Ghuliani (Migration)

Ghuliani (Migration) [2020] AATA 5408 (23 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Sippy Ghuliani
CASE NUMBER:  1931700
HOME AFFAIRS REFERENCE(S):          BCC2017/1563268
MEMBER:Vanessa Plain
DATE:23 October 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 23 October 2020 at 4:24pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Circuit Court remittal – genuine temporary entrant as student – lengthy stay in Australia – incentive to return to home country – cultural importance for husband to support his family – applications for employment visas in Australia – applicant changed to Vocational courses – maintain ongoing residence in Australia – value of current course towards career development – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 499; Direction No 69
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 Immigration and Border Protection on 17 July 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 1 May 2017. 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 (the Regulations) because the delegate was not satisfied that the applicant intended to genuinely stay in Australia temporarily.
On 25 October 2019 the Federal Circuit Court of Australia (FCCA) remitted the application for review to the Tribunal for reconsideration because a review of the decision record revealed a probable error of law. The probable error of law was the Tribunal failed to consider information provided by the applicant that was cogent and relevant to the consideration of clause 500.212(a) of Schedule 2 to the Migration Regulations 1994 and this constituted a jurisdictional error.
The applicant appeared before the Tribunal on 5 June 2020 to give evidence and present arguments.
The applicant was 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 applicant for entry and stay in Australia 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 FCCA on 25 October 2019 issued by consent a writ in the nature of certiorari to quash the decision of the Tribunal in case number 1717191 dated 16 April 2019. The Minister had conceded, by consent, that the Tribunal had failed to consider information provided by the applicant that was cogent and relevant to the consideration of clause 500.212(a) of the Migration Regulations 1994 (Cth) and that this constituted a jurisdictional error.
The Tribunal has reviewed the decision of the Tribunal (differently constituted) in Case number 1717191 of 16 April 2019 which was an application for review by the applicant. The decision in that matter was remitted by the FCCA on 25 October 2019.
It is this remittal which is currently before the Tribunal for review.
The Tribunal wrote to the applicant on 21 May 2020 inviting the applicant to attend a hearing and provide documents.
On 2 June 2020, the applicant provided 29 documents to the Tribunal for consideration and in support of her impending hearing on 5 June 2020.
Documentary evidence in support of application
The applicant submitted the following documents in support of her application, as follows:
·    COEs for a Diploma and Advanced Diploma in Leadership and Management
·    Various bank statements
·    Evidence of financial assistance from family members
·    Health insurance documents
·    A suite of academic documents evidencing course attendance, grade attainment and course completion.
·    Statement
·    Offer of employment in India dated 1 May 2020 (Second Job Offer)
·    Research into studying in Australia, growth of the hospitality Industry in India, relevant hospitality jobs and salaries/expected remuneration in India in the hospitality industry
·    Research
·    Assessments from previous studies
The Tribunal has also considered all the documents submitted by the applicant in support of the application for review in in Case number 1717191, including, but not limited to a Response to Request for Information pursuant to section 359(2) of the Act (Response); submission dated 8 November 2018 and an Offer of Employment dated 4 October 2018 (First Job Offer). The Tribunal has also had regard to and considered all the material before the delegate, the delegates’ decision record and the applicant’s oral evidence at hearing.
Entry and Visa History
The applicant in this case is an Indian woman who first arrived in Australia on 5 August 2011 utilising an initial Student (Class TU) (Subclass 573) visa. Thereafter the applicant was granted a Temporary Work (UC 457) visa, a multiple entry Tourist visa (FA 600) (for which declared that she intended to visit Australia for a holiday and to stay for 53 days), another Student visa (subclass 500) and associated bridging visas.
The student visa application the subject of this hearing was lodged on 1 May 2017 and will be the applicant’s third student visa application.
Current Status
The applicant is currently enrolled in a Diploma of Leadership and Management and thereafter she intends to commence an Advanced Diploma of Leadership and Management which is scheduled to conclude in June 2022, thereby extending the applicant’s time in Australia utilising various temporary visas to approximately 11 years.
The Tribunal further observes that the COE for the applicant’s Diploma of Leadership and Management was created on 12 May 2020, which is less than one month before the applicant appeared before the Tribunal for her review hearing on 5 June 2020.
Previous Study and Work History before entering Australia
The applicant completed senior school in her home country and undertook further studies in computers, she worked as a senior business development executive prior to entry into Australia.
Study History in Australia
Since arriving in Australia, the applicant has been enrolled in the following courses:
·An English language course which she completed;
·A Certificate IV in Marketing and Communication which she completed;
·A Diploma in Marketing and Communication which she completed;
·An Advanced Diploma in Marketing and Communication which she completed;
·A Diploma of Business (Management) which she completed;
·A Bachelor of Business which she did not complete;
·Certificate III in Commercial Cookery which she completed;
·A Certificate IV in Commercial Cookery which she completed;
·A Diploma of Hospitality Management which she completed;
·A Diploma of Leadership and Management which she is studying presently; and
·An Advanced Diploma of Leadership and Management which she is studying now and which is scheduled to conclude in June 2022.
Applicant’s circumstances in their home country
The Tribunal has had regard to the applicant’s circumstances in India, as follows:
Reasons for not studying in home country
·In her oral evidence, the applicant informed the Tribunal that the same courses are available in India, but there is a theoretical rather than practical focus, whereas in Australia, the practical skills matter.
·In her Statement, the applicant stated (verbatim), as follows:
“I could have studied these courses in India, but given the delay in the AAT process, I planned to utilise the time to upgrade my skills further. Such courses are also available in India, however, overseas educated and experienced candidates do have an edge over the local candidates in the job market, simply because they are more job ready when it comes to their practically orientated education and for serving a large clientele of India.”
Personal ties to home country
·As to the applicant’s personal ties to India, the applicant’s parents and in-laws live in India and she maintains contact with them. The applicant’s brother is in New Zealand and her husband is with her in Australia. The applicant informed the Tribunal that her husband is his parent’s only son, she is very close to her family and she wishes to finish her studies and go home.
·The migration agent submitted that unlike in Western culture, it is important for a son to look after his family as this is culturally important in India and that this was an important consideration for the Tribunal to take into account. He further submitted that the applicant wishes to upgrade her skills and return home.
·As to the applicant’s financial ties to India, in her Response she stated that she has nil assets however her husband will inherit his parent’s assets, being the only son. she stated that her mother owns a house valued at $1,000,000 in India and she has personal savings in Australia of $10,000.
·The applicant stated in her Response that she returned home to India in September 2015 after her employer went into liquidation.
Economic circumstances in Australia as incentive not to return home
·The applicant informed the Tribunal that she is not working presently as she has no working rights. In her Response, the applicant summarised her paid working history in Australia as follows:
-   Console operator – from 10/2011- 04/2012
-   Customer service Manager – 04/2012 – 06/2013
-   Customer service manager – 07/2013 – 06/2015
Military service or civil/political unrest concerns in home country
·The applicant has no such concerns.
The Tribunal is unable to accept the applicant’s reasons for not studying in India, due to the fact that the applicant has failed to demonstrate that she has undertaken any significant research into the availability of the courses in her home country based on her general assertions in her Statement.
The Tribunal acknowledges the cultural importance of an only son looking after his parents in India and further accepts that family are important to the applicant, however, the Tribunal finds that the applicant’s family ties to India, in and of themselves, do not present as a significant incentive for her to return to India, when considered against her potential circumstances in Australia, in the form of future employment opportunities (evidenced by her two applications for working visas), the fact her husband is onshore living with her and further evidenced by the fact that the applicant, by her proposed courses, is seeking to extend her time in Australia on temporary visas to approximately 11 years.
The Tribunal finds that the applicant does not have significant financial ties to India on the basis of her evidence set out above, because the only assets described as ones that the applicant’s husband might inherit one day in the future.
The Tribunal finds that the sheer length of time the applicant has been onshore, noting that the applicant arrived in Australia in 2011 (and accepting that she returned home for a brief period) is, in and of itself, indicative of an intention on the part of the applicant, to remain in Australia on a more permanent basis.
The Tribunal acknowledges that the applicant is not working presently, however, it notes that the applicant has elected not to return home and take up the First Job Offer after the completion of her Diploma of Hospitality, rather , she elected to undertake further vocational level courses. From this it may be inferred that the applicant is not motivated to return home and commence work utilising the skills she has acquired to date.
The Tribunal notes that the applicant has been in Australia since 2011 and is now seeking to undertake further vocational level courses that are not an academic progression for the courses she has completed, and which are inconsistent from a course content perspective. Further, the applicant has not returned home to take up the First Job Offer which was contingent on completion of the Diploma of Hospitality. All things considered, the Tribunal does not consider this conduct to be behaviour that is inconsistent with that of a genuine student.
The Tribunal acknowledges the applicant’s statements that she wishes to further upgrade her skills while waiting for the Tribunal decision after her initial Case was remitted by the FCCA and while the Tribunal accepts that individuals may choose different areas of study on the basis of a change of decision as to career course, the Tribunal cannot be satisfied that the current course in which the applicant is enrolled will further assist her career development or earning potential in view of the range of qualifications she already holds.
Taking in account all the aforementioned matters, the Tribunal finds that the applicant’s circumstances in her home country do not provide a significant incentive for her to return there at the conclusion of her studies.
Applicant’s potential circumstances in Australia
The Tribunal has had regard to the applicant’s potential circumstances in Australia, as follows:
Applicant’s ties with Australia
·The applicant stated that she lives with her husband in Tarneit and they share a rented house with another couple.
·The applicant stated that her husband has also has a student visa application refused by the Department and that he is waiting on a review in the Tribunal. He is studying a Diploma in automotive studies.
Evidence visa program being used to circumvent migration program
·The applicant has held multiple temporary visas during her time in Australia, during which time she has completed many vocational level courses which are not consistent with one another, she has utilised a Temporary Working visa and applied for a further Temporary Working visa 14 March 2018 (after the time she applied for the student visa the subject of this application) which did not progress. She now seeks to undertake further vocational level courses which are not an academic progression from her previous academic pursuits (albeit the applicant attempted a Bachelor degree, but she did not complete it and her enrolment in the course was subsequently cancelled).
Applicant’s knowledge of living in Australia, their intended course and level of research into their intended course and course provider
·The Tribunal acknowledges the contents of the applicant’s statement and research papers provided which the Tribunal will not set out verbatim as it accepts that the applicant’s Statement and the research papers submitted clearly establish that the applicant has a thorough understanding and knowledge of her circumstances in Australia, intended courses and course provider.
The Tribunal accepts the applicant has demonstrated a sound level of knowledge and understanding as to her proposed course, course contents, education provider and educational objectives based on the Statement and research papers provided, however, due to the nature of the further vocational level courses the applicant is currently undertaking, when considered against all the other qualifications she has obtained and the fact that she made an application for a further working visa after applying for her third student visa, on balance, the Tribunal is of the view that it is reasonable to infer that the applicant is enrolling in her current course with the primary intention of attempting to circumvent the intention of the student migration program and remain in Australia on a more permanent basis.
Although the Tribunal acknowledges that there is no evidence before it demonstrating the that applicant has significant community ties to Australia, the Tribunal considers that the presence of the applicant’s husband onshore may provide an incentive to remain in Australia on a more permanent basis, particularly in view of the fact that the applicant’s husband is also seeking to remain onshore for study purposes.
Value of the course to the applicant’s future
The Tribunal has had regard to the value of the course of study to the applicant’s future, as follows:
Is the course consistent with the applicant’s current level of education?
·The course is a regression from the Bachelor degree that the applicant commended but did not complete. Further, the courses are not a progression from the suite of vocational level courses the applicant has already completed as set out above.
Will the course assist applicant to obtain employment or improve employment prospects?
·The applicant provided a suite of research into the job market in India, demonstrating the types of jobs available in the hospitality management, hotel management and general hospitality sectors.
·The Second Job Offer provides that Hotel Hayer Palace Bar and Restaurant reiterates its previous offer to the applicant dated 4 October 2018 that upon the applicant’s return to India, after completion of her studies, the restaurant would be happy to employ the applicant as a Restaurant Manager.
·The Tribunal asked the applicant what these proposed courses are going to do for her future. In response, the applicant stated that she’d going to be offered a job as a senior manager, that she has a diploma in hospitality but that this is not enough to have a leadership position. She said further that people who study overseas get more opportunities for senior management positions and that’s why she’s studying leadership and management.
·In her Statement, the applicant stated;
“These courses will enhance my prospects of getting into leadership role within the hospitality industry in India – on my return. At this stage, I have been offered a job as a Restaurant Manager immediately on my return.
Relevance of course to past study?
·The course content is not consistent with the subject matter of the applicant’s cookery qualifications and marketing qualifications that she has already obtained. It may be similar to is somewhat similar to
Expected remuneration using qualifications in home country compared to what is receivable in Australia?
·In the research papers provided by the applicant, the applicant clearly demonstrates the ranges of salaries available in India in the hospitality management, general hospitality and hotel management sectors for suitably qualified applicants.

The Tribunal is not satisfied that the applicant has demonstrated the value of the proposed course to her future. The Tribunal is unable to accept the applicant’s assertions as to the value of the course to her future as the terms of the Second Job Offer do not necessitate the completion of the current vocational courses she is undertaking. By contrast, the First Job Offer is clearly contingent upon the applicant completing her study in hospitality management. The Tribunal places little weight on the applicant’s contention that she is going to be offered a senior role and her current qualifications are not sufficient for a leadership position, because that statement is not consistent with the terms of the Second Job Offer.
The Tribunal accepts that the applicant has conducted a significant amount of research into the job market and expected renumeration available. However, it is clear based upon all the research submitted by the applicant, that she has not objectively established that the current courses in which she is enrolled are necessary to obtain any of the jobs described in her research, or to obtain any of the salaries set out therein either. By contrast, the applicant has extensive qualifications in hospitality, marketing and management as evidenced by the courses set out above, therefore, she has not objectively demonstrated how the completion of two further vocational courses will improve her employment prospects or add value to her earning capacity, in view of the qualifications she already holds.
While it is not uncommon for an applicant to re-educate themselves or seek to acquire more practical skills, the Tribunal finds that it is not consistent with the behaviour of a genuine student to seek to undertake the sheer volume of vocational courses the applicant has, where it is not objectively demonstrated how the completion of the courses will be beneficial to the applicant in the future, to an extent that would outweigh the financial commitment involved in doing further study.
Immigration history
The Tribunal has had regard to the applicant’s immigration history. The Tribunal notes that there is no evidence of further visa refusals or any visa cancellations before the Tribunal.
However, the Tribunal is concerned by the fact that the applicant has held a suite of temporary visas since 2011, according to a statement in her Response she applied for a further Working visa (subclass 457) on 4 March 2018 which the prospective employer did not want to proceed with and now she is applying for her third student visa to undertake further vocational courses which she has not objectively demonstrated will add value to her future.
The Tribunal simply does not find this behaviour to be consistent with that of a genuine student who intends to remain in Australia temporarily. Rather, the Tribunal finds that this behaviour demonstrates an intention to use the student migration program to maintain ongoing residence in Australia.
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.
Although the applicant provided information to the Tribunal demonstrating that she has successfully completed various courses to date, has undertaken significant research into the job market and remuneration available to graduates, considering all the circumstances and all the evidence before the Tribunal, the Tribunal does not accept the applicant’s claims to be those of a genuine temporary entrant.
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.
Vanessa Plain
Member

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

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

[2020] AATA 5408

23 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Intention

Remedies