Pagia (Migration)

Pagia (Migration) [2019] AATA 4999 (28 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Atzistor Pagia
CASE NUMBER:  1807125
HOME AFFAIRS REFERENCE(S):           BCC2017/4647851
MEMBER:Peter Haag
DATE:28 July 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 28 July 2019 at 12:10pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine temporary stay – applicant’s limited family ties to Greece – proposed employment in Greece – comparable courses in home country – military service obligations – benefits of current and proposed study – maintaining residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 499; Direction No 69
Migration Regulations 1994, 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 7 March 2018 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 6 December 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant intends genuinely to stay temporarily in Australia.
The applicant appeared before the Tribunal on 4 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Sofia Apostolopoulou. The Tribunal hearing was conducted with the assistance of an interpreter in the Greek and English languages.
The applicant was assisted in relation to the review by their registered migration agent.
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 intends genuinely to stay temporarily in Australia.
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 has had regard to the applicant’s circumstances in Greece. In this regard the applicant provided reasons for not undertaking the study in Greece. The applicant accepted in his evidence to the Tribunal that equivalent courses in leadership and management are available in Greece, but claimed that the standard of those courses is not as high as the standard of the course in leadership and management he is undertaking in Australia.
Further, the applicant claimed courses of study undertaken overseas are more highly regarded in Greece than the equivalent courses available in Greece. These claims are easily made, they were not substantiated by verifiable evidence demonstrating the applicant had made any thorough investigation of the available equivalent courses and education providers in Greece, and the applicant’s claim is no more than a generalised, unverifiable and unsubstantiated claim. Bearing in mind that relocating to Australia for the purpose of the study involves significant time, expense, and changes to the established patterns of the applicant’s life in Greece, it is reasonable to expect the applicant would provide detailed, specific evidence in support of his claim that the equivalent courses in leadership and management in Greece are of a lesser standard, and less well-regarded in Greece than the course in leadership and management he is now undertaking in Australia: the applicant has not done so. The Tribunal is not satisfied that the applicant has reasonable reasons for not undertaking the study in his home country.
The applicant’s parents and brother reside in Greece; he has a sound relationship with them and contacts them four or five times per week via social media and telephone calls. The applicant does not own property or other assets in Greece; he transferred all of his savings to Australia and he now holds them in Australia. The applicant has no dependants in Greece and he is not married. The applicant is in a relationship with Ms Sofia Apostolopoulou a person he describes as his girlfriend; she resides in Greece and she is able to visit the applicant from time to time in Australia and does so; and she gave evidence to the Tribunal which verified the existence of the relationship. The foregoing matters when considered as a whole indicate the presence of personal ties to Greece, however, the nature and extent of the applicant’s personal ties to Greece, do not satisfy the Tribunal that the applicant’s personal ties to Greece would serve as a significant incentive to return to Greece.
The applicant provided information to the Tribunal about his community ties in Greece. He indicated that he was involved in “different groups and organisation.” He also informed the Tribunal that he played in the local volleyball community and basketball. This information is generalised and unspecific; and it does not in itself demonstrate community ties to Greece that would serve as a significant incentive to return to Greece.
The applicant claims that he has a job waiting for him upon his return to Greece. In support of that claim the applicant provided an undated document[1] to the Tribunal signed by Manosi Emiljano. The applicant in evidence indicated Mr Emiljano is the owner of Brew Lab, a café in Greece that sells coffee and sandwiches. The business commenced operations about six months ago and it employs four people. The applicant claimed in evidence the owner of the business offered him employment in the café about three months ago, and his role in the business will be to teach the staff of four to work as a team and how to treat customers.
[1] Tribunal file, folio 47
The Brew Lab document simply states that the applicant has expressed an interest in working for Brew lab and that upon completion of his course in July 2020, the author of the letter states “we confirm our unequivocal interest to hire him.” The document makes no mention of the role the applicant would be expected to fill in the café, or the wage the applicant can expect to be paid. The Tribunal does not accept the applicant’s evidence that the document demonstrates he will be employed at Brew Lab after July 2020. The Tribunal regards the document as demonstrating, at best, the applicant may be considered for employment in some unspecified role in the café upon his return to Greece after July 2020.
In considering the whole of the evidence concerning the applicant’s personal ties to Greece, including his evidence concerning his employment prospects at Brew Lab, the Tribunal is not satisfied those circumstances would serve as a significant incentive to return to Greece. The foregoing considerations weigh in favour of a finding the applicant is not a genuine temporary entrant.
In considering the applicant’s economic circumstances in Greece, the Tribunal is concerned the applicant owns no assets in Greece, and according to his evidence he transferred his savings to Australia where they are now held. The applicant indicated in evidence to the Tribunal that he was informed by the owner of Brew Lab he could expect to receive an income of between AUS$900 and AUS$1000 per month. The Tribunal attaches little weight to this evidence because the purported job offer document from Brew Lab makes no mention of any agreement with the applicant to pay him that wage; the document is silent in respect to wages. And, as has been previously observed in this decision, the document does not demonstrate with any reasonable degree of certainty that Brew Lab will employ the applicant upon his return to Greece. On the basis of the evidence available to the Tribunal, the Tribunal is concerned the applicant’s economic circumstances in Greece are uncertain and would present as a significant incentive for the applicant not to return to Greece.
The applicant has a current military service commitment in Greece. The applicant in his s. 359(2) response to the Tribunal informed the Tribunal that he is required to perform military service in Greece, but this obligation has been postponed until the applicant completes his studies in Australia. The applicant’s s.359(2) response is dated 27 May 2019.
Relevantly, the applicant provided a translated document[2] to the Tribunal which informed the Tribunal the applicant was required to report for duty as an infantry private on 8 May 2019 between the hours of 08.00 to 13.00 hours. That time has passed. That document is dated 15 April 2019. Additionally, a translated document[3] informs the Tribunal that the applicant’s enlistment date was extended to 13 May 2019 for “Reasons of objective inability have been found.” That time has passed. The document is dated 7 May 2019. On the face of those documents the applicant was required to report for military service by 13 May 2019 and he did not do so. The Tribunal notes the applicant claimed in his s.359(2) response that he does not have any concerns about military service[4].
[2] Tribunal file, folio 46-47
[3] Tribunal file, folio 46
[4] Tribunal file, folio 20
In evidence before the Tribunal the applicant indicated he postponed his military service through the agency of his brother in Greece, who, on behalf of the applicant, made the necessary application for that purpose. A military service commitment is a serious matter; and, in circumstances where the documents before the Tribunal indicate the applicant failed to report for military service at the required time, it is reasonable to expect the applicant would provide verifiable evidence that he applied for an exemption from reporting for military service at the required time, and that thus far, he has satisfied his military service obligations in Greece.
The applicant has had approximately six weeks between 13 May 2019 and the date of this hearing on 4 July 2019, in which to obtain independent verification of his claim that he applied for an extension of time in which to report for military service. The state of the evidence before the Tribunal has given rise to a concern in the Tribunal that the applicant failed to report for military service at the required time, and that the applicant’s military service obligations on Greece would present as a significant incentive for the applicant not to return to Greece.
There is no evidence of political and civil unrest in Greece that would present as a significant incentive for the applicant not to return to Greece.
The applicant has no family in Australia, and whilst he does participate in social interactions and sporting activities in the Australian community, the Tribunal is not satisfied that those ties to Australia would present as a strong incentive for the applicant to remain in Australia.
In the Genuine Temporary Entrant (GTE) statement[5] the applicant provided to the Department of Immigration and Border Protection (the Department) the applicant informed the Department of his reasons for seeking to study the proposed courses in Australia: Certificate IV in EAL; Certificate III in Business; Certificate IV in Business and Diploma of Leadership and Management. The applicant said “I believe that the course will provide me with skills and knowledge which can be used across different industry sectors with a broad range of competencies using some discretion, judgement and relevant theoretical knowledge. I understand that living for a short period of time in Australia I will gain valuable experience from the local market and the various practices applied in the corporate sector. Australia is a country with high standard businesses and in combination with my studies I will be able to gain significant experience which will enhance my opportunities to get a job upon my return to Greece.”
[5] Department file, folio 34
The applicant provided no information about the particular “industry sectors” he had in mind and how the skills from the vocational level studies in business he proposed to undertake, would be useful in the contemplated “industry sectors”, whatever they may be. The applicant stated in his application to the Department lodged on 6 December 2017 that he had not been offered a job at the completion of his course of study, but indicated he would pursue further employment after completion of the course. Subsequent to lodging the application with the Department, the applicant provided to the Department a one page letter dated 22 January 2018 signed by Kostas Tountas[6]. The document appears to offer employment to the applicant upon completion of his studies in Australia.
[6] Department file, folio 75
Kostas Tountas indicates the applicant was employed in Greece by the author in his business called Scram School before the applicant arrived in Australia for the purpose of improving his qualifications. Mr Tountas indicates the purpose for which the applicant is seeking to improve his qualifications is “so that he can work for me again when he finishes his studies.”[7]
[7] Department file, folio 75
In the information the applicant provided to the Tribunal, and in the applicant’s evidence to the Tribunal, the applicant did not refer to studying in Australia for the purpose of returning to Greece to work at Scram School. Instead he refers to what he claims to be an offer of employment at Brew Lab, a café in Greece. In effect the applicant is claiming he changed his career pathway. An applicant may make reasonable changes to a career pathway and the Tribunal gives no adverse weight to this change of pathway.
The applicant provided to the Tribunal, in support of his claim that he has a job to return to in Greece at Brew Lab, a letter from the owner of Brew Lab.[8] The letter does not demonstrate an actual offer to the applicant of employment at Brew Lab upon completion of the applicant’s studies in 2020. Contrary to the applicant’s evidence, the letter amounts to no more than an expression of interest in hiring the applicant.
[8] Tribunal file, folio 47
The applicant claimed in his evidence that his role in the café will be teaching the staff of four people how to work as a team and to “behave to customers.”
The letter from Brew Lab provides no information about the nature of any role the applicant will be hired to perform in the café, the salary the applicant will be paid to work at the Café, or demonstrate certainty a need to employ the applicant will exist after July 2020. The absence of these details from the letter is consistent with the overall meaning and effect of the letter, in that it does not expressly or by necessary implication commit to employing the applicant in the role the applicant described in evidence, or in any role at all in the café. The evidence does not satisfy the Tribunal that the applicant’s employment prospects at Brew Lab will in fact be assisted by the course of study, or that his employment prospects in that café will be improved by the course of study.
Additionally, the applicant’s generalised statements about his interest in business management studies that he provided to the Tribunal in his s.359(2) response, make no mention of working in Brew Lab. Rather, the applicant speaks in general terms about returning to Greece to work as a department manager, and to help people with new business opportunities. Given the failure of the applicant to address the claimed job offer in Brew Lab in his s.359(2) response, and his very general non-specific future employment plans referred to in the s. 359(2) response and his GTE statement, the Tribunal is not satisfied the applicant’s course of study will provide significant assistance to the applicant to obtain employment or improve his employment prospects in Greece.
The applicant in his evidence to the Tribunal, informed the Tribunal that he expects to be paid between AUS$900 and AUS$1000 per month to work in Brew Lab. It has already been observed in this decision that the letter from Brew Lab makes no mention of any salary the applicant will be paid in the event of him being employed in that café. Consequently, the applicant’s claim in relation to the remuneration he could expect to receive in Greece using the qualifications to be gained from the proposed course of study, is unverified in the document in which the Tribunal could reasonably expect to find verification, and the Tribunal is not satisfied the owner of Brew Café in fact informed the applicant of how much he would pay the applicant in the event that he decided to employ him. The evidence before the Tribunal is insufficient for the Tribunal to determine the remuneration the applicant could expect to receive in Greece or a third country compared with Australia using the qualification to be gained from the proposed course of study.
The Tribunal has had regard to the applicant’s study history and noted the applicant is progressing academically. He completed three certificate level courses of study and he is now studying the Diploma of Leadership and Management. The applicant’s study history weighs in favour of finding the applicant is a genuine student.

The applicant is living in an established pattern of life in Australia and appears to have a sound knowledge of living in Australia. The applicant has a reasonable level of knowledge of his intended course of study and the associated education provider. The Tribunal accepts the applicant has a realistic level of knowledge of his course of study and living arrangements. These considerations weigh in favour of a finding the applicant is a genuine student.
The Tribunal has given regard to the applicant’s immigration and travel history. According to the delegate’s decision, a copy of which the applicant provided to the Tribunal, the applicant’s Australian immigration history is as follows:
·The applicant was granted an Electronic Travel Authority (ETA) (subclass 601) on 19 December 2015 and arrived in Australia on 18 January 2016. This ETA ceased on 15 April 2016.
·The applicant applied for an onshore Visitor (subclass 600) visa on 11 April 2016, which was granted on 15 April 2016 and was valid until 14 July 2016. The applicant departed Australia on 12 July 2016.
·The applicant was granted another ETA on 1 September 2016 that was valid until 1 September 2017. The applicant arrived in Australia on 16 September 2016 and departed on 12 December 2016.
·The applicant was granted a further ETA on 27 September 2017 that was valid until 23 January 2018. The applicant returned to Australia on 23 October 2017. The purpose of this visa is to allow the holder to visit Australia temporarily for the purpose of tourism or making general business or employment enquiries.
·On 6 December 2017, the applicant lodged an application for a Student (subclass 500) visa extending his stay in Australia until 13 September 2020.
The applicant’s history of returning to Greece after the relevant temporary visas, weighs in favour of the applicant being a genuine temporary entrant.
Bearing in mind the expense of relocating to Australia, and the disruption to the applicant’s established lifestyle in Greece caused by his decision to remain in Australia, and to apply whilst in Australia for the Student visa, and that the Student visa would extend the applicant’s stay in Australia to July 2020, the Tribunal is concerned the Student visa may be used primarily for maintaining ongoing residence in Australia.
There is no evidence before the Tribunal that the applicant has previously applied for an Australian visa which was refused. Further, there is no evidence the applicant has previously applied for a visa to another country which was refused. There is no evidence before the Tribunal which demonstrates the applicant previously held a visa that was cancelled or considered for cancellation. Accordingly, the Tribunal gives neutral weight to these considerations.
There is no evidence that the applicant failed to comply with the migration laws of another country: accordingly, the Tribunal gives neutral weight to this consideration.
There is no other relevant information to which the Tribunal should have regard, which was provided by the applicant, relevant to assessing the applicant’s intention to stay temporarily in Australia: the Tribunal has given regard to all relevant information provided by the applicant to the Tribunal.
There is no evidence of the applicant’s circumstances in Greece relative to the circumstances of other people in Greece and consequently, the Tribunal makes no finding in this regard.
There is no evidence that the applicant has entered into a relationship of concern to achieve a successful Student visa outcome.
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).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Peter Haag
Member

Attachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton

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

[2019] AATA 4999

28 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction