Qin (Migration)

Qin (Migration) [2020] AATA 2752 (22 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Leiling Qin
CASE NUMBER:  1837160
HOME AFFAIRS REFERENCE(S):          BCC2018/3535166
MEMBER:Mark Bishop
DATE:22 April 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 22 April 2020 at 1:15pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – enrolment in a registered course – applicant’s employment in Australia – limited evidence of course progress – maintaining residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2 cls 500.211, 500.212; r 1.03; Direction No.69
CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014 FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Yang v MIAC [2-010] FMCA 890
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 6 December 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 17 September 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
In this case the Tribunal formally wrote to the review applicant pursuant to s.359(2) of the Act inviting the review applicant to provide further information to the Tribunal, including information in relation to enrolment: cl.500.211(a).
The Tribunal did not receive any response to the before mentioned written invitation. That is the review applicant has not provided the Tribunal with any further information than that which was provided to the Department.
The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under s.359(2) of the Act. The invitation was sent to the review applicant’s nominated address, being an address provided by the review applicant in connection with this application for review.
As the applicant failed to respond within the prescribed period, s.359C(1) applies and pursuant to s.360(3), the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear see Hasran v MIAC [2010] FCAFC 40 at [26]; Yang v MIAC [2-010] FMCA 890 at [40].
The Tribunal has considered whether, in the circumstances of this case, information that the review applicant meets the requirements of the Act and Regulations is likely to be forthcoming and whether the review applicant has had a fair opportunity to provide relevant information already.
The Tribunal has given consideration to whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal has had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to Minister for Immigration and Citizenship v Li [2013] HCA18 (8 May 2013) regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC (4 February 2014) which considered analogous issues, as well as the recent decision of Kaur v Minister for Immigration and Border Protection [2014 FCA 915 (28 August 2014).
In these circumstances, for the reasons set out in this decision record above, the Tribunal considers that the review applicant has had a fair opportunity to provide relevant information.
Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the review applicant more time. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information it has before it, including the information previously provided by the review applicant to the Department.
Ultimately, a decision maker is not required to make the review applicant’s case. It is for the review 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 review 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.
Enrolment (cl.500.211)
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.
Clause 500.211 provides:
500.211 One of the following applies:
(a) the applicant is enrolled in a course of study;
(b) if the application is made in Australia—the applicant is
seeking to remain in Australia because the relevant educational
institution requires the applicant to do so during the marking of the
applicant’s postgraduate thesis;
(c) if the applicant is a Foreign Affairs student—the applicant
has the support of the Foreign Minister for the grant of the visa;
(d) if the applicant is a Defence student—the applicant has
the support of the Defence Minister for the grant of the visa.
In his application for a student visa dated 17 September 2018 the applicant advised he held four of Confirmation of Enrolment’s (COE’s) certificates in a number of courses. The first three of these COE’s had expired. The Tribunal gives them no weight. He provided a copy of COE number numbered 9FAF8F33 to the Department. The COE is in a Bachelor of Tourism and Management commencing 18 November 2019 and concluding 6 November 2020. The Tribunal gives this COE weight.
As outlined in paragraph 3 above on 19 March 2020 the Tribunal forwarded to the applicant a “Request for Student Visa Information under s.359 (2) of the Migration Act 1958”. The Tribunal asked the applicant if he had a “current Confirmation of Enrolment in a registered course of study”. The Tribunal informed the applicant in writing “not being enrolled in a registered course of study may be a reason, or part of a reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the primary decision maker”.
The applicant did not respond to this request for information. The applicant has not provided any information to the Tribunal that postdates 6 December 2018. The applicant has not provided a current COE or other form of proof of enrolment in an approved course.
The Tribunal does not make an adverse finding that the applicant does not have a current COE. The Tribunal is unable to reach a finding concerning cl.500.211.
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 Tribunal has carefully considered the delegate’s decision record dated 20 September 2018, a copy of which was provided to the Tribunal by the review applicant with the application for review.
The applicant did not respond to the request for information made under s.359(2) of the Act. The applicant has not provided any information to the Tribunal that was not before the Department and considered as part of the delegate’s decision dated 6 December 2018. The applicant has not provided any current information to the Tribunal. The applicant has not provided to the Tribunal any information as to course progress (such as Statements of Attainment or Certificates of Graduation) that relate to past enrolments post November 2018 in a series of Commercial Cookery courses, a Diploma of Hospitality Management and a Bachelor level degree in Tourism and Management.
The only information, material or documents before the Tribunal are the information, material or documents previously provided to the Department and the decision record. The Tribunal has considered all that material inclusive of GTE Statement (Dept Ref ID CLD2018/48219009), Personal Statement (Dept Ref ID CLD2018/61280103), Employment Verification Letter (Dept Ref ID CLD2018/61513765) and various Statements of Attainment relating to completion of units in courses in Commercial Cookery 111 and IV and a Diploma of Hospitality Management all dated 26 November 2018 (Dept Ref ID CLD2018/62542466).
The Tribunal notes that the Statements of Attainment referred to in paragraph 22 above refer to completion of units. A Statement of Attainment is not a Certificate of Graduation. The applicant has not provided any Certificates of Graduation relating to past courses in Commercial Cookery and a Diploma of Hospitality Management. Upon examination of the Statements of Attainment it is clear the applicant completed 21 units in his Certificate 111 in Commercial Cookery, 28 units in his Certificate IV in Commercial Cookery and 22 units in his Diploma of Hospitality Management by way of competency or credit transfer. In other words the applicant completed a significant number of units required for each of the Certificates or Diplomas.
The applicant has not provided any Statements of Attainment or Certificates of Graduation relating to enrolment in any courses post November 2018. The Tribunal is not aware of the applicant’s academic progress, if any, post November 2018.
As outlined above the Tribunal requested the applicant provide information under s.359(2) of the Act. That information related to matters found under Ministerial Direction Number 69 (MD69) and required to be considered by the Tribunal as part of its decision making process. Those matters were as follows:
·    Personal details;
·    Hearing Information;
·    Information about courses undertaken before arriving in Australia;
·    Information about work experience before arriving in Australia;
·    Travel details to Australia and home country visits;
·    Information about travel to other countries;
·    Visa History;
·    Enrolment and study in Australia;
·    Work and expenses in Australia;
·    Family circumstances;
·    Information about community ties;
·    Information about assets;
·    Information about future plans;
·    Information about other circumstances.
The applicant did not provide to the Tribunal any response and hence any information relating to the request outlined in paragraph 29 above. It is difficult if not impossible to properly consider an application for review when the applicant chooses not to provide current information after receiving a request to provide such information pursuant to s.359(2) of the Act. As an example the applicant did not provide any information to the Tribunal concerning “concerns about military service commitments or political or civil unrest in their home country”. The Tribunal is necessarily limited to material provided to the Department and considered in the decision record.”
The delegate summarised the applicant’s visa, immigration and academic history as follows:
·    The applicant had been granted their initial Student (Class TU subclass 573) visa valid until 20 August 2015 on 31 July 2012. They subsequently arrived in Australia on 10 August 2012.
·    At time of application, the applicant was enrolled to undertake the following courses:
o   Diploma of Hospitality Management [090983K]
o   Advanced Diploma of Hospitality Management [091141M]
o   Bachelor of Tourism and Hospitality Management [073530C]
·Examination of the Provider Registration and International Student Management System (PRISMS) indicated that the applicant has previously been enrolled in the following courses:
o   General English - Beginner to Advanced (5-50 weeks) [046514E]
o   English for Academic Purposes 1 (Upper to Intermediate) [054830D]
o   Diploma of Management [074372D]
o   Bachelor of Business [055555K]
o   Bachelor of Professional Accounting [057746J]
o   Bachelor of Business [067439D]
o   Certificate III in Commercial Cookery [093177E]
o   Certificate IV in Commercial Cookery [093178D]
·    In this application, the applicant applied for a Student (Temporary) (Class TU) Student (subclass 500) visa on 17 September 2018.
The applicant did not challenge any aspects of the information summarised in paragraph 31 above. There is no information before the Tribunal that suggests the history outlined in paragraph 31 above is incorrect.
The delegate summarise the information provided by the applicant as follows:
●Employment Verification Letter from Seafood World Fish & Chips confirming employment from July 2017 until present
●Housing property ownership certificate for Rongzheng Qin (applicants father)
●Bank of China personal certificate of deposit dated 08/11/2018 $200,000.00 (Australian
$39,606.99) in the name of Rongzheng Qin (applicants father)
●A document containing a photograph labelled as the applicants car
●3 documents containing photographs labelled as the applicants apartment
●Statement of attainment certificate from Front Cooking School for Certificate III, IV, and Diploma of Hospitality Management dated 26/11/2018
●Copy of applicants birth certificate
The Tribunal has examined all of the information itemised in paragraph 33 above. It may be found in the Departmental file.
The Tribunal now turns to consider relevant matters under MD69.
Applicant’s circumstances in his home country
The delegate outlined the applicant arrived in Australia on 10 August 2012. The applicant has only departed Australia once for a period of 30 days. The applicant has provided property documents in their father’s name and a table of family and friends in their home country, however the delegate found these ties did not constitute a strong incentive to depart when considered against the fact that strong employment or economic circumstances in their home country have not been evidenced.
The applicant responded to a request for further information regarding the report by their education provider for unsatisfactory course progress on 7 January 2015. The applicant stated that their Father had a serious car accident on 20 December 2014 and that they wished to fly back to China but could not due to their study commitments. They state this guilt and anxiety affected their ability to complete their assignments on time. The applicant stated that they included this email notification however no documentation was provided. In addition, the applicant has not demonstrated ties to their home country that may provide a strong incentive for them to return there on completion of studies.
The applicant has not provided further information to the Tribunal post November 2018. The applicant has not challenged the above summary and findings.
The Tribunal therefore has concerns that the applicant may not have sufficient incentive to return to their home country on completion of studies.
Applicant circumstances in Australia
The course the applicant is seeking to undertake would require them to remain onshore until at least 16 November 2020; this would bring the applicant’s total time in Australia on temporary visas or associated bridging visas to over eight years. The applicant has not provided any evidence of academic progress past November 2018. The Tribunal finds it difficult to reconcile the applicant’s extensive proposed stay onshore with their claim they are a genuine temporary resident. Rather, the significant period of time the applicant has spent in Australia since their initial arrival and the lack of regular departure suggests the applicant’s potential circumstances in Australia outweigh any incentive they have to depart.
I am not satisfied the applicant has provided sufficient reasoning to explain why they are pursuing further study onshore particularly in the Vocational Education and Training sector. The Tribunal has considered the applicant’s comments regarding their desire to open their own restaurant and work as a chef. However the Tribunal considers this statement generic and lacking in detail. The applicant was asked to provide documentary evidence to substantiate their claims. The applicant has provided an Employment Verification Letter from Seafood World Fish & Chips in Elsternwick, confirming employment in the position of a cook from July 2017 until November 2018. The applicant has not provided evidenced of employment post November 2018.

The applicant provided a basic statement outlining his intention to open a western style restaurant and become a chef. However the Tribunal gives only minimal weight to this statement given the applicant has not been able to demonstrate that they have completed commercial cookery courses. It would not be an unreasonable expectation for the applicant to have completed these courses given their career objective. The applicant has provided evidence of consistent employment and work experience in Australia as a cook at least up until November 2018 however the tribunal is not satisfied this demonstrates an incentive to return home, and that the applicant is genuinely seeking this course for the reasons declared, rather that they are more likely to be seeking to maintain residency in Australia.
Value of the course to the applicant’s future
The applicant has expressed their desire to open a western style restaurant and to work there as a chef. They cite their research into various courses of study in their home country China and Australia and determined that they will be able to complete their courses in a shorter duration of time in Australia for a similar cost. The applicant was asked to provide evidence of their study history and in response has provided a Statement of Attainment certificate from Front Cooking School for Certificate III, IV, and Diploma of Hospitality Management dated 26/11/2018 however as outlined above no completion certificates have been provided. The applicant has not provided any Certificates of Graduation to the Tribunal. The Tribunal has concerns that the applicant may not have successfully completed these courses.
Although the Tribunal acknowledges the applicants desire to work in the hospitality industry, the Tribunal is not satisfied that this will translate to significant value once the applicant is seeking to work in their home country. The Tribunal as outlined above has reviewed the units completed by the applicant. The applicant has completed units with titles such as “Work effectively with others”, “Use food preparation equipment”, “Clean kitchen premises and equipment”, “Prepare and present sandwiches”, “Receive and store stock”, “Manage conflict” and other units with like titles. The Tribunal finds the value of the proposed courses to the applicants stated career goals to be moderate.
Applicant’s Immigration History
The applicant has been in Australia as the holder of a student visa or other temporary visa for a period of time approaching 8 years. They now wish to undertake further studies that will extend their length of stay in Australia by a further lengthy period until November 2020. The applicant has chosen not to provide any information as to course progress since November 2018.
The Tribunal has concerns that they may be using the student visa programme to prolong their stay in Australia. The length of time spent in Australia, brings into question their intention to return to their home country to apply their knowledge and skills there. When taking this into consideration in conjunction with other aspects set out in this decision record, the Tribunal is not satisfied that the applicant will return to their home country at the end of their proposed stay in Australia.
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).
Conclusion on cl.500.212
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.
Mark Bishop
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 2752

22 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Intention

Jurisdiction