PAPPULA (Migration)

PAPPULA (Migration) [2020] AATA 5877 (21 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Srikar Pappula
CASE NUMBER:  1833362
HOME AFFAIRS REFERENCE(S):          BCC2018/3023089
MEMBER:Frank Russo
DATE:21 December 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 21 December 2020 at 10:42am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – applicant changed to vocational courses – plans to expand parents’ business in India – de-registration of previous college – relevant current studies – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 359; Direction No 69
Migration Regulations 1994, Schedule 2 cls 500.212, 500.611
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 30 October 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 11 August 2018. 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 that the applicant was a genuine applicant for entry and stay as a student.
The applicant is a 25-year-old Indian national. The Student visa was in respect of his enrolment in a package course leading to an Advanced Diploma of Marketing and Communication. At the time of the hearing the applicant had completed a Certificate IV and Diploma of Marketing and Communication. His enrolment in the Advanced Diploma of Marketing and Communication had been cancelled and he was enrolled in an Advanced Diploma of Leadership and Management.
The applicant appeared before the Tribunal by telephone on 9 October 2020 to give evidence and present arguments.
The applicant was assisted in relation to the review by his registered migration agent.
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 temporary applicant for entry and stay as a student.
In addition to the application form and copy of the delegate’s reasons for decision, the applicant provided the Tribunal with the following other documents:
a.The applicant’s Indian passport;
b.A s.359(2) response;
c.Two undated GTE statements;
d.Confirmations of Enrolment (CoE) for the following courses:
i.Certificate IV in Marketing and Communication and the Diploma of Marketing at AEC Consulting Pty Ltd;
ii.Advanced Diploma of Leadership and Management at Australian Careers College, from 20 April 2020 to 19 April 2021 and from 5 May 2020 to 4 May 2020;
e.Certificates of award of the Diploma of Marketing and Communication, issued on 21 November 2019; and
f.Identification of the applicant’s parents and copies of taxation records, business registration, trade business licence and photographs of business
The Tribunal has had regard to these documents. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file.
Applicant’s evidence at the hearing
The applicant gave evidence that he arrived in Australia in 2016 for the purpose of studying a Master of Accounting at USQ. He completed a Bachelor of Accounting in India. The applicant stated that when he first arrived in Australia he undertook an ELICOS English language course, stating that he learned a lot in that course about how to communicate. The course commenced in February 2016 and he completed it in June 2016. The applicant stated that he commenced the Master of Accounting in July 2016. He gave evidence that he found the subjects hard to understand and he had difficulty concentrating. He stated that he finished the first semester, passing two subjects, but failing two subjects.
The applicant gave evidence that he transferred to Holmes Institute in March 2017 and studied there until October 2017. The applicant stated that he had things on his mind and kept failing subjects. He stated that his interest changed to Marketing, and so in October 2017 he decided to enrol in the Certificate IV in Marketing.
The applicant stated that he changed his enrolment to Marketing because his father runs a grocery store in India. He stated that his family have been thinking of expanding the business. He stated that the course will assist him to gain awareness of how to build customer relationships, improve the business and promote it, and how to prepare a budget.
The applicant completed the Certificate IV in Marketing in November 2018 and then the Diploma of Marketing in November 2019 at One International College. He stated that he was about to start the Advanced Diploma of Marketing, but the college was deregistered by the Australian Skills Quality Authority (ASQA) as a registered training authority and the registration is on appeal to this Tribunal (differently constituted). The applicant stated that the college sent him correspondence about the issue, after which he was worried that if the college was closed then he could have difficulties completing his course. He accordingly transferred to an Advanced Diploma of Leadership and Management at Australian Careers College. He stated that he has completed six units of the Advanced Diploma of Marketing and is planning to complete he the course in May 2021, after which he intends to return to his home country to start his own business.
As to why he had transferred his enrolment to an Advanced Diploma of Leadership and Management, the applicant stated that the course is related to management and he took advice from a professional counsellor. He stated that he wishes to gain leadership skills.
The applicant told the Tribunal that he had provided the Tribunal with details of two businesses which are owned by his parents. He stated that in July 2020 his mother purchased a trade licence for a grocery store (Kirana General Stores) which she is currently running, however the plan is for the applicant to take over the store and expand its operations.
As to the value of his current course of study to his future, the applicant stated that in the past his father ran his grocery store business, but never thought about expansion. He stated that he changed his father’s mindset and he has a dream where he can build a small empire and achieve success. He stated that the course is assisting him to learn about customer relations, the relationship with products and is important in the business world. The applicant stated that the course will also provide him with skills if he decides to apply for roles. As to the remuneration he can expect to earn, he stated that he had provided his father’s income tax record to the Tribunal, and he expects he would be able to earn a similar salary.
The Tribunal raised with the applicant his award of the Bachelor of Commerce in India, and questioned with this had not provided him with a qualification which would assist him with his plans to run one of his family’s businesses. The applicant responded that he had studied some management, but not leadership. He stated that he had completed a financial management subject, which was related to accounting.
The Tribunal noted that the applicant had arrived in Australia to undertake a Masters degree and arrived on a streamlined visa process, which was subject to less scrutiny, but has studied for the majority of his time in Australia at the vocational level. The Tribunal questioned whether he had applied for the Master of Accounting to overcome a more intensive visa application process. The applicant explained that he was aware that all Student visas are subclass 500 visas now, which is why he did not apply for another visa for vocational studies. He stated that he asked his friends and did not obtain professional advice, and only when he made the application for the visa under review did he realise that he had made a mistake by not re-applying for another Student visa sooner.
The Tribunal also noted the applicant’s change in focus of his vocational studies from Marketing and Communication to Leadership and Management, and questioned whether this indicated he was not committed to his course of study. The applicant responded that the only reason why he did not complete the Advanced Diploma of Marketing and Communication was because his education provider at the time was having issues with its registration, and if this had not happened he would have completed the course. He reiterated that he also obtained advice from a professional counsellor, who suggested this course would be relevant to his plans.
As to why he wishes to study the course in Australia rather than his home country, the applicant stated that the study structure is different in India and that he he came to Australia to obtain a qualification and he wishes to complete a course. He stated that he did not research whether similar courses were available in India as he was already present in Australia. He stated he has chosen to study at his current education provider because he had friends who were studying there and were enjoying it, and he made some enquiries with the teaching staff.
The applicant gave evidence that he started working for Coles in November 2016 and continues to work there up to 20 hours per week. He stated that the role has assisted him to learn things about the retail world.
The applicant gave evidence that his parents and one of his sisters live in India. He has one sister who is in Australia and holds a Skilled Regional (Provisional) (subclass 489) visa. He stated that she has been in Australia for 6 years, lives in Dubbo and is married. The applicant stated that he lives with friends in share accommodation and is single.
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.
Having considered all the material before it and the relevant factors as set out in Direction No.69, the Tribunal is satisfied that the applicant genuinely intends to stay in Australia temporarily for the reasons set out below.
As to his personal ties to his home country, the Tribunal accepts that the applicant has both strong personal ties and economic incentives to return to his home country. The Tribunal accepts that all of the applicant’s family resides in India, other than one of his sisters who resides in Australia. The applicant has provided evidence of two grocery stores businesses owned by hos parents, and has provided trade licences and taxation records in relation to these. Most significantly, he has provided evidence of a grocery store purchased by his mother in July 2020, for which it is intended the applicant will initially run and then look to expand.
The Tribunal accepts the applicant’s reasons for wishing to undertake the course of study in Australia, noting that he arrived in Australia in 2016 for the purpose of obtaining tertiary qualifications. He has completed a Diploma of Marketing and Communication and now seeks to obtain an Advanced Diploma of Leadership and Management. The Tribunal accepts that the applicant has not yet completed the qualifications which he wishes to complete prior to returning to his home country.
The applicant confirmed at the hearing that there are no civil or political issues that would act as an incentive for him to remain in Australia. There is no evidence of any military service requirements. There is insufficient evidence before the Tribunal regarding the applicant's circumstances in India, relative to others in that country, and the Tribunal makes no adverse findings in relation to these factors.
As to the applicant’s circumstances in Australia, he is living in share accommodation. The applicant is not in a relationship and there is no evidence that he has entered into a relationship of concern. One of the applicant’s sisters lives in regional New South Wales. She has been in Australia for six years, is here with her husband and holds a 489 visa, and therefore appears to be settled in Australia. The Tribunal considers the presence of the applicant’s sister in Australia may act as an incentive for the applicant to remain in Australia, however the Tribunal also takes into account her presence in a regional part of New South Wales and the fact the applicant does not reside with her.
The applicant gave evidence that he has worked at Coles since November 2016 and he currently works as a Team Leader. He has provided annual salary details. While the applicant has what appears to be stable employment, which may act as an incentive to remain in Australia following the completion of his studies, given the evidence of his parents’ businesses and his plans in relation to these, the Tribunal makes no adverse findings regarding his economic circumstances. There is no evidence of other family or community ties which would present as a strong incentive for the applicant to remain in Australia.
The applicant has been in Australia since 2016 and provided evidence of his reasons for choosing his current course and education provider. The Tribunal therefore makes no adverse findings regarding his knowledge of living in Australia or of his course of study or education provider. Having reviewed the evidence regarding the applicant’s immigration and education history, the Tribunal is satisfied that the applicant is not at present using the Student visa programme to circumvent the migration program or primarily to maintain ongoing residence. The applicant arrived in Australia on 23 February 2020 for the purpose of studying a Master of Accounting. The applicant gave evidence of the difficulties he had in studying his course and his change of interest from Accounting to Marketing and Communication. The Tribunal accepts that the applicant was relatively young when he arrived in Australia and has had regard to the need to allow for reasonable changes to career or study pathways.
The applicant made progress with the course which was the subject of the visa application. He proceeded to complete the Certificate IV and Diploma of Leadership and Management, and has provided copies of the award of each of these qualifications. The Tribunal also accepts that on 21 August 2019 ASQA made a decision to cancel The One International College’s (its legal name being AEC Consulting Pty Ltd) registration as a registered training organisation, including its courses in Marketing and Communication. The Tribunal notes the applicant proceeded to complete the Diploma of Marketing and Communication in November 2019, and has provided a reasonable explanation for wishing to transfer to another education provider.
The Tribunal notes that the applicant did not obtain another CoE until his first CoE for the Advanced Diploma of Leadership and Management which commenced on 20 April 2020. The Tribunal notes the applicant therefore had a period of approximately 5 months where he did not hold a current CoE, and the Tribunal considers this relevant to assessing the applicant’s intentions. The Tribunal also notes that this CoE was created on 7 April 2020, one week after the Tribunal invited the applicant to provide information about his enrolment and in support of his claim that he is a genuine temporary entrant. The Tribunal therefore has concerns the applicant may have obtained the CoE for the purpose of meeting the requirements of the Student visa, however given the evidence of the registration issue with his previous education provider, the Tribunal is willing to give the applicant the benefit of the doubt on this occasion.
The Tribunal accepts that the applicant was on track to complete the Advanced Diploma of Marketing and Communication and has reasonable reasons for transferring to the Advanced Diploma of Leadership and Management. The Tribunal also notes that the applicant is on track to complete the Advanced Diploma of Leadership and Management on 4 May 2021, which is almost 6 months before he was due to complete the Advanced Diploma of Marketing and Communication (on 31 October 2021). He has not enrolled in another package course which will further extend his stay in Australia. The Tribunal is satisfied that the applicant now wishes to obtain the Advanced Diploma of Leadership and Management to obtain a qualification that will be useful to his future, and finds there is insufficient evidence that he is at present trying to maintain ongoing residence in Australia.
While the Tribunal has some concerns that the applicant already has a Bachelor degree qualification from India and is now seeking to undertake studies at the vocational level, overall the Tribunal is satisfied that there is evidence of the value of the applicant’s course of study to his future. As noted above, the applicant provided evidence of his change in study and career interests. The Tribunal also accepts that the Advanced Diploma of Leadership and Management may provide the applicant with skills and knowledge which may assist him with his plans to manage one of his parents’ stores. The Tribunal accepts the course of study is relevant to his future business plans. The Tribunal also notes the applicant’s employment in Coles, and his evidence that this will assist him to obtain experience which he can put to use in his family’s businesses.

The applicant’s immigration history refers to both his visa and travel history. The applicant first arrived in Australia on 23 February 2016 holding a Student visa. The application for review is for a second Student visa. The applicant therefore does not have an extensive visa history. There is no evidence that the applicant has breached any visa conditions or has previously made visa applications which were refused. He has not enrolled in a range of unrelated courses or and is on track to complete his course almost 6 months prior to the studies which were the subject of his visa application. The immigration history of the applicant does not raise concerns for the Tribunal.
Overall the Tribunal found the applicant to be a credible witness, who gave his responses in a matter of fact manner. He has now provided additional information which was not before the delegate, including evidence of his parents’ ownership of grocery store businesses, one of which the applicant plans to manage and then expand.
The Tribunal has also given regard to whether there are any other relevant matters and finds there are no other relevant matters to the assessment of the applicant's intentions to stay in Australia temporarily in addition to the matters covered above. The Tribunal has considered all the information provided by the applicant in support of the application.
On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).
Does the applicant intend to comply with visa conditions?
For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed in some cases (cl.500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).
The applicant has provided with his visa application an undertaking to comply with any conditions the subject of which the visa is granted. There is no evidence to demonstrate that this would not be the case, and based on the applicant’s stay in Australia to date, his evidence of compliance with current visa conditions, and his progress with his studies, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).
On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).
Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?
For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)). There is no evidence before the Tribunal of any other relevant matter that gives rise to a concern by the Tribunal that the applicant is not a genuine applicant for entry and stay as a student.
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.
Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
DECISION
The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.212 of Schedule 2 to the Regulations.
Frank Russo
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.

[2020] AATA 5877

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction