Nada (Migration)

Nada (Migration) [2021] AATA 872 (12 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Abhishek Nada
CASE NUMBER:  1914467
HOME AFFAIRS REFERENCE(S):          BCC2019/1363077
MEMBER:Michael Biviano
DATE:12 March 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 12 March 2021 at 5:30 pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – change in study pathway – Automotive Courses – job prospects or level of income in India – substantial economic incentive to remain in Australia – substantial ties to Australia – decision under review affirmed
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 22 May 2019 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 18 March 2019. At the time of application, Class TU contained 2 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(a) 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 17 August 2020 to give evidence and present arguments.
The applicant was assisted in relation to the review by their 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 was 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 27-year-old Indian national who first came to Australia on 3 March 2017 pursuant to a Student Class TU-500 visa to study a Master of Information and Technology at Charles Sturt University, which he did not complete.
On 18 March 2019, he made a further application for a Student (Class TU-500) visa, which was refused on 22 May 2019 and is now the subject of this review application. The applicant intends studying a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Automotive Mechanical Diagnosis, and a Diploma of Automotive Technology, which were due for commencement on 27 March 2019 and completion on 30 May 2021 (the Automotive Courses).
The applicant gave evidence that prior to coming to Australia, he completed high school and a Bachelor of Technology in Computer Science and Engineering from Bapatia Engineering College, and then undertook studies in English, then an IELTS course and a PTE course which he completed in India.
The Decision Record of the delegate of the Department of Home Affairs dated 22 May 2019, which was provided to the Tribunal by the applicant, confirms that the applicant made his application for the current Student (Class TU Subclass 500) visa on 18 March 2019. The applicant has remained in Australia on an associated bridging visa.
At the time of the Decision Record the applicant had enrolled in the Automotive Courses, which he was intending to undertake at Acumen Institute.
On 4 May 2020, 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). The Response was also supported by the following documents which were filed with the Tribunal:
a.Confirmation of Enrolment (CoE) numbered A3741862 for the applicant to study a Certificate IV in Automotive Mechanical Diagnosis at Acumen Institute between 22 April 2020 and 2 September 2020, which was created on 19 December 2018;
b.Certificate III in Light Vehicle Mechanical Technology from Acumen Institute dated 20 April 2020 with a Statement of Attainment and Course completion letter;
c.Genuine Temporary Entrant Statement (GTE Statement); and
d.CoE numbered A3744549 for the applicant to study a Diploma of Automotive Technology at Acumen Institute between 13 September 2020 and 30 May 2021, which was created on 19 December 2018.
The applicant gave evidence that when he came to Australia to study the Master’s degree, he had successfully passed the 4 subjects that he had studied in the first semester. But he claimed that he then struggled with his studies and failed the next 12 subjects in the course. The applicant claimed that he struggled with his studies because:
a.He had bouts of asthma; and
b.He had the support of his sister and family when he was in India but complained he was alone in the second semester and he lost confidence in his studies.
The applicant gave evidence that he went to the pharmacist about his asthma condition and was able to obtain some medication similar to the medication he uses in India, but he did not seek treatment from a doctor. The Tribunal considers that if the applicant’s condition was so severe, he would have consulted a doctor here in Australia and been prescribed medication that would have assisted him with his condition.
The applicant claims that he could have finished the Master’s course, but it was his parents’ dream to undertake such studies and he merely wanted to undertake the Automotive Courses and work with cars.
In December 2018, he enrolled in the Automotive Courses.
While studying in October 2017 he obtained employment at an IGA Supermarket as a store member, for which he claimed he worked part time, 7-10 hours per week, and was paid approximately AU$300 to AU$350 per week. He lost that job before the hearing due to the COVID-19 pandemic. At the time of the hearing he worked in a restaurant and was paid approximately AU$18.00 per hour; he claimed he worked some 10-15 hours per week, earning on average AU$250 per week.
The applicant gave evidence that he seeks to gain employment as a motor mechanic back in India. The applicant in the GTE Statement stated:
I first came to Australia to study “Master in Information Technology”. And I really struggled and found it difficult to cope up with the pace of the course. I had done “Bachelors of Technology in Computer Science” from India and doing a Masters in the same field seems an obvious choice. But I realized after coming here that I was chasing my parent’s dream of having me established in IT field rather than my own. No doubt, IT sector is booming in India but my interest lies elsewhere. After coming to Australia, I observed that every individual chose a career of their own choice whereas I have been in a race for making a career in a field that my parents have selected for me. While I followed the designated path which I was intended to walk but gradually I lost interest & motivation and it started reflecting on my score. As a result, I failed some of the subjects in my semesters. I consulted my professors and they advised me that no career or job is less good than the other one and one should always choose a career of his/her interest, so they can put in their best efforts in the work they do. Eventually, I selected Automotive as my passion, as I always have been fond of Automobiles and the fact that the India has a rapidly growing automotive market. India is 4th largest automotive industry in the world and there is a lot of unexplored potential in this field especially in maintenance and repairs of high-end segment cars.
…
As I mentioned earlier, automotive industry is huge in India and expected to grow more in coming years. Not only metro cities but even small towns have ample demand of automobiles these days. While I have observed many small cities in India lacks quality maintenance of vehicles which is mostly due to lack of skills, negligence and awareness of new automotive standards.
We all know, many international automotive brands have already entered Indian market and they always look for qualified candidates. If I complete my qualification in Australia, I will get an edge over other competitors. As per my visa condition, I can also work 40 hours fortnightly, I am planning to work part-time in my field as an au-tomotive mechanic to gain more exposure. I have completed certificate III which is basic requirement to work as a mechanic. I am hopeful of securing job in coming months.
After returning to India, I have planning to initially join a reputed garage to gain some experience and eventually works towards starting my own service centre in my home town in India.
The applicant gave evidence that if he returned back to India with qualifications in the Automotive Courses he would earn approximately 5 Lakh per annum in India, which he claimed would equate to AU$10,000 per annum, working as a mechanic with Tata Motor Industries, claiming he was confident he would be able to get a position with those qualifications. When questioned about what income he would expect to earn in Australia if he worked as a mechanic, he confirmed that he expected the income to be AU$50,000 per annum. The level of income that he would earn back in India is not a high level of income, especially having regard to his Bachelor degree qualifications. While the Tribunal accepts that the applicant, by studying the Automotive Courses, will improve his job prospects, and that they will enable him to work as a mechanic back in India, in light of the courses that he has completed in Australia, in particular the Certificate III, and given that he was on the verge of completing the Certificate IV course, it does not accept that the Diploma would improve his job prospects or level of income back in India, especially having regard to the qualifications he has completed in India and in Australia.
The Tribunal notes that the level of income he will earn in India is substantially lower than the level of income he has had working in Australia on a part time basis, and that he is likely to earn if he remained in Australia on a permanent basis. If the applicant remained in Australia and obtained employment as a mechanic, he gave evidence he would earn approximately AU$50,000. The level of income he would earn in Australia if he stayed here compared to the level of income in India would provide him with a substantial economic incentive to remain in Australia and not to return home.
The applicant has worked in Australia since October 2017 and his level of income, at AU$350 per week, is a modest level of income, however, that level of income is substantially more than he would earn in his home country and would provide him with a substantial financial incentive to remain in Australia and not return home. He has been supported financially by his family.
It is common knowledge the economic conditions in Australia are better than those in India and that would provide him with a substantial economic incentive to remain in Australia and not to return home to India.
The applicant has changed his study pathway and career from Information Technology to Automotive Technology. The courses that he is studying in Australia, that is, the Automotive Courses, are not complementary or connected to the Information Technology courses he has studied and the Bachelor’s degree that he has obtained in India. Those courses do not lead to a career path or position of employment.
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 vocational education training (VET) courses. The courses that the applicant has enrolled in and is studying in the Automotive Courses, since studying the Master’s degree, are all short VET courses and are not at the higher education level. The Tribunal notes that the applicant has previously obtained tertiary qualifications, including a Bachelor’s degree. The courses that he is currently enrolled in are all short VET courses and the Tribunal considers that the applicant is using these short inexpensive VET courses merely to extend his stay in Australia.
The Tribunal considers that the Automotive Courses the applicant is studying, both at Certificate and Diploma level, do not represent academic progression, having regard to the fact that he had previously completed tertiary qualifications in India, including a Bachelor’s degree.
The Tribunal is also concerned that the applicant is studying short vocational education training (VET) courses to stay here. The courses that the applicant has enrolled in in Australia and is now studying are all short VET courses and are not at the higher education level. The Tribunal considers that the applicant is using these short inexpensive VET courses merely to extend his stay and to reside here in Australia.
The applicant claims that he has plans to complete the Automotive Courses and return to India and show his parents that he is able to undertake those studies and choose his own career direction. The applicant in his evidence focused on the nature of his relationship with his parents, stating they are strict, and they forced him to undertake studies in Information Technology both in India and Australia. He claims that they were exerting a degree of control over his life. They are financially supporting him in Australia in his studies. The applicant appears to have decided to remain here and maintain residency in Australia and avoid returning home. The Tribunal considers that such circumstances provide the applicant with a substantial incentive to remain in Australia. The Tribunal considers that the applicant is using his application for a student visa to remain here rather than to genuinely undertake study.
The Tribunal does not accept that the Academic Courses that the applicant is studying represent academic progression having regard to the fact that he has already completed a Bachelor’s degree and the courses he is now studying are at Certificate and Diploma level.
The applicant in evidence accepted that he could study similar courses or obtain qualifications back in India to be a mechanic. The applicant claimed that he could not have studied those courses back home as his parents would not have wanted him to study those courses and the technology in Australia is far superior.
The applicant in the GTE Statement claimed:
I did my graduation from a reputed institute in India and want the best for my further studies as well. While there are plenty of good Institute in India for higher studies, mostly highly rated Universities are only in metropolitan cities which are far from my place. I discussed with my parent and since it’s a question of moving away from home, I decided to obtain the education from best possible place.
I decided to go for qualification from Australia as it is in great demand in India. This has further allowed me to gain world class knowledge and also international expo-sure. Australia is amongst top education provider to international students in the world and a qualification from here will give me an advantage over other candidates during job quest in India. The teaching techniques are quite advance and modern classroom focused with all latest research and technology present in the world. More-over, institutes here stress more on practical classes and real time experience than theoretical learning. Australia is very safe, multicultural, ethical, vibrant and leading with examples in all the fields.
I am sure a qualification from here will help me learn all basic yet important elements needed to establish myself in automotive industry and enables me to secure a good job in India.
Notwithstanding the applicant’s grounds for wanting to study in Australia, the Tribunal does not accept that the applicant could not have undertaken studies in India to obtain qualifications to work as a mechanic. The applicant has completed the Certificate III and IV courses which would enable him to work as a mechanic. The cost of undertaking the courses in Australia would outweigh the cost of studying in India. Further, the courses that he is studying are relevant to the issue of becoming a mechanic, which he could undertake in India. In all the circumstances, the applicant does not have a reasonable motive to study this course in Australia.

The Tribunal is satisfied that the applicant, by reason of the duration of his stay, being more than 4 years, has a substantial degree of knowledge of living in Australia. Further, from the applicant’s evidence, the applicant has a substantial degree of knowledge about the courses he is studying and the education provider. He has been studying the Automotive Courses at Acumen Institute for the last 2 years. The Tribunal accepts that the applicant has a substantial degree of knowledge of both the course and the education provider.
If he completes the Automotive Courses on 30 May 2021, as stated in the COEs, this will result in the applicant having remained in Australia for at least 4 years and 3 months, which is a long period of time, especially for someone who came to Australia to complete a Master’s degree but has only completed 2 Certificates and a Diploma, and is inconsistent with the stay being temporary.
The applicant has returned home to India only once during his stay in Australia in June 2018, since he first arrived in Australia, for a total period of 42 days for an alleged health check-up for his asthma. He has not returned home since that visit and the Tribunal finds that his failure to return home since that visit in June 2018, notwithstanding the COVID-19 travel bans, is consistent with him not wanting to return home to India, but instead to stay in Australia permanently.
The applicant in the Response did not specify that he had any assets in Australia or in India. He gave evidence that his family had been supporting him and his parents were in well paid jobs. The applicant’s asset position would not have provided him with a substantial financial incentive to return home to India.
The applicant gave evidence that he did not have any concerns about returning to India and he had no concerns about military service commitments, or civil and political unrest in his home country. The Tribunal finds that they do not present a significant incentive for him not to return home.
The Tribunal finds that, based on the applicant’s evidence and circumstances in his home country, including his financial circumstances, and the support and financial circumstances of his family and their assets, relative to others in that country, he is in a good position and this would provide a significant incentive for him to return home.
The applicant has personal ties both in Australia and in India. The applicant gave evidence that his mother, father and sister reside in India and that would ordinarily provide him with a substantial incentive to return home to India. He claims in the Response that he is in contact with them almost daily. He has been separated from them since July 2018 and not seen them in person since then. His personal ties to India must be considered in light of his ties to Australia and the fact that the applicant intends remaining in Australia at least for a further 3 months to complete the Automotive Courses, and his circumstances in Australia.
The applicant has substantial ties to Australia. He is living with a group of friends, including a childhood friend, from back home in India who he has known most of his life. They have lived together in Australia for approximately 3 years, and he is in stable accommodation. Further, the applicant has the prospect of earning a high level of income, and is being supported financially here by his family; together with the ties to his friends including his childhood friend, they provide him with a strong incentive to remain in Australia rather than to return home to India and they outweigh any incentive to return home.
There are no issues raised in the Decision Record or the Response that confirm that the applicant had applied for and been refused any other visa or had a visa cancelled, either in Australia or elsewhere. The Tribunal has had regard to that matter, but it is one of many factors that the Tribunal has had regard to in making its determination.
Ultimately, the Tribunal notes that the applicant has been in Australia for 4 years and he intends remaining here for at least a further 3 months to complete the Automotive Courses, for which he could obtain similar qualifications at home. While the applicant has foreshadowed that he will work as a mechanic and that he intends to return to India to work as a mechanic, in light of his previous qualifications, he is using these studies to maintain residency in Australia.
Based on the above matters, the Tribunal is not satisfied that the applicant has made this application to gain a student visa to study temporarily, and it considers that the primary objective of the applicant is to maintain ongoing residence in Australia and to remain here permanently. The Tribunal considers the above circumstances are consistent with the applicant’s motivation to remain in Australia on a permanent basis and not 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).
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.

[2021] AATA 872

12 March 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction