Jain (Migration)

Jain (Migration) [2021] AATA 5591 (6 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Krishma Jain
CASE NUMBER:  1932834
HOME AFFAIRS REFERENCE(S):          BCC2019/4094223
MEMBER:Michael Biviano
DATE:  6 October 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 6 October 2021 at 9:05 am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – lengthy stay in Australia – academic benefit to future career – diploma level courses in unrelated fields – return visits to India – significant family ties in home country – financial incentive for maintaining ongoing residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 499, 359
Migration Regulations 1994, Schedule 2 cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 October 2019 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 18 August 2019. 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(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) for the reason that she was not a genuine applicant for entry and stay as a student because she did not intend to stay in Australia temporarily.
On 8 July 2021, prior to the hearing, the applicant sought to adjourn the application for an unspecified period of the time. The request for an adjournment stated:-
I am writing regarding my case hearing on 14th July 2010. I would like to apply for an extension for this. As you are aware of the NSW lockdown situation which has been extended up until 16th July 2021, I would not be able to collect my required documents which are crucial for the case. I tried contacting my college in Sydney for paperwork but due to COVID Lockdown, it seems impossible to get hold of anyone. And to gather documents from India is also creating an issue as COVID situation is no better there. Under such circumstances and short notice I would be much appreciated if you would be able to provide me an extension.
I would be waiting for your positive response
On 8 July 2021, the Tribunal refused the request for an adjournment of the hearing. The letter to the applicant refusing the adjournment stated:-
Based upon the general nature of the request and the failure to identify what
documents you do not have access to and how they will impact your case, the
application for a postponement is refused.
If you wish to press the application of postponement further, then further supporting
evidence needs to be provided in support of the application about those issues.
Alternatively, at the hearing you can request further time after the conclusion of the
hearing to submit documentation in support of your application.
The Tribunal refused the request for the adjournment on the basis that the request did not identify what period of time was sought and what documents she was seeking to obtain and how they would impact her case.
In the circumstances, the Tribunal did not consider that the adjournment sought by the applicant is reasonable having regard to the circumstances of the request, the history of the matter, the general nature of the request, and the statutory direction that the Tribunal conduct its review in a manner which is fair, just, economical, informal and quick.
The applicant appeared before the Tribunal on 14 July 2021 to give evidence and present arguments. At the hearing the applicant did not seek to postpone the hearing.
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 have to 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.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The applicant is a 29-year-old Indian national who first came to Australia on 17 February 2015 pursuant to a student visa. The applicant has been residing in Australia for 6 years and 7 months.
The decision record of the delegate of the Department of Home Affairs, dated 29 October 2019, which was provided to the Tribunal by the applicant, confirms that the applicant made the current application for a Student (Class TU Subclass 500) visa on 18 August 2019 (Decision Record).
At the time of the Decision Record the applicant was enrolled to undertake a Diploma of Leadership and Management.
On 17 March 2021, 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 she was studying and information about her entry and stay in Australia in accordance with s 359(2) of the Act (Response). The applicant has also filed with the Tribunal various documents in support of her application in addition to the Response comprising:
·Confirmation of Enrolment (COE) No. ADCECD43 for the applicant to study an Advanced Diploma of Leadership and Management at Australasian International Academy (AIA) commencing on 8 February 2019 and concluding on 7 August 2022, which was created on 16 August 2019;
·Bachelor of Business Administration from Punjabi University Patiala;
·Academic results for the Bachelor of Business Administration; and
·Master of Professional Accounting from Charles University dated 12 December 2017 with Academic Transcript.
On 7 July 2021, the applicant filed further documentation in support of his application comprising:-
·Response to Hearing;
·Certificate from Australian Technical & Management College confirming the applicant has completed the Accounting Professional Year Program on 11 July 2019;
·Registration of the applicant’s father’s business in India for GST;
·Secondary School Certificate and High School Certificate details;
·Bachelor of Business Administration from Punjabi University Patiala with academic results;
·Documents regarding the applicant’s father’s property holdings;
·Applicant’s father’s will leaving the properties in equal shares to the applicant and her brother;
·Applicant’s Submission (Submission);
·Affidavit of applicant’s mother that she will gift her jewellery to her daughter;
·Passport extract.
On July 2021, immediately after the hearing the applicant filed an updated COE number C65F8D47 to undertake the Advanced Diploma of Leadership and Management at AIA with a course start date of 8 February 2021 and an end date of 7 August 2022.
Prior to coming to Australia the applicant completed a Bachelor of Business Administration in May 2014 at the Punjabi University in India. The Response does not indicate the applicant gained employment back in India.
The applicant came to Australia in February 2015. The applicant studied and completed a Master of Professional Accounting at Charles Sturt University which was completed in June 2017. The applicant held 2 student visas to complete the Master’s course.
The applicant then obtained a Graduate (Subclass 485) visa from August 2017 to August 2019. Whilst on a graduate visa the applicant worked and from March 2018 to July 2019, she undertook and completed her professional year at ATMC.
The applicant enrolled in a Diploma of Leadership and Management and Advanced Diploma of Leadership and Management at AIA on 16 August 2019 (Leadership courses). The applicant completed the Diploma in February 2021 and she is studying the Advanced Diploma, which is expected to conclude on 7 August 2022, which will extend her time in Australia since her arrival to 7 years and 5 months, which is a very long period of time and inconsistent with the stay being temporary.
The applicant claims that the Leadership courses, in particular the Advanced Diploma, will enable her to return to India and obtain a management position back in India. She claimed in the Response that she was expecting INR100,000 per month which equates to AU$1860 per calendar month or AU$22,320 per annum. However, the applicant’s evidence at the hearing was that if she could obtain the Advanced Diploma, she would be able to obtain a managerial role in finance earning the equivalent of AU$60,000 to AU$70,000 per annum, whereas if she was unable to complete the Advanced Diploma she would only be able to obtain employment as an accountant and she would be able earn AU$30,000 to AU$35,000. The applicant claims that she had researched the roles in India. However, the applicant’s evidence was not supported by corroborating documentary evidence. It is remarkable to suggest that the applicant’s income would double if she obtains the Advanced Diploma of Leadership and Management in light of her high level qualifications in India and Australia, the Diploma of Leadership and Management, her work experience and then completing the professional year in Australia. In light of the inconsistent nature of her evidence as to income at the hearing and in the Response, the Tribunal does not accept the applicant’s level of income she would receive back in India would be AU$60,000 to AU$70,000 per annum if she completes the Advanced Diploma of Leadership and Management.
Whilst the applicant has been in Australia she has undertaken various employment roles, both on the student visa, but also whilst holding the Temporary Graduate visa. Between November 2017 and March 2018, the applicant worked as an accountant at Total Energy Solutions and her level of income was AU$50,000 per annum. Between April 2018 and June 2018, she worked as a company accountant with Transport Engineering and her level of income was AU$65,000 per annum. Between July 2018 and July 2019 she worked as an accountant at AFN Solutions earning an annual average salary of approximately AU$65,000 per annum. Since July 2019 she has worked at Construction Total Holdings as an accountant earning $25 per hour and working on average 40 hours per fortnight. Accordingly her income from that role equates to approximately AU$26,000.
The applicant gained valuable business experience working for these corporations within Australia, which complement her skillset in accounting and business.
The level of income that the applicant has received is a high level of income, which would provide a significant financial incentive for her to remain in Australia rather than to return home. The Tribunal notes that the levels of income that she has received in Australia as an accountant at AU$65,000 per annum, which is substantially more than the amount she claimed in the Response that she would receive if she returned, being AU$22,320, and the likely amount she would receive if she gained employment in India.
In light of the applicant’s qualifications and experience, and the higher levels of income in Australia generally, the Tribunal is satisfied that the level income she could receive in Australia is higher than the amount she could receive in India, which would provide a substantial financial incentive for her to remain here rather than to return home.
The applicant in the Submission outlined the reasons for undertaking the Advanced Diploma of Leadership and Management. She claimed that: -
I left my home country to pursue a world class education in Australia which I initially chose as my study destination. I came here to get the education from a reputed university and to explore Australia with a motive to go back to my country and get a good job.
In considering the value of the course in my future career, I have obtained a master’s degree in Professional Accounting. My stand-alone Master of Professional Accounting was insufficient for me in my future career. Masters of Professional Accounting is consistent but in my current studies of leadership and management, I realized the importance of training in people management, personal development and workplace operational skills, critical thinking skills through leading self-facilitate initiative and judgement in planning within the Workplace and it plays an important role in boosting leadership skills. Further, the combination of my studies from Australia will help me get good managerial level job to gain experience in India and later utilize it in successful operation of our family business in India and be able to operate our family business confidently and efficiently.
During my stay I gained some Australian work experience as an Accountant which is an advantage to my future career that will be highly recognised in India. My course has a real value for my future career and that this supports my claim to be a genuine temporary entrant.
While these matters are important, the applicant has already completed a Diploma of Leadership and Management, Bachelor of Business Administration and Master of Professional Accounting, and the current course of study being the Advanced Diploma of Leadership and Management would have limited impact on her qualifications.
The Tribunal considers that based on the applicant’s evidence, and having regard to her previous qualifications and work experience, the course that she is studying – the Advanced Diploma of Leadership and Management – will only marginally improve her employment prospects and remuneration.
The Tribunal is also concerned that the applicant is ultimately using this student visa to remain here in Australia rather than to genuinely undertake studies, having completed high level studies and worked here in high paying positions, and now she is undertaking lower level courses.
The applicant has changed her career path initially from business administration to accounting and now to leadership and management. While the courses are connected in that they are in similar fields, they do not lead to a particular position of employment.
The Tribunal recognises that it is important to allow for reasonable changes to career and study pathways. However, this is not the case where an applicant has merely decided to change careers through undertaking short vocational education training (VET) courses. The courses the applicant has enrolled in since completing the Master of Professional Accounting are all short VET courses and do not reveal any progression in her course of study, having regard to the fact that she has previously obtained a Bachelor’s degree in India and completed a Master’s course here in Australia. The Tribunal finds that her present course of study, the Diploma of Leadership and Management, is inconsistent with her level of education. Further, the Tribunal has serious concerns that the applicant is undertaking such a low level course when she has already completed a Diploma in that field and other high level courses in business related fields. The Tribunal considers that the Advanced Diploma of Leadership and Management does not provide her with career progression.
The applicant claimed in the Response that leadership courses in India are short courses which are theoretical and not practical. She claimed:-
Management and leadership course are delivered in India but in very few recognised institutes. They are of short duration around 2 months to 6 months and consist of theoretical subjects, whereas in Australia Management courses are long term duration which cover both theory and skill development. I need to have qualification in management and business management and leadership. Mostly qualification is based on assessment in real scenario whereas in India its
exam based. Qualification which develops knowledge and skills is far better than qualification based on theory the reason I chose this course
Further, in evidence, the applicant claimed that the Advanced Diploma of Leadership and Management in conjunction with the Diploma from AIA would provide her with in-depth qualifications that would improve her employment prospects back in India.
Whilst this might be the case, the Tribunal considers that the course the applicant is undertaking is a low-level course in Australia, and is not satisfied that it will substantially improve her employment prospects and remuneration back in India, especially having regard to her extensive qualifications and work history in Australia. It is unclear how the Advanced Diploma of Leadership and Management will improve her knowledge in this area when she already holds a Master of Professional Accounting and Bachelor of Business Administration and also has achieved a Diploma of Leadership and Management. Ultimately, the Tribunal does not accept that she has a reasonable motive for undertaking the Advanced Diploma of Leadership and Management in Australia rather than in her home country, especially having regard to her prior qualifications and work experience, and the ability to undertake similar qualifications back in India.

The applicant has remained in Australia for in excess of 6 ½ years and she has a substantial degree of knowledge of living in Australia.
If the applicant completes the Advanced Diploma of Leadership and Management Business she will have remained in Australia for over 7 years and 6 months which is a very long period of time to have remained in Australia and inconsistent with the stay being on a temporary basis. The Tribunal notes that the purpose of a student visa is to allow a student to come to this country and undertake studies on a temporary basis. In light of the applicant studying a low level course and studying in Australia for a long period of time, her stay is inconsistent with studying here on a temporary basis. Further, her current studies are inconsistent with her level of education.
Further, if the applicant considered that the Advanced Diploma of Leadership and Management was important to her education, she has had ample opportunity to take that course and complete those studies in the period of more than 6 ½ years she has been in Australia, in particular in lieu of undertaking her professional year.
The applicant, by reason of her duration of studies at AIA exceeding 2 years undertaking the leadership courses, has demonstrated that she has a substantial degree of knowledge about the course and the provider.
The applicant gave evidence that she has been financially supported by her mother, and based on the applicant’s evidence and circumstances in her home country, including her education, together with the support from her family relative to others in that country, she is in a good position, and this would not provide a significant financial incentive for her not to return home.
The applicant claimed in evidence that the economic conditions in Australia and India were similar. Such evidence would not provide the applicant with a substantial financial incentive to return home and instead provide an incentive to remain here.
The Tribunal accepts that the applicant is not in a relationship of concern for the purposes of a successful visa outcome.
The applicant in the Response confirmed that she has returned home to India on 3 occasions, for a period of 90 days. Considering the duration of her return back to India and the fact that she has only returned back on 3 occasions during her 6 ½ years stay in Australia, notwithstanding the COVID-19 travel restrictions since March 2020, the Tribunal finds that her conduct is consistent with an intention to remain here permanently rather than to return home.
The applicant in the Response confirmed that she had family assets worth AU$250,000. However the documents provided by the applicant and her evidence confirmed that she did not own any assets in her own name. The property holdings in India were held by her father and her mother had gold jewellery worth approximately 45 lakh, which the applicant claims is worth AU$30,000, but based on current exchange rates is worth approximately AU$82,000. The applicant submitted the will of her father which confirms that she stands to inherit half of the properties on the death of her father, and her mother provided an affidavit claiming she would gift the jewellery to her daughter once she returns to India and gets married. These documents all reflect an intention on behalf of her parents, which can be changed in the future. The applicant claims she has jewellery worth AU$10,000. Having regard to the applicant’s asset position, and having regard to the ability to earn a high level of income in Australia, this would not provide a substantial financial incentive for her to return home.
The applicant in the Response did not have any concerns about returning back to India and she had no concerns about military service commitments or civil or political unrest on returning home. The Tribunal finds that they do not present as a significant incentive for the applicant not to return home.
The applicant has substantial ties both to Australia and to India. The applicant gave evidence that her mother, father and brother reside in India. Those ties would ordinarily provide a significant incentive for the applicant to return home. She has not seen them in person since December 2018. The applicant stated in the Response that she keeps in contact with them on a regular basis by WhatsApp, phone, Messenger or by Facetime. However, the applicant has not seen them in person for a long period of time and has been here for more than 6 ½ years and looks to extend her stay for at least a further 10 months. In light of those circumstances, the Tribunal considers that such ties do not provide a substantial incentive to return home.
Further, the applicant gave evidence that in Australia she has been in stable employment and she has friends here from University. Considering the duration of her stay and the high level of income that she has been receiving whilst in Australia, and when considered in the context of her ties to India, they do not provide a significant incentive for her to return home to India.
The applicant has substantial ties to Australia regarding her high paid employment and ability to obtain stable employment, her friends, the duration of her stay in Australia and the higher levels of income she has received. The applicant, after residing here for 6 ½ years, has established herself here in Australia. Having regard to the duration of her stay and her circumstances here in Australia, they do provide her with a substantial incentive to remain here rather than to return home.
The applicant in her Response has not identified any visa refusal or cancellation in Australia or elsewhere. There is nothing before the Tribunal from the delegate’s Decision Record to indicate the applicant has experienced any other visa refusals or any immigration issues either in or outside of Australia.
Based on the above matters, the Tribunal is not satisfied that the applicant has made this application to gain a student visa to study temporarily and it considers that the primary objective of the application is to maintain ongoing residence in Australia and to remain here permanently.
Accordingly, the Tribunal considers the above circumstances are consistent with a motivation on behalf of the applicant to remain in Australia on a permanent basis and not on a temporary basis.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Michael Biviano
Member

Attachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton
Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
d.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

[2021] AATA 5591

6 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction