Pokharel Ghimire (Migration)

Pokharel Ghimire (Migration) [2021] AATA 952 (19 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Sarita Pokharel Ghimire
CASE NUMBER:  1916857
HOME AFFAIRS REFERENCE(S):          BCC2019/1752398
MEMBER:Michael Biviano
DATE:19 February 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 9 February 2021 at 5:40 pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Certificate III in Hairdressing – Diploma of Salon Management – change in career path – inconsistent with current level of education – economic circumstances of Nepal – length of time spent in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 June 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 April 2019. At the time of application, Class TU contained 2 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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) for the reason that she was not a genuine applicant for entry and stay as a student because she did not intend to stay in Australia temporarily.
The applicant appeared before the Tribunal on 17 August 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
The applicant was assisted in relation to the review by her registered migration agent.
It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant was a genuine applicant for entry and stay as a student.
Genuine applicant for entry and stay as a student (cl.500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The applicant is a 39-year-old Nepalese national who came to Australia on 9 February 2019. She entered Australia after obtaining an initial Visitor (Class FA Subclass 600) visa which was valid until 9 May 2019. She was granted the visa on 8 January 2019.
The decision record of the Department of Home Affairs dated 20 June 2019, which was provided to the Tribunal by the applicant, confirms that the applicant made the application for a student visa on 9 April 2019 (Decision Record).
Further, the Decision Record confirms that at the time she applied for the student visa she had enrolled to undertake the following courses:-
a.Certificate III in Hairdressing; and
b.Diploma of Salon Management.
The Decision Record confirms that the applicant has resided in Australia on the visitor visa and associated bridging visa.
On 11 May 2020, prior to the hearing, the applicant filed with the Tribunal a response within time pursuant to an invitation to supply student information about the courses she was studying and information about her entry and stay in Australia in accordance with s.359(2) of the Act (Response).
In addition to the Response the applicant also filed documentation in support of her application including:-
a.Statement of Purpose;
b.Certificate III in Hairdressing from the Melbourne College of Hair & Beauty dated 30 April 2020 including confirmation of enrolment letter;
c.confirmation of enrolment (COE) No. A8141E47 for the applicant to study a Certificate III in Hairdressing at the Melbourne College of Hairdressing, Beauty Therapy & Natural Medicine between 8 April 2019 and 9 August 2020 which was created on 4 April 2019;
d.COE for the applicant to study a Diploma of Salon Management at the Melbourne College of Hairdressing, Beauty Therapy & Natural Medicine from 10 August 2020 to 8 August 2021 which was created on 4 April 2019;
e.International student letter of offer and acceptance from the Melbourne College of Hair & Beauty dated 2 April 2019;
f.statement from Shree Medical & Technical College dated 3 December 2018 confirming that the applicant has since 2008 worked as a Senior Librarian at the Shree Medical & Technical College;
g.relationship certificate from Bharatpur Metropolitan City dated 9 May 2018;
h.relationship certificate from the same Council dated 3 December 2018 for her immediate family;
i.certificate of property valuation issued by KDEC, Kalika Design Engineering Consultancy dated 8 May 2020 together with supporting documentation on valuation;
j.payslips for the applicant’s brother-in-law and sister; and
k.bank account deposit for the applicant.
Immediately prior to the hearing the applicant filed further supporting material which comprised:-
a.COE No. BB28B223 for the applicant to study a Certificate III in Hairdressing commencing 10 August 2020 to 11 December 2020 at the Melbourne College of Hairdressing, Beauty Therapy & Natural Medicine which was created on 23 July 2020;
b.submission from Noble Career Gurus dated 11 August 2020;
c.statement on genuine temporary entrant criteria from the applicant; and
d.COE No. BB28E817 for the applicant to study a Diploma of Salon Management from 8 February 2021 to 6 February 2022.
Prior to coming to Australia the applicant undertook schooling in Nepal. She completed a Proficiency Certificate Level (PCL) degree in management from Saptagandaki Multiple Campus affiliated with Tribhuwan University in Nepal. The applicant completed her Proficiency Certificate in June 2000. The applicant gave evidence that she married in 2003 and in 2005 they had their first child together. The applicant gave evidence that they now have 2 children who are currently living in Nepal with their father.
The applicant gave evidence that after completing her qualifications she worked as a Librarian at the Shree Medical & Technical College and after a few years in 2008 she was promoted to the position of Senior Librarian at the same College.
The applicant gave evidence that she came to Australia in 2019 for the purposes of visiting her sister and brother-in-law who reside here in Australia. She had initially applied for a visitor visa in 2018 which was refused.
She claims that she subsequently applied for a visitor visa that was then granted. She claims her air tickets for her trip to Australia provided that she would arrive in Australia on 9 February 2019 and return in April 2019 after a 3 month stay. She confirmed that she was able to obtain leave from her employment to travel to Australia.
The applicant gave evidence that she had no further room to grow in her position in the library. Her Statement of Purpose outlined that she was no longer excited working as a librarian and that she wanted to develop skills as a hairdresser and complete qualifications so that she can establish her own training centre in Nepal to train people in relation to beauty and hairdressing.
The applicant gave evidence that at all times prior to coming to Australia she had intended to return back in April 2019, but only made the decision to stay in Australia having spent 3 months with her sister and having undertaken research here in Australia. She had been encouraged by her sister to be educated here for the purposes of establishing a new career back in Nepal.
The applicant gave evidence that she considered that due to Nepal being a developing country that business in the beauty industry had a significant degree of scope to grow. The applicant gave evidence that there was increasing demand by reason of women in urban areas being engaged in the private sector including banking, media, travel, shopping malls, corporate business and tourism industries. She claimed that if she could work as a hairstylist or salon manager back in Nepal her salary would be 110,000 Nepalese rupees per month which is the equivalent of AU$1,466 per month.
If the applicant worked in Australia on a full time basis, her level of income in Australia would be substantial considering that the minimum wage in Australia as at 1 July 2020 as set by the Fair Work Commission is AU$753.40 per week, which equates to AU$39,176.80 per annum. The level of income that the applicant would earn in Australia with the skills and qualifications as a hairdresser or salon manager would be substantially more than what she is likely to earn in Nepal, and that would provide her with a substantial economic incentive to remain in Australia and not return home.
The applicant gave evidence that she had commenced the Certificate III in Hairdressing, however, due to COVID-19 restrictions, she was required to extend her course and her course was scheduled to conclude in December 2020. As at the date of the hearing the applicant had not enrolled to extend the time for the Diploma of Salon Management, however, if the applicant has completed the Certificate III in Hairdressing there would be no reasonable basis for the applicant to be refused admission to that course.
The Tribunal notes that studying the Diploma based on the timeframe in her previous COE would result in the applicant being required to study this course for a further period of a year to complete the Diploma of Salon Management. Consequently, the applicant’s studies would not conclude until December 2021 or January 2022, extending her stay in Australia for nearly 3 years, which is a long period of time to be in Australia having come here on a visitor visa, and inconsistent with the purposes of the visa to stay here for a temporary period of time.
The applicant has changed her career path initially from management and being a librarian to hairdressing and, in the future, to salon management. The courses that the applicant has studied and intends studying are not connected and are not complimentary to each other. They do not lead to a career path or position in employment. The applicant gave evidence that she wishes to change career paths to essentially operate her own college to train hairdressers in Nepal.
Whilst the Tribunal recognises that it is important to allow for reasonable career changes and study pathways, this will not be the case where an applicant has merely decided to change careers through undertaking short vocational education training (VET) courses. Importantly, the courses in which the applicant has enrolled in in Australia are all short VET courses and do not reveal any progression in her course of study, having regard to the applicant completing on her own evidence a Proficiency Certificate Level degree in management which was a 2-year course in Nepal.
The Tribunal considers that the courses she is studying and intends studying in Australia are inconsistent with her current level of education. The Tribunal accepts that the applicant’s present studies of a Certificate III in Hairdressing and her future studies in a Diploma of Salon Management are likely to only marginally improve her employment prospects and remuneration in Nepal when considered alongside the qualifications and experience that she already has obtained both in Australia and in Nepal.
When questioned as to whether there are other similar courses that the applicant could study in Nepal in hairdressing and salon management, the applicant gave evidence that there were no relevant courses in Nepal and the only way to be qualified was to undertake 3 to 6 months of training in a beauty parlour in Nepal. The applicant in her Statement of Purpose gave an extensive outline as to why she was unable to undertake these studies at home. Essentially her evidence was that there were not many opportunities available for further study in hairdressing in Nepal or in the fashion industries which are still developing in Nepal. The Tribunal considers that whilst there may not be a Certificate III in Hairdressing or exact identical courses available such as a Diploma of Salon Management, the applicant has the opportunity in her home country to undertake training in similar type courses to enable her to be a hairdresser or manager of a hairdressing salon. The applicant has already completed a management qualification for which her skills would be adaptable. The applicant further outlined that her studies in Australia were more practical, gave hands-on experience and provided a better qualification that was recognised globally. Further, the applicant argued that the quality of education in Australia was substantially better than the Nepalese education system. There is nothing preventing her from undertaking studies and training in Nepal to obtain comparable skills and qualifications. In the circumstances the Tribunal does not accept that the applicant has reasonable motives to undertake these courses here in Australia.
The applicant has lived in Australia for the last 2 years and she has a substantial degree of knowledge of living in Australia. The applicant outlined in the Statement of Purpose the reasons for undertaking the Certificate III in Hairdressing and Diploma of Salon Management at the Melbourne College of Hair & Beauty. The applicant considered that the course at that institute was cheaper but more intensive, and that the College had been providing training and vocational education services in career-oriented skilled courses both to domestic and international students for the past 60 years. The applicant had been studying the Certificate III in Hairdressing from the commencement of enrolment in May 2019. Whilst the applicant was expected to complete her course in April 2020 her course was extended by reason of interruptions as a consequence of the COVID-19 pandemic.
As the applicant has studied at the Melbourne College of Hair & Beauty since April 2019, the Tribunal is satisfied that the applicant has a substantial degree of knowledge about the course and the education provider.
The applicant gave evidence that she is not working whilst in Australia and she is being supported in part by her sister and brother-in-law here in Australia, who are funding her education over here in conjunction with her husband, who is paying for the tuition fees, and an arrangement whereby her husband in Nepal is sending money to her brother-in-law’s family in consideration of which the applicant’s brother-in-law was providing accommodation and looking after her living expenses here in Australia. The Tribunal notes that the fact that the applicant is being supported here in Australia would provide her with a substantial incentive to remain here.
Whilst the applicant gave evidence that the economic conditions in Nepal were favourable to her for the purposes of commencing her business, it is common knowledge that the economic circumstances of Nepal are that it is a developing country and the economic conditions in Nepal are not as favourable as those in Australia, which would not present a significant incentive for her to return home.
The applicant has not returned home to Nepal whilst she has stayed in Australia for the last 2 years. The applicant has also not travelled to any other country during her stay in Australia. The Tribunal finds that the applicant’s conduct in not returning home in the last 2 years, notwithstanding for a significant part of that time there have been restrictions on travel, it is not consistent with her wanting to return home.
The applicant in her Response claimed that she had some land in her name and in her parents’ name, and her husband had land in his own name back in Nepal. The applicant in the Statement of Purpose stated as follows:-
I have got a piece of land as joint ownership with my mother Narayani Pokharel in a business area and my spouse Prakash Ghimire also has a chunk of land nearby the market area. I live in a joint family and we have one building and have some land for crop cultivation and we as a family share the assets and properties.
The valuation submitted by the applicant revealed that she has land with her mother which is valued at 13,206,660 Nepalese rupees, which equates to AU$168,130, of which she has a 50% share. The other properties in the valuation are held by her parents and do not belong to her. Her share of the land that she holds with her mother, based on equal share, would only amount of AU$84,000, which would not provide a substantial financial reason to return back home to Nepal especially considering the rates of pay here in Australia. The land valuation submitted also confirms that her husband has a piece of land which is worth 7,619,400 Nepalese rupees which equates to AU$97,000, which again would not provide a substantial financial incentive for her to return home.

The applicant in the Response and in evidence did not have any concerns about returning home to Nepal and no concerns about military service commitments and political and civil unrest in her home country. The Tribunal finds that they do not provide a significant incentive for her not to return home.
The Tribunal finds that based on the applicant’s evidence and circumstances in her home country, including her assets and education and the support that she has received from her family (including their assets and financial position) relative to others in that country, she is in a very good position and it would not provide a significant incentive for her not to return home. The Tribunal accepts that the applicant and her husband have been married since 2003 and they have 2 children, and they are not in a relationship of concern for a successful visa application.
The applicant has both personal ties to Australia and to Nepal.
The applicant gave evidence that she has her parents, her husband and her 2 children residing in Nepal, together with 2 sisters and her brother, which ordinarily would provide her with a substantial incentive to return home. She has not seen them in person since February 2019 but she remains in contact with them through Messenger, Facebook and Viber. The applicant in her Statement of Purpose also confirmed she has friends back at home in Nepal and keeps in regular contact with them. She talks to her family members daily, in particular her daughters and her spouse and she speaks to her mother, father and other family members every 2 to 3 days.
The applicant in the Statement of Purpose claimed that she was a member of the Pokhreli Tole Improvement Committee, which was establishment 20 years ago as a voluntary democratic organisation having regard for the concern of community and economic participation of the members of her suburb which is named Tole. The applicant claims she is also a member of a credit co-operative back at home which is a co-operative formed and led by women that has 1,500 members which she co-ordinated with the municipality when she was there. In addition to those ties the applicant has ownership of a property and would appear to have a strong connection to Nepal. However, the applicant has stayed in Australia for 2 years and intends staying for at least a further year, and has not returned home and seen her family in the last 2 years. The applicant’s ties to Nepal must be considered in light of her ties to Australia.
The applicant has substantial ties to Australia by reason that she has her sister and brother-in-law here with whom she is living and are supporting her here in Australia. The applicant is also a member of a community organisation called Chitwan Nepali Society in Fawkner that celebrates Nepali festivals and promotes Nepali culture taught to children, the Nepali language, culture, song and dance. The applicant has lived with her sister and brother-in-law for the last 2 years and is in stable accommodation, and having regard to the duration and stability of her living arrangements and her ability to gain employment at a high level of income if she gains a student visa, the Tribunal considers that she has strong ties to Australia and that she has a strong incentive to remain in Australia rather than to return home to Nepal.
The applicant in her Response identified that she had previously been refused a visitor visa in 2018, however, she was subsequently granted a visitor visa in 2019. The applicant was unable to provide details as to why her visa was initially refused. In any event, the fact that she was granted a subsequent visa of the same class indicates whatever matter had been a concern of the Department had been resolved by the time she made her visa application in 2019. There is nothing before the Tribunal from the delegate’s Decision Record to indicate the applicant has experienced any other visa refusals or any other immigration issues either in or outside of Australia.
Ultimately, the applicant has stayed in Australia for a long period of time and intends extending her entire stay for approximately 3 years to complete lower level VET courses for which the applicant could undertake training courses back home in Nepal. Based on the above matters the Tribunal is not satisfied that the applicant has made this application to gain a student visa to study temporarily and that it considers the primary objective of the application is to maintain an ongoing residence in Australia and to remain here permanently.
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) of Schedule 2 to the Regulations.
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.
Michael Biviano
Member

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

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

[2021] AATA 952

19 February 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction