Plongkham (Migration)

Plongkham (Migration) [2020] AATA 5989 (13 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Pawat Plongkham
CASE NUMBER:  1927614
HOME AFFAIRS REFERENCE(S):          BCC2019/3946019
MEMBER:Justin Owen
DATE:13 November 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 13 November 2020 at 4:24pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine temporary entrant criterion not met– no strong incentive to return to her home country – further English studies –current employment history –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212
Education Services for Overseas Students Act 2000

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 16 September 2019 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 9 August 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the 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 the applicant intends to genuinely stay temporarily in Australia.
On 15 May 2020 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act inviting the applicant to provide further information to the Tribunal. The applicant was invited to provide all relevant information about the course(s) of study they were undertaking and their entry and stay in Australia as a student.
The Tribunal is satisfied that the applicant was properly sent an invitation to provide further information under s.359(2) of the Act. The invitation was sent to the applicant’s nominated address, being the address provided by them in connection with this application for review.
The invitation advised that, if the information were not provided in writing by 29 May 2020 or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking any further steps to obtain the information. Furthermore, the applicant would lose any entitlement they might have had under the Act to appear before the Tribunal to give evidence or present arguments.
On 29 May 2020 the applicant responded in writing, making submissions. The applicant completed the Tribunal’s Request for Student Information form and consented to the Tribunal deciding the review without a hearing.
The Tribunal’s form noted that if the applicant consented to the Tribunal deciding the review without a hearing, they would not be invited to appear at a hearing to give evidence and present arguments relating to the issues in their case. The Tribunal’s form noted that the Tribunal may consider criteria or issues that were not previously considered by the primary decision maker. The Tribunal noted in its form that it may either affirm or set aside the decision under review. The Tribunal noted that the applicant should provide it with all the information he wished the Tribunal to consider in his case. This matter has therefore been determined on the evidence available to the Tribunal.
On 1 October 2020 the Tribunal again wrote to the applicant inviting him to comment on or response to certain information which the Tribunal considered would, subject to his comments or response, be the reason or part of the reason for affirming the decision under review. The correspondence pertained to the applicant’s Provider Registration and International Student Management System (PRISMS) record that indicated he was not currently enrolled in a course of study at the present time. The Tribunal noted in its correspondence that the PRISMS record indicated that his course CoE AD7A1388 General English (Elementary to Upper Intermediate) was the last course that was recorded as finished on 23 August 2020. The Tribunal noted that there was no indication on the PRISMS records that he was currently enrolled in a registered course of study. The Tribunal noted that the information appeared to indicate the applicant was not enrolled in a course of study at the present time. The applicant was provided to comment or respond to the information by 15 October 2020.
On 9 October 2020 the applicant responded in writing, attaching a new CoE dated 8 October 2020 for a course in General English (Elementary to Advanced) at the Blue Lotus College. The CoE states the course is due to commence on 12 October 2020 and runs until 18 June 2021. The applicant in his correspondence wrote that his current English level was Intermediate and he wished to increase his English ability to Advanced before he departed Australia.
The Tribunal has proceeded to make a decision on the material before it. 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.
Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.
‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.
In this case, the Tribunal noted in its s.359A invitation on 1 October 2020 that the applicant’s PRISMS record indicated that his course CoE AD7A1388 General English (Elementary to Upper Intermediate) was recorded as finished on 23 August 2020 and he had no further enrolments. The Tribunal noted that there was no indication on the PRISMS records that he was currently enrolled in a registered course of study. The Tribunal notes that the applicant appears to have secured a CoE in a further General English course on 8 October 2020, after receiving the Tribunal’s s.359A invitation.
The Tribunal nevertheless notes that the applicant has provided In this case a CoE for a General English (Advanced) course dated 8 October 2020 that was due to commence on 12 October 2020. The Tribunal is satisfied that the CoE produced in relation to this course represents a valid and current enrolment.
Therefore, the Tribunal is satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is met.
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Tribunal has considered the various documentation submitted by the applicant to the delegate as part of his original application including his Genuine Temporary Entrant Statement along with his submissions to the Tribunal.
The Tribunal has considered the applicant’s circumstances in their home country. The applicant in his completed Tribunal Request for Student Visa Information form stated he has one brother in Thailand with whom he claims he is very close and chats with each week. He also states that his girlfriend is residing in Thailand with whom he communicates each night and planned to marry this year.
The applicant states that he has property in Thailand to the value of $AUD75,000 and a motor vehicle valued at $AUD22,500.
The Tribunal has some doubts as to the veracity of the applicant’s claims pertaining to his family and friends. The Tribunal notes that the applicant in his Request for Student Information form he supplied in late May 2020 stated his plan was to return to Thailand to marry his girlfriend by the end of 2020 after he completed his then course. The Tribunal notes the applicant did return to Thailand for family reasons a number of times since arriving in Australia in 2018 and gives this some positive weight in his favour. The Tribunal however notes that the applicant did in fact graduate from his course in August 2020, but rather than return to Thailand to his girlfriend as he plainly stated, he has now instead enrolled in a further course that would see him remain in Australia until at least June 2021. This course, the Tribunal notes, was enrolled in after he received the Tribunal’s s.359A correspondence pertaining to his lack of current enrolment. The Tribunal, on the evidence before it, on balance does not consider the applicant’s familial ties to Thailand are operating as a significant incentive for him to return to their home country.
Whilst the Tribunal accepts the applicant’s claims pertaining to his property and motor vehicle ownership in Thailand, the Tribunal does not however consider these to be at a quantum to operate as any kind of meaningful incentive for the applicant to return to his home country after finishing his studies.
The Tribunal notes the applicant’s claim he has been working as a tattoo artist for ‘Blood line Tattoo’ since February 2017. The Tribunal notes that the applicant did in fact first arrive in Australia in July 2018 so he does not appear to have been engaged in full-time, ongoing employment with the parlour. Whilst the Tribunal is prepared to accept the applicant has a genuine interest in working in the tattoo industry, the Tribunal does not consider it to be operating as a strong economic or employment incentive for him to return to Thailand. The Tribunal is of the view that the economic and employment circumstances of the applicant do not present as a significant incentive for the applicant to return to India.
The Tribunal notes that no concerns have been expressed by the applicant about compulsory military service; nor have any concerns been raised about political or civil unrest in Thailand, that might be motivating the applicant to remain in Australia and not return home. However, these factors in his favour are relatively immaterial having regard to the other objective considerations in this case.
The Tribunal has considered whether the applicant has any sound reasons for not studying in his own country if a similar course was available. The applicant wishes to undertake further studies in English which will be of benefit in his chosen career as a tattoo artist. In his submissions the applicant stated that his goal had been to study abroad and to improve his English skills. He stated that being in an English-speaking country like Australia would provide him with greater opportunities to learn and practice English. He stated that the Australian English-speaking environment would help him develop his English language skills more quickly and efficiently including the gaining of social skills. The applicant stated that Australia was ranked as having one of the world’s leading education systems with very high-quality education providers, a standard superior to that in Thailand. The applicant stated studying his course in Australia would allow him to participate in a wide range of experiences. The applicant submitted that the regulation of the English teaching industry by the Australian Skills Quality Authority gave him and other students confidence that their courses would be of a high standard and offered international students a level of protection with the quality of the courses they undertook. The applicant also stated that studying in Australia was beneficial as it was only 9 hours from Thailand, meaning it was convenient for him to return home.
The Tribunal notes that the applicant travelled to Australia now over two and a half years ago. He has completed the studies that he stated in May 2020 were his motivation to remain in Australia. He has enrolled in a further English course after receiving the Tribunal’s s.359A invitation. The Tribunal accepts that the applicant had an interest in learning English in an English-speaking environment. He has now successfully completed those studies. The Tribunal is not satisfied that the applicant’s reasons to now remain and undertake a further English language course are sound and the Tribunal notes that they contradict his earlier stated intention to return to Thailand to marry his girlfriend by the end of 2020. The Tribunal is satisfied that there are English language courses available in Thailand that will allow him to further develop and build on the language skills he has obtained whilst studying in Australia. The Tribunal appreciates his statement that the quality of studies is superior in Australia. The Tribunal does not however consider that this alleged differential in quality will preclude the applicant from successfully undertaking further advanced studies in English in Thailand should that be his desire. If he is genuine in his desire to undertake further English language studies, the Tribunal is not convinced on the evidence before it that a suitable course of study in this area is not available in Thailand. The Tribunal has also given significant weight to the applicant’s own pronouncement in his May 2020 statement when he was asked why he could not undertake his then intermediate English course in Thailand. He responded that ‘Yes I will but this time I already decided to study in Australia, I just want to finish this course first. If I have a chance I will do it in Thailand in the Future’. Since this time the applicant has in fact successfully completed his intermediate course in English. The Tribunal is not satisfied on the evidence before it that suitable further English courses that may assist the applicant in his desire to work in the tattoo industry are not available in Thailand. The Tribunal is not satisfied on the evidence before it that the applicant has a sound reason for not undertaking such a course in his home country.
The Tribunal has considered the applicant’s potential circumstances in Australia. The Tribunal notes that there is no evidence before it of the applicant claiming family or community ties in Australia beyond the friends the applicant says he has made whilst studying in Australia. The Tribunal notes that the applicant is living in an apartment in Docklands and through his bank statements appears financially self-sufficient. The Tribunal gives the applicant some positive weight in this regard. The Tribunal has considered whether the student visa programme is being used by the applicant to circumvent the intentions of the migration programme and to maintain ongoing residence. The Tribunal has significant concerns as to the applicant’s decision (without any significant explanation beyond a desire to further his English studies) to depart from his stated and express plan in May 2020 to finish his course, return to Thailand and marry his girlfriend by the end of the year. On 28 May 2020 in fact the applicant wrote to the Tribunal stating that he had no incentive to remain in Australia after he finished his then English course as he needed to go back to Thailand and live with his girlfriend. He wrote about how he had been in a relationship with his girlfriend for three years and planned to ‘go back to Thailand after I finish from this English course and getting married at the end of the year’. Now – after receiving a s.359A invitation from the Tribunal pertaining to his then lack of a current enrolment – he has instead enrolled in a further course of study in Australia which runs until mid-2021. The Tribunal subsequently holds some significant concerns as to whether the applicant intends to utilise the student visa programme to circumvent the intentions of the migration programme.
The Tribunal has considered the value of the applicant’s course to his future. The applicant in his written submission stated that he was working as a tattoo artist and would like to open up a tattoo shop in Phuket Province in Thailand. He states that Phuket is a very popular tourist destination for foreigners, a fact that motivated him to undertake an English course. The applicant stated that being able to effectively communicate with clients – given the nature of the work of a tattoo artist – was vitally important. He writes that an owner of a tattoo shop in Thailand therefore requires strong English language skills. He states that having English language skills will enhance his employment prospects and improve his appeal to potential employers. The applicant also states that English is becoming a standard language inside companies in Thailand after the country joined the ASEAN Economics Community (AEC) so this will assist his future career on a wider basis. The applicant asserts knowledge of English will also have a significant improvement on his earning capacity.
Outside of the COVID-19 pandemic Thailand has been a very popular international tourist destination, and the Tribunal accepts that a knowledge of English – and being able to communicate effectively in English – is an important advantage to anyone working in the local tourism industry. Given the work and responsibilities of a tattoo artist, the Tribunal appreciates that a good knowledge of English is of particular value. The Tribunal accepts the applicant’s course may be of some value therefore to the applicant in his most recent work as an employee in a tattoo parlour but notes he has, since first applying for review with the Tribunal, now in fact completed his English studies up to the intermediate level. The Tribunal also accepts the argument more generally that a good knowledge of English is a benefit to a participant in the modern Thai workforce on a wider basis.

In relation to the value of the course to the applicant specifically in opening up a tattoo parlour in Phuket, the Tribunal gives the claim little positive weight. There is no evidence of any business plan or any documentation that corroborates the applicant’s assertion that he intends to open and own his own tattoo parlour in Phuket. There is no evidence of any planning or work that has been done in relation to this goal. The Tribunal furthermore notes that the applicant has already completed English studies up to the intermediate level, and it is not satisfied that any further English studies he may wish to undertake cannot be undertaken in Thailand.
The Tribunal, whilst accepting that the applicant’s already completed English studies may have added some value to his future employment as a tattoo artist, is not satisfied that the applicant has in any way demonstrated the value of undertaking further advanced English courses to his future, particularly to his claimed goal of opening his own tattoo parlour in a tourist-heavy destination. The Tribunal again notes that there is no evidence before the Tribunal as to how the applicant intends to open up his own tattoo parlour in Phuket and any evidence of a genuine business plan. Whilst the Tribunal accepts the applicant’s previous English studies will be of assistance to him in his work generally as a tattoo artist in Thailand, the Tribunal is not satisfied that a further English language course will be of significant further assistance to him. On the evidence before it, the Tribunal is not satisfied that the applicant has demonstrated the value of his proposed course to his future.
The Tribunal has considered the remuneration the applicant could expect to receive in their home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study. The applicant has claimed that tattoo artists can make significant amounts of money if they have foreign clients. He claims that he can make around $60,000 per year annually working as an employee or up to $150,000 annually as the owner of a tattoo parlour business. The applicant has not outlined what his assessment of remuneration as a result of completing his English studies is based up or over what duration of time. There is no evidence before the Tribunal to corroborate these claims concerning potential remuneration. The Tribunal considers the claims concerning future profit are of little substance and gives these claims little weight.
The Tribunal has considered the applicant’s immigration history. The Tribunal notes from the decision record the applicant provided that the applicant initially arrived in Australia on a Temporary Activity visa ostensibly to attend an exhibition. According to the Tribunal’s Request for Student Visa Information he has obtained four separate Temporary Activity visas without any adverse incident. After his Temporary Activity visa ceased in August 2019, he instead remained in Australia to lodge his Student visa application. He has remained in Australia since his application was refused by the delegate and undertaken studies in English during this period. The Tribunal accepts that the applicant’s previous immigration history is not particularly adverse and gives the applicant some positive weight in this regard.
The Tribunal nevertheless notes that the applicant has without significant explanation departed from his stated claim to the Tribunal in May 2020 that he would complete his then English studies before departing Australia to marry his girlfriend by the end of the year. His decision to instead - after receiving the Tribunal’s s.359A invitation pertaining to his then lack of current enrolment –enrol in a further course of study after successfully completing those previous studies causes the Tribunal to doubt his claims that he plans to return to Thailand when his latest English course is completed. The Tribunal has taken into account his claim that he would now like to undertake advanced English studies and gain qualifications before he returns to Thailand. Given the firm assurances he provided the Tribunal in May 2020 as to his departure, the Tribunal has significant concerns as to the veracity of his claims that he will return to Thailand after completing further English studies in June 2021.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Justin Owen
Senior 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 5989

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction