Mohammed (Migration)

Mohammed (Migration) [2023] AATA 3832 (7 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Khaleel Pasha Mohammed
CASE NUMBER:  2202340
HOME AFFAIRS REFERENCE(S):          BCC2020/2392713
MEMBER:David Thompson
DATE:7 September 2023
PLACE OF DECISION:  Perth
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 07 September 2023 at 4:38pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No 69 – circumstances in home country – personal ties in India – economic incentives – potential circumstances in Australia – value of the course – immigration history – breach of visa conditions – 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 3 February 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 30 September 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) because they were not satisfied that the information provided by the applicant was sufficient to satisfy them that the applicant was a genuine temporary entrant.
The applicant appeared before the Tribunal on 8 June 2023 to give evidence and present arguments.
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.
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.
Evidence
As well as giving oral evidence at hearing, the applicant has provided the Tribunal with the following documents:
a.the Delegate’s decision record and notification letter, both dated 3 February 2022;
b.a completed ‘Request for Student Visa Information’ form (M17), provided in response to the Tribunal’s request for information made pursuant to s 359(2) of the Act on 21 March 2023;
c.identification pages from the applicant’s Indian passport;
d.Confirmation of Enrolment (CoE) BA4EC973, in respect of the applicant’s enrolment in a Certificate IV in Accounting and Bookkeeping scheduled to run from 27 July 2020 to 23 July 2021;
e.CoE BA4EF822, in respect of the applicant’s enrolment in a Diploma of Accounting scheduled to run from 23 August 2021 to 17 February 2023;
f.CoE BA4F1579, in respect of the applicant’s enrolment in an Advanced Diploma of Accounting scheduled to run from 20 February 2023 to 16 August 2024;
g.CoE E18C4269, in respect of the applicant’s enrolment in a Certificate IV in Kitchen Management scheduled to run from 27 March 2023 to 22 September 2024;
h.CoE E18C4512, in respect of the applicant’s enrolment in a Diploma of Hospitality Management scheduled to run from 14 October 2024 to 13 April 2025;
i.a tax invoice/receipt issued by BHC Medical Centre of Lakemba, NSW, dated 30 September 2019 to the applicant in respect of medical services provided to him on that date;
j.a radiology report prepared by Dr Eric Brecher of Lakemba Radiology giving the results of an abdominal ultrasound study performed on the applicant on 3 October 2019;
k.a tax invoice dated 3 October 2019 issued to the applicant by Lakemba Radiology;
l.a medical imaging request form issued by Dr Mohamed Keritam dated 26 May 2022, requesting ultrasound imaging of the applicant’s left foot big toe;
m.a letter prepared by Dr Keritam in respect of the applicant dated 28 May 2020;
n.an emergency department discharge referral issued by Canterbury Hospital and dated 23 July 2021 in respect of the applicant;
o.a tax invoice dated 26 July 2021 issued to the applicant by Lakemba Radiology;
p.tax invoices dated 31 July 2021, 16 August 2021, and 21 October 2021 issued to the applicant by NSW Government Health – Sydney Local Health District;
q.a preliminary report from a CT Abdomen Pelvis scan of the applicant printed on 8 August 2021;
r.a prescription or treatment note issued by Dr S.J. Hussain of Unani Centre for Cardiac Care, Hyderabad, India, dated 19 May 2022;
s.a prescription or treatment note issued by Dr S.J. Hussain of Unani Centre for Cardiac Care, Hyderabad, India, dated 22 June 2022;
t.an ED Discharge Referral - eMeds dated 23 July 2021 issued with respect to the applicant by Canterbury Hospital, Sydney;
u.an ED Discharge Referral dated 7 August 2021 issued with respect to the applicant by Canterbury Hospital, Sydney;
v.a certificate issued in respect of the applicant by Dr Keritam dated 25 May 2023; and
w.an Australian Health Management OSHC claim statement dated 24 May 2023.
After the applicant lodged his review application, the Tribunal obtained the Department’s file on the applicant’s visa application. That file contains the following relevant documentary evidence not already mentioned above:
a.the applicant’s student visa application, lodged on 30 September 2020;
b.academic transcript in respect of the applicant’s Bachelor of Technology studies, dated 30 July 2015 and issued by Jawaharlal Nehru Technological University, Hyderabad; and
c.the applicant’s provisional degree certificate, certifying his completion of a Bachelor of Technology in Electronics & Communication Engineering, dated 30 July 2015.
In addition to the abovementioned documentary evidence, prior to hearing I obtained copies of the applicant’s records from the Provider Registration and International Student Management System (PRISMS) and the applicant’s movement record. It did not prove necessary to put any information from these records to the applicant pursuant to s 357AA in the course of the hearing, because the applicant provided the relevant information they contain independently.
Consideration
Background
The applicant is a citizen of the Republic of India. At the date of this decision, he is 30 years of age. He first arrived in Australia on 7 November 2018 as the holder of a TU-500 Student visa, granted on 28 October 2018 and valid until 30 September 2020. At that time, he was enrolled in a Master of Technology course, scheduled to run from November 2018 to August 2020. He ceased studying that course, and his enrolment was cancelled on 11 April 2019. His next enrolment was in a Certificate IV in Accounting and Bookkeeping, which commenced on 27 July 2020, which was part of a package of courses that also included a Diploma of Accounting and an Advanced Diploma of Accounting.
The applicant applied for a further student visa on 30 September 2020, and he was granted a bridging visa whilst his application was considered. The applicant did not complete his Certificate IV in Accounting and Bookkeeping, enrolment in that course and the other courses in the abovementioned package was cancelled.
The applicant’s student visa application was refused on 3 February 2023. He applied to the Tribunal for review of that decision on 21 February 2023. At the date of this decision the applicant is enrolled in a Certificate IV in Kitchen Management, scheduled to run from 27 March 2023 to 22 September 2024, and a Diploma of Hospitality Management, scheduled to run from 14 October 2024 to 13 April 2025. There is no evidence before me to suggest that the applicant was enrolled in any course of study between the cancellation of his enrolment in his package of accounting courses and 27 March 2023, and nor did he claim to have done so at hearing.
The applicant’s circumstances in his home country
The applicant gave evidence at hearing that he has family in his home country, in the form of his parents and four brothers. He stated that he contacts them by telephone 2 or 3 times each week. I note the applicant’s evidence that he has not returned to his home country since he first arrived in Australia. It is certainly the case that for a large part of the time in which the applicant has been resident in Australia, international travel has been well-nigh impossible due to the COVID-19 pandemic. Nonetheless, the applicant has had opportunities to visit his family in India since the easing of travel restriction but has not done so. That circumstance tends to indicate that the strength of the applicant’s family ties is not so great as might otherwise be the case.
The applicant stated that he had community ties in his home country in the form of involvement with an organisation known as AMMA Foundation, which is run by his father, and which operates an orphanage. He claimed at hearing to have remained involved in the foundation, but did not state precisely how he had done so at a distance.
I accept the applicant’s evidence on these points, so far as it goes, and find that the applicant has personal ties in India which would provide him with some incentive to return to that country at the conclusion of his studies in Australia.
The applicant has a Bachelor of Technology degree from Jawaharlal Nehru Technical University of Hyderabad. He gave evidence at hearing that before he came to Australia he was employed as network engineer by a company known as Highconics. He held that position from July 2015, shortly after graduation, to September 2018, and earned a starting salary of INR 180,000 per annum. At the date of this decision, that is the equivalent of approximately AUD 3,385.42 per annum. The applicant stated at hearing that he doubts that his health conditions would allow him to work in that field again. He gave evidence that he owns no property in India in his own name, although he gave evidence of some family assets, in which he expected to share in due course.
I find that the applicant has no particular economic incentive to return to India once he finishes his studies in Australia. That being said, I also find that the applicant has no positive economic incentive to avoid returning there.
The applicant stated at hearing that he had no military service obligations to perform on his return to India, and no concerns regarding civil or political unrest in that country. I accept that evidence, and find that these factors do not present the applicant with any incentive to avoid returning to his home country at the conclusion of his studies in Australia.
At hearing, asked the applicant whether he could study equivalent courses to those he is currently undertaking his home country. He said that some courses were available, but that he wished to obtain international qualifications in the area, because they could open many doors for him. He also stated that, although the fees charged for Indian courses were much less than those charged for Australian courses, he could not gain international exposure, such experienced trainers, practical work experience, and multicultural knowledge studying in India. I find that these are reasonable motives for deciding to study in Australia.
Taking these matters together, I find that on balance, the applicant’s circumstances in his home country tend to support his claim to intend genuinely to return there at the end of his studies in Australia.
The applicant’s potential circumstances in Australia
The applicant gave evidence at hearing that he has no family in Australia, and no community ties in this country. There is no evidence to the contrary before me, and I accept the applicant’s evidence on those points. The applicant also gave evidence that he has not entered into any relationship in Australia. Again, I accept that evidence. I find that the applicant has no personal ties to Australia that would give him any incentive to remain in this country once he has finished his studies.
The applicant also gave evidence that he has no assets in Australia, and that his only employment in this country has been as an Uber driver. I do not find that such work in itself would provide the applicant with any incentive to remain in Australia once he has imaged his studies. I find that the applicant has no economic incentive to remain in Australia at the conclusion of his studies.
There is no direct evidence before me to suggest that the applicant is using the student visa program to maintain residence in Australia. Nor is there any direct evidence that he is attempting to circumvent the intentions of the Australian migration program and any other way. I have already noted the applicant’s evidence that is not a relationship in Australia. Having accepted that evidence, I find that there is no evidence before me that he has entered into any relationship of concern, in the sense of the relationship contracted or contrived to improve his chances of obtaining a visa to remain in Australia.
At the date of the visa application subject of the current view, the applicant had been resident in Australia for approximately two years. During that time, it would have had ample opportunity to obtain first-hand experience in, and knowledge of, life, work, and study in Australia. This factor, although mentioned in the Direction, does not assist me to reach a decision in this case. The applicant did, however, give evidence of the manner in which he went about choosing his course provider. He stated that he searched for an identified a number of other colleges in his area (which he named in his evidence) offering similar courses, but closest current provider because well-structured and affordable courses in a convenient location, and appeared to have well-qualified and supportive staff and trainers. He also gave evidence that he chose this current course provider on the basis of the facilities it offered, and the student support services it made available. I find that these reasons and investigations are consistent with those one would expect on a genuine student. To that extent, the applicant’s evidence of sport supports his claim to be a genuine temporary entrant.
For these reasons, I find that the applicant’s potential (and indeed actual) circumstances in Australia supporters claim to intend genuinely to return to his home country once he has finished his studies.
The value of the applicant’s courses for his future
The applicant is currently studying at Certificate IV level. He has previously obtained a bachelor’s degree in his home country. He has, therefore, regressed in the level of his studies. However, he is currently studying in a completely different area to that in which he obtained his undergraduate degree. In those circumstances, I do not find that the applicant’s regression study level detracts from the value of his courses.
The applicant stated at hearing that his plan upon finishing his studies in Australia is to return to his home country and find employment in a restaurant or hotel. He spoke also of the possibility of starting his own business in due course. His current course of study is directly relevant to that plan.
The applicant also gave evidence that if he obtained employment in Australia at the end of his courses, he could expect to make between AU$1500 in AU$2000 per week. He stated that, comparatively speaking, he thought he could do better working in India. He explained that in reaching the conclusion he had taken into account the comparatively much greater density of the employment market in the near, and the fact that overheads would be considerably lower in that country that they are in Australia, due to differences in the cost of living and the opportunity to live with his family. Whilst this evidence is somewhat vague, I note that the applicant is only approximately six months into his package of studies. He cannot, in my view, expected to have any particular concrete plans worked out at this relatively early juncture.
Taking the matter set out above into account, I fund the applicant’s courses have value for him and his home country. This provides support to his contention that he intends genuinely to return to his home country at the end of his studies in Australia.
The applicant’s immigration history
The applicant gave evidence at hearing that he has never previously been refused a visa, and about Australia or by any other country, and has never had any visa issued to him cancelled or considered for cancellation. He also stated that he has no other Australian visa application on foot. He gave evidence that he has never attracted to any country other than Australia. There is nothing in the evidence before me to contradict any of the statements and I accept them.
There is no evidence before me to suggest that the applicant has never breached the emigration laws of any other country. However, there is evidence (as to which the paragraphs 13 to 15 above) that he has breached some of the conditions imposed on the student visa he held upon his arrival in Australia. In particular, the applicant would appear to have breached condition 8202, in that he was not enrolled in any course of study between 11 April 2019 and 27 July 2020, despite holding a student visa at the time (as required by condition 8202(2)(a), and in that when he did re-enrol in a course of study he re-enrolled at a level considerably lower in the Australian Qualifications Framework than that of the course for which he was granted his initial student visa (in breach of condition 8202(2)(b)).

This was put to the applicant at hearing. He did not deny that he had breached his visa conditions. His explanation for those breaches was that he suffered serious ill-health from early 2019, which manifested itself as continuous stomach pain, blurring of vision, and what was later diagnosed as hyperthyroidism. These conditions made it impossible for him to concentrate on his studies or to attend his classes. The applicant has provided considerable documentary evidence to support this claim. The documents listed at paragraphs 10(i) to 10(w) above attest to prolonged and relatively intensive involvement with the medical profession, in the form of doctors, hospitals, radiographers, and pathologists over the period in question. I am satisfied that the applicant did indeed suffer from health problems during the relevant period which were sufficiently serious to event him from studying. He explained his dropping course level once he did re-enrol by reference to the same circumstances, saying that he had decided he should take enrolment in a course he might feasibly complete given his condition, rather than going back to his original studies. Again, I am satisfied with this explanation. I find that the applicants breaches were the result of matters outside of his control, and that they should not therefore be taken to indicate an intention to remain in Australia on anything other than a temporary basis.
I therefore find that there is nothing in the applicant’s immigration history to suggest that he is anything other than a genuine temporary entrant. This provides support to his contentions.
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(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).
The applicant demonstrated at hearing that he was aware of the nature of the conditions that placed on any further student visa granted to him. He gave a positive undertaking to comply with those conditions. As I have found above, the applicant has some history of breaching his visa conditions. However, as I also found above, that was due to matters outside of the applicant’s control. I am therefore satisfied that his historical breaches do not give me reason to doubt his explicit statement of his intention in that regard.
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)).
It is apposite at this point to consider whether the applicant meets the requirement to be found in the chapeau to cl 500.212, that he genuinely intend to remain temporarily in Australia as a student. I have discussed above the gaps in the applicant’s studies. Against that factor, I note that the applicant enrolled in his current course of studies several months before any hearing invitation was sent to him. I find this to be evidence of a genuine intention to study, and I am therefore satisfied that the applicant does make the requirement that he intends to remain temporarily in Australia for that purpose.
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.
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.
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.

[2023] AATA 3832

7 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

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