Hitesh (Migration)

Hitesh (Migration) [2019] AATA 963 (27 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Hitesh
CASE NUMBER:  1818447
HOME AFFAIRS REFERENCE(S):           BCC2018/1222864
MEMBERs:Bridget Cullen (Presiding)

Margaret Forrest
DATE:27 March 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 27 March 2019 at 2:48pm

Statement made on 27 March 2019 at 2:57pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – academic progress – knowledge of course and units studied – immigration history – wife and other family members in India – value of course to applicant’s future – career goals – 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 8 June 2018 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 14 March 2018. 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.500.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because, at the time of decision, the delegate was not satisfied that the applicant was enrolled in a course of study.
The applicant provided the Tribunal with a copy of the delegate’s decision record dated 8 June 2018. The Tribunal also had access to the relevant file of the Department of Home Affairs.
On 19 February 2019 the applicant wrote to the Tribunal requesting an adjournment of the hearing on 22 February 2019 due to illness. The request for an adjournment was refused because the medical evidence provided to the Tribunal provided no indication that the applicant was unable to attend a Tribunal Hearing.
The applicant appeared before the Tribunal on 22 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Vishal Arora.
The applicant was assisted in relation to the review by their registered migration agent but the migration agent did not appear at the hearing.
While the issue before the delegate was whether the applicant was enrolled in a course of study, arising from the applicant’s evidence, the issue before the Tribunal became whether, at the time of decision, the applicant is a genuine temporary entrant pursuant to cl.500.212(a) of Schedule 2 to the Regulations. The applicant was given an opportunity to address the Tribunal in relation to this determinative issue.
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.
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 (Direction). This Direction 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 Tribunal notes that in addition to the application form which the applicant provided to the Department, the Department file also contains a PTE Academic Test Taker Score Report, a Confirmation of Enrolment (COE) certificate for a Bachelor of Business at the Holmes Institute dated 3 June 2016, documents relating to the applicant’s high school studies in India, a copy of the applicant’s Indian passport, a letter of offer from the Holmes Institute in relation to a Bachelor of Business dated 14 October 2015, a certificate of Overseas Student Health Cover, a bank statement from Axis Bank, an undated Statement of Purpose, a Land Acquirement Certificate in Hindi and a translation in English, Attendance Certificates in relation to a “General English” course and an “English for Academic Purposes” course at Queensland University of Technology (QUT), a Progress Report in relation to the “General English” course at QUT and various hand written medical notes in relation to the applicant’s mother. The Tribunal has read and had regard to this documentation.
On the day of the Tribunal hearing, the applicant again provided the Tribunal with the material listed in paragraph 14 above. The applicant also provided the Tribunal with written submissions authored by the applicant’s representative dated 21 February 2019, COE certificates dated 11 June 2018 from the New England Institute of Technology for a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Automotive Mechanical Diagnosis and a Diploma of Automotive Technology and Attendance Records from the Holmes Institute in relation to a Bachelor of Business. The Tribunal has read and had regard to this documentation.
The applicant’s undated written statement asserts that:
·     there are five members in his family including himself, his parents, his sister and his younger brother;
·     he came to Australia in 2014 and completed two English courses before his actual degree started;
·     while studying his English courses, the Government in India acquired his father’s agricultural land for a good amount and his father told him that they could start their own big business in India;
·     as a result, he changed his enrolment to a Bachelor of Business at QUT in 2015;
·     he stopped studying at QUT because he found it different and difficult and he then enrolled in the Holmes Institute;
·     he returned to India due to his Grandfather’s death between February 2016 and April 2016;
·     he developed a stress condition while studying because his mother was unwell and because the amount the government had agreed to pay for his father’s land has not been paid, this caused him to not complete some of his studies;
·     his mother is now out of the cancer and fine, the funds for the land have now been paid and he now wants to complete his studies;
·     he has gained a lot of experience in the food industry from his current workplace and he wishes to use this knowledge to open his own business in his home country.
The submissions authored by the applicant’s representative dated 21 February 2019 assert:
·     the applicant is enrolled in a registered course of study at the New England Institute of Technology (Certificate III in Light Vehicle Mechanical Technology);
·     any issues concerning the applicant’s eligibility to meet other prescribed criteria in the Regulations for his Student visa application are not addressed in the submission;
·     due to family bereavement, illness and the fact that the applicant’s migration agent is newly appointed and had not seen the Department file, a two week extension should be provided to address any other issues raised by the Tribunal.
On the day of the Tribunal hearing, the applicant made a freedom of information application in relation to the Departmental File. On the day of the Tribunal hearing the applicant’s representative changed this request to a request for documents pursuant to s362A of the Migration Act. At the hearing, the applicant was granted two weeks to provide submissions after the requested documents were provided. On 28 February 2019, the requested documents were provided to the applicant’s representative. On 14 March 2019 the applicant’s representative provided a further written submission to the Tribunal. The Tribunal has read and had regard to this documentation.
The submissions authored by the applicant’s representative dated 12 March 2019 assert:
·     the applicant’s family’s health issues have necessitated that he travel back to India which has impacted adversely on his study record as shown in PRISMS;
·     the applicant has provided a statement of purpose which addressed his family issues and presents his long-term goals and career plans;
·     the applicant has chosen to become a motor mechanic because it gives him a more tangible career goal which he can more easily visualise;
·     the applicant did not get married only to be able to add his wife to his current visa application.
In accordance with the Direction, the Tribunal questioned the applicant about his potential circumstances in Australia. The applicant told the Tribunal that he has no family in Australia.
Adopting the procedure in section 359AA of the Act, the Tribunal put to the applicant that it had on the Tribunal file a copy of his enrolment records from the Provider Registration International Student Management System (PRISM) database. For completeness, the Tribunal provided the applicant with a copy of his PRISM enrolment records. The Tribunal explained to the applicant what the PRISMs database is and the relevance of the records to the review before the Tribunal (that the records showed the applicant had been in Australia for four years and had only completed one course). The Tribunal explained to the applicant the consequences of it relying upon the information (that the Tribunal may form the view that the applicant is not a genuine temporary entrant and does not meet the criteria for the visa for which he has applied). The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal invited the applicant to comment on or respond to the information and advised the applicant that he may seek additional time to comment on or respond to the information. The applicant elected to respond at the hearing. The applicant said that his academic progress has been impacted by the death of his grandfather and his mother’s illness but these issues were resolved in 2017.
The applicant confirmed that he arrived in Australia on 29 September 2014. The applicant confirmed that the only course that he had completed was a “General English” course at QUT. He also started an “English for Academic Purposes” Course at QUT. The applicant provided the Tribunal with a copy of a Certificate of Attendance and a Progress Report from QUT for the “General English” course and a Certificate of Attendance for the “English for Academic Purposes” course. Both Certificates indicated that the applicant’s attendance was “unsatisfactory”. The applicant told the Tribunal that this was because he was sick throughout the period he was studying. The applicant also indicated in his undated written statement that he found study at QUT, “different and difficult”. The Tribunal is satisfied that the applicant struggled in this course as described.
The applicant also enrolled in a Diploma of Information Technology, a Diploma of Business, a Bachelor of Business and a Bachelor of Information Technology at QUT but no evidence was provided to the Tribunal indicating that the applicant commenced these courses.
After leaving QUT, the applicant enrolled in a Bachelor of Business at the Holmes Institute in 2015 and again in 2016. The applicant said he did not complete his studies at the Holmes Institute because he had to return to India in 2016 after his grandfather died and his COE certificate was cancelled. The Tribunal accepts the applicant’s evidence about why he did not complete his studies at the Holmes Institute.
At the time of the Tribunal hearing, the applicant was enrolled in a Certificate III in Light Vehicle Mechanical Diagnosis at the New England Institute of Technology has a listed course end date of 30 June 2019. The applicant is also enrolled in a Certificate IV in Automotive Mechanical Diagnosis (listed course end date of 29 December 2019) and a Diploma of Automotive Technology (listed course end date of 23 August 2020). Copies of the COE certificates for these three courses were provided to the Tribunal.
The applicant said that he started the Certificate III in July 2018 and is expecting to finish the Certificate III in January 2020. The applicant said this would mean his Certificate IV would not finish until September 2020. As a result he would not start his Diploma in Automotive Technology until at the earliest September 2020. When asked about the units he was presently studying and how many units in the Certificate III that he still had to complete, the applicant said that the course involved 12 assignments. At first, the applicant said that he had no idea how many assignments he had completed. Upon further questioning, the applicant said that he had completed 3 to 4 assignments. When asked which subjects he had completed the assignments in, the applicant said, car engines and could not provide any further detail. If the applicant is a genuine student as claimed, it would not be unreasonable to except him to be able to articulate with more clarity which subjects he had completed and how many subjects he still has to complete.
The applicant told the Tribunal that he changed from Information Technology related courses to automotive related courses because the New England Institute of Technology does not have a Diploma of Business and because he was going to start an automotive business in India. The applicant also agreed that he first picked a college and then enrolled in automotive related courses and he said that it was easier to get a COE certificate from the New England Institute of Technology.
The Tribunal is concerned that the applicant is proposing to stay in Australia until beyond September 2020. In this case, the applicant has been in Australia for over four years and has only completed one course in “General English”. The applicant is now enrolled in a set of courses which he is not due to complete until sometime after September 2020. Given that, on the applicant’s evidence, the issues relating to the applicant’s grandfather and his mother’s health were resolved in 2017, the Tribunal considers that if the applicant was committed to completing any further study in Australia, his studies would be further progressed. The Tribunal does not consider his academic progress to be that of a genuine student. The Tribunal is not satisfied that the applicant is not simply now proposing further short, inexpensive courses in order to gain a student visa with the primary objective of maintaining ongoing residence in Australia.
In accordance with the Direction, the Tribunal questioned the applicant concerning the circumstances in his home country. The applicant stated that he chose to study automotive studies in Australia and not in India because in India they do not have similar automotive courses. In the absence of any further evidence in relation to this claim, the Tribunal accepts this.
The applicant told the Tribunal that his parents, brother and sister continue to reside in India along with his wife. The applicant said he owns no property in India. At the time of hearing, none of the written submissions provided to the Tribunal indicated that the applicant has a wife.
At this time, the Tribunal questioned the applicant about his immigration history. Adopting the procedure in section 359AA of the Act, the Tribunal put to the applicant that it had on the Tribunal file a copy of Case Notes from the Department. The Tribunal told the applicant that this information indicated when the applicant had returned to India in August 2018, he told the Department that it was to visit his mother in hospital and that he had not mentioned that he was planning to get married. The Tribunal explained to the applicant the relevance of the records to the review before the Tribunal and the consequences of the Tribunal relying on the information (that the records show that the applicant has not been forthcoming with the Department and this may mean that the Tribunal forms the view that the applicant is not a genuine temporary entrant and does not meet the criteria for the visa for which he has applied). The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal invited the applicant to comment on or respond to the information.
The applicant said that when he returned to India between 12 August 2018 and 4 September 2018 to visit his mother he did not know about the marriage and it was his family who arranged for him to be married while he was in India. The applicant said that he was not planning to add his wife to his visa and she might come to Australia on a tourist visa or he might go to India to visit her.
The only evidence provided by the applicant’s witness Vishal Arora was the he was aware that the applicant was married. Mr Arora stated that in India arranged marriages can happen very quickly and this could have happened in this case because the applicant’s family thought his mother was not going to live very long. The Tribunal accepts the evidence of the applicant and Mr Arora in relation to the applicant’s marriage.
The Tribunal considers that ordinarily a spouse outside Australia would constitute a strong incentive for the applicant to leave Australia. However, the Tribunal cannot give this factor the weight ordinarily due to it. He claims that he has no plans to bring his wife to Australia except maybe on a tourist visa. The applicant has only recently married his wife. When and at all times since the applicant was married he held a bridging visa. It is the case that at all times his wife has not been in a position to meet secondary student visa criteria because at all times since their marriage he has not been the holder of a student visa (see secondary student visa criteria). Put simply, the applicant has not yet had any opportunity to bring his wife onshore and greater weight would have been accorded this consideration in circumstances where the applicant’s wife had had the opportunity to seek a dependent visa but nevertheless had not.

Although the applicant does not own any property in India, the Tribunal accepts that the presence of his other family members in India would constitute an incentive to leave Australia.
In relation to the applicant’s immigration history, the Tribunal accepts the applicant’s submission that he arrived in Australia on 29 September 2014 and that he returned to India for 3 months in 2016 and for approximately one month in 2018.
In accordance with the Direction, the Tribunal questioned the applicant about the value of the course to the applicant’s future. The Tribunal has had regard to documentation provided by the applicant evidencing that he completed high school in India. The Tribunal accepts the applicant’s education history in his home country as presented to the Tribunal.
The Tribunal questioned the applicant about his plans for the future. The applicant said that back in India he had an idea to run his own automotive business with his father using the proceeds from the agricultural land that was acquired by the Government. In his undated written statement, the applicant asserts that he has gained a lot of experience in the food industry from his current workplace and he wishes to use this knowledge to open his own business in his home country. Although it is reasonable to expect some change to career/study goals, when the applicant’s change of career goal is considered with his inability to provide any meaningful detail about his present course, the Tribunal considers that the applicant’s evidence at the hearing appeared to be tailored to fit with his current course selection in Australia. This is not as it should be. If the applicant has career aspirations that are claimed to lead out of Australia, back to his home country, the courses selected should seek to serve those purposes and not the other way around. The Tribunal does not the applicant’s claims regarding his career aspirations.
The applicant told the Tribunal that he works at Waterford West Domino’s for between 15 and 18 hours per week and earns $370 to $400 per week. The applicant said that if he started a business in India or worked on his father’s land, he could earn more than this in India. In the absence of any further evidence to support this claim, the Tribunal does not accept this. The Tribunal considers the applicant’s economic circumstances in Australia, specifically his capacity to earn Australian dollars in ordinary employment, presents a significant incentive for the applicant to remain in Australia.
Being provided with a final opportunity to identify considerations illustrated in the Direction for the Tribunal’s considerations, the applicant indicated there were no further matters for the tribunal to consider.
There is no evidence before the Tribunal regarding the following factors indicated by the Direction: any potential military service in India, any political or civil unrest in India, the applicant’s circumstances in India relative to others in that Country, any previous visa applications in Australia or other countries by the applicant, any previous travel to Australia or other countries by the applicant including, if the applicant previously travelled to Australia whether the applicant complied with conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control, whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances and if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country.
As the applicant is over 18 years of age, the intent of any parent, legal guardian or spouse is not relevant to the Tribunal’s assessment.
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. Given the amount of time the applicant had now spent in Australia on student and associated bridging visas and the limited amount of study completed, the Tribunal is concerned that a further student visa may be used primarily for maintaining ongoing residence.
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.
Bridget Cullen
Member

Margaret Forrest
Member

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:
c.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
d.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
e.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
f.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
g.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;
i.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
ii.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
iii.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country
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 963

27 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction