Pandey Gautam (Migration)

Pandey Gautam (Migration) [2021] AATA 3123 (9 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs SUJATA PANDEY GAUTAM
Mr CHIRANJIVI GAUTAM
CASE NUMBER:  1928981
HOME AFFAIRS REFERENCE(S):          BCC2019/3855032
MEMBER:Mark Bishop
DATE:9 August 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 09 August 2021 at 10:34am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine student – genuine temporary entrant – enrolment in a registered course – limited economic ties to the home country – investigating study options in the home country – employment in Australia – limited details of business plans – value of studies to future employment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 500.212, 500.311, 500.312
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 October 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 5 August 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas 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 that the first-named applicant was a genuine temporary entrant.
The second-named applicant was refused on that basis that, as the first-named applicant did not satisfy cl.500.212, he did not satisfy cl.500.311.
The Tribunal resolved the review application on the papers.
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 are:
·whether the first-named applicant satisfies cl.500.212; and
·whether the second-named applicant satisfies cl.500.311 and 500.312.
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.
‘Meaning of Genuine Applicant’
As has been often noted elsewhere in many Tribunal decisions while not defined in the Regulations, the word ‘genuine’ may be taken to mean ‘authentic, ‘real’ or ‘true’, according to its ordinary and natural meaning. The Regulations also specify two constituent elements of a genuine student visa applicant.
First, an applicant is regarded as a genuine applicant because he or she ‘intends genuinely to stay in Australia temporarily.’ The applicant must demonstrate an intention to stay in Australia for a limited time only – not permanently. That intention must be unqualified. This requirement reflects the temporary nature of being a student. A person chooses to study to meet a passing need to obtain specific skills and formal qualifications that will, in turn, place them in a better position with respect to future employment opportunities. Once they have had a reasonable amount of time to complete their studies, it is expected that the visa holder will immediately depart Australia.
The Tribunal acknowledges that this expectation is not without qualification. A student visa holder’s circumstances may change while studying in Australia. They may genuinely wish to extend their stay so they can undertake further study, such that there is a need for a further student visa application to be made. Alternatively, as a result of a personal relationship entered with a permanent resident or Australian citizen, or an employer sponsorship, or for some other reason, they may wish to extend their stay in Australia by other legitimate means. And so, the student visa holder may become eligible to apply for another kind of visa before their student visa expires. However, in the absence of such circumstances arising, the general expectation remains. A student visa is granted anticipating that the visa holder will eventually cease being a student, return to their home country, and enter the workforce to put their newly acquired skills to economically productive use.
Secondly, a genuine applicant is one who ‘intends to comply with any conditions to which the visa may be subject.’ There are several conditions that attach to student visas. The most important of these conditions oblige the visa holder to remain enrolled in a registered course of study, to make satisfactory course progress in their studies, and to attend classes.
Furthermore, if the visa holder changes their enrolment, they must avoid ‘downgrading’ to a course that will lead to a qualification of a level that is lower than that of the proposed qualification that resulted in the grant of the visa. These conditions reflect the very essence of being a student.
A genuine applicant must demonstrate both an intention to study and an intention to complete a course that is as challenging as the visa grant contemplates.
The Tribunal has carefully considered the delegate’s decision record dated 11 October 2019, a copy of which was provided to the Tribunal by the review applicant with the application for review.
The applicant applied for a Student (Temporary) (Class TU) Student (subclass 500) visa on 5 August 2019. At the time of application, the applicant was enrolled to undertake English studies, a Certificate IV in Business, a Diploma and Advanced Diploma of Leadership and Management. There was insufficient information at that time to satisfy the delegate that the applicant met the requirements for the grant of a Student (Temporary) (Class TU) Student (subclass 500) visa.
On 5 August 2019 the applicants submitted to the Department statements on their circumstances in relation to the Genuine Temporary Entrant criterion. That statement is summarised below:
·The first-named applicant is fascinated by Australia culture, education, and diversity;
·She has enrolled in the above courses at Lloyds International College;
·The College provides its students with recognised quality education;
·The College provides international students with opportunities in the competitive market, is affordable, and is known for its professional education;
·She is fascinated by leadership and management;
·She will build skills to provide strategic leadership;
·The course will provide her with a better job in Nepal.
·The second-named applicant is the husband of the first-named applicant;
·They were married on 1 February 2017;
·They met in 2016;
·He came to Australia in November 2017;
·He has completed a Diploma of Leadership and Management;
·He will support his wife throughout her education.
The applicants lodged their TU – 500 (Student) visas on 5 August 2019 and was refused on 3 October 2019. They lodged an application to review this decision with the Tribunal on 14 October 2019
On 1 February 2021 the Tribunal wrote to the applicant under s.359(2) of the Act with a Request for Information that addressed the following matters found under Ministerial Direction Number 69 (MD69). The Tribunal was required to consider the criteria listed below as part of its decision-making process. On 26 February 2021 the applicants responded to the Tribunal’s request and provided the following additional information:
a. Personal details;
b. Hearing Information;
c. Information about courses undertaken before arriving in Australia;
- No further information was provided;
- No further information was provided;
- The first-named applicant completed Year 10 in 2010, and then pursued a Certificate in Nursing she completed in 2013;
·Her Nepalese qualifications were not recognised in Australia, and prior to studying her English was poor;
·She has limited options for study in Nepal. The Nepalese education system is not as flexible as Australia’s;
·There is no comparable short-term business course in Nepal;
·The quality of education in Nepal is not as good as that in Australia;
d. Information about work experience before arriving in Australia;
e. Travel details to Australia and home country visits;
f. Information about travel to other countries;
g. Visa History;
h. Enrolment and study in Australia;
i. Work and expenses in Australia;
j. Family circumstances;
k. Information about community ties;
l. Information about assets;
m. Information about future plans;
n. Information about other circumstances;
- She registered as a nurse in 2014 and worked at Universal College of Medical Sciences Teaching Hospital from November 2015 to December 2015;
- She then worked at Siddhartha Children and Woman Hospital from March 2017;
- No further information was provided;
- No further information was provided;
- She came to Australia as a dependent on her husband’s visa;
- She undertook an English course to improve her English;
- She has now completed her English course and Certificate IV in Business;
- Completion of her Certificate IV was delayed due to her pregnancy;
- She has begun the Diploma of Leadership and Management, though the course is running late due to COVID-19;
- She worked in Australia at Help Nursing as an assistant nurse until June 2020;
- Her husband earns AUD $48 000 in Australia.
- Most of her family, and her husband’s family, reside in Nepal and this operates as a strong tie to Nepal;
- Her sister resides in the United States of America, and her husband’s brother resides in Sydney;
- She speaks to her family multiple times per day;
- No further information was provided;
- Her husband owns land with his uncle in Nepal, valued at NPR 5 000 000;
- Her mother-in-law owns land in Nepal, currently rented, valued t NPR 7 000 000;
- Her husband’s grandmother owns land in Nepal, valued at NPR 10 000 000;
- Her family owns several properties, and her mother has savings. Her mother is helping her with her study and living expenses in Australia;
- Her husband’s family has a high income, a total of NPR 1 899 000 per annum;
- Her and her husband intend to develop a tourist resort for the elderly in Nepal, and together they have developed a business plan;
- Her courses will allow her to learn to manage a business;
- She is able to develop her business plan as part of her course;
- Her expected income as a result of their business is over AUD $120 000;
- No further information was provided;
Submitted with the written s 359(2) response were copies of various letters to substantiate the above claims, including Nepalese qualifications, proof of income and assets and proof of available funds. The Tribunal has regard to Ministerial Direction number 69 (MD69). On 9 July 2021 the applicant provided a copy of a graduation Certificate IV in Business.
Applicants’ circumstances in her home country
The delegate made the following findings:
- I have given regard to the applicant’s circumstances in their home country. The applicant completed their most recent education, a year 12 course in Nepal. The applicant has not declared or provided evidence that they have ever been employed. The applicant has not provided any evidence that either she or her husband have property in their names in their home country, nor have they indicated that they have employment or businesses to return to. The applicant has been unable to demonstrate sufficient economic ties to their home country which diminishes their incentive to return upon completion of their studies. I therefore am not
satisfied the applicant has been able to demonstrate, on balance, ties that would serve as a significant incentive to return to their home country.
The applicant is 30 years of age and is a registered nurse. She has worked in the nursing industry in her home country. The applicant lives with her husband in Australia. The applicant provided a statement as to assets and income in her home country. She has family in the USA, Australia and her home country of Nepal. She as resided in Australia since December 2017. In that time she has completed a General English course and a Certificate course in Business in September 2020. She is currently enrolled in a Diploma of Leadership and Management and will complete as Advanced Diploma in the same field in September 2022.
The applicant advised the applicant’s “home country does not offer a diploma course in business or leadership and management. There is one Australian institute that offers in Nepal but the student was not sure of the quality of the training offered by Nepalese trainers. She was already in Australia and decided to pursue her studies here itself”. See paragraph 19 above for further summary detail.
It appears to the Tribunal the applicant as resident in Australia since 2017 has made little attempt to consider the option of studying in her home country. The applicant failed to provide any evidence of internet or other searches of available courses in her home country. The applicant failed to provide evidence of investigation or searches or approaches to any institutes of learning in Nepal. The applicant failed to provide detail of any links to institutes of learning in her home country that might support her assertions as to the dearth of course offerings in her field in her home country.
It is not clear to the Tribunal as to why the applicant is unsure of the quality of training on offer by Nepalese trainers. The applicant failed to provide any evidence that verifies this assertion. The applicant failed to provide copies of any reports or correspondence from independent observers or impartial experts (such as from a trade association or chamber of commerce or educational institution) that might support such assertion.
The Tribunal is of the view the applicant has not advanced “reasonable reasons for not undertaking the study in her home country” (cl9(a) of MD69)
Applicant’s Circumstances in Australia
The delegate made the following findings:
- I have also considered the applicant’s potential circumstances in Australia. The applicant is proposing to undertake English studies, a Certificate IV in Business, a Diploma and Advanced Diploma of Leadership and Management in Australia. The applicant has not provided any reasons why they cannot study in their home country. While I accept the applicant may wish to study in an English speaking environment and obtain an internationally recognised qualification, given they have not substantively investigated study options in their home country I cannot be satisfied, given their individual circumstances, the applicant genuinely intends a temporary stay in Australia. I am not satisfied the applicant has shown a realistic level of knowledge regarding their potential circumstances in Australia.
The applicant resides in Australia with her husband and family. Prior to this review application the secondary applicant was engaged in study. The applicant came to Australia as a dependent on her husband’s visa. The applicant advised the Tribunal she is studying Leadership and Management in Australia. Her husband has a high income ands the applicant advises she wishes to open a tourist resort in her home country and study in her chosen field will assist in that endeavour.
The applicant has failed to provide little supporting documentation relating to this significant project. The applicant has provided only minimal detail as to the state of the tourism market in her home country. This is particularly relevant in the time of Covid-19 as at least anecdotally few countries seem to be on top of this virus. Certainly it is common knowledge that international travel is currently limited. It is not unreasonable to assume that development of new tourism projects in counties still badly affected by Covid-19 (inclusive of Australia, of course) will be problematic for some time into the near future.
The applicant failed to provide any detail as to community ties in Australia. She advised “she had been in Australia since December 2017 and is not involved in any community group or organisation”. This may well be the case. Cl. 11(a) of MD69 refers to the “applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties”. The applicant lives with her husband in Australia. The applicant worked as an assistant nurse at the Health Nursing Agency working for various Aged Care Providers at a salary of $44,700 per annum. Her husband is employed in Australia and earns an income of $48,000 per annum. A family income of almost $100,000 per annum in a new country is a large income. The applicant is engaged in study pursuits and has been for some time. Family, work, employment, study are all part of the wider community. In fact it is difficult to conceive of a life for an adult person that does not involve some or all of these aspects. They are all part of community. They all give purpose to life. They all give incentive to work and achieve. The Tribunal is of the view the applicant’s ties with Australia present as a strong incentive to remain in Australia. The Tribunal is inclined to the view the applicant is using the student visa programme to circumvent the intentions of the migration program and the applicant is using the student visa to maintain ongoing residence. The Tribunal does not make any adverse finding in terms of cl11 (d) and (e) of MD69.
Value of the Course

The delegate made the following findings:
The applicant provided to the Tribunal some evidence of academic progress and payments relating to course fees. The applicant provided a brief response to the Tribunal in her s.359(2) statement as and a 4 paragraph statement of purpose as to reasons for enrolling in Leadership and Management. These statements were general. They lacked specifics. They failed in any meaningful way to relate proposed study in Leadership and Management to future plans concerning a start up business in tourism and elderly care or existing family properties being converted into a hotel/resort. The applicant failed to provide any confirmation from existing family property holders that they were on board with this proposal or planned to participate in it any real way. Annual income statements for family in Nepal relating to source income show useful cash flow and property valuations for property in Nepal showed reasonably low value ($AUD190,711). The Tribunal is unable to conclude these income and asset valuations show a capacity to fund projects of the type suggested by the applicant. The applicant made reference to a business plan but did not make it available to the Tribunal.
The applicant did not make available to the Tribunal any offers of employment consequent upon completion of her studies in Australia. Of course the applicant has stated plans to develop her own enterprises and she is a skilled and trained worker in the nursing field having worked in the nursing and aged care industries in Nepal and Australia. The Tribunal is not satisfied study in the field of Leadership and Management in Australia is of anything but marginal value to future employment either as an employee or as an entrepreneur in Nepal
The delegate made the following findings:
I have considered the value of this course to the applicant’s future. I find that in the
application the applicant has not clearly demonstrated the benefit that undertaking the
proposed courses in Australia would provide to their career prospects.
The applicant has provided a statement of purpose in which they state the following: “I
choose this course because I am fascinated with this course – leadership and management.
This qualification reflects the role of individuals who are engaged to manage the work of
others or to add value to or review management practices. Their role may be in any industry
or organizational setting. Typically people in these roles will have considerable experience
in their respective industries or vocational areas and combine an informed perspective of
the specific work requirements with their managerial approaches. I will build skills to provide
strategic leadership. This course will surely provide me the better job for my future when I
get back to my country Nepal.” I have serious concerns that the applicant has not explained
that they have a clear, credible career goal, nor have they declared or provided evidence
that they have ever been employed. It is difficult to understand how the proposed courses
will assist the applicant to start her future career given the lack of information provided. I
note that the applicant has been in Australia for nearly two years as the dependent on her
husband GAUTAM, CHIRANJIVI (26/11/1987,M)’s visa. I have serious concerns that the
applicant is applying for this visa as a means for both her and her husband (who has already
been in Australia for nearly six years) to maintain residence in Australia.
The applicant has not provided credible reasons why they chose to study in Australia.
Therefore I am not satisfied that the applicant has demonstrated the value of their proposed course to their future.
The applicant provided to the Tribunal some evidence of academic progress and payments relating to course fees. The applicant provided a brief response to the Tribunal in her s.359(2) statement as and a 4 paragraph statement of purpose as to reasons for enrolling in Leadership and Management. These statements were general. They lacked specifics. They failed in any meaningful way to relate proposed study in Leadership and Management to future plans concerning a start-up business in tourism and elderly care or existing family properties being converted into a hotel/resort. The applicant failed to provide any confirmation from existing family property holders that they were on board with this proposal or planned to participate in it any real way. Annual income statements for family in Nepal relating to source income show useful cash flow and property valuations for property in Nepal showed reasonably low value ($AUD190,711). The Tribunal is unable to conclude these income and asset valuations show a capacity to fund projects of the type suggested by the applicant. The applicant made reference to a business plan but did not make it available to the Tribunal.
The applicant did not make available to the Tribunal any offers of employment consequent upon completion of her studies in Australia. Of course the applicant has stated plans to develop her own enterprises and she is a skilled and trained worker in the nursing field having worked in the nursing and aged care industries in Nepal and Australia. The Tribunal is not satisfied study in the field of Leadership and Management in Australia is of anything but marginal value to future employment either as an employee or as an entrepreneur in Nepal
Applicants’ Immigration History
The delegate made the following findings:
·I have taken into consideration the applicant’s previous immigration history, outlined under clause 500.212. I note that the applicant was granted a Student (subclass 500) dependent visa on 9 November 2017 and arrived in Australia on 11 December 2017. The Student (subclass 500) visa ceased on 13/08/2019 and the applicant is currently the holder of a bridging visa A associated with the current visa application. I note that it is 662 days since the applicant first arrived in Australia, since then she has not departed Australia. This demonstrates that the applicant has minimal ties to their home country and suggests they do not have a commitment to return to the home country.. The Tribunal notes the secondary applicant has been resident in Australia for a significant period of time.
The Tribunal has reviewed the Departmental and tribunal files. The applicant has not challenged the findings of the delegate. The Tribunal notes the applicant and secondary applicant wish to remain as resident s in Australia until the end of 2022.
The Tribunal is of the view the applicant’s residence in Australia has at all times been lawful.
Conclusion on cl.500.212
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Mark Bishop
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 3123

9 August 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction