Sapkota (Migration)

Sapkota (Migration) [2022] AATA 2301 (7 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Anil Sapkota
REPRESENTATIVE:  Mr Subodh Dhakal (MARN: 1276328)
CASE NUMBER:  2000158
HOME AFFAIRS REFERENCE(S):          BCC2019/4980729
MEMBER:David Thompson
DATE:7 July 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the 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.

Statement made on 07 July 2022 at 8:38pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment in lower-level courses in different subject area – successful completion of previous courses and close to completing current course – strong family ties to home country but no community or economic ties – extensive work history in Australia – value of course to applicant’s future – comparative salary expectations – consent to decision without hearing – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
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 18 December 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 4 October 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because she was not satisfied that the applicant was a genuine student or a genuine temporary entrant.
On 20 July 2021, the Tribunal wrote to the applicant seeking information pursuant to s 359(2) of the Act. The applicant responded to that request on 2 August 2021. In that response, the applicant gave his consent to the Tribunal deciding his review application without holding a hearing.
The applicant was assisted in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND AND EVIDENCE
Background
The applicant is a citizen of Nepal. Before coming to Australia, he completed a Bachelor’s degree in Business Studies at the Tribhuvan University, Lumbini. He first arrived in Australia on 25 July 2015, at the age of 27. At that time, he was enrolled in the following courses:
a.Graduate Certificate in Professional Accounting
b.Graduate Diploma in Professional Accounting
c.Master of Commerce
He completed that package of courses in July 2017. In August 2017, he applied for a Class VC Skilled (Provisional) Sub-class 485 Skilled – Graduate (Temporary) visa. He was granted that visa October 2017, valid to October 2019.
In July 2019, the applicant enrolled in a further package of courses, namely:
a.Certificate IV in Commercial Cookery
b.Diploma of Hospitality Management
He has successfully completed both of those courses.
In July 2021, the applicant enrolled in an Advanced Diploma in Leadership and Management. He is due to complete that course shortly.
Evidence
The applicant has provided the Tribunal with the following items of documentary evidence:
a.the delegate’s decision record and notification letter, both dated 18 December 2019;
b.a completed Request for Student Visa Information form (M17), provided in response to the Tribunal’s request for information made on 20 July 2021 pursuant to s 359(2) of the Act;
c.a letter dated 26 July 2017 issued by Curtin University, certifying completion of the applicant’s Graduate Certificate in Professional Accounting;
d.a letter dated 26 July 2017 issued by Curtin University, certifying completion of the applicant’s Graduate Diploma in Professional Accounting;
e.a letter dated 26 July 2017 issued by Curtin University, certifying completion of the applicant’s Master of Commerce;
f.academic transcript issued by Curtin University, showing the applicant’s results for his Graduate Certificate in Professional Accounting, Graduate Diploma in Professional Accounting, and Master of Commerce courses;
g.the applicant’s degree certificate issued by Tribhuvan University dated 16 July 2013, certifying award of a Bachelor of Business Studies degree to the applicant, with academic transcript and character reference certificate attached;
h.the applicant’s academic transcripts, provisional certificate of completion, and character certificate as issued by the Higher Education Secondary Board of Nepal, showing his completion of his Higher Secondary Education Board Examinations;
i.a Commonwealth Bank of Australia balance statement dated 2 August 2021;
j.Confirmation of Enrolment (CoE) C6C55576, with respect to the applicant’s enrolment in his current course, an Advanced Diploma in Leadership and Management;
k.Identification and visa pages from the applicant’s Nepalese passport;
l.A certificate of completion of a Certificate IV in Commercial Cookery, issued by Australian Technical College Western Australia (ATCWA) and dated 4 February 2021, with statement of completion and record of results attached;
m.a certificate of completion, statement of completion and record of results issued by ATCWA and dated 23 July 2021 in respect of the applicant’s Diploma of Hospitality Management course;
n.an online job listing for an executive chef in a three-star hotel in Kathmandu, printed on 30 July 2021;
o.a personal statement made by the applicant entitled ‘Statement of Purpose’ (undated); and
p.a divorce order issued by the Federal Circuit and Family Court of Australia dated 25 October 2021, bringing the applicant’s marriage to an end.
The Tribunal has also obtained the Departmental file for the applicant’s visa application. It contains documents provided by the applicant that have been provided again to the Tribunal and are listed above. It also contains some relevant documents that have not been provided separately to the Tribunal. They are:
a.the applicant’s visa application, lodged on 4 October 2019;
b.a Commonwealth Bank of Australia balance statement dated 29 September 2019;
c.a statement of purpose, made by the applicant (undated);
d.CoE ACB76D34, with respect to the applicant’s enrolment in a Certificate IV in Commercial Cookery at ATCWA between 15 July 2019 and 10 January 2021; and
e.CoE ACB79B25, with respect to the applicant’s enrolment in a Diploma of Hospitality Management at ATCWA between 11 January 2021 and 11 July 2021.
I have considered all of these documents in reaching my decision in this case. Where I refer to these documents in the course of these reasons, I do so by reference to their paragraph numbers, above. Thus, the document noted in paragraph 11(a) is referred to as ‘document 11(a)’, and so on for the other documents listed.
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 meets the requirements of cl 500.212.
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 has stated that all of his family (being his parents and two brothers) live in Nepal. He further states that he maintains contact with them by mean of video calls twice a week, and by text messages which they exchange from time to time. The applicant himself would appear to be single at present, and is currently 34 years of age. He has stated that he currently has no community ties in Nepal.
The applicant’s highest level of academic qualification before coming to Australia was a Bachelor’s degree in Business Studies. He has worked in that field in Nepal, having found a position as a senior accountant with a firm trading as Butwal Lotus Language and Consultancy shortly after finishing his Bachelor’s degree, and having worked there until he left for Australia, a period of slightly over 3 years. The applicant has given no evidence of owning any assets of any kind in Nepal.
The applicant has stated that he has no military service commitments to fulfil on his return to Nepal, and no concerns as to civil or political unrest in that country. I accept this evidence and find that these factors do not give the applicant any incentive to avoid returning to Nepal.
The applicant has given detailed evidence as to why he chose to study his hospitality courses in Australia rather than in Nepal. He referred to the integration of practical and theoretical learning, the facilities available at his college (which, he says, are much more advanced than anything available in Nepal), the quality of teaching staff, the high standards of the courses generally, and the international focus of the course content. These are all good reasons to choose to study in Australia, but relate to his hospitality courses, which he has now finished, rather than to his Advanced Diploma in Leadership and Management, which he is now studying. He has had considerably less to say in that regard, having focussed on its utility to his future plans rather than on the reason he decided to pursue it in Australia instead of pursuing an equivalent course in Nepal. I note, however, that even if equivalent courses were available in Nepal, it is exceedingly unlikely that the applicant would have been able to undertaken one. He would have been prevented from doing so by the effect the COVID-19 pandemic has had on international travel. In these circumstances, I do not consider that the applicant’s failure to address this factor indicates any intention to stay in Australia other than temporarily.
I find that the applicant has reasonably strong family ties with his home country, but no particular community or economic ties. His circumstances in his home country do not, however, give him any reason to avoid returning there at the end of his studies, and he has good reasons to be studying in Australia rather than in Nepal. The applicant’s circumstances in Nepal give some, although not strong, support to his claim to intend genuinely to remain in Australia only temporarily.
The applicant has no family in Australia. He may at one stage have been accompanied to Australia by his wife – the evidence is unclear – but he and his wife have now divorced. Her presence in this country (if indeed she is present in this country) gives him no incentive to stay here once he has finished his studies. He states that he has no community ties in Australia, besides school and work. There is no evidence that he owns any assets in Australia, other than (possibly) a reasonably significant balance in his CBA account. That asset is, however, entirely portable and would be of greater value to him in his home country than in Australia.
The applicant has an extensive history of work in Australia, having been employed between February 2016 and the present day in a number of eating and drinking establishments, in most cases as a cook or chef. Some of these positions have been very short-term, lasting only for a month or so, but all represent industry experience and as such are, I find, of some use in finding further employment. On the applicant’s evidence, he is currently working as a chef at three establishments, and between them is earning a combined wage of AUD85,000 per annum. It is not clear on the evidence before me whether the applicant is in fact earning that much, or is earning the part-time equivalent of that combined wage. The applicant has stated that if he were to obtain work as a chef in a better-quality establishment in Nepal he would earn approximately NPR100,000 per month. He has provided some corroboration for that estimate: see document 11(n). That is the equivalent of AUD11,575 at the exchange rates prevailing at the time of writing. Even allowing for differences between the cost of living in each country, it is clear that the applicant can earn, and (subject to the uncertainty noted above) is earning considerably more than he could hope to earn doing similar work in Nepal.
I find that the applicant has no personal incentives to remain in Australia, but has considerable economic incentives to do so.
There is no evidence before me suggesting that the applicant has entered into a relationship of concern in Australia, in the sense of a relationship contracted or contrived to obtain a better visa application outcome than might otherwise be available. There is no direct evidence that the applicant is using the student visa system to maintain ongoing residence, or is attempting to circumvent the intentions of the Australian migration programme in any other way. That does not, however, exclude the possibility that such inferences could be drawn from other evidence before me and discussed in these reasons.
At the date of his visa application, the applicant had lived, worked and studied in Australia for some 4 years and 3 months. He may be taken to have had extensive practical knowledge of life and study in Australia at that point. This factor does not assist me in reaching my decision. The applicant has given evidence as to the manner in which he chose his course provider, ATCWA. It should be noted that he has studied with ATCWA since he started his hospitality studies, and that his evidence as to how he chose ATCWA was given in the context of his choice to follow that study path rather than to study his current course. It is, nonetheless, relevant to my decision. The applicant’s evidence is that before choosing ATCWA he considered a number of other course providers, but made his decision after visiting ATCWA, speaking with its teaching staff, and inspecting its facilities. It appears that course fees were an important factor in leading him to ATCWA, as were the facilities available to him on campus. The applicant’s evidence on this point is coherent and persuasive, and consistent with the enquiries one would expect a genuine student to make and the considerations one would expect such a person to take into account.
All of the evidence relating to the applicant’s actual and potential circumstances in Australia support his claim to be a genuine temporary entrant, except that relating to the economic incentive to remain in Australia that I have found him to have. On balance, I find that the applicant’s economic incentives to remain outweigh the other evidence I have discussed, such that the applicant’s actual and potential circumstances in Australia tend against my accepting his claim to be a genuine temporary entrant.
The applicant’s current studies represent a distinct regression in level of study, given that he has already earned himself a Master’s degree. However, they do represent a turn to a different area of study. There is nothing in the evidence before me that suggests the applicant’s decision to move to hospitality studies was the result of anything other than a desire to work and make a future in that area. Further, I note that the applicant’s previous studies, whilst in the area of commerce, were focussed on accountancy, whereas his current studies are focussed on the very different area of management. No doubt these areas are complementary, but they are by no means the same.
The applicant has stated that his aim at the end of his studies is to return to Nepal and find work in a reputable hotel or restaurant, with a view to opening his own restaurant business someday. He states that he will need a certain amount of business know-how in order to make a success of that plan, and that his current course will provide it. I am satisfied that his current course is relevant to this plan.
The applicant has given evidence that he expects to earn a salary in the order of NRP100,000 per month on his return to Nepal if he can find himself a position in one of the large international hotels. As I have noted above, this is much less than he would earn (indeed, than he is currently earning) in Australia. The applicant has given no evidence as to the salary he earned working as a senior accountant before coming to Australia. I am not, therefore, able to assess whether the applicant’s projected income represents an improvement in his circumstances in Nepal. I am, however, prepared to accept the applicant’s evidence as to the greater personal satisfaction he takes from working in hospitality as against working in accountancy.
For these reasons, I find that the applicant’s course has some value to him for his future in his home country, and that this supports his claim to be a genuine temporary entrant.
I turn now to the applicant’s immigration history. He has now spent 6 years living in Australia. This is a significant period of time, particularly for a person who intends to remain in the country only temporarily. However, in assessing the significance of that period of time, it is necessary to consider how the applicant has used it. I find that the applicant has, when studying, progressed through his studies steadily, and has successfully completed all of the courses in which he has enrolled. Otherwise, he appears to have used his time to improve his employability rather than to put down roots in Australia. I find that in these circumstances, the length of his stay does not in itself indicate an intention to remain in Australia other than temporarily. I note also that he has made two relatively lengthy return visits to Nepal since first coming to Australia. He has, unsurprisingly, made no further such visits since the COVID-19 pandemic struck in early 2020.

There is no evidence before me to suggest that the applicant has ever previously been refused a visa, or has had any visa issued to him cancelled. Nor is there any evidence to suggest that he has any other Australian visa application on foot at present. There is no evidence before me that the applicant has travelled to any country other than Nepal and Australia. There is no evidence that he has breached Australia’s immigration laws in any way.
For these reasons, I find that the applicant’s immigration history supports his claim to be a genuine temporary entrant.
Taking all of these matters together, and despite some factors that might tend to indicate otherwise, I am satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).
Does the applicant intend to comply with visa conditions?
For the applicant to meet cl 500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl 500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed in some cases (cl 500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).
The applicant has in making his visa application undertaken, at least implicitly, to observe any conditions that will be placed on any visa granted to him. There is nothing in the evidence before me to suggest that he has ever breached any condition placed on any visa he has held previously.
I am satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl 500.212(b).
Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?
For the applicant to meet cl 500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl 500.212(a) and (b)).
No other relevant matters arise on the evidence before me.
Accordingly, I am 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 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 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.
David Thompson
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;
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; 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.

[2022] AATA 2301

7 July 2022

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Immigration

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