Patel (Migration)

Patel (Migration) [2024] AATA 3950 (19 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gauravkumar Rajendrabhai Patel
REPRESENTATIVE:  Mr Man Mohan Makkar (MARN: 1388274)
CASE NUMBER:  2304106
HOME AFFAIRS REFERENCE(S):          BCC2021/378726
MEMBER:Penelope Hunter
DATE:19 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 19 September 2024 at 10:11am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – value of studies to benefit future career – previous unsatisfactory course progress – management employment – lengthy stay in Australia – gap in studies – maintaining ongoing residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 363, 499; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212
CASES
Hasran v MIAC [2010] FCAFC 40
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 8 March 2023 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 12 March 2021. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant met the temporary entry criteria
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant is a 42 year old male citizen of India. He applied for the visa in order to undertake study in a Graduate Certificate in Management and a Graduate Diploma of Strategic Leadership. He is married and has one child, although he has not included his spouse or child in his visa application. His child was born in 2018 in Australia and the applicant disclosed in his visa application that his child had never been to India to acquire a National Identity card.
In support of his visa application the applicant provided to the Department evidence of financial support, evidence of Overseas Student Health Insurance, a statement of completion of an Advanced Diploma of Leadership and Management and statement of results, a statement of completion of a Certificate IV in Business and statement of results, a statement of completion of a Diploma of Hospitality and statement of competencies, a statement of completion of a Diploma of Management and statement of results, evidence of booking of an English Language test and a statement in support of the visa application. In his statement the applicant set out the following relevant information (in summary):
i.He came to Australia as a dependent visa holder in 2008 with his partner. His partner was the main applicant and she was pursuing her education Australia. They lived together while she was doing hospitality studies and they initially planned to invest in a hospitality business upon their return to India. Unfortunately their relationship was unsuccessful, he filed for divorce which was subsequently approved in December 2015.
ii.After the relationship broke down he decided to pursue further study himself to take his career to the next level alone. His successfully completed a Diploma in Hospitality, a Certificate IV in Business, a Diploma of Management and Advanced Diploma of Leadership and Management in Australia. He had already completed a significant component of his Graduate Certificate and he was acquiring skills to enable him to excel in his career in his home country.
iii.He always wanted to open his own restaurant in India and set up a successful chain of restaurants. He believed that the recipe for their successful restaurant was being able to manage all sides of the business, one key quality was management and leadership. His selected courses will help him to acquire the necessary skills to excel in his chosen profession and they properly align with his future goals and past qualifications.
iv.He would start his career path by working at some of the top organisations in India such as the Hyatt Hotel, ITC Chain of hotels and restaurants, lemon tree, with Hilton venues.
v.His family had always been supportive of his decisions a study and live abroad. They have undertaken the responsibility to fund all his tuition and living costs for the duration of his stay in Australia
The delegate in their decision record set out the following reasons for the refusal of the visa application (in summary):
i.The applicant had not been able to demonstrate to the satisfaction of the delegate ties that would serve as a significant incentive for him to return to his home country.
ii.The applicant declared that he had a sibling in Australia and ongoing management employment. These were considered an incentive for him to remain in Australia indefinitely.
iii.The applicant had not presented any research into his education provider in Australia and had not demonstrated a reasonable level of knowledge about their educational objectives. He further had not demonstrated that he had sufficiently research she study options in his home country.
iv.While it was acknowledged that the proposed study represented further skills to enhance his education it was considered that he had not clearly demonstrated the benefit that undertaking his proposed courses would provide to his career prospects. It was considered that the applicant had not provided convincing testimony as to how his proposed courses would benefit his future employment plans or increase his remuneration level in his home country. Concerns were raised that the applicant would seek to study in courses that involve significant financial outlay and international travel, when he had not demonstrated how they would add value to his career.
v.The applicant first arrived in Australia on 26 June 2008 and had remained in Australia since his arrival. Up until the date of the visa application the applicant had spent a total of 4162 days in Australia as the holder of student visas. He was seeking to study for a further two years at the Vocational Educational and Training (VET) level.
vi.On 11 January 2023 the applicant was invited to comment on adverse information in relation to studying immigration history. The applicant had not explained a study gap of 1.5 years in Australia which raise concerns about his intentions to comply with conditions attached to any further student visas that may be granted. Additionally, the applicant had declared a previous visa refusal which was considered adverse information in relation to his immigration history.
vii.The delegate noted the applicant’s completion of courses between 2014 in 2017, that he had not provided any evidence or academic transcriptional progression towards completion of his subsequent enrolment in the Bachelor of Business course. The delegate identified that the applicant had twice been in the past reported for unsatisfactory course progress by his education provider while enrolled in his Bachelor of Business (AFAF9464) on 21 April 2020 and the Graduate Certificate of Management (Learning) (B7F34493) on 28 May 2021. He then had a study gap until 5 December 2022. When invited to comment on this by the Department he did not provide a response. The delegate held concerns of the applicant was using the student visa program to maintain residence in Australia rather than for genuine study and academic progress.
The Tribunal received an application for review from the applicant on 22 March 2023, together with a copy of the decision record of the delegate.
On 9 April 2024, the Tribunal wrote to the applicant pursuant to s 359(2) of the Act, inviting the applicant to provide evidence that he was enrolled in a registered course and to complete a Student Visa Information form. The invitation advised that if the information was not provided within the prescribed period, being 23 April 2024, or within any extended time as requested and granted, the Tribunal may make a decision without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
On 23 April 2024, the Tribunal received a request for an extension of time to provide the requested information, and the applicant’s representative submitted a letter of offer dated 23 April 2024 in a Graduate Diploma of Learning from the Pacific College of Technology and a statement from the applicant. In his statement the applicant set out the following information (in summary):
i.The problem he was facing was that none of the education providers in Australia were offering him a letter of offer while his case was under review at the Tribunal. He has recently got a letter from the Pacific College of Technology.
ii.Presently he was staying with his parents in Sydney as they had come to meet him. In discussions with his parents he had made a plan to open his own dining house in India. In order to achieve this he needed to choose the right path to study which would cover everything like capital investment, how to manage the restaurant, the interior the kitchen, equipment and marketing. He opted for the Pacific College of technology which provides temporary accommodation and helps in the opening of bank accounts for students. He noticed that the classroom size was small and studies in Australia would help him to open his restaurant with a broader vision.
iii.The Indian market was one of the fastest growing markets in the world the hotel industry was expanding in the hospitality industry was showing a moderate growth in the past four years. After he finished his course he would return to India with the goal of transforming his career successfully. The experience that he will gain would open doors to new possibilities for him. He was confident that the course would be able to provide him with the skills to make his dreams come true.
On 24 April 2024, the Tribunal granted to the applicant an extension of time to respond, and the information was to be received by 21 May 2024. The correspondence included the warning that if the information was not received by 21 May 2024, the Tribunal may make a decision on review without taking further steps to obtain the information and the applicant would lose any right they might otherwise have had under the Act to give evidence and present arguments.
The applicant did not provide any further response to the Tribunal. As the applicant respond within the prescribed period s 359C of the Act applies. Pursuant to s 360(3) the applicant is not entitled to appear before the Tribunal. The effect of s 363A is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear; Hasran v MIAC [2010] FCAFC 40.
Nevertheless the Tribunal has taken steps to obtain further information in relation to the review from the applicant and sent to him a letter pursuant to the provisions of s 359AA of the Act on 16 August 2024 with respect to information contained in his Provider Registration and International Student Management System (PRISMS) records. A further copy was sent to an additional address nominated by his representative on 2 September 2024. The applicant did not respond and the Tribunal has set the information relevant to the notice in its decision below.
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 satisfies cl 500.212 of Schedule 2 to the Regulations.
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.
Firstly the Tribunal notes that the applicant did not continue with the courses that he proposed when he applied for the visa under review. The Tribunal wrote to the applicant pursuant to s 359A of the Act and invited comment on the information that he applied for the visa in order to undertake study in a Graduate Certificate of Management (Learning ) B7F34493 and a Graduate Diploma of Strategic Leadership B8041C30, and that his PRISMS records document that his enrolment in the Graduate Certificate in Management (Learning) B7F34493 was cancelled on 28 May 2021 due to unsatisfactory course progress and his enrolment in the Graduate Diploma of Strategic Leadership was cancelled on 21 April 2021 due to non-commencement of studies. As identified to the applicant, the Tribunal considered this information was important because it appeared that the applicant stopped studying in his selected courses less than three months after the visa application and prior to the Department having completed their assessment. This causes the Tribunal to have concerns that the applicant wished to remain in Australia temporarily for the genuine purpose of study. It further indicated to the Tribunal that that his proposed study in Australia did not have value for him and that that may have applied for the a student visa as a means of maintaining residence in Australia and circumventing the intentions of the migration program.
Again pursuant to the procedure in s 359A of the Act the Tribunal invited comment or response from the applicant to information that following the cancellation of his initial courses of study, the PRISMS records of the applicant indicate that then he obtained a further enrolment in a Certificate IV in Commercial Cookery D5F9C662, with course dates from 5 December 2022 to 2 June 2024, and a Diploma of Hospitality Management D5FB0183 with course dates from 1 July 2024 to 29 December 2024. They also record that the Certificate IV was cancelled due to unsatisfactory course progress on 18 August 2023 and the Diploma of Hospitality was cancelled on the same date due to non-commencement of studies. Relying on this information it again appears to the Tribunal that the applicant has purely enrolled for the purposes of the visa and as a means of maintaining residence in Australia. Further, as he did not progress the Tribunal considers that this indicates that the course may not hold value for him, and also further demonstrates that he is not in Australia for the genuine purpose of study. Finally, the Tribunal also notes that the applicant has already presented evidence that he holds the qualification of the Diploma of Hospitality. The fact that he re-enrolled in a qualification that he already holds suggests that the applicant is using the student visa as a means of maintaining residence. The applicant has not provided any response or evidence to dispute these concerns.
In May 2024, the applicant obtained a further enrolment in the Graduate Diploma of Learning. On the material before the Tribunal the applicant has not demonstrated that he has researched whether similar courses to his proposed Graduate Diploma of Learning are available in his home country, nor has he provided any reasons why study in India would be unsuitable given the qualifications from Australia he already holds. It is noted that the applicant has claimed that he intended to start a business in his home country, with this ambition considered that management strategies applicable to the Indian workforce may be of greater relevance to his career. Particularly, as the applicant has already indicated that he has worked in management roles in Australia for several years in his visa application. On the material before the Tribunal it is not demonstrated to the Tribunal that the applicant has reasonable reasons for studying in Australia rather than his home country.
The Tribunal has considered the circumstances of the applicant in his home country and it is not satisfied that he has family ties that would act as a significant incentive for him to return. In his statement to the Tribunal on 23 April 2024, the applicant said that his parents were in Sydney supporting him. His brother is also resident in Australia. It is noted that the applicant has resided in Australia since 2008, there is no evidence before the Tribunal or any economic or community ties in his home country. On the material before it the Tribunal cannot be satisfied as to the economic circumstances of the applicant, or that they do not present a significant incentive for the applicant not to return to his home country.
There is no evidence before the Tribunal that the applicant has any military service commitments. Neither is there evidence of any political or civil unrest in the applicant’s home country which would present as a significant incentive for the applicant not to return. The Tribunal places neutral weight on these factors.
In the consideration of the applicant’s circumstances in Australia, he claims that his parents are in Australia supporting him. His brother is also in Australia and has provided a statement of financial support with his visa application. The applicant has further indicated that he is married and has a son. His son although an Indian citizen was born in Australia and has never been to India. It is considered that these family ties in Australia may present a strong incentive for him to remain. The applicant has set out various employment in Australia in his visa application, and it is noted that at the time he had held a role of operations managers for a food wholesaler since February 2019. It further appears that he has maintained reasonably senior level stable employment in Australia. This employment is not in a high level hospitality organisation consistent with his stated career goals. The Tribunal also holds concerns that his employment opportunities in Australia may further serve as an incentive for him to remain.

The Tribunal has discussed the most recent academic performance of the applicant above, which strongly indicates that the applicant is using the student visa program to maintain residence. Added to this is the fact, as identified by the delegate, that the applicant has not provided evidence that he has successfully completed a qualification in Australia since 2017. He has been resident in Australia since 2008 as the holder of a dependent student visa, student visa or associated bridging visa. This ongoing period of residency for 16 years suggests that he sees Australia as a place to live, and not just a short term place to study and obtain academic qualifications.
The information that the applicant has provided to the Tribunal about his intended course of study and his associated education provider is extremely limited. It appears that the applicant may have chosen because it was the one that offered to enrol him. The applicant set out in his statement to the Tribunal that the college offers temporary accommodation and it would set up a bank account, it is difficult for the Tribunal to understand why this would be an advantage to the applicant given that he has family onshore and he has already been residing in Australia since 2008 and should already have established personal accounts. Other than a reference to small class sizes, considering the time that the applicant has been in Australia and his previous experience at study, it is not considered that he has demonstrated a realistic level of knowledge about his course and education provider or that he has undertaken independent research as to these proposed arrangements.
It is accepted that a Graduate Diploma of Management is of a higher level than the existing studies that the applicant has successfully completed in Australia. As to whether the course will assist the applicant to obtain employment or improve his prospects, the Tribunal is not satisfied that the applicant has demonstrated this. He claims that he wishes to open his own restaurant or restaurant chain, he has however not submitted any business plan or evidence of resources to assist in this endeavour. He also indicated before the Department that he would pursue executive positions in major hotels and restaurants initially on his return to India. As discussed above, the Tribunal notes that it does not appear that he has pursued relevant hospitality experience in Australia, he has not demonstrated that he would be considered a prospective candidate for such positions in his home country or that his proposed course is a required or desired further qualification given the qualifications he already holds. The Tribunal is also not satisfied that the applicant’s chosen courses will improve the remuneration he could expect to receive in his home country using the qualification to be gained from the course. Consequently, the applicant has not to the satisfaction of the Tribunal demonstrated the value of his proposed course. As mentioned above, the fact that he did not continue with his initial intended courses in the first instance and only obtained a further enrolment on the request for evidence from the Tribunal further demonstrates that the actual qualification is of limited value. Finally, as his evidence is that his ultimate goal is to open a restaurant of his own, the Tribunal is not satisfied that the applicant has justified the time, costs and expense of overseas studies when he has not even demonstrated that he has the resources to achieve or support this goal.
The immigration history of the applicant is of concern. Firstly, the applicant has disclosed in his visa application that he has been refused a student visa in the past. He has not provided an explanation for this refusal. The applicant also, as set out in the delegate’s decision record has had several enrolments cancelled in the past due to failure to progress in his studies which could be non-compliance with condition 8202(2)(c)(i) if the applicant held a student visa at the time. The academic performance of the applicant to date, particularly since 2017, raises concerns whether he would abide by conditions of his visa in the future. The length of time that the applicant has spent in Australia, since 2008 is indicative of the fact that the applicant is using the student visa for the primary purpose of maintaining residence. He has continuously enrolled in short inexpensive courses at the VET level, and he has also spent the last 7 years in Australia without providing evidence that he has successfully completed a course.
As to other matters, the applicant disclosed in his visa application that he has come criminal matters for consideration before the court relating to the offences of damage/destroy property. The Tribunal places no weight on these matters. There is insufficient evidence for the Tribunal to determine the particular circumstances and how they would impact on his compliance with future visa obligations.
Conclusion
Considering the circumstances of the applicant overall, it is accepted that he has completed some courses in the past, however on balance, the Tribunal is not satisfied that the circumstances of the applicant in his home country overall act as a significant incentive for him to return, that he has reasonable reasons for undertaking his study in Australia or that his proposed courses have value for him. As discussed above there are particular circumstances of the applicant indicate that he is using the student visa as a means to maintain residence. In accordance with Direction 108, s 8 the Tribunal places weigh on these circumstances. These include the duration of his time onshore, his lack of progress to date, his enrolment in courses at the VET level and his proposed further stay. On the basis of the above discussion of evidence, findings and reasons regarding the applicant’s intentions, and having regard to the factors specified in Direction 108, the Tribunal is not that the applicant genuinely intends to stay in Australia temporarily
Accordingly, the applicant does not meet cl 500.212(a).
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Penelope Hunter
Member

Attachment – Direction No.108
DIRECTION NUMBER 108 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, CLARE O’NEIL, Minister for Home Affairs and Minister for Cyber Security, give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 21 March 2024
Clare O’Neil
Minister for Home Affairs and Minister for Cyber Security
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 - Preliminary
Name of Direction
This Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 108.
Commencement
This Direction commences on 23 March 2024.
Revocation
Direction No. 69, given under section 499 of the Act, is revoked.
Interpretation
Act means the Migration Act 1958.
Finally determined has the same meaning as is set out in subsections 5(9) and (9A) of the Act.
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 against the genuine temporary entrant criterion for Student visa applications and Student Guardian visa applications (as applicable).
This Direction also applies to members of the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; who review the decisions of primary decision-makers in relation to a Student visa or Student Guardian visa application.
This Direction applies in relation to Student visa applications and Student Guardian visa applications made before 23 March 2024 but not finally determined on that date, including such visa applications that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for a Student visa and seek to satisfy the primary or secondary criteria, or an application for a Student Guardian visa and seek to satisfy the primary criteria.
Note: Direction No. 106 applies in relation to Subclass 500 (Student) visa applications and Student Guardian visa applications made on or after 23 March 2024, including visa applications made on or after that date that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.
Preamble
The Australian Government operates a student visa program 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 program 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 – 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 or Student Guardian 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 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8. Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia. The applicant’s circumstances in their home country
9. When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a) whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b) the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c) economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d) military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e) political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10. Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11. In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a) The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b) evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c) whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
d) whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e) the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12. Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a) whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b) relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c) remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13. An applicant’s immigration history refers both to their visa and travel history.
14. When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a) Previous visa applications for Australia or other countries, including:
i. if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii. if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
iii. b. Previous travels to Australia or other countries, including:
iv. 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;
v. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
vi. 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
vii. 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 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.

[2024] AATA 3950

19 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal