Siddiqui (Migration)

Siddiqui (Migration) [2020] AATA 3935 (21 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Sheraz Ahmed Siddiqui
Ms Amna Shakir
Ms Inaya Fatima
Mr Mohammad Ali
Ms Khadija Ahmed
Ms Eesha Fatima
CASE NUMBER:  1909304
HOME AFFAIRS REFERENCE(S):          BCC2018/4571971
MEMBER:Peter Booth
DATE:21 July 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 21 July 2020 at 9:19am
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine temporary entrant criterion not met– extensive study history in Australia– unable to demonstrate substantial ties or personal assets in his home country– use the student migration program to maintain ongoing residence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 499
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 Home Affairs on 2 April 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 18 October 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was not a genuine temporary entrant.
The applicants appeared before the Tribunal by telephone on 1 July 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicants were assisted in relation to the review by their migration agent.
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 is a genuine temporary entrant.
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 gave evidence at the hearing, the substance of which was as follows. The applicant had read the delegate’s decision dated 2 April 2019 refusing his application for a student visa. The applicant understood that the issue for determination was whether he was a genuine temporary entrant.
At the outset the Tribunal enquired as to whether the applicant was currently enrolled in a registered course of study and had a confirmation of enrolment document. The applicant said that he had a letter of offer for a course due to start “at the end of the month, due to COVID they were not able to issue a COE”. When asked when he had signed the letter of offer he said “30 June”. The applicant had produced a letter of offer from a course provider in respect of a Diploma of Automotive Management, a 36-week course starting on 30 July 2020 and due to be completed on 8 April 2021. The letter appeared to have been executed by the applicant on 30 June 2020, the day before the hearing. The applicant was given until 4 pm on 3 July 2020 to provide a confirmation of enrolment document. In the event the applicant did provide such a document in respect of the course described above.
The applicant had provided information to the Tribunal in the form of responses to a questionnaire seeking information pursuant to s.359(2). In answer to a question the applicant informed the Tribunal that he had a copy of that document in his possession. In answer to another question from the Tribunal he said that he did not want to vary or expand upon the information in that document. The Tribunal accepts the information he provided to the Tribunal in his responses to the questionnaire.
The applicant’s responses in the questionnaire, in summary, were as follows. The primary applicant was born on 28 August 1980. Prior to arriving in Australia the applicant had completed several courses of study: a “science” course between June 1994 and June 1995; a “general science” course between August 1995 and July 1997; and a Bachelor of Computer Science between February 1998 and January 2000. Prior to arriving in Australia the applicant had been employed by “Warid Telecom Pty Ltd” in the capacity of “CSR” from 20 June 2005 to October 2011 and in respect of which he derived an annual salary of approximately AU$48,000.
The applicant arrived in Australia on 21 November 2011 and since that time has returned to Pakistan on several occasions: in August 2012 for six weeks, in July 2013 for five weeks, in September 2014 for three weeks, in March 2016 for four weeks, in July 2016 for four weeks, in January 2018 for five weeks, and in February 2019 for two weeks. The applicant has also travelled to Saudi Arabia while he was staying in Australia: in February 2015 for two weeks the reason for travel being “religious trip”.
The application for the student visa in question was made in October 2018. The applicant’s visa history was stated as follows: a “student visa 572” granted in January 2012 until December 2014; a “student visa 572” dated December 2014 until March 2017; a “student visa 573” granted in November 2015 valid until March 2017; and a “TR 485” granted in April 2017 valid until October 2018.
The applicant has an extensive study history in Australia. He completed a Certificate III in Frontline Management between November 2011 and February 2012; a Diploma of Management between February 2012 and September 2012; a Certificate IV in Accounting between October 2012 and January 2014; a Diploma of Accounting between January 2014 and July 2014; an Advanced Diploma of Accounting between July 2014 and January 2015; a Bachelor of Business between November 2015 and November 2016; a Certificate III “Automotive” between February 2018 and February 2019; and a Certificate IV “Automotive” between February 2019 and August 2019.
As to why the applicant chose the particular education provider he stated:
I wanted to go for unconventional industry where demand is high but supply is not as high as Accounting graduates. At that time, I came upon industries like Cookery, Hospitality, Automotive and other service related industries. While I was considering these sectors, I found Automotive to be more lucrative. The primary reason for that was my childhood interest in cars. I used to watch car racing shows and visit car showrooms on the way back from my school. I used to draw pictures of beautiful cars and wished that one day I be part of this stunning industry. As I found out that Pakistan is a potential market for Automotive industry and some foreign automotive companies have already made alliance with the local producers, I was more interested to study in this field. I learned that the automotive companies prefer recruiting skilled professional for their workshops at a worthwhile salary package. My interest plus the prospects of this sector made me take the decision to switch my program.
As to whether there were similar courses available in Pakistan he stated:
To get an admission in Pakistan's Top ranked institutes is highly competitive As i have completed Cert III and Cert IV in automotive from Training Australia First, (Melbourne), it would be beneficial for me to continue my study course and finish it with in the same environment in order to get success.
The applicant disclosed a variety of employment while he has been in Australia including employment as a security guard, the manager of a restaurant, a taxi driver and currently a motor mechanic in relation to which he derives an income of approximately AU$38,400.
The applicant resides in Australia together with his wife, three daughters and son all of whom are secondary applicants in this proceeding. The applicant’s father, brother and sister reside in Pakistan. The applicant did not disclose any assets in Pakistan.
The applicant did not disclose any future employment plans upon the completion of his current course of study. In relation to his future remuneration he stated:
My ultimate goal is to open a well grown Workshop in my home country, Pakistan. To fulfil this dream i need to finish my study course and gain sufficient experience in order to meet all Mechanic Workshop Standards.
The Tribunal proceeded to ask the applicant some questions. As to the applicant’s role in the Telecom company prior to arriving in Australia, he said that it was a “call centre job”. As to his intended course of study when he arrived in Australia, he said it was to undertake “frontline management and diploma of management”. When asked whether he had enrolled in any course but not completed it while in Australia he said “it was only a cooking course which I completed half of the units and then I got a university offer, I was told I could not continue the current study because of my previous education, so I finished my 572 visa and I got enrolled in a higher education qualification”. The Tribunal asked the applicant when he had abandoned the cookery course to which he said “I’m not sure, started this degree and in 2015, degree of accounting”. The Tribunal asked the applicant whether there had been any other courses in which he was enrolled but either did not commence or did not complete to which he said “no”. The Tribunal asked the applicant when he had completed the Certificate IV Automotive course to which he said “last week of August, 2019”. When asked what he had done between that date and executing the letter of offer yesterday he said “I was working in my field, because we were not sure of the visa status, we should wait it out”. The Tribunal asked the applicant whether he had studied during the period to which he said “no”. When asked what made him decide to enrol in a course the day before the hearing he said “I had already made a decision but was stopped not sure as to what was going to happen”. When asked why he had changed his mind the day before the hearing he said “I never change my mind, my consultant advised me of a minimum requirement to provide a COE”. When asked as to his employment intentions when he returns to Pakistan he said “I want to start my own business”. He did not elaborate.
The applicant declined an opportunity to add anything further to his application for review.
In considering whether the applicant has met the genuine temporary entry criterion, the Tribunal had regard to the following factors consistent with cl.500.212 and Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole in reaching a finding about whether he has satisfied the genuine temporary entrant criterion.
The Tribunal has considered the applicant’s circumstances in his home country. The applicant is from Pakistan. The applicant has provided evidence of social, direct family and financial ties to his home country or other economic incentives to return. While his father, brother and sister reside in Pakistan he has disclosed no assets in Pakistan. He resides with his wife and four children in Australia, one of the applicant’s children was born in Australia after the applicant and his family arrived here. When considering the applicant’s circumstances in his home country, the Tribunal therefore finds that he has been able to demonstrate ties to act as an incentive to return to his home country at the completion of the proposed study. The Tribunal accepts that the applicant may have family ties to Pakistan, however, given the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to Pakistan.
The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 21 November 2011 as the holder of a Subclass 572 student visa valid to December 2014. In total, while in Australia, the applicant has been granted three student visas and one Subclass 485 visa. It appears that the applicant applied for the student visa in question at or around the time of expiry of the Subclass 485 visa. The proposed study would extend the applicant’s stay until at least 8 April 2021. The Tribunal finds that the length of this proposed additional stay creates serious concerns that the applicant is studying for the purposes of staying in Australia. While the Tribunal accepts that plans can change, this is not the conduct of a genuine temporary student. Rather, it suggests the applicant has decided to extend his stay in Australia by utilising the student visa programme.
The Tribunal does not place weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. The applicant has given extremely limited and vague evidence as to the utility of this course to his future career.
The Tribunal has considered the applicant’s study history since arrival. As noted above, he completed a Certificate III in Frontline Management between November 2011 and February 2012; a Diploma of Management between February 2012 and September 2012; a Certificate IV in Accounting between October 2012 and January 2014; a Diploma of Accounting between January 2014 and July 2014; an Advanced Diploma of Accounting between July 2014 and January 2015; a Bachelor of Business between November 2015 and November 2016; a Certificate III “Automotive” between February 2018 and February 2019; and a Certificate IV “Automotive” between February 2019 and August 2019. At one point he also commenced but did not complete a cookery course. The applicant did not explain the reason or reasons why he studied such diverse courses over such a protracted period.
The Tribunal notes that this course plan is inconsistent with the applicant’s plans when he initially entered Australia. It is also inconsistent with the applicant’s qualifications obtained in Pakistan and work experience gained in Pakistan. Further, it is inconsistent with most of the qualifications obtained by the applicant while he has been in Australia. The applicant now wishes to pursue a vocational course in automotive management in Australia. The course is asserted to have relevance to very vague future plans.
The Tribunal is not satisfied that the applicant has established that study will provide him with significant benefits in his proposed career plan, considering the cost of the study and the fact that the applicant already has significant qualifications in a diverse range of fields obtained both in Pakistan and in Australia. The Tribunal therefore is not satisfied that the applicant has demonstrated that the proposed additional study has a realistic prospect of providing significant value to his future beyond the qualifications he already holds.
The Tribunal has had regard to whether there are any other relevant matters. The Tribunal notes that the applicant was not enrolled in any course of study between August 2019 and 30 June 2020. There was no satisfactory explanation for this. This is given some weight by the Tribunal. Further the applicant executed a letter of offer in respect of the vocational course in automotive management the day before the hearing. When asked why he did this he gave a variety of answers which included a reference to advice from an unidentified person that he was required to have an enrolment for the purposes of the hearing. In the Tribunal’s view this evidence is quite significant and undermines the applicant’s contention that he is a genuine temporary entrant, rather he has only procured an enrolment in the course the day before the hearing and for the purposes of demonstrating that he was in fact enrolled. This is not the conduct of a genuine temporary entrant.
The Tribunal has considered all the information provided with the visa application. After weighing up these factors as a whole, the Tribunal finds that the applicant has not been able to satisfy it that the applicant genuinely intends a temporary stay in Australia as a student.
The Tribunal has considered the evidence and has taken into account the applicant’s economic circumstances in his home country relative to his potential circumstances in Australia. Given the disparity in economic circumstances between Pakistan and Australia the Tribunal cannot be satisfied that the applicant has significant incentive to return to Pakistan. The applicant has been unable to demonstrate substantial ties or personal assets in his home country which diminishes his incentive to return to Pakistan.
The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from his proposed study which will outweigh the significant time and monetary commitment this course will require. Therefore the Tribunal is not satisfied that the applicant has demonstrated the value of his proposed course to his future.
The Tribunal gives weight to the evidence that since the applicant’s arrival in Australia on 21 November 2011 the applicant has spent nearly nine years in Australia. Whilst the applicant has returned to Pakistan on seven occasions during that period the duration of his residence in Australia and the fact that his family reside with him in Australia indicates that he does not appear to have strong personal ties to Pakistan. Based on this evidence the Tribunal assesses the applicant’s incentive to return to Pakistan to be reasonably evenly balanced but not strongly suggestive that he is more than likely to return to Pakistan.

On balance, the Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. Whilst the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant was previously granted several visas specifically to enable him to achieve that goal. The applicant was granted two Subclass 572 visas and a Subclass 573 visa which would have facilitated the applicant’s study in his desired field. The applicant lodged this student visa application shortly prior to expiry of the Subclass 485 visa. It therefore appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study. The Tribunal has also had regard to whether there is any other relevant matter and finds there to be no other relevant matter to the assessment of the applicant’s intentions to stay in Australia temporarily. The Tribunal has considered all information provided by the applicant in support of his application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in his home country, potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.
On the contrary, the factors indicate that the applicant appears to have enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study and overall academic progress. The applicant appears to be using the student visa programme as a means of maintaining ongoing residence in Australia, and does not have a genuine intention to stay in Australia temporarily.
There is no evidence before the Tribunal regarding the following factors indicated by Direction No.69: economic circumstances of the applicant; any potential military service in Pakistan; circumstances of political or civil unrest in Pakistan; remuneration the applicant could expect to receive in Pakistan or a third country compared with Australia; circumstances in Pakistan relative to Australia or any other country; and the applicant’s circumstances in Pakistan relative to others in that country.
The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time, to utilise lawful means to remain in Australia. Given the amount of time the applicant has now spent in Australia, the Tribunal is concerned the student visa may be used primarily for maintaining ongoing residence.
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.
The application of the primary applicant having been unsuccessful, it follows that the applications of the secondary applicants are also unsuccessful.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Peter Booth
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 3935

21 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Intention

Statutory Construction