Saleem (Migration)

Saleem (Migration) [2019] AATA 6403 (30 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Hamza Saleem
CASE NUMBER:  1710018
HOME AFFAIRS REFERENCE(S):           BCC2017/779297
MEMBERs:Rachel Westaway (Presiding)

Genevieve Cleary
DATE:30 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 30 October 2019 at 12:27pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – family business plans – pressure to return from fiancé’s family – maintaining ongoing residency in Australia – consistent employment in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65; Direction No 69
Migration Regulations 1994, 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 Immigration and Border Protection on 3 May 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 visa on 27 February 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia.
The applicant appeared before the Tribunal on 22 March 2019 to give evidence and present arguments.
The applicant was assisted in relation to the review by their registered migration agent.
Prior to the hearing the applicant submitted to the Tribunal:
·The Record of the delegate’s decision;
·Certificates from education providers;
·A response to the Tribunal’s request for Student Visa information.
At the Tribunal, the applicant provided to the Tribunal an email confirming his application to enrol at Edith Cowan University. It is not clear from the document handed to the Tribunal what the course is that he has submitted an enrolment for, and he acknowledged, when put to him, that an email of that nature was not proof of enrolment in a course.
After the hearing, the applicant sent to the Tribunal, and the Tribunal has taken into account:
·An affidavit signed by the applicant’s father dated 22 April 2019, to which is attached a contract between the applicant’s father and another person regarding the construction of a “Hotel (Ever Green)” also signed on 22 April 2019;
·A Confirmation of Enrolment for Advanced Diploma of Hospitality Management at Perth College of Business and Technology commencing 12 April 2019 and to be completed 30 May 2019;
·A Confirmation of Offer for Bachelor of Business at Murdoch University commencing 22 July 2019 and corresponding contract to be signed;
·A Confirmation of Enrolment (COE) for Murdoch University for Bachelor of Business to commence 22 July 2019 ending 30 June 2022;
·A second Confirmation of Enrolment (COE) for Bachelor of Business at Murdoch University commencing 22 July 2019 but ending 31 December 2021 after advanced standing was granted for the applicant.
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 intends genuinely to stay temporarily in Australia.
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’s circumstances in Pakistan
The applicant has 7 siblings. One sibling lives in Ireland, studying business and management, and has applied to complete his masters, and will assist in the family business. One brother lives in Australia, in Perth. The others all remain in Pakistan. None of those in Pakistan are assisting their father. One sister is married, however the other siblings in Pakistan are all still in school. He says that is the reason he feels an obligation to return to Pakistan. He says he is being urged to return by various members of his family.
The applicant’s father, before he came to Australia, owned 3 furniture shops and a factory. As is described below, the applicant returned to Pakistan in February 2015. He returned to Pakistan in the term break of the Advanced Diploma of Business to see his family, and he became engaged while he was there. He was there for just over one month. He returned to Australia and completed the Advanced Diploma in July 2015.
He remains engaged, his fiancé being in Pakistan. His fiancé is a qualified pharmacist however she does not currently work. The applicant denied that she had any intention to come to Australia, on any visa. She will not work when they marry, however he felt she will be a help to his parents.
During the visit to Pakistan, the applicant saw that his father’s business had deteriorated, and the furniture market was struggling, and his father was stressed. He had sold his 3 shops, but retained a small factory. He spoke to his father and older brother about this, and, he says, they “forced” him to study in the hospitality industry. In other words, rather than continuing his business studies when he returned, his family wanted him to change to hospitality.
The reason for this is that his father had bought some commercial land, and intended to build a hotel with a restaurant. The applicant said that it was impressed upon him that he should be the sibling who returned and assisted in running the hotel and restaurant, and for that he would require qualifications in that area. The applicant said he would be the chef at the hotel/restaurant. This is inconsistent with the information given to the Tribunal in the applicant’s response to the Tribunals Request for Student Visa Information. In that form, the applicant said that he would be running the hotel and restaurant, while the applicant told the Tribunal at the hearing that his younger brother would be returning from Ireland to manage the hotel and restaurant.
The hotel is in a popular tourist area. It will have 20 bedrooms, and his father and younger brother will manage the establishment. He told the Tribunal he was with his father when the land was bought, which was when he was there last.
One of the documents provided to the Tribunal after the hearing was an affidavit of the applicant’s father, with an attachment which appears to be an agreement between 2 people to re-engage in the building of a hotel after works which commenced in 2018 were halted because of political issues between India and Pakistan. The document does not describe why such issues would halt building. There is no indication of a completion date. The applicant told the Tribunal that the completion date was to be some time in 2020.
His father is also building a house for him for his return.
In addition to his family requiring him to return to assist with the hotel when it is built, the applicant told the Tribunal that his father recently broke his arm, and was still feeling the effects several months later; it made it difficult for his father to work with the furniture. The applicant said this was an additional reason to return to assist his father.
The applicant said he is also being pressured by his future parents- in- law to return to be married, given he has been engaged for 4 years and he has known his fiancé for over 7 years.
When asked to clarify the completion date of the hotel, he said that it was supposed to be in February 2020, but there may be a delay of one or 2 months. It was pointed out to him that a further course would take at least 18 months, and that would mean that he would still be here. He said he would ask his father to wait for him, however he also said that the construction is currently on hold because of recent political unrest nearby. He then said he did not think the build would finish early. He was not sure when it would be completed. On the contrary, he said that if the build is so delayed that he is finished his studies, before the hotel is completed, he will go home and assist his father to organise the factory he owns, and get married.
At present there is no date for his wedding. The Tribunal places a little weight on the fact that the applicant has a fiancé waiting for him in Pakistan, however, as is discussed below, the incentive to return to his fiancé does not appear strong.
While the applicant has said that the building of the hotel has been delayed because of political unrest, there is no suggestion that that unrest would effect his return, and he has no requirements of national service.
The applicant impressed upon the Tribunal that he has reasons for his imminent return to Pakistan, and is only here temporarily. However, the applicant also told the Tribunal of things his father is recommending, and things that he would like to do, and are doing, in Australia which is inconsistent with his claimed intention to return to Pakistan. These are discussed in more detail below. While the Tribunal has attributed some weight to the fact that his parents and some siblings are in Pakistan, and apparently a business and home are being built for him to use, the inconsistency has lead the Tribunal to have some doubt that the applicant is both a genuine student, and intends to remain in Australia temporarily.
The applicant’s education
The applicant wanted to come to Australia to study. In Pakistan he completed his higher school certificate and then a 6 month Diploma in Computer Studies. He had also studied English in Pakistan.
He wanted to study a Bachelor of Business, after he had completed a Diploma of Business and then an Advanced Diploma of Business at the Advanced Australian Institute of Further Studies. He arrived in Australia in May 2013. Prior to commencing the business studies he was required to complete a Certificate IV in English. He was supposed to take 6 months to complete the English course, however his progress was not satisfactory, and he had to continue the English course for another 5 months. As a result, the Diploma and Advanced Diploma in Business courses were deferred; however he eventually commenced and then completed them.
Once he completed the Advanced Diploma he asked the University to release him from the Bachelor’s course, as he wanted to change his career to hospitality. The University having a Bachelor level course in hospitality and tourism, they refused to provide a release letter, but said that he could change his course. This did not suit the applicant, as he wished to study at a lower level than the course offered by the University. Edith Cowan University cancelled his enrolment. He went to Cambridge International College.
He commenced a Certificate III in Commercial Cookery, having enrolled also in the Certificate IV in commercial Cookery, the Diploma in Hospitality Management and then the Bachelor of Business. He told the Tribunal that the enrolment in the Bachelor of Business at Cambridge was simply to ensure that he was complying with his visa conditions. As the campus was in Melbourne, it seems, he had no intention of moving there to complete that course.
He completed the Certificates III and IV, and commenced the Diploma in July 2017, however, after one term the Melbourne campus sent him an email offering him a release letter because they were moving their campus. It was put to him that it seemed unlikely that an institution moving campus would release a person. He responded that he felt that they forced him to get a release letter because he was being forced to go to Melbourne to complete his education. This is inconsistent with what he told the Tribunal earlier, namely that he was offered a release letter because the institution was moving campus. He received the release letter, and moved to Perth Business College of Technology and continued with his Diploma. He completed that in November 2017. He said that the courses in Australia are far more practical than in Pakistan.
He commenced the Advanced Diploma of Hospitality Management at the same institution, and at the time of the hearing he was in his last term of that course, to finish in April 2019.
As has been described above, the applicant’s father has purchased some commercial land, and a hotel is to be built, including a restaurant. The applicant told the Tribunal that his father is pushing him to complete his Advanced Diploma in Hospitality to then return to assist with the family businesses. The applicant clearly told the Tribunal that once his current course was complete, he intended to return to Pakistan. In other words, he would be leaving the country in April 2019, or, at least, that was his intention.
However, he also told the Tribunal that building of the hotel had been put on hold due to political reasons. As a result, he said, his father suggested to him that he not come home at the end of his current course, but try to enrol in something else to become further educated in the hospitality industry. In addition, while his father told him that he would like help with his injured arm, his father also told him that if he could stay and become further educated, he should do so. Therefore, while his family were urging him to fulfil his obligations and return to assist with the business, having ‘forced’ him to change to hospitality, they were also urging him, he said, to stay in Australia for the time being. In the affidavit affirmed by his father on 22 April 2019 he says that it was he who suggested to his son that he obtain a Bachelor in Hospitality and Tourism Management from an Australian University while the hotel is being built.
In addition, his brother, who lives in Perth has a baby due in July. His father and mother will come to celebrate. The applicant said he wanted to be here when they come, and if cannot further study after his course finished in April 2019, he would have to leave, missing the family visit and the birth of the child. He said that that was also the reason why he was looking to enrol in another course after he completed the Advanced Diploma.
The Tribunal specifically asked him again why he wanted to enrol in a further course, and not return to meet the pressure of his future parents - in-law and to assist his father with the broken arm. When so questioned, the first reason he gave was so he could be here when his family came for the birth of the child. He told the Tribunal that he had therefore, at the time of the hearing, applied for enrolment at Edith Cowan University in the Bachelor of Hospitality. If accepted, he would be starting in July. The course will take 2 years, and he is hoping for credits for prior learning amounting to one semester.
He also said he does not want to waste his time in returning to Pakistan until he can start work.
The applicant currently works in the same restaurant as his brother in Perth, the Royal India Restaurant. The applicant has worked there for 5 years as a cook. His brother completed his studies in 2016 and is now a permanent resident. As the applicant now has experience in the kitchen, he will be a chef in the new hotel.
The Tribunal found the applicant’s explanation of his father’s attitude inconsistent and difficult to follow. On the one hand, he raised a number of reasons as to why he was being urged to return to Pakistan: his father needed physical assistance, the family business would be commencing in the not too distant future and it was time he was married. However, on the other hand, he said that his father was also telling him that he should try to enrol at a University to continue his education. In addition, he wanted to be enrolled so that he could be in Perth when his family came to visit their new grandchild, and had not had any thought as to what would happen if the next course he enrolled in took him over the time in which the hotel was to be completed, and the Tribunal considers that it would not be a reasonable request to his father to somehow hold the construction or the start of the business when the applicant has told the Tribunal that his father only has a factory left, as times were economically difficult for him, and that was part of the reason they were building the hotel.
The Tribunal finds that the inconsistencies and unreasonableness of the applicant’s responses suggests he intends to remain in Australia for as long as possible, thus using the student visa to maintain ongoing residency in Australia, and the Tribunal gives this factor significant weight in favour of the visa being refused.
The Tribunal is also concerned that enrolling simply to ensure he would not have to leave Australia so he could be here when his family visits is not the purpose of a student visa, or enrolment in a course of study. It shows a willingness to circumvent the Australian visa system to suit his own purposes, and that he does not genuinely wish to study. The Tribunal places weight on this factor in favour of the applicant having his visa refused.

In addition, the Confirmations of Enrolment provided to the Tribunal after the hearing show that the applicant is prepared to remain in Australia beyond 2020, when he said the hotel will be ready, and possibly to June 2022, although the subsequent Confirmation of Enrolment, presumably taking into account credits for prior learning, will have him here until at least December 2021.
Again, this is inconsistent with the applicant feeling subject to the familial obligations to return home. The Tribunal is not satisfied that the applicant has any real incentive to return to Pakistan. The Tribunal cannot place any weight in the applicant’s favour in regards to his evidence that his and his fiancé’s family are putting pressure on him to return, at any stage, or that he feels compelled to return to assist his family.
While he said that the intention was to be the chef at the hotel, he felt that he needed to complete a Bachelor of Business in Hospitality and Tourism Management so that he could be taught by a University about safety, hygiene, and other matters relevant to running a kitchen. It would also provide him with information about structures in a kitchen that relate to tourism. The Tribunal found this explanation unconvincing. It is unlikely that a Bachelor course in the management of hospitality and tourism would have much impact, if any, on practical matters encountered in a kitchen. Nor would a chef need to have qualifications in tourism management to be a good chef. The Tribunal finds that the course now being studied by the applicant will have little value to his future as a chef in his family’s hotel, and the Tribunal gives this factor some weight in favour of the visa being refused.
The applicant was asked about his changes in courses, and that he had not continued to increase in the level of education. He agreed that he reached the Advanced Diploma, saw the changes in his father’s prospects, and then sought a significantly lower level of education. He said this was because he felt that he could not simply commence with an advanced course in hospitality – he needed to learn the basics of being a chef first. While he has now moved to the higher level that he was expected to achieve when he arrived in Australia, for the reasons set out above about the value of the course to the applicant’s future, there is no weight given in favour of the applicant to that current level of study.
The applicant’s circumstances in Australia
The applicant’s brother lives in Perth, and is a permanent resident with a family here. He and his brother work together at the Royal India Restaurant, and have done for some years. While the applicant has family elsewhere, including at home in Pakistan, the Tribunal considers that the applicant’s brother and his family being here adds weight to the conclusion that the applicant has incentive to stay in Australia. The Tribunal therefore gives some weight to this factor in favour of the visa being refused.
The applicant has been in employment since he arrived in Australia. Having arrived on 26 May 2013, he commenced work at the Royal India Restaurant in July 2013. He was still working there at the date of the hearing in 2019. He also has driven taxis since January 2016, and was a security guard between February 2014 and July 2015. It was his brother who suggested he drive taxis to get to know different nationalities which would enhance his work in tourism.
Therefore, while the applicant has changed direction in his study choices, he has remained in constant and relatively consistent employment throughout his time in Australia. While the Tribunal accepts that a person may have a reasonable change of direction in their career choice, the change in direction the applicant has made has meant that a course of study which was to take 3 years has taken 6, at the time of hearing. It is now the case that the applicant is to take another 18 months (equating to 7 years and 6 months) to complete what he came to complete in 3. This is inconsistent with someone who is genuinely in Australia to complete their studies because they are required at home to assist with a business and because they are required at home because their fiancé is there. The consistency of work, and the fact that he is working with his brother, suggests he is in Australia for employment purposes rather than study purposes, and the change in and extension of his studies now to 2021 is to ensure he remains and is able to continue to work. The Tribunal gives significant weight to that conclusion in favour of refusing the visa.
The applicant has only travelled back to Pakistan once since he has been In Australia. The Tribunal notes that his current Bridging Visa does not allow travel, however the applicant has not applied for that to be changed, and there does not appear to be anything that would stop him from doing so. This adds further weight to the finding that the applicant is not motivated to return to or maintain ties with Pakistan.
The applicant’s circumstances in Australia compared to Pakistan
The applicant has not provided any information about his likely earnings in Pakistan. It would be expected that if he returns to assist in setting up the family business at the hotel, it will be a while before the business is properly running. The applicant has not supplied any business plans, details of the type of cuisine, level of service, number of staff, money required to start the business or any other details that suggest that he is in any way invested in the hotel or restaurant. Even if he is returning to simply work as a cook in the restaurant, that may still mean that he may be waiting some time for an adequate salary.
In contrast, the applicant’s life here appears far more stable and economically certain. He has significant incentive to stay in Australia. The Tribunal places significant weight on the applicant’s lack of detail, and the disparity between his life in Australia and what he may face in Pakistan in favour of his visa being refused.
The applicant’s immigration history
The applicant has been in Australia for some years and has returned to Pakistan once for family reasons. He has not travelled to any other country while being here.
He has not had a visa refused or cancelled elsewhere, and there is no evidence before the Tribunal to suggest that he has not complied with visa conditions either in Australia or elsewhere. There are no other outstanding visa applications yet to be finally determined. The Tribunal gives the applicant some weight in his favour for those factors. None of his family appear to have any visa history of concern. These factors have some weight in his favour.
However, on the whole, given the number of factors weighing against the applicant’s visa being granted, the Tribunal is satisfied that the applicant is using the Student visa to maintain ongoing residence and circumvent the intentions of Australia’s migration program.
Any other relevant factors
There are no other relevant factors, either in favour or against the applicant. The applicant is not a minor, and therefore the intentions of any other person are not relevant.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Rachel Westaway
Senior Member

Genevieve Cleary
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.

[2019] AATA 6403

30 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice