Prasad (Migration)

Prasad (Migration) [2020] AATA 3015 (5 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mr Mahaveer Prasad
Miss Nirmala

CASE NUMBER:  1732542
HOME AFFAIRS REFERENCE(S):         BCC2017/3564047
MEMBER:Mark O'Loughlin
DATE:5 May 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the first applicant’s application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.212 of Schedule 2 to the Regulations.

The Tribunal does not have jurisdiction with regard to the second applicant, Miss Nirmala.

I, Member M. O’Loughlin certify that this is the Tribunal’s statement of decision and reasons
Statement made on 5 May 2020 at 12.52 pm.
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – applicant returned to India due to COVID-19 pandemic – health problems – applicant has generally studied fairly consistently – updated COE provided – applicant is currently enrolled – no jurisdiction with regard to the second applicant – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, Schedule 2, cl 500.212
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Immigration and Border Protection on 15 December 2017 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 visas on 15 December 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The visa 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 she was not satisfied that the applicant genuinely intends to enter and stay in Australia as a student as contemplated by cl.500.212.
The applicant appeared before the Tribunal by telephone on 23 April 2020 to give evidence and present arguments.
The applicant was assisted in relation to the review by his registered migration agent.
The Tribunal observes that in the original visa application the applicant had included his wife as a secondary applicant. The applicant’s wife was not included in the application for review by the Tribunal but was later added to the application for review administratively. The Tribunal formed the view that it does not have jurisdiction in respect of any application by the applicant’s wife and she should not have been added administratively.
The Tribunal wrote to the applicant indicating that the Tribunal would presumably have not had jurisdiction in relation to an application for review by the applicant’s wife and that the Tribunal would not treat her as a secondary applicant for the purposes of this review.
The applicant was asked to make submissions within 7 days of the date of that letter if he disagreed. No submissions were received within that time limit or at all.
At the beginning of the hearing the Tribunal again explained to the applicant that the Tribunal did not regard the applicant’s wife as being a secondary applicant and that if she required a visa they should take advice from their agent as to how best to go about that.
The applicant indicated that he understood, and the hearing proceeded in relation to the applicant alone.
The Tribunal further notes that at the time of the hearing the applicant was in India, having returned there in response to the COVID-19 pandemic. The applicant gave evidence that he was continuing to study and that his college had offered students the opportunity to study online because of the issues arising from the pandemic.
The applicant indicated that he would be able to continue to study online and that he understands that he will be able to complete his degree if necessary. He gave evidence that the opportunity to continue to study online will be open to him but that to be eligible he will need to have the right to come to Australia to study. He said that he understands that if he is not eligible to come to Australia he will not be allowed to continue to study online.
After the hearing the applicant sent the Tribunal an email that appears to be from his college dated 7 April 2020 in these terms:
“Hi Mahaveer
I wish you all the best with the hearing on 23 April.
Are you currently in Australia or back in your country?
If your hearing is unsuccessful and you do not get student visa, then unfortunately you cannot study in Australia as you would have no study rights.
You will need to inform AAPOLY straight away if your student visa has been accepted or not. If not accepted, you will need to withdraw from your course at AAPOLY. Studying w
online from India either with AAPOLY if you are not on student visa.
So I strongly advise that you truthfully tell us.
Shafayet Chowdhury”
For the purposes of this review the Tribunal accepts that the applicant may not be able to complete his Bachelor in Tourism and Hospitality Management online if his student visa is not granted.
Applicant’s Evidence
The applicant gave evidence that he came to Australia to study in February 2014. He said, and the Tribunal accepts, that he was granted a Student visa 573 in anticipation of proceeding to study a Bachelor level degree in which he had enrolled.
He said that he changed enrolment in 2015 because of health problems and trouble with his course. He suffered from [Medical Condition 1] and had some [health] issues.
He gave evidence, and the Tribunal accepts, that the health issues resolved to the point that he was able to return to study but that he decided to enrol in a Diploma rather than a Bachelor degree because he had a better chance of passing at Diploma level than Bachelor.
He said that at that time he did not realise that study at a Diploma level was not sufficient to comply with the conditions of his 573 visa. He initially said that he did not understand the conditions of his visa because of his [Medical Condition 2] but on being pressed he agreed that he [did not have Medical Condition 2] when he was awarded the 573 visa.
He then gave evidence that he did understand that the visa had been awarded to enable him to undertake degree level study, but he enrolled in the Diploma because he believed he had a better chance of meeting the academic standards required. He gave evidence that he had spoken to migration experts who told him that a Diploma leading to a Bachelor degree would suffice.
He conceded that he did not, however, actually enrol in a Bachelor degree or in a packaged course leading to one during the time that he held that visa.
The applicant said that there were health issues that also contributed to his decision to change courses, namely [Medical Condition 2] and a diagnosis of [Medical Condition 1]. He provided evidence that he was treated for [Medical Condition 1] at [a] Hospital and this was supported by a summary showing that he was admitted [in] July 2015 and discharged [in] September.
The notes suggest that follow up appointments were arranged but that the applicant did not always remember to attend. He had returned to study by 9 November 2015 and treatment was discontinued in October 2016 when the applicant had failed to attend outpatients several times and the hospital was not able to contact him.
There is nothing to suggest that he was suffering from significant symptoms by that time.
The applicant gave evidence that he will return to India after he has completed the Bachelor degree and that when he returns he hopes to open a hotel restaurant.
He said that his father has the funds necessary to establish such a business, being the equivalent of about AUD$100,000.00. The applicant did not have evidence to corroborate his assertion that his father has agreed to be involved with this venture and said that it had not been possible to obtain evidence from his father because of restrictions related to the Covid 19 lockdown in India.
The Tribunal notes that the applicant appears to have obtained bank documents and the like relating to his father’s account dated as recently as 21 April 2020 and the Tribunal does not accept that the applicant could not have obtained a corroborative statement from his father.
The applicant was also asked what research he had done to establish the cost of opening a restaurant and said that he had spoken to other people and that it will cost about AUD $100,000.00. He then said that it will actually be a little more but that he has an uncle who is interested in becoming his partner in the enterprise.
He said that his uncle will be contributing about the same amount of money, which the Tribunal understands to be $100,000.00. He said that his uncle would be selling a property to raise that money. He did not provide any corroborative evidence of his uncle’s interest in the enterprise or his capacity to contribute.
The applicant also provided evidence of a job offer managing a restaurant in India at an annual salary of about 5 lakh rupees. The applicant agreed that that was the equivalent of about $10,000.00 or a little more.
The applicant also agreed that he had been making over $15,000.00 a year driving a taxi. He said that it did not wish to spend much longer working for someone else and that he wanted to run his own business. He said that he did not anticipate managing a restaurant in India for more than about six months just to get some experience.
The applicant said that he believes that once his business is set up he can make $4000-$5000 Australian. He said that he bases this belief on discussions with people with a business including his maternal uncle. He has not provided the Tribunal with anything to corroborate this estimate.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant gave evidence and was supported by various documents provided by the applicant and his representative, relevantly including evidence of enrolment, course progress, and medical problems from which the applicant suffered and which he says prevented him from studying. The applicant also provided financial documents relating to his financial situation and that of his father, and information in an online form that he completed in response to a request by the Tribunal made under S 359(2) of the act together with enclosures. The applicant also provided a copy of an email dated 7 April 2020 from his college as referred to above.
The Tribunal has not had regard to any other documents in making its decision.
The applicant demonstrated that he has generally studied fairly consistently since the delegate’s decision in December 2017 and has now completed a Diploma of Business, an Advanced Diploma of Business, and has about a year to do to complete a Bachelor of Tourism and Hospitality Management.
In the course of evidence there was some discussion about whether the applicant’s course is due to finish in early November 2020 or in July 2021. The applicant said that the current CoE provided for the course to finish in July 2021 but that there had been an earlier CoE that suggested it would finish on 6 November 2020. The applicant said that the CoE had been adjusted to reflect that he was not given the 12 units of credit for previous study that had been contemplated. The college decided that the applicant was only entitled to 8 units of credit so the length of the course that he needed to do was extended.
The Tribunal has now located the updated CoE and agrees that there is a note saying that the course credit has been adjusted and the applicant is not expected to complete the course until July 2021.
The applicant advised the Tribunal that he expected to be able to undertake study over the summer holidays and he hoped to be able to finish the Bachelor in Tourism and Hospitality Management in about February 2021.
He did not provide any corroborative evidence to suggest that that approach is open to him. The evidence available to the Tribunal suggests that he will not be finished his degree studies until July 2021.
In the information provided pursuant to the S.359(2) request, the applicant indicated that he had worked for a period as manager in a restaurant. In evidence he said that he has also worked as a taxi driver. He was asked why he did not refer to that work in his response and replied that he thought that the question was only about work that was relevant to his study.
The applicant said that he works within the restrictions of his visa and makes a little over $15,000.00 per annum as a taxi driver.
He said, and the Tribunal accepts, that he stopped driving a taxi in January 2020 and since then he has been living on savings and had some support from family in India.
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.
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 requires the Tribunal to have regard to a number of specified factors.
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.
1.The relevant parts of Ministerial Direction 69 are set out below with the Tribunal’s consideration of each factor in bold.
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; The applicant suggested in his response to the s.359(2) request that although there are similar courses available in India they are of lesser quality than Australian courses which provide an “international level of experience” and that it is very hard to get this in Indian courses. He also states that most of the hotel and restaurant chains are multinational companies which always prefer employees with international level of experience and with good communication skills. No corroboration of these assertions is provided. The applicant does not say that he will be seeking employment with multinational hotel or restaurant chains. The Tribunal does not consider that the applicant has demonstrated reasonable reasons for not undertaking the study in his home country.
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; The applicant says, and the Tribunal accepts, that he has significant family connections to India. The applicant also said in his response to the s.359(2) request for information that he holds property and cash at bank in India. The Tribunal is prepared to accept those assertions as facts but does not find that they serve as a significant incentive to return to India.
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; The applicant agrees that he is capable of earing more in Australia as a taxi driver than he would be capable of earning in the short term in India. The applicant’s assertions as to his longer-term earnings in India are not supported and the Tribunal finds them to be speculative.
d. military service commitments that would present as a significant incentive for the applicant not to return to their home country; The applicant gives evidence, which the Tribunal accepts, that there he is not liable to military service in India and this consideration does not present as an incentive not to return 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. The applicant asserts, and the Tribunal accepts, that these considerations do not count against the applicant and notes that he has in fact returned to India without apparent problems.
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; The applicant gave evidence that he had family ties in Adelaide to which he turned when he was threatened with [Medical Condition 2] in 2014. The Tribunal accepts his evidence that he left Adelaide and was living in Melbourne with a friend and he was happy there before he returned to India. The Tribunal finds that the applicant has ties in Australia that go some way to balancing his ties to India.
b. evidence that the student visa programme is being used to circumvent the intentions of the migration programme; The applicant has generally been resident in Australia since February 2014. In that time he has done some study although he says that his studies have been restricted by some health problems. He has generally chosen to remain in Australia while dealing with those problems even when, he says, they prevented him from studying. The Tribunal finds that the applicant’s study and residence history may suggest that the applicant may have been motivated to study in order to remain in Australia.
c. whether the Student visa or Student Guardian visa is being used to maintain ongoing residence; The applicant is not currently resident in Australia and the Tribunal finds that this consideration does not count against him for the purposes of the current application.
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; There is no evidence that this is a relevant consideration to this application; 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. The applicant has given evidence, which the Tribunal accepts, that he has spent some time studying in Australia and the Tribunal finds that the applicant has good knowledge of the demands of his chosen course and also of his proposed living arrangements should he return to Australia.
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; The applicant gave evidence that his uncle will be selling some property to help finance the proposed restaurant that the applicant will establish. The Tribunal finds that given that the applicant will need to await that transaction before he can embark on the venture, it is not unreasonable that he spend that time studying the Bachelor in Tourism and Hospitality Management in which he is currently enrolled. Should the applicant’s uncle’s involvement be delayed or reconsidered, the applicant’s position will presumably be much weaker.and
b. relevance of the course to the student’s past or proposed future employment either in their home country or a third country; The applicant asserts that he does not seek employment at home or in a third country other than that which has already been offered him and which, to the extent of one of his two job offers, does not appear to require him to finish the course.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 likely remuneration from employment in his home country using his qualifications is less than the remuneration that he has received in Australia even without them. The Tribunal finds that the applicant’s projection of his earning capacity running his own business in India is speculative.
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. There is no evidence that either of these considerations is relevant.
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; The applicant was previously granted a subclass 573 Student visa. He largely failed to comply with its requirements. He gave evidence, which the Tribunal accepts, that his Bachelor Degree studies were hampered by his poor health and his difficulty achieving the required academic standard. The applicant gave evidence that he chose to enrol in a course that was not sufficient to sustain a subclass 573 visa. He gave evidence that he knew he was in breach of his visa conditions.
ii. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances; there is no evidence of cancellation of any visa held by the applicant;
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; The applicant has more recently demonstrated greater application to study 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. There is no evidence that this is a relevant consideration.
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. There is no evidence that this is a relevant consideration. The applicant is not a minor.
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. No other matters were raised by the applicant or are considered by the Tribunal to be relevant to this consideration.

The Tribunal has considered all of the evidence and the matters set out above and, with some hesitation, finds that as the applicant has confidently asserted that he will have completed his study by the end of February 2021 and will be in a position to start work of some type, there is a limited prospect that he will return to Australia for an extended period and in the circumstances, as the holding of a visa is apparently essential to him maintaining an enrolment, the Tribunal is satisfied that the applicant, if he returns to Australia at all for the purposes of studying the Bachelor of Tourism and Hospitality Management in which he is enrolled, will do so temporarily.
Accordingly, the applicant meets cl.500.212(a).
Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
DECISION
The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.212 of Schedule 2 to the Regulations.
Mark O'Loughlin
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 3015

5 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Remedies

Statutory Construction

Natural Justice