Nunna (Migration)

Nunna (Migration) [2022] AATA 155 (21 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Narannan Nunna
REPRESENTATIVE:  Mr Jaturaput Jeansuwannakorn (MARN: 1807330)
CASE NUMBER:  2004353
HOME AFFAIRS REFERENCE(S):          BCC2019/6188313
MEMBER:Warren Stooke AM
DATE:21 January 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212(a) of Schedule 2 to the Regulations.

Statement made on 21 January 2022 at 5:50pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine temporary stay as student – continuous enrolment – employer’s study requirements – employment offer in Thailand – value of the course to the applicant’s future – course changes to improve English competence – decision under review remitted
LEGISLATION
Education Services for Overseas Students Act 2000; Direction No 69
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2 cls 500.211, 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 17 February 2020 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 22 November 2019. 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 the delegate was not satisfied the applicant intends to genuinely stay temporarily in Australia given the applicant’s parents are deceased and he only has a younger brother in Thailand.
The applicant appeared before the Tribunal on 26 October 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
The applicant was assisted in relation to the review by their registered migration agent.
The applicant confirmed to the Tribunal that he had received a copy of the delegate’s decision and had read the decision. In this regard, the applicant stated that he understood that the reason for the refusal to grant the visa was because he did not have family, parents or work in Thailand and does not have an address in Thailand.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student.
The Tribunal asked the applicant: Do you understand that to be that to be granted a Temporary Student Visa, it is a requirement that you satisfy the Minister that you are a genuine temporary entrant for stay as a student? The applicant responded: “Yes, I understand”.
The applicant is a 29 year old from Thailand who arrived in Australia on 16 May 2019 as the holder of a Student 500 visa.
The applicant was granted a Bridging Visa A on 22 November 2019 with a work limitation condition 8105 and no permission to work prior to the commencement of a course of study.
The applicant provided evidence of health insurance with OSHC, which is valid from 25 December 2019 to 20 October 2021.
The applicant provided information that he is a graduate of Ramkhamaeng University in Bangkok where he studied a Bachelor of Political Science from 10 June 2013 to 2 June 2016.
The applicant stated on his application that he worked with Kullahorn Co Ltd until 3 December 2018 and prior to this he was an Assistant Secretary with the Thai Centre for Excellence for Life with the Ministry of Science and Technology.
The applicant provided evidence that he completed a General English course at Greenwich College Sydney from 27 May 2019 to 20 October 2019.
The applicant provided evidence that he undertook an English – Upper Intermediate course from 13 January 2020 to 29 January 2021 at the Sunshine Coast International College.
The applicant is currently undertaking a Certificate IV in Business at the Victory Institute from 15 February 2021 to 13 February 2022 for which he has a confirmation of enrolment and provided completed subject results to the Tribunal.
The applicant provided confirmations of enrolment to undertake the following courses of study:
a.Diploma of Business at the Victory Institute from 11 April 2022 to 9 April 2023;
b.Advanced Diploma of Business at the Victory Institute from 23 April 2023 to 6 April 2025.
The applicant provided evidence of a job offer with Kullahorn Co Ltd dated 24 February 2021 when he completes his course in 2025.
The applicant stated that his manager in Thailand suggested that he learn business and to be able to work with overseas clients.
The applicant intends to return to Thailand when his visa expires and that he has not returned to Thailand since arriving in Australia because of the covid pandemic.
The applicant stated that he lives in a share-house in Haymarket in Sydney and pays $640 per month in rent.
The applicant stated that he was supporting himself with part-time work and from funds from his uncle in Thailand.
The applicant stated that he is working at Thai Village Massage and Spa for 18 hours per week as a masseuse therapist and is paid $15.00 per hour.
The applicant stated that he has just paid for the Diploma and Advanced Diploma and that he just pays on a term by term basis.
The applicant stated that he has a younger brother in Thailand and that his parents are deceased. He stated his uncle (father’s sibling) is a farmer and has fruit trees.
The applicant provided evidence that he would not have any difficulty in assimilating back into Thai society and that he responded: “No difficulty”.
The Tribunal asked the applicant if there was any reason that would preclude the applicant from returning to Thailand and he responded: “No”.
Representative Submission
The Representative provided the Tribunal with the following submission:
“The visa applicant first arrived in Australia on 16 May 2019 on a Student (Class TU) (subclass 500) visa. The
applicant’s student visa was granted offshore and valid from 9 May 2019 until 15 December 2019; in order for the
applicant to study English Language Program. The applicant enrolled in English Language Programs at Greenwich
English College from 27 May 2019 and completed the General English course at Intermediate level on 15 November
2019.
9. The visa applicant lodged his subsequent student (Class TU) (subclass 500) visa application on 22 November 2019
in order to study other English courses at Sunshine Coast International College. The applicant commenced his
General English course on 13 January 2020.
10. His subsequent student visa application was refused on 17 February 2020.
11. The Department placed decisive weight on the circumstances in Thailand, potential circumstances in Australia, the
applicant’s immigration history and the value of the course to applicant’s future.
12. With regards to the circumstances in his home country, Thailand, the Department concerned that (i) the applicant’s
parents are deceased (ii) the applicant is not married (iii) the applicant has a younger brother residing in Thailand
(iv) the applicant is not currently employed in Thailand (v) the applicant does not have a significant incentive to
return to Thailand considering his personal and other ties to Thailand. Thus, the Department is not satisfied that
the applicant has incentive to return to his home country, Thailand.
13. With regards to the potential circumstances in Australia, the Department raised a concern about the applicant’s
attendance for his previous study in Australia and his proposal to undertake a further four English language
intensive courses that would extend the applicant’s temporary stay in Australia. The Department gave these factors
significant weight because the Department concerned that the applicant is utilising the student visa program to
maintain ongoing residence in Australia. The Department also added that the applicant’s potential circumstances
in Australia may be stronger than those he has in Thailand because the applicant does not demonstrate strong
motivation to return to Thailand.
14. With regards to the applicant’s immigration history, the Department acknowledged that the applicant has never
breached his visa conditions. The Department gave these factors some weight.
15. With regards to the value of the course to applicant’s future, the visa applicant submitted that the proposed
courses of study will add a substantial value to the applicant’s future and will give him an advantage in obtaining
employment when he returns to his home country. The Department gave these factors some weight.
16. The Department is not satisfied that the course was genuinely selected to improve the applicant’s future career
prospects. The Department concerned that the applicant has applied for a further Student visa for the primary
purpose of securing an extension of stay In Australia rather than the genuine interest in the subject matter of
studies.
17. We are seeking for a merits review of the decision refusing to grant his application for a Student (Temporary)(class
TU) (subclass 500) visa on the basis of addition information provided.
18. We ask that a new assessment be undertaken with consideration of the attached document:
We ask that the Member also consider the following circumstances.
• In regard to the circumstances in his home country, the applicant came to Australia as an international student to
improve his employment prospects. Like many other international students who seek opportunities to study
abroad, such experiences will put them in a truly advantaged position in the workplace. This applicant is of no
exception. The competitiveness of the job market forced him to work in a different field than his degree after
graduation. The applicant used to work as General Administrative Officer and as an Assistant Secretary in Thailand
for two and a half years before coming to Australia. The applicant did not see a path to promotion in the
foreseeable future. The applicant saw an opportunity and decided to leave his job to study in Australia to improve
his career prospects. The fact that most international students will have to take their career sacrifices to leave their
job to study abroad in order to gain tremendous upsides when they graduate; it can be argued that it is almost
Meet a Migration Agent Pty Ltd – ABN 12628551379 22/650 George St., Sydney NSW 2000
0423 727 879 [email protected]
impossible for students to declare their current employment in home countries in any cases apart from receiving
companies sponsored scholarships. Therefore, the decisive on “current employment status” in home country
should not be taken into consideration.
• In respect of ties to home country, the personal ties to Thailand of the applicant are significant, in that he has a
close relationship with his brother who is currently residing in Thailand. After losing both of his parents, the only
applicant’s immediate family is his brother. The personal ties to Thailand of the applicant are greater than his
personal ties to Australia as the applicant has no other family members in Australia. The applicant has to sacrifice
living with his brother, relatives and friends to come to study in Australia for a better future. Unfortunately, he has
been unable to return to Thailand to visit his brother yet due to international travel restrictions related to COVID-
19.
• In respect of the potential circumstances in Australia, the applicant admitted that moving abroad was one of the
most difficult things he was ever face in life. The applicant faced a difficult time adjusting to the way of life and had
a hard time fitting in with the culture that surrounds him. The applicant was an introverted person. He could not
speak or listen English when he first arrived in Australia. He had a difficult time communicating to his classmates.
As he had never lived away from his native place and brother, these made it difficult to overcome. He felt homesick
and failed to focus on his study. He struggled in class, resulting in loneliness, anxiety, and depression. He missed
the class and felt lost in the first four months. However, he was able to pick himself back up to finish his General
English course at Greenwich English College with 81% attendance.
• The applicant focused on studies to improve his English with determination to reach his goal and to make up for
lost time. He felt that he did not have sufficient English language proficiency to participate effectively in
communicating. Hence, the applicant lodged his subsequent student (Class TU) (subclass 500) visa application on
22 November 2019 to continue his studies at Sunshine Coast International College after the completion of a
General English course at Greenwich English College. Initially, the applicant enrolled in the General English, English
for Academic Purpose with IELTS Exam Skills and IELTS Target 6 & 7 courses as his intention was to force and
challenge himself to study. However, the applicant did not meet the minimum English requirements (Upper
Intermediate Level) for Academic Purpose with IELTS Exam Skills and IELTS Target 6 & 7 courses. Hence, the
applicant changed his path from the English for Academic Purpose with IELTS Exam Skills and IELTS Target 6 & 7
courses to General English courses and completed an Upper Intermediate level on 29 January 2021.
• Prior to finishing his General English course, the applicant contacted his former manager in December 2020 to
discuss about the potential opportunities to return to a former place of employment, Kullakorn Co., Ltd., at a higher
level. The company was eager for his return and verbally offer him a position when he returns to Thailand. In
addition, his former manager also proposed another idea. His former manager revealed that the company has
launched its medium-term plan, which defines its business strategies to expand markets and source goods directly
from overseas suppliers. His former manager learned that the applicant was studying English in an Upper-
Intermediate level and questioned if the applicant would be interested in studying business course and applying
for an International Operations Coordinator position when it becomes available as part of the company mediumterm
plan. The applicant found this opportunity intriguing and started exploring a range of prospect study options.
He found that the Business courses would fulfill his expectations in both English and Business communication skills.
The applicant presented and coordinated his study plans with his former manager. With his commitment and
determination to improve himself, the applicant enrolled in a Certificate IV in Business, Diploma of Business, and
Advanced Diploma of Business at Victory Institute.
• With respect to the value of course to applicant’s future, the courses are related to his genuine intention to study
and can fully complement his goal. The courses provide a broad knowledge base in a wide variety of business
contexts that would help the applicant to develop his business and communication skills.
• The applicant put in a request to his former manager for a written offer of employment. The applicant has been
offered with two salary options:
(i) upon completion of his Business courses in 2025, the applicant’s starting salary will be 40,000
THB or approximately 1,600 AUD (One Australian Dollar currently exchanges at a region rate
of 25.0 Thai Baht) per month for an International Operations Coordinator position.
Meet a Migration Agent Pty Ltd – ABN 12628551379 22/650 George St., Sydney NSW 2000
0423 727 879 [email protected]
(ii) upon completion of his General English courses in 2021 and without the Business qualification,
the applicant’s starting salary will be 25,000 THB or approximately 1,000 AUD per month for
an Assistant Secretary (his former position).
• It can clearly be seen that his qualification has a big effect on his salary with the pay gap of 15,000 THB
(approximately 600 AUD) or increased by 60% per month. That is 180,000 THB or approximately 7,200 AUD per
year.
• The total school fee for a Certificate IV in Business, Diploma of Business, and Advanced Diploma of Business courses
at Victory Institute is 20,000 AUD. The total school fee can be offset by the pay gap between those offers within
less than 3 years, whereas it could take the applicant almost 18 years to get a pay rise from 25,000 THB to 40,000
THB (Appendix A: calculated at 2.7% expected salary increase per year). At the same time, the applicant would
earn approximately 64,614 THB per month (approximately 2,585 AUD) at the 18th year if he was in an International
Operations Coordinator position. That shows the ultimate value of the courses to applicant’s future and the
reasons for studying.
• The applicant is currently studying a Certificate IV in Business at Victory Institute at Level 6, 127 Liverpool Street,
Sydney NSW 2000. He has been attending the online classes (due to COVID-19) since the course started on 15
February 2021. The applicant has made a good progress with his studies. He has completed 5 out of 10 subjects of
his Certificate IV in Business course so far.
• On 24 September 2021, the applicant was advised by the Victory Institute that the content of the Business courses
has been updated to reflect the latest industry needs, and the length of Diploma of Business course has been
extended from one to two years. The applicant informed his former manager about the changes and discussed if
a Diploma of Business would make him qualified for an International Operations Coordinator position as opposed
to a completed Advanced Diploma of Business course in 2025 as initially planned. The company acknowledged the
changes, accepted his proposed study plan and expected his return in 2024. The company also issued an update
written offer of employment. The applicant is expecting to graduate a Diploma of Business by April 2024 and will
return to Thailand upon completion of the course to apply his knowledge and skills gained through the courses as
planned.
• As for the reasons for studying in Australia, the applicant considered the return on investment gained from having
studied abroad (Australia in particular) to improve his English language abilities and business skills and satisfied
with this aspect. The applicant believes that learning and practising the English language in an English-speaking
country will set him up with a better end result. Many Thai students suffer from the learning method adopted by
the education system. Students tend to focus much of their attention on memorisation of grammar rules and
vocabulary. Thus, Thai students may not have interactive opportunities to make English their own and learn it in
an individualised way. In addition, since Thailand is a non-English speaking country, there is no practical experience
or opportunity to enforce situations where proper communication in English is a must beyond the classroom. In
an English-speaking country like Australia, the English school participants tend to be non-native speakers from
different countries. Thus, the situations enforce students to converse and communicate in English. It creates the
everyday situations that push the applicant to utilise the lessons learnt in the classroom. These would ultimately
help the applicant to equip with the language skills required for the better career prospects. Although it would
mean to have to use more resources to study in Australia as opposed to study the same course in Thailand, the
applicant placed decisive weight on these advantages and satisfied with the return on investment gained in this
aspect.
• The visa applicant has complied and intended to comply with the conditions of her visa. The applicant has always
been enrolled in a registered course of study and has demonstrated course progress and attendance. The applicant
genuinely intends to stay in Australia temporarily to study only, not for any other purpose.”
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 Tribunal is satisfied that the applicant has successfully completed English language courses and is currently undertaking a Certificate IV in Business that is expected to be completed in February 2022 since arriving in Australia and will have commenced a Diploma of Business by early February 2022 for which he has paid fees and is due for completion in April 2023. As such, the Tribunal is satisfied that the applicant has made good academic progress with his studies and that it is his intention return to his previous employer with English language and business skills in Thailand.
Further, the Tribunal accepts that the applicant plans to return to Thailand upon completing his current course of study and that evidence was provided that the applicant maintains ties to his home country, with a younger brother and uncle residing in the country, who is providing financial support.
The Tribunal accepts that there is no known evidence before the Tribunal that would suggest that the applicant has not complied with his visa obligations and satisfactory academic progress has been undertaken since the applicant arrived in Australia.
The Tribunal is satisfied that the applicant has made continuous academic progress in his courses of study and utilised his access to study, as is intended with a genuine temporary entrant.
The Tribunal is satisfied that the applicant has stated he will return to his home country upon completion of his course and is not motivated to remain in Australia permanently given his career plans to engage in employment in his own country, with his former employer.
The Tribunal questions the intended duration of the Advanced Diploma of Business, which is scheduled to take two years to complete, having already completed a Diploma of Business for which credits would be granted. As such, the Tribunal considers that the grant of a visa should not extend beyond April 2024, if approved on the remaining criteria.
On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily to complete his courses of study and that a Student 500 visa should be granted for the period of completion of the current course.
Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212(a).
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(a) of Schedule 2 to the Regulations.
Warren Stooke AM
Member
Attachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton

Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
d.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

[2022] AATA 155

21 January 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies