Jia (Migration)

Jia (Migration) [2023] AATA 2703 (13 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Yuangui Jia
CASE NUMBER:  2205264
HOME AFFAIRS REFERENCE(S):          BCC2021/1388125
MEMBER:Peter Booth
DATE:13 July 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 13 July 2023 at 11:36 am
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– applicant failed to provide requested information – applicant’s study path is inconsistent with his plans – genuine temporary entrant criterion not met– no strong incentive to return to home country – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363, 499
Migration Regulations 1994, Schedule 2, cl 500.212
CASES
Hasran v MIAC [2010] FCAFC 40
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 24 March 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 9 July 2021. 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 (Cth) (the Regulations) because the applicant was not a genuine temporary entrant.
On 26 April 2023 the Tribunal wrote to the applicant pursuant to s 359(2) of the Act, inviting the applicant to provide information about the review application in writing. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by the prescribed period, being 10 May 2023 or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The applicant did not provide the information within the prescribed period and no extension of time was requested. In these circumstances, s 359C applies and pursuant to s 360(3) the applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary entrant.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No.69, “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications”, made under s 499 of the Act. 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.
In the absence of a hearing the Tribunal turns to consider the available evidence.
On 16 May 2023 the Tribunal accessed the applicant’s record on the Provider Registration and International Student Management System (PRISMS). The purpose of this search was to ascertain whether the applicant was enrolled in a registered course of study, as required by cl 500.211(a), because there was insufficient evidence currently before the Tribunal about whether the applicant satisfied this criterion.
On 9 June 2023 the Tribunal wrote to the applicant pursuant to s 359A of the Act, inviting the applicant to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The particulars of the information were as follows:
The particulars of the information from the Department of Education’s records are that:
·You enrolled in a General English Levels 1-4 course, to be conducted between 17 December 2018 and 11 November 2019. Your enrolment was cancelled on 14 September due to “Student Notifies Cessation of Studies”.
·You enrolled in an Advanced Diploma of Leadership and Management, to be conducted between 11 November 2019 and 10 May 2021. Your enrolment was cancelled on 24 September 2019 due to ‘Non-commencement of studies’.
·You completed a Diploma of Business between 12 July 2021 and 10 July 2022.
·You are currently enrolled in an Advanced Diploma of Leadership and Management, to be completed between 1 August 2022 and 7 April 2024.
The applicant was also invited to provide any further information in support of his application for review by 23 June 2023. In response, the applicant provided several further documents.
First, the applicant had also provided information to the Tribunal in the form of a response to a request to do so pursuant to s 359(2). In summary the information provided by the applicant was as follows.
The applicant did not provide any information regarding his education history prior to arriving in Australia. He stated that he was employed as a “development manager” in China between February 2010 and December 2018 from which he derived an annual salary of A$120,000.
The applicant arrived in Australia on 9 September 2018 and since that time has not returned to China.
The application for the student visa in question was made in July 2021. The applicant did not provide any information regarding his Australian visa history.
The applicant stated that he had not applied for any other Australian visas when the decision on that application had not yet been made. He also stated other than the current student visa application he had not been refused a visa by any country including Australia or held a visa for any country including Australia that was cancelled or considered for cancellation.
The applicant stated that he held a current Confirmation of Enrolment.
The applicant stated his study history in Australia to be as follows: he was “studying now” an Advanced Diploma of Leadership and Management which commenced in August 2022 and was scheduled to be completed in April 2024.
The applicant did not provide any information regarding his Australian employment history.
The applicant stated that his father, wife, son, daughter and brother all reside in China.
The applicant stated that he owned assets in China comprising “deposit”, “real estate” and “Veichle” [sic]. No further details were provided.
As to his future employment plans the applicant stated, “I will go back to China and continue my work in China”. No further details were provided.
The applicant did not provide information regarding his expected future remuneration.
The applicant provided a statement in support of his application for review. The statement is undated, and without page numbers or paragraph numbers. The Tribunal makes a number of observations in relation to the statement. The statement comprises various responses to findings of the delegate. First the applicant takes issue with the delegate’s finding that it was implausible that his previous employer would keep his position open indefinitely. However, he does not explain these matters further. As to not returning to China since 2019, the applicant blames the global pandemic travel restrictions. Whilst this may explain his circumstances during that period it does not explain why he has not returned to China since travel restrictions have been eased.
Next, the applicant states that he is very experienced in his employment in China which involves cost control, project management, human resources, budgets and the like in the field of real estate development. He states that he will return to that employment. The applicant also states that he came to Australia to study management. This does not explain why he has chosen to study vocational courses, namely a Diploma of Business and an Advanced Diploma of Leadership and Management rather than Bachelor level courses in project management, business administration or in business generally. He states that he has chosen vocational courses because they are of high quality. This seems somewhat inconsistent with his assertion that he has accumulated a high degree of knowledge in these fields and wants to progress further. Next he states that “I did not finish the previous course in 2020” because of “the COVID-19 pandemic effect”. He goes on to state that he was infected during that period and did not commence his course due to illness. The Tribunal notes that the applicant has not provided any corroboration of the assertion that he was unable to commence his course or that he was unable to return to it once he recovered or indeed that he had tried to defer the course. It gives these assertions little weight.
The applicant provided a Confirmation of Enrolment in respect of an Advanced Diploma of Leadership and Management to be conducted between 1 August 2022 and 27 April 2024. The Tribunal accepts that he is enrolled in that course.
Lastly the applicant provided a document from his employer in China stated 1 July 2021. It states that the company specialises in real estate development and sales, has more than 40 employees and an annual turnover of approximately 60 million (the currency is not identified). The applicant is described as being the deputy manager of the development department since the company was founded in 2010. He is mainly responsible for the strategic planning and development of new projects. His annual income is 120,000 Yuan (not A$120,000 as he stated in the information paraphrased above). The letter states that it has been agreed that the applicant will continue to study overseas and retain his position from July 2021 to the end of July 2024. The Tribunal finds it curious and ultimately implausible that an employer would hold open a senior position for three years while that person was studying overseas. It would be a different matter if the employer stated that it would consider an application for return employment favourably due to his increased qualifications. It is given little weight.
The Tribunal conducted a movement search. It disclosed that the applicant arrived in Australia on 12 September 2018 as the holder of a tourist visa and that the visa expired for the purposes of that entry on 12 December 2018. He was granted a Subclass TU 500 Student visa on 28 November 2018 and which was valid until 10 July 2021. He departed Australia on 23 June 2019 and returned on 23 July 2019. He has not left Australia since that date.
The Tribunal turns to the Department’s file to glean any further facts. A copy of the applicant’s passport discloses that he was born in China on 17 August 1978 and is a citizen of China.
The delegate’s decision discloses that the application for the student visa in question was made on 9 July 2021; the applicant is married with two children; the application for the student visa in question was made one day prior to the expiry of the previous student visa; and there is a gap in the applicant’s study from 19 September 2019 until 10 July 2021 which remains unexplained.
The applicant also provided a statement to the Department in support of his application for review. It is unsigned, undated and without page or paragraph numbers. Although not identical to the applicant’s statement provided to the Tribunal, it is in substantially similar terms. The Tribunal has taken this statement into account and given it appropriate weight. However, the Tribunal’s reservations as to the utility of the document are very similar to those expressed in relation to the version provided to the Tribunal.
CONCLUSIONS
Without diminishing the applicant’s evidence, it can be summarised as follows.
The applicant was born in China on 17 August 1978 and is married with two children. He is a citizen of China. The applicant’s education history in China is unknown. His employment history in China is unknown save for the 10 years at the real estate development firm recently.
He arrived in Australia on 9 September 2018 as a tourist. That tourist visa expired on 9 December 2018. The applicant’s purpose for arriving in Australia other than “tourism” and the duration of his intended stay as a tourist is unknown. Whether the applicant’s wife and two children accompanied him when he arrived in Australia is also unknown. His first student visa was granted on 28 November 2018, approximately two weeks prior to the expiry of his tourist visa. The applicant’s reason for not returning to China at that time is unknown. Whether the applicant took leave from his employment or resigned from his employment prior to arriving in Australia are also unknown.
The applicant’s study history in Australia is not impressive. He enrolled and did not complete a general English course, and did not complete an Advanced Diploma of Leadership and Management. He has a gap in study from 24 September 2019 until 12 July 2021 which is unexplained. Despite asserting that he wanted to improve his management and business skills he has not enrolled in higher education courses but only vocational courses. His reasons for not doing so are unconvincing and not supported by any corroborative evidence.
The applicant asserts that he owns real property in China but has provided no corroborative evidence. This assertion is given little weight.
The applicant has not disclosed his employment history in Australia.
The applicant asserts that he can return to his previous employment. A letter from the previous employer purports to corroborate this. The Tribunal finds this to be inherently implausible, and notes that the letter is dated several years after the applicant left China, apparently on holiday of no more than three months.
The applicant asserts that he will return to his previous role but does not explain the utility of studying in Australia if he does so, having occupied the role for approximately 10 years.
The applicant’s immediate family including his wife and two children reside in China.
The applicant has not explained to the Tribunal’s satisfaction why he changed the purpose of his travel to Australia from tourism to study, why he did not study between 24 September 2019 and 12 July 2021, why he abandoned the English course, why he did not commence the Diploma of Leadership and Management course, why he has changed the direction of his study in Australia, why he has not pursued higher education courses having regard to his ample experience in the area, why he has not pursued specific courses such as project management or business administration having regard to his lengthy experience in the area, why he did not return to China when his studies were faltering, why he did not return to China when he successfully completed a course of study in Australia, why he did not return to China permanently when his student visa application was refused, his extended absence from his employment or when he resigned from his employment, why his employer is willing to keep open a senior role in the business for several years in order for the applicant to study matters with which he is apparently already familiar, or cogent details of his future career path.
In considering whether the applicant has met the genuine temporary entrant criterion, the Tribunal had regard to the following factors consistent with cl 500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether he has satisfied the genuine temporary entrant criterion.
The Tribunal has considered the applicant’s circumstances in his home country. The applicant is married and is from China. The applicant has provided evidence of social, direct family and financial ties to his home country or other economic incentives to return. The Tribunal finds that he has been able to demonstrate ties to act as an incentive to return to his home country at the completion of the actual or proposed study. While the Tribunal accepts that the applicant may have family ties to China, having regard to the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to China.
The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 9 September 2018 as the holder of a tourist visa valid to 9 December 2018. The proposed study would extend the applicant’s stay until at least 27 April 2024. The Tribunal considers that the length of the proposed stay suggests that the applicant is studying for the purposes of staying in Australia. Whilst plans can change, in the Tribunal’s view this is not the conduct of a genuine temporary student. On balance it is consistent with the applicant having decided to extend his stay in Australia by utilising the student visa programme.
The Tribunal does not place weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. There are several reasons for this. The applicant asserts that he is an experienced manager in a real estate development firm dealing with such matters as project management logistics, human resources and the like. However, in Australia he has directed his attention to vocational courses in leadership and management and in business. He asserts that the vocational courses are of high quality which will be suitable for his employment in China. However, he has provided no corroborative evidence to support this critical assertion. He has not explained why courses such as project management or business administration would not be more beneficial to him if he is to return to his former role as he indeed asserts that he will. On balance his reasons for studying relatively short vocational courses in leadership and management and business having regard to his apparent experience in the construction field are unconvincing.

The Tribunal has considered the applicant’s study history since arrival and notes that he has a significant gap in his study which he has not explained to the Tribunal’s satisfaction.
The Tribunal observes that the applicant’s study path is inconsistent with his plans when he entered Australia.
On balance, the Tribunal is not satisfied that the applicant has established that study will provide him with significant benefits in his proposed career plan, considering the cost of the study and the fact that the applicant already has experience in the role which he has occupied for at least 10 years and to which he asserts he will return. Accordingly, the Tribunal is not satisfied that the proposed additional study has a reasonable prospect of providing significant value to his career beyond the existing qualifications.
The Tribunal turns to consider whether there are any other relevant matters. The Tribunal finds that there are no other relevant matters to consider that may be beneficial or adverse to the applicant, and that this aspect is not relevant.
The Tribunal has considered the applicant’s economic circumstances in his home country relative to his potential circumstances in Australia. Having regard to the disparity in economic circumstances between China and Australia, the Tribunal is not satisfied that the applicant has significant incentive to return to China. The applicant has been unable to demonstrate substantial ties or personal assets in his home country which diminishes his incentive to return to China.
The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from his proposed study which will outweigh the significant time and monetary commitment this course will require. Accordingly, the Tribunal is not satisfied that the applicant has demonstrated the value of his proposed course to his future.
The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 9 September 2018 the applicant has spent nearly five years in Australia and only approximately four weeks outside of Australia, and intends to remain in Australia, if permitted until at least 27 April 2024, all of which indicates that he does not appear to have strong personal ties to China. On balance, the Tribunal assesses the applicant’s incentive to return to China to be poor.
The Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. Whilst the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant was previously granted a visa specifically to enable him to achieve that goal. The applicant did not achieve a great deal during the currency of the first student visa. The applicant lodged this application one day prior to expiry of the visa. It therefore appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study.
The Tribunal has considered all information provided by the applicant in support of his application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding his circumstances in his home country, potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters, are sufficient to demonstrate that the applicant is a genuine temporary entrant.
On the contrary, the evidence suggests that the applicant has enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study. The Tribunal considers that the applicant is using the student visa programme as a means of maintaining ongoing residence in Australia, and does not have a genuine intention to stay in Australia temporarily.
There is no evidence before the Tribunal regarding the following factors indicated by Direction No.69: economic circumstances of the applicant; any potential military service in China; political or civil unrest circumstances in China; remuneration the applicant could expect to receive in China or a third country compared with Australia; circumstances in China relative to Australia or any other country; and the applicant’s circumstances in China relative to others in that country.
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.
Peter Booth
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 2703

13 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction