Hussain (Migration)

Hussain (Migration) [2020] AATA 4613 (10 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Fahad Hussain
CASE NUMBER:  1707129
HOME AFFAIRS REFERENCE(S):          BCC2016/2256689
MEMBERs:Rachel Westaway
DATE:10 November 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 10 November 2020 at 1:36pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – failure to complete any courses above a diploma level – failure to resume course on agreed start date after deferment – Direction No.69 – passion for hospitality – developed business plan to open a restaurant in home country – no current COE – recognition of cooking and hospitality courses in Australia – intention to comply with visa conditions – academic progress – genuine student – length of time spent in Australia – relinquished work visa to pursue study – decision under review remitted
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 Immigration and Border Protection on 21 March 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 4 July 2016. 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 there was insufficient evidence to suggest that the applicant was a genuine applicant for entry and stay as a student. The delegate, among other matters, was concerned that the applicant has not completed any courses above a diploma level and that whilst receiving a deferment of his course in 2014 due to the claimed car accident of his parents and his return to Pakistan, he did not resume his course on his return to Australia at the agreed start date.
The applicant applied for review of the Department decision on 4 April 2017.
The applicant provided the Tribunal with a copy of the delegate’s decision.
The following documents were submitted by the applicant to the Department in support of his visa application:
a.Passport in the applicant’s name valid from 12 December 2012 until 10 December 2022
b.A written statement from the applicant explaining the circumstances that led to his change of course
c.The applicant’s resignation letter from Chillies Indian Cuisine
d.A reference letter from the applicant’s former employer at Chillies Indian Cuisine
e.Two letters from medical practitioners in Pakistan regarding the applicant’s parents’ car accident
f.Statement of Purpose written by the applicant in support of his visa application
g.Letter from a financial institution
h.Copies of the applicant’s driving licence and bank cards
i.Passport in the applicant’s name issued on 12 December 2012 and valid until 10 December 2022
j.Diploma of Management and associated Statement of Attainment issued to the applicant by the Kinggdom Institute of Management, dated 9 October 2015
k.Certificate and Record of Results issued to the applicant by the Central Institute of Technology for a Certificate IV in Business dated 6 December 2013
l.Provisional Result Intimation from the Board of Intermediate & Secondary Education in Lahore, Pakistan
m.Overseas Student Health Cover issued by Medibank for the period commencing 1 July 2014 until 15 September 2017
The Tribunal wrote to the applicant on 11 January 2019 inviting the applicant to provide information to support his claim to meet the genuine temporary entrant criteria. On 23 January 2019 the applicant responded.[1]
[1] Tribunal file ff:12-17
In response, the applicant confirmed he did not have a current Certificate of Enrolment.[2]
[2] Ibid f:14
In regards to his proposed course of study, he stated that he would like to undertake a Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery and a Diploma in Hospitality Management. He claims to have consolidated his views on his career and passion for hospitality and confirmed he would like to become a chef after working in the industry in Australia and he sees many opportunities to contribute in this field. He claims there are limited opportunities in Pakistan to undertake such studies and the standards were lower and he values the Australian education system. He outlined his work experienced as a restaurant Manager in Australia for Chillies Indian Restaurant from March 2014 to July 2016 and Mele Indian from September 2018 to January 2019.
In his response the applicant detailed the makeup of his family stating his parents and two sisters reside in Pakistan and confirmed that he communicates with them via the phone, skype and whatsapp.
The applicant claims his ties to Pakistan include membership of the Shaukat Khanan Cancer Foundation and the Pakistan Labor Federation.
He provided no evidence of assets in Pakistan or Australia.
He claims he would like to complete his studies in Australia and return to Pakistan and seek full time employment with the hope that he will eventually open a small restaurant and cater to international tourists and middle to upper class people. The applicant stated that he would serve international food. He believes that he could initially obtain employment in an international hotel chain on return from Australia with Australian qualifications and earn US$40,000.
The applicant provided the Tribunal with a submission on 21 March 2019, which outlined that he is the only son in his family and there are significant expectation that he will return tp Pakistan and care for them in their old age.
The applicant claimed that in 2014 he departed Australia and returned to Pakistan for a period of one month following a car accident involving his parents who he provided care for at this time. He then returned to Australia but was unable to concentrate on his studies because of his concerns for his parents. The applicant also stated that his education provider was not supportive of the issues he was facing and his lecturers threatened that he may have to repeat units if he did not pass tests or hand in assignments on time which further added to his anxiety and he started to withdraw from his studies.
On return from Pakistan he found part time work in a restaurant and this inspired him to change courses and enrol in a Diploma of Management, Certificates III and IV in Commercial Cookery and a Bachelor of Hospitality Management.
The applicant claims he successfully completed the Diploma of Management in October 2015.
He claims his employer was impressed with his work ethic he sponsored him for a subclass 457 which was granted on 28 January 2016. However, on 16 May 2016 he resigned from the restaurant as he wanted to continue with his studies following pressure from his parents to continue studying. At this time he commenced with the Certificate III in Commercial Cookery in July 2016 and then he applied for the student visa in the same month. The subclass 457 visa was subsequently cancelled on 6 October 2016.
The applicant argued that he has found the area of work he is passionate about however he wants to obtain formal qualifications in this field rather than be sponsored on a visa which would allow him to be employed. He argued that this should provide certainty that he is a genuine student because he elected not to take up the sponsored visa but rather study. He also supplied a copy of his certificate of completion for a Certificate IV in Business.
The following documents were also received on 21 March 2019 to support his written submission:
a.Record of Results issued to the applicant by Central Institute of Technology on 17 December 2013
b.Diploma of Management and Statement of Attainment issued to the applicant by the Kinggdom Institute of Management on 9 October 2015
c.Newspaper clippings from the restaurants where the applicant was formerly employed
d.The applicant’s letter of resignation from Chillies Indian Cuisine dated 16 May 2016
e.Reference letter from the applicant’s former employer at Chillies Indian Cuisine
The applicant appeared before the Tribunal on 22 March 2019 to give evidence and present arguments.
The applicant was assisted in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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’s circumstances in Pakistan
While he was working he developed a plan to open a restaurant in his own country. He did his research by talking to chefs who told him he needs to learn how a kitchen operates and do commercial cookery. He also spoke to education experts about his plans.
He was so upset about his parents’ accident, he stated that he was so young and the time was hard for him. He explained his father still has medical issues however his mother is fine. The accident occurred in 2014. The Tribunal asked why in 2015 and again in 2017 he was enrolled in study and due to non-commencement the COE was cancelled. He stated that the accident happened in 2014 but he was constantly getting calls and he was granted a subclass 457 visa which confused him and diverted his attention.
The Tribunal queried why he did not return home to Pakistan at this point. He confirmed he did return for one month however his older sister told him that his parents sent him to Australia to study and she said she would take care of them and he should return to Australia. He explained that he was confused and not certain what to do and was in Pakistan and hence he did not commence his studies. He said he has every intention to return to Pakistan and prove he has gained the qualifications he needs and will return to his family and establish his business. He said there was no reason why he cannot return to Pakistan and he wants to open a Indian/Pakistani cuisine restaurant and he has developed a business plan for the business.
He has no family or a partner in Australia and hence no desire to remain long term. He has 4 sisters. He is the second oldest. Two of his sisters ate married and he claims that he would live in Lahore with his family on his return.
The applicant’s education
The applicant came to Australia initially to study a Certificate IV in Business. He stated that this led to a Diploma and then a Bachelor in Business. He was asked where he was planning to study these courses and he said the Certificate IV was at TAFE and the Diploma was at Kingdom Institute.
He completed the Certificate and Diploma and then he changed his visa to a 457 visa. The Tribunal asked what happened in regards to the Bachelor and he explained that he was so upset and so young and his parents were both injured with fractured legs and arms due to an accident and on his return to Pakistan to see them he was confused as to what to do.
The Tribunal explained his visa was granted based on the fact he was enrolled in a Bachelor level course so he had a requirement to adhere to the conditions of his visa. He stated he was always enrolled in the degree and he was about to pursue the degree but then he was granted the subclass 457 visa with a work offer. He confirmed he currently does not have a COE. He said his COE was cancelled because he does not have a visa. The education provider, Perth College of Business and Technology, said that they can issue the COE within 3 days. The course that he is wanting to study is Commercial Cookery.
The applicant stated that he wants to undertake Certificate 3 and 4 and Diploma to pursue his career.
The applicant’s circumstances in Australia
The applicant was 19 years old when he came to Australia from Pakistan.
He enrolled in a Certificate and Diploma in Business. His parents had a significant accident and he had to return however he felt pressure to look after them as he is the only son and he was concerned and upset. He came back after a month visiting them but things were not the same and he had an opportunity to work at a restaurant which offered him a 457 visa. He accepted the offer and started work. He confirmed he is s 24 years old.
He said he was advised by friends to do something else if he didn’t feel like he could study. He got the visa and everything was fine and he was working but his parents were not happy as he was not studying. In his heart he was not satisfied so he resigned from the restaurant as he wanted to study.
He did well at the restaurant and received awards. He was researching opening a restaurant. He spoke to the owner and told him he wants to learn and grow and they told him that if he wants to open his restaurant he should know the cuisine, at least the basics. He said he was not experienced in cooking when he worked in the restaurant and he wanted to know basic knowledge of food preparation and cooking. He was interested and discussed it with his parents to determine if they can continue to afford to pay for the studies in this field.
He is currently working as a restaurant manager at Mela Indian restaurant and has full working rights works 2-3 days. He receives a weekly income of around $700 after tax.
The applicant’s circumstances in Australia compared to Pakistan
The Tribunal asked why he did not return to Pakistan to reconsider his options and potentially apply from Pakistan. The applicant stated that when he was on 457 visa and he spoke with people in the industry who told him this course was important if he wanted to be a chef. In Pakistan chefs are more practical, they learn from their fathers. Most of the high level chefs get taught overseas. He obtained advice about courses and what course and institution is best in regard to recognition in Pakistan. His sister also told him to do the course in Australia and then come back. He said cooking and hospitality courses are not offered in Pakistan in the way they are in Australia.
The applicant’s immigration history
He confirmed he has returned to Pakistan three times since arriving in Australia and would like to return however does not have travel rights.
Any other relevant factors
The applicant stated that he is a genuine student because he gave up the job he had attached to his 457 visa with a path way to a permanent visa and a n employer wwho was prepared to sponsor him however he gave it up to study.
He acknowledged he made an error in not having continuous study but outlined his family situation and his confusion over career progression. He said that at that time in his life if it was simply about remaining in Australia, he could have remained on the subclass 457visa but he did not.
He explained that the department contacted him and said they are going to cancel his visa if he was not working and he said that this is what he wants as he wants to study and he informed the department when he applied for the student visa.
The Tribunal asked why he didn’t you study on the 457 visa. The applicant stated that he felt that the 457 was a visa where a full time commitment is required. His employer at the time wanted him to work 40 hours a week and the applicant explained he would struggle to study as well.
On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).
Does the applicant intend to comply with visa conditions?
For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider).
The applicant explained he discussed the financial support required with his father and although currently working, he has stated that his family would support him. The tribunal notes that the applicant has previously worked as he was granted a subclass 457 visa. In considering this, the applicant has pointed out that if he wanted to work he could legitimately work. He resigned from this role and subsequent his subclass 457 visa was cancelled. It appears to the Tribunal that employment and work are not the motivating factors for the applicant and he would adhere to a work limitation on his visa. The Tribunal finds that the applicant intends to adhere to condition 8105.

The applicant has provided evidence of some studies undertaken and completed. He has provided an explanation as to why he was not enrolled in a course in the past. Whilst the Tribunal has some reservations regarding the applicants ability to commit long term, he has demonstrated capacity to study in the past and has demonstrated that he is not motivated by a visa such as a the former subclass 457 which would provide him with a pathway to permanency. The Tribunal considers that the applicant intends to comply with condition 8202 and enrol and progress through a hospitality course.
The applicant has stated that he has discussed financial requirements with his father and can afford the associated costs of education and health insurance for the courses he wishes to undertake. He has previously taken out health insurance and the Tribunal accepts that the applicant intends to comply with condition 8501.
The Tribunal discussed with the applicant that he must continue to satisfy the criteria of the visa and adverse weight was placed by the delegate on the applicant’s inability to complete nothing higher than a diploma course, remain enrolled and pass his subject and meet the required attendance. The applicant outlined that hospitality courses commence at a certificate level and go through to a Bachelor of Hospitality and that he is aware he must progress and has demonstrated that he does have the ability to commit to his studies and provided evidence of previous results. He stated that would like to do a course he is passionate about and is motivated by the completion of it and return to Pakistan. The Tribunal accepts that the applicant intends to adhere to condition 8516 and continue to satisfy the criteria of the visa.
The applicant has stated he has no independents and as such condition 8517 and 8532 (are not relevant to the applicant.
The applicant has remained in contact with the Tribunal and the Department and there appears no reason why he would not notify the Department or his education provider with changes to his address. The Tribunal accepts that the a[applicant intends to comply with condition 8533.
On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).
Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?
For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).
The Tribunal is acutely aware of the length of time the applicant has remained in Australia and not completed his courses. Furthermore the Tribunal also accepts that the applicant in applying and being granted a subclass 457 visa presented as a non-genuine student because he elected to work and not study. Notwithstanding this, the applicant has outlined how this occurred and was legitimately granted the subclass 457. He also resigned from employment and relinquished this option in favour of studying. The Tribunal accepts that this could be considered as behaviour indicative of being a non-genuine student. However, conversely, it is also indicative of a person who has found what they do wish to study and followed this path. The Tribunal gives weight to the applicant’s explanation that the later scenario is the case.
Accordingly, the Tribunal is 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 appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
DECISION
The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.212 of Schedule 2 to the Regulations.
Rachel Westaway
Senior 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 4613

10 November 2020

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Immigration

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Procedural Fairness

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