Khan (Migration)

Khan (Migration) [2024] AATA 703 (26 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Amir Khan
REPRESENTATIVE:  Mr Pankaj Dumra (MARN: 0959608)
CASE NUMBER:  2200369
HOME AFFAIRS REFERENCE(S):          BCC2020/298277
MEMBER:Michael Biviano
DATE:26 February 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.

Statement made on 26 February 2024 at 9:40am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No 69 – Graduate Diploma of Management (Learning) – last course – improve employment prospects and level of remuneration – change of study pathway – satisfactory course progress – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 December 2021 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 4 February 2020. 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) for the reason that he was not a genuine applicant for entry and stay because he did not intend to stay in Australia temporarily.
The applicant appeared before the Tribunal on 23 March 2023 and 7 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Sedhat Khan, the applicant’s brother. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
At the hearing of 23 March 2023, the applicant claimed he was enrolled in the Advanced Diploma of Hospitality Management, but had not provided evidence of current enrolment as his course had extended and he did not provide a current Confirmation of Enrolment (COE). The Tribunal provided the applicant with a period of 7 days to provide evidence of enrolment and the applicant provided a COE within time regarding the Advanced Diploma of Hospitality Management together with a COE to undertake a new course, the Graduate Diploma of Management (Learning). In light of the further evidence the matter was relisted for a further hearing on 7 August 2023.
The applicant was assisted in relation to the review.
It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The applicant is a 39-year-old Indian National who first came to Australia on 14 March 2017 on a Visitor visa for a period of 3 months and then returned home. He gave evidence that in November 2019, he entered Australia on a visitor visa with his mother in November 2019 to visit his brother but he did not return home. He has remained in Australia since November 2019 and has undertaken study here.
The decision record of the delegate of the Department of Home Affairs dated 23 December 2021, which was provided to the Tribunal by the applicant confirms that the applicant made an application for a student (Class TU Subclass 500) visa on 4 February 2020 (Decision Record). The Decision Record set out the reasons for the visa refusal and confirmed that the applicant had enrolled in a Certificate III and IV in Commercial Cookery and Diploma of Hospitality Management, in order that he can work in the hospitality industry in India as a professional.
Prior to the hearing the applicant filed with the Tribunal a response within time pursuant to an invitation to supply student visa information about the courses he was studying and information about his entry and stay in Australia in accordance with s 359(2) of the Act (Response).
In addition to the Response the applicant has filed the following documentation in support of his application:
a.COE D8166C39 for the applicant to study the Advanced Diploma of Hospitality Management at Salford College with a course start date of 5 September 2022 and course end date of 5 March 2023, created on 4 October 2022;
b.Certificate IV in Commercial Cookery from Salford College awarded to the applicant on 23 May 2022 with transcript of academic results and letter of completion;
c.Diploma of Hospitality Management from Salford Colleges awarded to the applicant on 15 August 2022 with transcript of academic results and letter of completion;
d.Submissions from the applicant’s representative dated 22 November 2022 (Submissions).
After the hearing on 23 March 2023, the applicant filed further documents in support of his application within time pursuant to the direction made by the Tribunal, which comprised:-
a.    COE E133B812 for the applicant to study the Advanced Diploma of Hospitality Management at Salford College with a course start date of 6 March 2023 and a course end date of 28 May 2023, created on 24 March 2023;
b.    Transcript of Result Outcomes for the Advanced Diploma of Hospitality Management dated 27 March 2023, confirming that the course end date is 28 May 2023 and he had completed 4 of 6 competencies; and
c.     COE E4874A49 for the applicant to study the Graduate Diploma of Management (Learning) at the Ivory Institute, with a course start date of 5 June 2023 and course end date of 2 June 2024, created on 24 May 2023.
Prior to the adjourned hearing the applicant filed further documents in support of his application comprising:-
a.    Letter of completion from Salford College dated 26 May 2023 confirming that the applicant had completed the Advanced Diploma of Hospitality Management on 16 May 2023;
b.    Advanced Diploma of Hospitality Management awarded to the applicant together with Transcript of Academic Record; and
c.     Updated Statement of the applicant (Statement)
The applicant gave evidence that prior to coming to Australia he completed secondary schooling and from 2012 to 2019 he was self-employed in his business Zaka Property Consultants earning the equivalent of A$10,000 per annum and from March 2015 to November 2019 he was working as an Assistant Chef at Saify Hotel also earning approximately A$10,000 per annum.
The applicant in the Response claimed that he came to Australia in March 2017 to visit his brother who resides here and returned in June 2017. The Response claims that he visited Australia in November 2019 but his travel home was restricted due to the COVID-19 pandemic and he decided to remain here and study. He applied for a student visa on 4 February 2020. The applicant confirmed those circumstances in evidence. The difficulty with accepting that evidence is that at February 2020, the COVID-19 pandemic was in its infancy and the applicant was able to return home. However the Tribunal accepts that due to the uncertainty with the COVID-19 pandemic, he wanted to remain here with his family and utilise that opportunity to study here and obtain international qualifications.
The applicant in evidence confirmed that he came here on a Visitor visa with his mother to meet up with his brother and return home. The Tribunal accepts that the applicant came to Australia with that purpose but changed his mind when he was here, especially as a consequence of the uncertainty associated with the COVID-19 pandemic and he decided to study in Australia, once he decided to remain here.
The applicant in the Response and in evidence confirmed that while in Australia he has completed the following courses:-
a.    From January 2020 to March 2020, he studied an English Program course at Salford College;
b.    From April 2020 to May 2022, he studied and completed a Certificate IV in Commercial Cookery at Salford College;
c.     From January 2022 to August 2022, he studied and completed a Diploma of Hospitality Management at Salford College;
d.    From September 2022 to May 2023, he studied and completed an Advanced Diploma of Hospitality Management at Salford College.
The applicant is now enrolled to study the Graduate Diploma of Management (Learning) at the Ivory Institute, with a course start date of 5 June 2023 and course end date of 2 June 2024. If he completes that course it will extend his stay in Australia from November 2019 to June 2024, which is just over 4 ½ years which is a considerable period of time, but in light of the studies he has completed the duration appears reasonable if this is his final course and he intends returning home, which is the applicant’s position in this matter.
The applicant in the Response outlined his future employment plans as follows:-
This is my last course and I wish to return to my home country after completion of this course. There is acute shortage of modern skilled chefs and hospitality professionals. All the major international and domestic brands are there in India. However, they do not find suitable professionals from local schools who understand contemporary hospitality industry. That is why overseas trained professionals are in great demand. After the completion of my Australian studies, I will return to my home country India. I am very family oriented and share a great bond with all the members of my family. I am very attached to my mother. I would like to be near her while I build my career in India. I would join the hospitality industry in India after completion of my Australian studies and returning there as I am already aware of the hospitality industry in India and well known about the flaws of this industry. Australian education helps me to cope- up with these flaws and to compete in the market as a well renowned professional chef after gaining the required education and practical experience. I will have the best training and skills due to my Australian qualifications.
The demand for trained hospitality professionals in India is on the rise. Many major hospitality brands are expanding to smaller cities as well because of this unforeseen demand. There are many popular hotels in my city Pride Hotel, Lemon Tree, Radisson blue, The ambassador and Indore Marriott which are opening more hotels. This demand would give rise to a greater number of employment opportunities in the future in India. The mindset of the society in India has also changed in the past some years. The trend of eating out has caught up in the Indian society. India has one of the youngest populations in the world. Youngsters love to eat out. People are also moving to urban areas because of increased availability of employment opportunities. This has given rise to the setup of nuclear families. In a nuclear family, both husband and wife are generally working. At the end of the day, no one likes to cook when they come home from work. So, this has further increased the demand to set up more restaurants and eating outlets. People used to previously go out occasionally to eat but now this has become more of a routine due to the change in lifestyle as well as availability of more disposable income to them. All these factors have fuelled the growth of the hospitality industry. This growth in hospitality sector is set to continue in the future. So, there are more opportunities available to work as an employee or setup your own business in the hospitality sector in India. I plan to join an Indian multinational hospitality company to give polish to my skills and gain experience. My Australian studies would help me to gain an entry in this sector as I would be having the best of skills and knowledge.
I envision myself as a successful hospitality professional in India in the coming years. This is my dream and I am committed to realise it with my hard work, devotion and dedication. I require your visa approval to make this dream a reality. My family is supporting me in this decision of mine. All of us are really looking forward to the day I complete my education in Australia and then return to India to embark on my career journey there.
Notwithstanding that the applicant claimed that the Advanced Diploma of Hospitality Management, was his last course so that he could return to India and work in the hospitality profession, the applicant enrolled in a Graduate Diploma of Management at Ivory Institute.
The applicant in evidence confirmed that he has changed his plans and now claims that he does not want to work as a chef, but instead he wishes to open and manage his own restaurant. He gave evidence that on completing the Graduate Diploma course he will return home and seek employment in an international hotel as either a chef/manager and seek to gain experience to establish his own business.
The Tribunal notes that if the applicant is successful in the Graduate Diploma of Management course it would be the highest qualification he would have achieved and improve his level of qualifications to the extent that he would have completed a higher education course. While he has completed vocational education and training (VET) courses in Australia, the completion of the Graduate Diploma course coupled with the courses he has completed in Australia, is likely to improve his qualifications and skills, to the extent that it will improve both his employment prospects and level of remuneration back in India.
The applicant in evidence confirmed that he was wanting to undertake studies here in Australia rather than back in India because:-
a.    The courses in India were theoretical, whereas in Australia the course are more practical;
b.    It is difficult for a middle aged adult to get enrolled back in India, whereas he has obtained enrolment in Australia after completing courses here,
c.     He has made enquiries about what studies he could undertake back in India and the management courses in India were expensive, likely to cost A$20,000, whereas the tuition cost for the Graduate Diploma is $7,000.
Further the applicant claimed in the Statement that management courses in India are deficient as compared with Australia.
The Tribunal accepts the applicant’s evidence and further considers that the Graduate Diploma builds on his previous qualifications he has a reasonable motive to complete his studies in Australia.
Whilst in Australia the applicant has been on a bridging visa and a visitor visa. Other than working in placement for his studies he has not been employed whilst in Australia.
The applicant claimed in the Response that the salary of internationally qualified chef back in India would equate to $50,000 per annum. No documentary evidence was submitted to substantiate that wage. The Tribunal notes that the minimum wage in Australia for a full-time employee as set by the Fair Work Commission as at 1 July 2023 is A$23.23 per hour or A$882.80 per week.[1] This equates to A$45,905.60 per annum. The level of wages for qualified chef in Australia is substantially more than the minimum wage. In light of those matters, the level of wages for a chef in Australia are substantially more than the wages for a chef in India and provide a financial incentive for the applicant to remain here rather than return home.
[1] Fair Work Commission National Minimum Wage Order 2023 PR 762107
The Tribunal considers that the economic conditions in India are not as favourable as those in Australia and they would not present as a significant incentive for him to return home.
The applicant has changed his study pathway initially from undertaking cooking and hospitality course to now undertaking management. It appears from the applicant’s evidence that he sought to undertake the graduate Diploma of Management to enable him to work as a high level chef or manager, building on his qualifications. The current course is at the higher education level and is consistent with his level of education.
Further the Tribunal considers that the change in courses is reasonable and will lead to a higher level position back in India.
If the applicant completes the Graduate Diploma of Management, it will extend his stay in this country to a period of just over four and a half years, which is reasonable having the courses completed.
The applicant has lived in Australia for the last 4 years and 3 months and he has a substantial degree of knowledge about living in Australia. The applicant has previously undertaken subjects in management Diploma and Advanced Diploma courses and has been studying at his current provider the Ivory Institute in the last 8 month. The Tribunal considers by reason of the applicant’s education at the college and also in those studies that he has a substantial degree of knowledge about both the course and the provider.

The Response confirms that applicant has not returned home to India during his stay in Australia since November 2019. The Tribunal notes that the applicant did come to Australia in 2017 and returned home. The failure to return home over a period of 4 years and 3 months would ordinarily be consistent with an applicant not wanting to return home and remain in this country.
However the Tribunal also notes that for a substantive period of time from March 2020 until the commencement of 2022 there were travel restrictions imposed in this country by reason of the COVID-19 pandemic which limited the ability to travel home. When one considers all those matters the Tribunal makes no adverse finding about the applicant’s failure to return home over the course of the last 4 years and 3 months.
The applicant in the Response claimed that he owned the family house back in India which was worth approximately A$200,000. However, the applicant did submit a letter to Department from accountants dated 26 December 2019 which confirmed that he had various assets back in India including a property valued at approximately A$140,000 back in 2019. Accepting the increase in value over time, the Tribunal accepts he has land back in India, worth approximately A$200,000, but when one considers the level of income he could earn in Australia, the Tribunal does not consider that his asset position would provide a substantial financial incentive to return home to India.
The applicant in the Response confirmed that he did not have any concerns about returning to India and he had no concerns about military service commitments or political or civil unrest in his home country. The Tribunal finds that they do not present as a significant incentive for him not to return home.
The applicant has been supported in his studies from his mother in India and his brother here in Australia. The Tribunal considers and finds that based on the applicant’s evidence and the circumstances in his home country including his education, financial position and support from his family that relative to others in that country he is in a good position and it would not provide a significant incentive for him not to return home.
The Tribunal has considered the applicant’s evidence and documents and is satisfied that the applicant is not in a relationship of concern for a successful visa outcome.
The applicant has personal ties both in Australia and in India.
Back in India the applicant has his mother, which would ordinarily provide him with an incentive to return home. The applicant in the Response confirmed that he last saw his mother in October 2022 and remains in regular contact. When coupled with his assets back home, such ties provide an incentive to return home, however, must be considered in light of his circumstances here which include that he has been in this country for a period of 4 years and 3 months, he intends to stay in this country for at least a 4 months and the level of income he can earn here. In such circumstances the Tribunal finds that his ties to his home country do provide a substantial incentive for him to return home.
The applicant has substantial ties to Australia. He has been living in stable accommodation with his brother for the last 4 years. He is has the ability to earn a high level of income. His ties to Australia also provide him with a substantial incentive to remain in this country rather than to return home.
The applicant has not identified any visa refusals or cancellations in Australia or elsewhere. There is nothing before the Tribunal from the delegate’s Decision Record to indicate that the applicant has experienced any other visa refusals or any immigration issues either in or outside of Australia.
When one considers that the applicant has diligently studied while in Australia and completed a Certificate IV in Commercial Cookery, a Diploma and Advanced Diploma of Hospitality Management, and is now undertaking a Graduate Diploma of Management (Learning) which is a course at the Higher education level, which is about to conclude, coupled with the applicant’s future prospects, the Tribunal accepts that the applicant is undertaking study to advance his employment prospect and level of remuneration and is a genuine applicant.
The Tribunal accepts that the applicant is seeking to gain a student visa for the purposes of genuinely seeking to complete his studies and return home.
In light of the above matters the Tribunal is satisfied that the applicant has made this application to gain a student visa to study temporarily.
On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).
Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
DECISION
The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.
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.

[2024] AATA 703

26 February 2024

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Immigration

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