Kumar (Migration)

Kumar (Migration) [2019] AATA 2692 (31 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Manoj Kumar
CASE NUMBER:  1718503
HOME AFFAIRS REFERENCE(S):           BCC2017/1019978
MEMBER:Michael Biviano
DATE:31 May 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 31 May 2019 at 1:43pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine temporary entrant criterion not met – no significant incentive to return home – using student visa to maintain ongoing residence –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212, 500.218
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 Immigration and Border Protection on 28 July 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 15 March 2017. 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 (the Regulations) for the reason that he was not a genuine applicant for entry and stay as a student because he did not intend to stay in Australia temporarily.
The applicant appeared before the Tribunal on 28 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
The applicant was assisted in relation to the review by his registered migration agent.
It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student because he does not intend to stay in Australia temporarily.
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 31 year old Pakistan national, who came to Australia on 1 July 2013. He entered Australia after obtaining, on 12 March 2013, an initial Student visa (Subclass 573), which was valid until 15 March 2017.
The decision record of the delegate of the Department of Immigration and Border Protection dated 28 July 2017, which was provided to the Tribunal by the applicant, confirms that the applicant made the application for the current Student (Class TU Subclass 500) visa on 15 March 2017 (Decision Record).
At the time of the current visa application, the applicant was enrolled to undertake a package of courses comprising a Certificate IV in Commercial Cooking, a Diploma of Hospitality and a Bachelor of Business.
Prior to the hearing, on 31 January 2019, 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 stay, in accordance with s.359(2) of the Act (Response).
In addition to the Response, the applicant filed a short written submission dated 21 March 2019 with supporting documentation, which the Tribunal has had regard to in making its decision (Submission).
The applicant in the Response, amongst other things, set out the courses he had studied and enrolled in while in Pakistan and Australia.
Between February 2002 and September 2009, the applicant completed matriculation at Alpha Secondary School in Pakistan, together with a Diploma of Electrical Engineering at YMCA Polytechnic Institute and a Bachelor of Technical Engineering at Indus Institute of Higher Education in Pakistan.
Between July 2008 and May 2012, the applicant worked as an assistant engineer with Technologies Link Pte Ltd, earning approximately AU$3,000 per annum.
Since arriving in Australia, the applicant has claimed that he studied the following courses:
(a)Between July 2013 and December 2013, he obtained an Elicos Certificate at Chisholm TAFE;
(b)Between March 2014 and February 2015, he studied a Bachelor of Engineering at Chisholm Institute of TAFE, but he ceased the course in February 2015. The Confirmation of Enrolment Certificate confirms the course he was studying was a Bachelor of Engineering Technology. The applicant gave evidence that he failed the first semester and passed only two subjects of the six subjects he was undertaking in the second semester.
(c)Between March 2015 and July 2015, he studied a Bachelor of Information Technology at NMIT, but he ceased the course in July 2015. The Confirmation of Enrolment Certificate confirms the education provider was Melbourne Polytechnic. The applicant gave evidence that he failed all four subjects he was undertaking in the first semester.
(d)In September 2015, he enrolled in an Elicos course at Stotts College, which he completed.
(e)In November 2015, he enrolled in and commenced a Certificate III in Commercial Cookery at Stotts College, which he completed in December 2016, and obtained a Certificate;
(f)In January 2017, he enrolled in and commenced a Certificate IV in Commercial Cookery at Stotts College, which he completed in July 2017, and obtained a Certificate;
(g)In July 2017, he enrolled in and commenced a Diploma of Hospitality Management at Stotts College, which he completed in December 2017, and obtained a Diploma;
(h)In March 2018, he enrolled in a Bachelor of Business at Stotts College. The applicant gave evidence that he deferred the course on medical grounds. The applicant, in support of his evidence, submitted a medical certificate from Dr Sarita Kotur of the Union Medical Centre, dated 19 March 2018, which confirmed that he was diagnosed with depression and unfit to continue studies for a further three months. A further medical certificate from Dr Sarita Kotur, dated 20 July 2018, confirmed that the applicant was still suffering the medical condition and was only able to study two subjects that semester.
(i)In September 2018, he enrolled in and commenced an Advanced Diploma of Hospitality Management at Stotts College, which he completed in March 2019, and he obtained an Advanced Diploma;
(j)In March 2019, he enrolled in a Bachelor of Business at Stotts College, which is due for completion in November 2021. The applicant submitted a Confirmation of Enrolment certificate for that degree.
The applicant gave evidence that he came to Australia to study English and a Bachelor of Engineering, but he changed his course of study from engineering to information technology and then to commercial cooking and then to an advanced diploma of hospitality. The applicant has now changed his course of studies and is seeking to obtain a Bachelor of Business.
The Tribunal recognises that it is important to allow for reasonable changes to career and study pathways. However, this is not the case where an applicant has merely decided to change careers through undertaking short VET courses.
The applicant was questioned about the value of studying the course he is currently enrolled in, and he gave evidence that he seeks to complete his Bachelor of Business, which he claims will take him two years to do, taking into account the credits he will receive from his previous studies. However, the Confirmation of Enrolment certificate stated that the course end date was 7 November 2021. The applicant gave evidence that, after completing his Bachelor of Business, he intends to return to Pakistan and open a restaurant with his brother in Karachi. The applicant gave evidence that he would not get a job in the hospitality business in Pakistan but would be starting his own business immediately on his return to Pakistan.
His evidence was inconsistent with the information he provided in the Response that once he obtained his qualifications he was intending to obtain work in a five star hotel and then later open his own venture.
The applicant has already obtained accredited trade qualifications in commercial cookery courses and hospitality management. The Tribunal finds that the applicant’s present study of a Bachelor of Business may only marginally improve his employment prospects and ability to commence his own business in the hospitality industry when considered alongside the qualifications and experience that the applicant has already obtained in Australia.
The Tribunal is not satisfied that the Bachelor of Business in which he is enrolled to study is likely to substantially increase his employment prospects and remuneration in his own country in light of the courses that he has previously completed.
When questioned about whether there are other similar courses he could study in Pakistan, the applicant gave evidence that there were such courses he could study, but he would not receive the credits from subjects he had studied in the Diploma and Advanced Diploma of Hospitality that he had completed, and he would have to study for four years in Pakistan to obtain a bachelor’s degree in business rather than the further two and a half years to get the Bachelor of Business at Stott’s College.
The Tribunal finds that the applicant has, during his studies over five years and 10 months in Australia, completed a diploma, an advanced diploma and two certificates, and he now wishes to study a bachelor’s degree. The applicant, if he completes the bachelor’s degree, will have remained in Australia for nearly eight and half years. The applicant has stayed in and studied in Australia for a long period of time, which is inconsistent with the stay being on a temporary basis.
When asked about the number of units in the current bachelor degree he is studying, the applicant gave evidence that he was about to commence studying the first four units, and there were only 14 units in the degree, having regard to the fact that he would receive credits from subjects that he had studied in relation to other courses. The Tribunal accepts that by reason of the applicant living in Australia for the last five years and 10 months, and having studied at Stotts College for in excess of three and half years, he has a substantial degree of knowledge of both living in Australia and of the education provider at which he is studying.
The applicant has given evidence that since coming to Australia:
a.Between July 2014 and July 2016, he worked as a pizza maker at Pepperoni’s Pizza, earning approximately $4,000 per annum; and
b.Between November 2016 and currently, he is working at Dockland Pizzeria as a pizza chef, earning approximately $9,000 per annum. Since January 2019, his hours have increased to 20 hours per week and he is being paid $21 per hour, and his income has increased to $420 per week.
The Tribunal has made this decision having regard to the applicant’s circumstances, in that he has not completed any higher education courses in the five years and 10 months he has been in Australia, and instead has completed a number of low level vocational courses. If the applicant now completes the Bachelor of Business degree he is proposing to finish in November 2021, he will have been in Australia for nearly eight and a half years. The Tribunal finds that the applicant’s proposed course of study and the fact that he has undertaken various vocational courses over a long period of time indicate an intention not to remain in Australia temporarily, but to maintain ongoing residence in Australia permanently.
The applicant gave evidence that if he returned home to Pakistan, he would live with his parents and he would seek to open a restaurant with his brother in Karachi. When pressed about his plans, he said that he had identified a site for a restaurant and that he estimated that he would need approximately AU$100,000 to fit-out and open a restaurant in Pakistan. When questioned about the site and whether there was a pre-existing building, he gave evidence that they had identified an area in which they would like to commence a restaurant, but not the actual site. The Tribunal finds that the applicant’s evidence was inconsistent on this issue. However he was adamant that he would not be getting a job and working for another person. The applicant, when asked what he would do if he did not complete his Bachelor of Business, gave evidence that he would open a restaurant regardless, with his brother.
The applicant gave evidence that if he completed the Bachelor of Business, he could, if he returned to Pakistan and got a job with his qualifications, expect to earn AU$15,000 to AU$20,000 per annum. The applicant gave evidence that this amount is substantially less than he would earn if he was to remain in Australia and obtain employment in a comparable position in Australia. The Tribunal accepts this evidence and finds that this would provide an incentive to remain in Australia.
The applicant, during his five years and 10 months in Australia, has returned home to Pakistan on three occasions. He returned home to visit family on 15 November 2014 for 35 days, on 30 November 2017 for 10 days and on 9 December 2018 for 19 days. The applicant has not travelled elsewhere during his stay in Australia. During the five years and 10 months the applicant has stayed in Australia, he has spent 64 days out of the country. Considering the short period of time that the applicant has spent in Pakistan over the last five years and 10 months, the Tribunal finds that the applicant’s conduct is consistent with him wanting to stay in Australia permanently and not return home.
In relation to the applicant’s circumstances in his home country before coming to Australia, he had obtained employment as an associate engineer with Technologies Link Pvt Ltd and he was involved in the installation of engineering and training equipment for universities and colleges. The applicant, in his Response, claimed that his earnings in that position equated to a salary of approximately AU$3,000 per annum. In evidence he gave varying and inconsistent responses as to what he was earning in Pakistan, from AU$500 per annum to AU$500 per calendar month to AU$30,000 per annum. When pressed about these inconsistencies between his evidence and his statement in the Response, he finally gave evidence that he was earning AU$3,000 per annum in his position in Pakistan.
The applicant claimed in his Response that the reason for coming to study in Australia was that the degree that he had obtained in Pakistan would equate to an associate degree in Australia and he wanted to further his studies. He admits in the Response that he struggled with the new study environment in Australia when he first studied here. The Tribunal accepts that evidence.
The applicant in the Response gave evidence that he had substantial assets and property in Pakistan. The Response states that the applicant has two flats and one plot of land in Pakistan worth AU$400,000 and other immovable assets such as gold and savings worth AU$100,000. When questioned about whether he owned those assets, the applicant conceded that they were not owned by him, but by his brother.
The Tribunal has had regard to the above inconsistencies between the applicant’s evidence and the information he provided in the Response.
The applicant gave evidence that he does not have any assets in Pakistan. The applicant has been living in Australia for the last five years and 10 months and intends to stay and study for a further two years and six months. His economic circumstances do not present the applicant with a significant incentive to return to Pakistan.
However the applicant’s personal ties to Pakistan, including having his parents and siblings in Pakistan, together with his fiancée, would ordinarily provide the applicant with incentive to return home. However, considering the applicant’s infrequent trips home, his length of stay in Australia and his intended stay for a further two and half years, the Tribunal finds that his circumstances in Pakistan do not present a significant incentive to return there.
Further, the applicant has previously completed one bachelor’s degree in Pakistan, two certificates, one diploma and one advanced diploma in Australia. His completed studies in Australia do not reveal academic progression, as the applicant has completed lower level VET courses rather than bachelor degrees, and they were not consistent with his level of education. However, the current bachelor degree he is undertaking is consistent with his level of education. The applicant is now undertaking a bachelor degree in Australia and the Tribunal accepts that the applicant’s current course of study is consistent with his level of education.

The applicant, both in the Response and in evidence, did not have any concerns about returning to Pakistan and no concerns about military service commitments and political and civil unrest in his home country. The Tribunal finds that they do not present as a significant incentive for the applicant not to return home.
The applicant gave evidence that his parents are well off and that on returning to Pakistan he would live with his parents, brother and his brother’s wife and he would be looked after financially. He intends opening a restaurant with his brother, and they would fund the cost of the fit-out and opening the restaurant by selling one of his brother’s properties. The Tribunal finds that, based on the applicant’s circumstances in his home country (including the financial support he has received from his family) relevant to others in that country, he is in a strong position and these circumstances would not provide a significant incentive not to return home.
The applicant conceded in evidence that he could study the Bachelor of Business degree in Pakistan but chooses to study the course in Australia, as he would be able to complete the degree in a shorter period of time than studying it in Pakistan, due to credits he would obtain from studying at Stotts College. Further, the applicant gave evidence that the Australian degree, relative to a bachelor’s degree in Pakistan, was worth more. The Tribunal finds that such conditions or concerns on their own are not a reasonable motive for not studying in Pakistan.
The applicant has personal ties both in Australia and at home in Pakistan.
The applicant gave evidence that his parents, his sisters and his brother reside in Pakistan and he has not seen them in person since December 2018, but he remains in contact with them by telephone, WhatsApp and Facebook. The applicant was also recently engaged to be married and his fiancée is also in Pakistan. Whilst the applicant has family ties in Pakistan, he does not have any assets in his own name in Pakistan. Given the period of time he has stayed in Australia and that he has returned home to visit his family infrequently in the five years and 10 months he has been in Australia, and he intends staying in Australia for a further two and half years, such ties do not provide a strong incentive to return home to Pakistan.
Further, the applicant has substantial ties to Australia. Of the five years and 10 months he has been in Australia, he has continuously lived in Dandenong with a friend from Pakistan for the entire time. The duration and stability of his living arrangements and his employment demonstrate his ties to Australia. The Tribunal finds that such conduct demonstrates that he has an incentive to remain in Australia rather than to return home.
The applicant in his Response has not identified any visa refusal or cancellation in Australia or elsewhere. There is nothing before the Tribunal from the delegate’s Decision Record to indicate that the applicant has experienced any other visa refusals or any immigration issues either in or outside Australia.
Based on the above matters, the Tribunal is not satisfied that the applicant has made this application to gain a student visa on a genuine basis and it considers that the primary objective of the application is to maintain ongoing permanent residence in Australia.
The Tribunal considers that the above circumstances are consistent with the applicant’s motivations to remain in Australia on a permanent basis and not on a temporary basis.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
Conclusion on cl.500.212
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Michael Biviano
Member

Attachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton
Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
dwhether 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.

[2019] AATA 2692

31 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction