought this application for a student visa to extend his stay in this country on a permanent basis for the purposes of residing here and earning a high level of income.
Based on the above matters the Tribunal is not satisfied that the applicant has made this application to gain a student visa to study temporarily.
On the basis of the above the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly the applicant does not meet cl 500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Michael Biviano
Member

Attachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton

Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
d.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

[2023] AATA 4731

4 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice