IKRAM (Migration)

IKRAM (Migration) [2023] AATA 1428 (12 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad Ikram
REPRESENTATIVE:  Mr Derrick Peters (MARN: 1175659)
CASE NUMBER:  2210062
HOME AFFAIRS REFERENCE(S):          BCC2021/234828
MEMBER:Michael Biviano
DATE:12 May 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 12 May 2023 at 3:19pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No 69 – reason for studying in Australia – financial incentives to remain in Australia – change to study pathway – 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 22 June 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 13 February 2021. At the time of application, Class TU contained 2 subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) for the reason that he was not a genuine applicant for entry and stay because he did not intend to stay in Australia temporarily.
The applicant appeared before the Tribunal on 1 May 2023 to give evidence and present arguments.
The applicant was assisted in relation to the review.
It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant was a genuine applicant for entry and stay as a student.
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The applicant is a 38 year old Pakistan national who first came to Australia on 17 June 2008 pursuant to a student visa. The applicant gave evidence that he came to Australia on a student visa for the purposes of undertaking a Diploma of Information Technology.
The decision record of the delegate of the Department of Home Affairs dated 22 June 2022, which was provided to the Tribunal by the applicant, confirms that he made the application for a Student (Class TU) (Subclass 500) visa on 13 February 2021 (Decision Record).
The Decision Record confirmed that at the time he applied for the student visa he held a current Subclass 457 visa to undertake work within Australia. The applicant had lodged the application for a student visa to study a Diploma of Building & Construction Management, which would have extended his stay to at least 24 May 2023 and resulted in his stay in this country being 15 years.
As at the date of the hearing, the applicant was enrolled to undertake a Diploma of Business with a course start date of 1 May 2023 and a course end date of 28 April 2024, and an Advanced Diploma of Business commencing on 29 April 2024 and concluding on 27 April 2025, which would have extended the applicant’s stay to just under 17 years.
On 26 March 2023, prior to the hearing, the applicant filed with the Tribunal a response within time pursuant to an invitation to supply student visa information about the courses he was studying and information about his entry and stay in Australia in accordance with s 359(2) of the Act (the Response). In addition to the Response the applicant filed confirmation of enrolment (COE) No. E1119E94 for the applicant to study a Diploma of Business with a course start date of 1 May 2023 at the Australian College of Management & Innovation (ACMI), which was created on 22 March 2023, and COE No. E111D592 for the applicant to study an Advanced Diploma of Business at ACMI with a course start date of 29 April 2024 and a course end date of 27 April 2025, which was created on 22 March 2023. The applicant also filed with the Tribunal a hearing response prior to the hearing.
The applicant in evidence confirmed that having arrived in Australia in June 2008 he commenced studies in an ELICOS course at Melbourne Institute of Technology and then from August 2008 he was enrolled in a Diploma of Information Technology, which he did not complete. The applicant gave evidence that in December 2008, at the suggestion of friends, he decided to move states and travel from Victoria to Western Australia for the purposes of enrolling in a Certificate III in Wall & Floor Tiling at the Silver Trowel Trade Training Institute.
The applicant in the Response stated that he had enrolled in that course in August 2009 and completed the course in March 2011, which would have resulted in a gap in studies of some 8 months. However, having viewed the Certificate from the education provider obtained by the applicant, he had completed that course in March 2011. He claimed that the course was a 2 year course and that he had commenced it in March 2009. He claimed that there was an error in the Response. The applicant was adamant that there was not a long gap in studies between concluding his studies in the Diploma of Information Technology and commencing the Certificate III in Walls & Floor Tiling.
Between April 2011 and July 2012 the applicant completed a Diploma in Management. There was then a 4 year study gap, from July 2012 to June 2016. The applicant then enrolled in and completed a Certificate IV in Project Management at the West Australian Institute of Further Studies.
Having completed that course in August 2016, the applicant then had a further gap in study of almost 5 years before commencing a Diploma of Building & Construction at Everthought College of Construction. The letter of offer submitted to the applicant from the College dated 12 February 2021 confirms that the applicant was to commence studies on 7 April 2021 and conclude them on 24 March 2023. The applicant submitted to the Department a copy of a confirmation of enrolment confirming those dates. The Tribunal notes that there was a gap of almost 5 years between the Certificate IV in Project Management and the Diploma of Building & Construction. The applicant ceased studies in the Diploma of Building & Construction in June 2022. The applicant claims he ceased those studies for 2 reasons: first, his father had to have emergency bypass surgery and the applicant returned home to be with his family; and second, because he received advice from friends that the course he was doing would not assist him in view of the skills he had already obtained working in building and construction in Australia. He decided to enrol in a Diploma and Advanced Diploma of Business, which he was to commence at ACMI, to assist him in setting up a building and construction business in Pakistan.
With regard to the study gap of 4 years between 2012 and 2016, the applicant claimed that he was unable to study during that time due to visa issues as a consequence of the Department refusing an application for a student visa based on lack of financial capacity. That decision was appealed to the Migration Review Tribunal (the MRT), which affirmed the decision of the Department; and he claimed that the matter was then appealed to the Federal Court of Australia and subsequently remitted back to the MRT. He claimed that during that 4 year period, he had obtained advice that he was unable to take any further studies and so he worked as a tiler with Tilco Tiling.
The second long gap in his studies relates to the applicant having obtained a Subclass 457 visa to work in this country. He claimed that he obtained the visa in 2016 and that visa expired in 2020, after which he applied for the student visa. During that 4 year period the applicant appears to have worked as a security guard and taxi driver.
The applicant in evidence claimed that he wanted to complete the Diploma and Advanced Diploma in Business, which would extend his stay in Australia for a further 2 years, so that he could then return to Pakistan and obtain a management position in a building and construction company. The applicant claimed that it was his intention to work for a company and get experience working as a builder in Pakistan, and he would then open his own business there as a builder. The applicant claimed that he believed he would be able to earn A$100,000 per annum in such a position operating his own business. The applicant clarified that in the first year of his employment he would expect to earn A$30,000 to A$40,000 per annum and it would then increase rapidly. The applicant did not provide any documentary evidence to support his claims regarding his expected earnings in Pakistan and did not provide a business plan associated with his business. The amounts that he claimed he would earn are merely aspirational.
The applicant in evidence referred to an offer of employment that he had received. The Tribunal notes that the job offer referred to is an offer from High Rise Global Construction. The letter of offer is dated 7 April 2021 and relevantly states as follows:
Thank you for your phone call on 2 April 2021.
You have informed me that you have completed a Certificate III in Tiling in Australia along with a Certificate IV in Management and a Certificate IV in Project Management.
Further you are currently pursuing a Diploma of Building & Construction (Management).
You have also indicated that you have significant experience as a tiler in Australia.
Based on the above, I am happy to offer you full time employment as a building supervisor on your return to Pakistan after the completion of your current studies.
The applicant claimed that he continued to remain in contact with this particular company, High Rise Global Construction, and that they were still interested in employing him despite his course change from a Diploma of Building & Construction Management to a Diploma and Advanced Diploma of Business. The difficulty with the applicant’s evidence is that this is not a job offer. The letter contains no specific details as to the level of income or the job commencement date and there is no confirmation as to when the offer would lapse. In those circumstances, the Tribunal does not accept that the letter provides details of employment on the applicant’s return; rather it merely expresses an interest in potentially employing him in the future. In such circumstances, it does not provide an economic incentive for the applicant to return home.
The applicant claims that undertaking the business courses he is now enrolled in will improve his employment prospects in Pakistan because he has already obtained the necessary skills and qualifications in building and construction to work as a builder back home. The difficulty with the applicant’s evidence on this issue is that apart from having been here a very long period of time and having more than ample opportunity to undertake those qualifications, undertaking courses in business will not improve his employment prospects to work as a building supervisor or construction manager in Pakistan. He already has those qualifications. In those circumstances, whilst undertaking the courses will improve his qualification level, the Tribunal considers this would only marginally improve his employment prospects and level of remuneration in Pakistan having regard to the qualifications he has already obtained in Australia and his extensive work experience here.
The applicant was asked why he could not undertake studies in business in Pakistan and what enquiries he had undertaken prior to commencing his studies here about returning home and studying business courses there. The applicant claimed that he had undertaken searches online and had located courses that appeared to have similar outlines to business courses in Australia. However, he claimed that when he had asked some family members, including a cousin and 2 other relatives, about the courses back at home, they informed him that he should complete his studies in Australia because this would be more advantageous for his future.
In the Response the applicant stated that there are similar courses available in Pakistan, however, courses completed in Western countries are given high value when it comes to employers assessing applicants for employment purposes. This statement is consistent with the applicant’s evidence at the hearing.
Whilst the Tribunal accepts that there may be some advantage in completing courses here in Australia over undertaking similar studies in Pakistan, when one considers the costs associated with undertaking studies in this country and the requirement to obtain accommodation, the Tribunal considers that the applicant does not have a reasonable motive for undertaking these studies in Australia instead of his home country.
The applicant in the Response outlined that he had worked in various positions during his long stay in this country.
From 2008 to July 2009 he claimed he worked as a cleaning person/kitchenhand at the Shark Lake meat factory, earning approximately A$20,000 per annum.
From May 2012 to April 2018 he worked as a tiler for Tilco Tiling, earning approximately A$20,000 per annum.
From May 2016 to August 2018 he had various casual roles as a taxi driver and as a security guard and was earning approximately A$30,000 per annum in those roles. The Tribunal notes that between May 2016 and April 2018, the applicant was working 2 jobs whilst on his Subclass 457 visa. During that time, based on the evidence in the Response, he was earning approximately A$50,000 per annum, which is a high level of income and would provide him with a substantial financial incentive to remain here.
The applicant claims that since August 2020 he has been employed as a tiler and is currently working as a tiler earning $30.00 per hour; based on his hours of work, he earns between A$600 and A$900 per week. This level of income is also quite high and provides a financial incentive to remain here rather than to return home.
The applicant in evidence confirmed that wages in Australia are higher than in Pakistan, although he claims that he would be better off in Pakistan running his own business because costs are lower. Nevertheless, the high levels of income in Australia would provide the applicant with a financial incentive to remain here rather than to return home.
The applicant also gave evidence that the economic conditions in Australia are more favourable than those in Pakistan, which would also provide a financial incentive to remain here rather than to return home.
The applicant has changed his study pathway from tiling to management to project management to building and construction, and is now undertaking business courses. The Tribunal considers that the study of those courses does not in itself lead to a career path or position in employment. The applicant claims they are all relevant courses in relation to operating his own business as a builder in Pakistan. However, the Tribunal considers that the courses are broad in nature and whilst there are some connections between tiling and building and construction management, when considered in combination, the courses do not appear to provide a clear career path.
The Tribunal recognises that it is important to allow for reasonable changes to career and study pathways. However, this is not the case when an applicant merely decides to change careers or studies by undertaking short vocational education training (VET) courses to extend one’s stay in this country. Importantly, all the courses that the applicant has enrolled in whilst he has been in Australia are short VET courses and do not reveal any progression in his course of study. Whilst the Tribunal accepts that the applicant has now enrolled in, and has just commenced study of, a Diploma of Business, it notes that he has already completed 2 certificates and a diploma whilst in this country and the current studies in the Diploma of Business do not provide educational progression. They are inconsistent with his level of education.
The Tribunal accepts that the Advanced Diploma of Business does represent some study progression. However, the Tribunal considers that the applicant has had ample opportunity to undertake these studies whilst being in this country for the last 15 years if they were so important to his career. In addition, it notes that whilst he has enrolled in the course, there is no guarantee he will ultimately undertake it, especially in light of his study history, which indicates that he has not completed the Diploma of Information Technology and the Diploma of Building & Construction, which are courses at that level.

The applicant has lived in Australia for nearly 15 years and has a substantial degree of knowledge about living in Australia.
The applicant provided very little information about the courses he was studying in the Diploma and Advanced Diploma of Business at ACMI and the timing of undertaking such courses. In addition, his evidence about the reason why he had selected studying in Australia rather than Pakistan does not indicate he had a substantial degree of knowledge about the course and the provider.
The applicant in the Response confirmed that he had returned home on 3 occasions, including in 2018 to visit family and get married, in 2020 to visit family, and in August 2022 for the purposes of attending his father’s bypass surgery and to visit his wife and family. The stay in 2022 was for a period of 6 months and the previous stays in his home country lasted approximately 11 weeks. The applicant also indicated in the Response that he had visited the United Arab Emirates and Saudi Arabia, where he stayed for 14 days. The fact that the applicant has returned home on only 3 occasions and done some minor travelling when he had returned home in 2022 is not consistent with an incentive to return home. The applicant has been in this country for a long period of time and now intends to stay here for at least a further 2 years for the purposes of completing these courses, and the Tribunal has real concerns that he may extend his stay beyond that. It is important to note that the purpose of a student visa is to come to this country and complete one’s studies in a timely basis and return home. It is to be remembered that the applicant came to this country for that purpose and has decided to stay on and work in this country and now seeks to undertake further studies despite having been here for an extremely long period of time. The Tribunal considers that the primary motivation in now undertaking those studies is to maintain residency here, which indicates that he is using the student visa program to maintaining ongoing residency in this country.
The applicant in evidence confirmed he did not have any assets either in Australia or in Pakistan but claimed that his spouse had a block of land worth approximately A$100,000 back home. However, when the Tribunal considers the level of wages that the applicant has been able to earn in this country and can earn here, it finds that his asset position does not provide a substantive financial incentive to return home. Rather, it provides a financial incentive to remain in this country.
The applicant, both in the Response and in evidence, confirmed he did not have any concerns about returning to Pakistan and he had no concerns about military service commitments or political or civil unrest in his home country. The Tribunal finds they do not present as a significant incentive for the applicant not to return home.
The applicant gave evidence that he was married in 2018 and his spouse remains offshore. The Tribunal accepts they are not in a relationship of concern for a successful visa outcome.
The Tribunal notes that the applicant initially received financial support in his studies from his family in Pakistan. Consequently, the Tribunal accepts that, based on the applicant’s evidence and his circumstances back home (including the assets he holds with his spouse, the support he receives from his family and his education), relative to others in that country he is in a good position and this would not provide a significant incentive for him not to return home.
The applicant has personal ties to both Australia and Pakistan.
The applicant confirmed that he has his spouse in Pakistan but also has his father, brother and 2 sisters there, and that would ordinarily provide him with an incentive to return home. He has recently seen them in person as he visited from August 2022 to February 2023, and he gave evidence that he remains in contact with his spouse and family every day. Furthermore, in the Response he outlined that he has a strong community focus in relation to local mosques in Pakistan and that he is actively involved in daily and weekly prayers and community activities and takes part in religious events and ceremonies back home. The difficulty with such evidence is that the applicant has predominantly been away from home for the last 15 years and those community ties would be marginal at best. Furthermore, the evidence regarding his ties to his family in Pakistan is somewhat weakened by the fact that if he successfully obtains a student visa he will be entitled to apply to enable his spouse to join him in Australia on a dependent visa.
The applicant’s ties back home need to be considered in light of his circumstances here, including having lived here for the last 15 years, and that he wishes to remain in this country for at least a further 2 years. When one considers the applicant’s stable employment and accommodation in this country, the Tribunal considers that his ties to Pakistan do not provide a significant incentive for him to return home. The applicant has substantial ties to this country. He has been here for a long period of time. He is currently living here with friends and has been in long term work as a tiler and in various roles earning a relatively high level of income. If he obtains a student visa, he will be able to bring his spouse to Australia to live with him, and when one considers that the applicant confirmed that he does have ties to his local mosque and partakes in weekly prayers, the Tribunal ultimately considers that such ties demonstrate a strong incentive to remain here rather than to return home.
The applicant in his Response has not identified any visa refusals or cancellations in Australia or elsewhere. There is nothing before the Tribunal from the delegate’s Decision Record to indicate that he has experienced any other refusals or immigration issues either in or outside of Australia. The Tribunal notes that the applicant has had prior visa refusals but those matters on appeal were overturned and, in those circumstances, have no adverse impact on this application.
The Tribunal in this application is faced with an applicant who has been in Australia for a period of 15 years and has had more than ample opportunity to complete his studies and return home. The applicant is seeking to undertake VET courses in business, which he readily conceded he could take back at home.
When all of the above circumstances are considered, the Tribunal is not satisfied that the applicant has made this application to gain a student visa to study temporarily and it considers that the primary objective of the application is to maintain ongoing residency in this country with a view to remaining here on a permanent basis.
On the basis of the above, the Tribunal is not satisfied the applicant intends genuinely to stay in Australia temporarily.
Accordingly, the applicant does not meet cl 500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Michael Biviano
Member

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

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

[2023] AATA 1428

12 May 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction