Kaur (Migration)

Kaur (Migration) [2022] AATA 4527 (8 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Kulbir Kaur
Mr Sukhdeep Singh
Master Kaviraj Waraich
REPRESENTATIVE:  Mr Harsimranjit Singh Gill
CASE NUMBER:  2115002
HOME AFFAIRS REFERENCE(S):          BCC2020/1352326
MEMBER:David Thompson
DATE:8 November 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.

Statement made on 08 November 2022 at 11:39pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – lengthy stay in Australia – substantial academic progress to benefit future career – land ownership in India – strong economic and family ties in home country – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 359, 499; Direction No 69
Migration Regulations 1994, Schedule 2 cls 500.212, 500.611
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 5 October 2021 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 12 April 2020. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas 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 they were not satisfied that the applicant intended genuinely to stay temporarily in Australia.
The applicants appeared before the Tribunal on 22 April 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicants were assisted in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant meets the requirements of cl 500.212.
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.
Evidence
The applicant gave evidence at hearing. I found her a forthright witness, who did not evade any of my questions, and whose evidence was clear and convincing. Unless I have stated otherwise below with regard to particular points, I accept her oral evidence.
The applicant provided the Tribunal with the following documentary evidence:
a.the delegate’s decision record and notification letter, both dated 5 October 2021;
b.a completed Request for Student Information form, provided in response to an invitation issued by the Tribunal pursuant to s 359(2) of the Act on 15 February 2022;
c.Confirmation of Enrolment (CoE) B6B45B50, in respect of the applicant’s enrolment in an Advanced Diploma of Hospitality Management, scheduled to run from 4 October 2021 to 2 October 2022;
d.CoE B6B3FC59, in respect of the applicant’s enrolment in a Certificate IV in Commercial Cookery, scheduled to run from 6 April 2020 to 3 October 2021;
e.a copy of a land title record (Jamabandi);
f.a certificate of completion of a Certificate IV in Commercial Cookery issued by Apex Institute of Education to the applicant on 25 February 2022, with transcript of academic record and completion letter attached; and
g.a letter from Apex Institute of Education dated 21 April 2022, confirming the applicant’s enrolment in an Advanced Diploma of Hospitality Management.
Prior to hearing, the Tribunal obtained the Department’s file on the applicants’ visa applications. That file contains the following relevant documents not already mentioned above:
a.the applicant’s visa application, lodged on 12 April 2020;
b.identification pages from each of the applicants’ Indian passports;
c.an extract from the Hindu Marriage Register, giving details of the applicant’s marriage;
d.a certificate of completion of a Certificate III in Hospitality (Asian Cookery) issued to the applicant by Austech Institute for Further Education on 30 October 2009, with transcript attached;
e.a certificate of completion of a Diploma of Hospitality Management issued to the applicant by Austech Institute for Further Education on 11 February 2010, with transcript attached;
f.a certificate of completion of a Diploma of Business issued to the applicant by Australian Vocational Learning Centre on 13 December 2012, with transcript attached;
g.a certificate of completion of an Advanced Diploma of Hospitality Management issued to the applicant by Apex Institute of Education on 22 February 2011, with transcript attached;
h.a certificate of completion of a Diploma of Business Administration issued to the applicant by Strathfield College on 29 March 2012, with transcript attached;
i.a certificate of completion of an Advanced Diploma of Business issued to the applicant by Australian Vocational Learning Centre on 6 January 2014, with transcript attached;
j.a degree certificate issued by the Punjabi University Patiala dated 21 June 2007, attesting to the award of a Bachelor of Arts degree to the applicant
k.the applicant’s Punjabi University academic records;
l.the applicant’s Senior Secondary (12^th class) Examinations Certificate, issued by the Punjab School Education Board and dated March 2004;
m.the applicant’s Matriculation Examination Certificate, issued by the Punjab School Education Board and dated March 2002;
n.the third-named applicant’s Australian birth certificate;
o.Ms Ishwin Kaur’s Australian birth certificate;
p.the applicant’s statement addressing the Genuine Temporary Entrant requirement;
q.the second-named applicant’s St George Bank account statement for the period 5 October 2019 to 4 April 2020;
r.the second-named applicant’s St George Bank Incentive Saver transaction listing for the period 21 January 2020 to 20 May 2020;
s.a Commonwealth Bank of Australia balance confirmation letter regarding the applicant’s own bank account, dated 21 May 2020; and
t.a St George Bank Proof of Balance report, directed to the second-named applicant.
I have also obtained a copy of the applicant’s record from the Provider Registration and International Student Management System (PRISMS), and of each of the applicants’ movement records. Some of the information contained in the applicant’s PRISMS record was put to her in the course of hearing, pursuant to s 359AA of the Act.
I have also considered the applicants’ representative’s written submissions.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The applicant’s circumstances in her home country
The applicants are citizens of the Republic of India. The applicant gave evidence at hearing that she has some family in her home country, in that her parents, her mother-in-law, and her brother all live there. She also gave evidence that she contacts them daily, by means of online video calls. She also gave evidence of community involvements through the local Sikh temple, in the form of voluntary work for the needy. She stated at hearing this is an activity she would take up again on her return to India. I find that these personal ties with her home country give the applicant a reasonably strong incentive to return there once she has finished her studies in Australia.
The applicant also gave evidence at hearing, supported by documentary evidence, that she completed a Bachelor of Arts degree at the Punjabi University Patiala in 2007. This represents the highest level of academic achievement in her home country. She has no work history in India, having come to Australia to further her education shortly after the conferral of her degree. I note that between conferral of her degree and coming to Australia, the applicant and the second-named applicant married. The applicant gave evidence that her husband owns agricultural land in India. She supported that evidence a land registration document which clearly shows that he owns shares in a number of plots of land. The applicant’s evidence is that her husband derives income for his family from that land, even though he is living in Australia with her. There is no evidence that the applicant has any property or assets in India in her own name. However, given the length of time for which she and her husband have been married, I find that it is reasonable to treat his registered interest in land as property available to the applicant also. I find on that basis that the applicant has economic ties with her home country that would provide her with some incentive to return there once she has finished her studies in Australia. Certainly, there is no evidence before me to suggest that the applicant has any economic reason positively to avoid returning to her home country once she finishes her studies.
The applicant’s evidence at hearing was that she has no military service obligations to perform on her return to India, and no concerns regarding civil unrest in her part of that country. There is nothing before me to suggest that she should have any such concerns, and I accept evidence on these points.
I asked the applicant at hearing why she had chosen to study in Australia rather than in her own country. Her response was that the courses she wishes to undertake, and is currently undertaking, are not available to her in India. She explained that her plan was to work in a kitchen specialising in Western cuisine, and ultimately to open her own restaurant serving Western food. She said that hospitality courses of a sufficient standard dealing with Western cuisine were not available to her in India. She also stated that having an international qualification would help her obtain work in a large local hotel or a hotel that is part of an international chain. This would be a great advantage to her in preparing to open her own restaurant. I find that these are good reasons for the applicant to decide to study in Australia rather than in India, and that her evidence on these points gives considerable support to her claimed to be a genuine temporary entrant.
Taking these matters together, I find that the applicant circumstances in her home country if considerable support to her claimed to intend genuinely to stay in Australia only temporarily in order to study.
The applicant’s potential circumstances in Australia
The applicant also gave evidence at hearing about her circumstances in Australia. She has family in Australia, in that her husband and 2 children are accompanying her during her stay in this country. She also has a brother currently resident in Australia, but he is doing so as the holder of a temporary visa (a VC-485 Skilled — Graduate (Temporary) visa). The presence of applicant family Australia is a cause for some concern. Although the applicant’s husband and younger child (the third named applicant) have no greater right to reside in Australia permanently than the applicant does herself, the applicant gave evidence that her daughter has now become an Australian citizen. As the applicant’s daughter is currently 12 years old, I find it unlikely that she will remain in Australia about her parents or brother. The applicant gave evidence that she and her husband were considering having their daughter educated in Australia as a boarder at a boarding school, and that this would involve them in making frequent visits to Australia, as well as their daughter making frequent visits to India. Having Australian citizenship would provide their daughter with an obvious advantage in carrying out this possible plan. However, I find that this falls well short of evidence of an intention on the applicant’s part to remain in Australia permanently, and indeed well short of evidence for the existence of such an intention on the part of any other member of her family.
The applicant’s evidence was that she has no community ties in Australia. There is nothing in the evidence before me to suggest otherwise, and I accept this to be the case.
The applicant gave evidence that she has no property in Australia. She has a history of working in Australia, having worked between September 011 and February 2012 in a café at the Hilton Hotel in Sydney, and as a café manager in another establishment between June 2013 and October 2016. She stated that in the latter position, which she occupied whilst resident in Australia on a VC-457 visa, she earned $57,300 per annum. She has not worked since October 2016, but I find that her experience working in Australia would place her in a position of some advantage in finding further work of that kind in Australia.
I find that the applicant has no personal ties that would give her any incentive to remain in Australia other than temporarily, despite the fact that she may well have incentives to visit Australia on a temporary basis after she finishes her study in this country. I find, however, that she has some economic incentive to remain in Australia permanently. This detracts from her claim to be a genuine temporary entrant, but only to a relatively small extent.
There is no evidence before me that the applicant has entered into any relationship of concern in Australia, in the sense of a relationship contracted or contrived to improve her chances of obtaining a visa. Indeed, the evidence tends directly to the contrary. There is no direct evidence before me to suggest that the applicant is using the student visa system simply to maintain residence in Australia, or that she is attempting to circumvent the intentions of the Australian migration programme in any other way. This supports her claim to be a genuine temporary entrant.
The applicant has had extensive practical experience of life, study, and work in Australia before lodging the visa application the subject of the present review. A consideration of her level of preparation for life in Australia does not, therefore, assist me in determining her intentions in deciding to come to Australia, or as to the intended length of her stay. At hearing, I asked the applicant how she had come to choose her present course provider. She stated that she had researched potential course providers online, and had found that the courses she had wanted to study were offered by a provider with whom she had previously studied, and with whom she had been very satisfied. This appears to have been her chief reason for choosing her current provider. I find that it is a reasonable basis upon which to do so, in the circumstances of this case. This supports her claim that she seeks to remain in Australia in order to study, and consequently that she intends to remain in this country temporarily.
Taking these matters together, I find that on balance the applicant’s actual and potential circumstances in Australia support her claim to be a genuine temporary entrant.
The value of the applicant’s courses for her future
The applicant has previously obtained a Bachelor of Arts degree, as stated above. The documentary evidence before me shows that her studies in that course were reasonably general in nature, but concentrated on political science, folk art and culture, and Punjabi literature. The highest level of course she has undertaken in Australia has been at Advanced Diploma level, and many have been at lower levels than that. Her studies in Australia therefore represent a regression in level, strictly speaking. However, they have been in entirely different areas: broadly speaking, business and management, and hospitality. I do not, therefore, find that the regression in study level I have mentioned is prejudicial to the applicant’s case.
The applicant’s evidence at hearing was that she planned to find work in the kitchen of a large local or international hotel on her return to India, and to continue in such employment for a number of years until she was ready to open her own restaurant. Her current courses are directly relevant to that plan.
The applicant also gave evidence as to the salary she could expect to earn using her Australian qualifications in India. She stated that according to her research she could expect to earn approximately INR 25,000 per month to begin with, and as much as INR 60,000 per month within 2 years of starting. Those figures are the equivalent, on exchange rates prevailing on the date of this decision, of approximately AU$475 per month and AU$1135 per month respectively. The applicant’s evidence was that she might expect to earn between AU$800 and AU$900 fortnightly as a starting salary working in Australia. She stated that differences in cost of living generally, and the availability of free accommodation for her in India, she would be better off working in India than in Australia. She also stated that once her own restaurant was up and running, she could expect to earn twice as much India she could earn in Australia. These statements were based on the applicant’s research into salaries available in India in five-star hotels. To that extent, I accept that there is some foundation for her predictions as to the salary she would employee. No particular basis was given for her predictions as to her earnings in her own business, and I am less inclined to accept the evidence in that respect. However, that plan may never eventuate.

For the preceding paragraphs, I am satisfied that the applicant’s studies in Australia have real value for the future in India, and indeed more value than they would have for any similar future she might contemplate in Australia. This provides considerable support for her claim to intends genuinely to return to India once she has finished her studies in Australia.
The applicant’s immigration record
There is notice before me to suggest that the applicant has never previously been refused a Visa, either by Australia or any other country. Nor is there for me to suggest that the applicant has ever had these are issued to her cancelled. There is no evidence before me suggesting that she has ever breached immigration laws of Australia or any other country. In that regard, I note the applicant’s evidence that she has travelled to Canada as well as to Australia. Finally, there is no evidence before me that the applicant has any other Australian Visa application on foot. All of these considerations support her claim to be a genuine temporary entrant.
The applicant first arrived in Australia on 15 August 2008, as the holder of a TU-572 student visa granted on 7 August 2008 and valid until 15 December 2010. She has since held to further TU-500 student visas and two VC-457 Skilled – Graduate (Temporary) visas. She has resided in Australia for some 14 years, in which time she has made 3 visits to her home country. The first of those visits was for approximately one month, and the other two visits for several months each. This is an extremely long period of residence on temporary visas, and could be taken as evidence of an intention to stay in Australia evidently. However, before coming to that conclusion it is necessary to consider how the applicant has used her time in Australia.
Whilst on student visas, the applicant has completed the following courses:
a.General English (Beginner to Advanced);
b.Advanced Diploma of Management;
c.Diploma of Business Administration;
d.Diploma of Business;
e.Advanced Diploma of Business; and
f.Certificate IV in Commercial Cookery.
The applicant is currently studying for an Advanced Plan of Hospitality Management, and expects to finish that course in April 2023. Having examined the applicant’s PRISMS record, and having put particulars to her pursuant to s 359 AA of the Act, I find no indication that the applicant has had any gaps in enrolment whilst resident in Australia on a student Visa. Further, on her evidence (which I accept) she has spent her time whilst resident in Australia on VC-457 visas working in positions consistent with her Australian qualifications. This record must be balanced against the sheer length of stay. I find that in the circumstances of this case, the length of the applicant state does not indicate an intention to remain in Australia on anything but a temporary basis.
For these reasons, I find that the applicant’s immigration record gives support to her claim to intend genuinely to stay in Australia only temporarily for the purposes of study.
Conclusion on cl 500.212(a)
On the basis of the above, I am satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).
Does the applicant intend to comply with visa conditions?
For the applicant to meet cl 500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl 500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed in some cases (cl 500.611(28303 (no disruptive or violent activity) and 8534 (limited visa entitlement).
Hearing, attempt demonstrated knowledge of the conditions that would be placed on any student Visa granted to her, and positively stated that she would comply with all such conditions. There is no evidence before me whatsoever to suggest that the applicant has ever previously breached any condition on any of the visas she has held.
On the basis of the above, I am satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl 500.212(b).
Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?
For the applicant to meet cl 500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl 500.212(a) and (b)).
No other relevant matter arises for consideration on the evidence before me.
Accordingly, I am satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
That being the case, the basis upon which to delegate used to grant student visas to the second and third named applicants falls away. The appropriate course in their cases also as to remit the applications to the Minister to consider the remaining criteria for a Subclass 500 (Student) Visa. I note that in some of the papers before me, the applicant’s daughter Miss Ishwin Kaur is referred to as an applicant in this review application. Miss Kaur’s name does not appear on the formal Application for Review lodged on 25 October 2021. It was made clear in the course of the applicant’s evidence at hearing that this was deliberate, which was to the effect that Miss Kaur obtained Australian citizenship between the lodgement of the relevant visa application (on which she was named as a migrating member of the applicant’s family unit) and the lodgement of the Application for Review. There is, therefore, no need for me to make any direction in her respect.
DECISION
The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.
David Thompson
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.

[2022] AATA 4527

8 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies