Sidhu (Migration)

Sidhu (Migration) [2021] AATA 4707 (24 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Jagsir Singh Sidhu
Mrs Karamjit Kaur Sidhu
CASE NUMBER:  2002489
HOME AFFAIRS REFERENCE(S):          BCC2019/4884442
MEMBER:Peter Booth
DATE:24 November 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 24 November 2021 at 7:17am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – arrival on Tourist visa – limited academic progress – value of the course to the applicant’s future – plan to start a business in India – family ties in India – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359
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 20 January 2020 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 29 September 2019. 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 (Cth) (the Regulations) because the applicant was not a genuine temporary entrant.
The applicants appeared before the Tribunal on 11 October 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
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 20 January 2020 refusing his application for a student visa. The applicant understood that the issue for determination was whether he was a genuine temporary entrant.
The applicant was asked to describe his current enrolment including commencement and completion dates. The applicant said “general English, start 4 October 2021 and will finish on 30 September 2022”. When asked when he enrolled in this course, he said “this course or the previous course”. When the question was repeated he said “4 October 2021”. The Tribunal pointed out that 4 October 2021 was the commencement date of the course and put to him that he enrolled on 28 August 2021. He replied “course start date is 4 October 2021”. The Tribunal informed the applicant that it was reading from his information documents supplied to the Tribunal on 6 September 2021 and asked whether he had a copy. He said “yes”. He was invited to to go to section 15 of that document. He said that he did so. He was invited to read out the days of enrolment stated in that document in respect of his current course. He said “28 August 2021”. The Tribunal put to him that he enrolled in the course on 28 August 2021. He said “yes”.
The applicant had produced a confirmation of enrolment document to the Tribunal in respect of such a course. The Tribunal accepts that he is enrolled in the course described in the confirmation of enrolment.
The applicant had also provided information to the Tribunal in the form of a response to a request to do so pursuant to s 359(2) of the Act. In summary the information provided by the applicant was as follows.
The applicant completed secondary education in India in March 1997. He stated that he was employed as a “machinery operator and driver” from May 2016 until January 2019 from which he derived an annual salary of AU$3000.
The applicant arrived in Australia in February 2019, he did not state the date. He has not returned to India since he arrived.
The application for the student visa in question was made 29 September 2019.
The applicant stated his visa history in Australia to be as follows: he held a “tourist visa Subclass 600” between 13 February 2019 and 13 February 2020 and a “bridging visa A” between 29 September 2019 to date.
The applicant stated his study history in Australia to be as follows: he enrolled in a general English course on 26 September 2019 but did not complete it. Also that he has a “future enrolment” in a general English course which he enrolled in on 28 August 2021; it will commence on 4 October 2021 and be completed on 30 September 2022.
The applicant stated that he has no employment rights in Australia.
The applicant stated that his parents and two sons reside in India and that his wife resides in Australia.
The applicant stated that he owned assets in India comprising “house and land” and “agricultural land”.
As to his future employment plans the applicant stated: “After the completion of my studies, me and my wife will go back to my country. As I had been working as a driver for the school, possible I would set up my own transportation operator business in Punjab. This was always my plan after I leave Australia.”
As to his expected future remuneration the applicant stated: “Through the bus operation business, I am expected to earn at least $2000 a month which is One lakh Indian Rupees.”
The Tribunal proceeded to ask the applicant some questions arising from the responses paraphrased above. The questions and the answers, in summary were as follows.
He confirmed that he arrived in Australia on 26 February 2019. When asked what visa he held at that time he said “tourist visa”. He was asked to state the purpose of his visit. He said came to meet my relatives”. He was asked how long he intended to stay. He replied “three or six months”. The Tribunal pointed out the tourist visas were valid for three months in respect of a single entry. The applicant said “yes”. He added “I went back after three months”. He continued “I went back in May, I came back in June”. Asked what day he returned he said “29 June 2019”.
He was asked what day in May he had departed Australia. He said “condition on visa I had to go visit my family and my children”. He was asked to answer the question directly. He said “understand”. When the question was repeated he said “21 May 2019”.
It was asked why he returned to Australia on 29 June 2019. He said “I came back to travel with my relatives”. The Tribunal observed that he had been in Australia only a few weeks previously and asked why he had returned. He said “I promise to my relatives that we would go to Sydney and Brisbane, but relatives and conditions, couldn’t go at that stage”. He was asked how long he intended to stay. He said “maximum three months”.
The applicant confirmed that he had applied for the student visa in question on 29 September 2019. The Tribunal observed that this was the last day of the tourist visa prior to its expiry for the purposes of that visit. He said “I had one year visa, I had six more months”. The Tribunal pointed out that the visa was valid for 12 months but only valid for three months entry on any one occasion. The applicant agreed. The Tribunal put to the applicant that for the avoidance of any doubt, he has applied for the student visa on the last day of the validity of the tourist visa for the purposes of that entry. He said “yes”. When asked whether there was anything more he wanted to say on this point, he said “because a condition can apply for student visa after 90 days of coming to Australia”.
It was asked whether he was employed in India when he came to Australia on this most recent occasion. He said “yes”. He was asked whether he took leave from that employment and if so for how long. He said “yes took leave, it was six or nine months, means I left job for one year”. He was asked why he took one month leave of absence if he intended travelling to Australia for three months. He said “I was coming back to Australia after that, so I took leave for three months”. When invited to answer the question directly, he said “when I first came I applied for three months then second time then applied for another three months, then when I applied for visa I left my job”. The Tribunal asked the applicant when he travelled to Australia on the most recent occasion, whether he had taken leave of absence. He said “yes”. He was asked to state the duration of the leave of absence. He said “three months”. When asked whether he had resigned from that employment, and if so when, he said “no”. The Tribunal reminded the applicant he had stated in his evidence when he applied for a visa that he left his job. He was invited to comment. He said “I didn’t resign”. He was asked to clarify his response. He said “when I came to apply for a visa, I got bridging visa and that is when I resign”. The Tribunal observed that he said that he resigned his employment, he had previously said on two occasions that he did not resign, and now said that he had resigned. He was asked to identify which was his preferred position. He said “third answer is correct, resigned on student visa, didn’t understand previously”.
He was asked when he applied to be enrolled in the course of study. He said “cannot recall exact act, but applying September 2019”. The Tribunal observed that he had enrolled in a general English course which was due to commence on 7 October 2019 but did not complete it. The applicant agreed. He was then asked to state when he had ceased studying that course. He said “when course started”. He was asked whether he abandoned the course or was excluded from it. He said “I couldn’t attend classes because not good at technology, thought classes would but in that time my COE was cancelled”. He was asked when he ceased studying. He said “In April or May 2020”. He was asked when the enrolment was cancelled. He said “don’t remember, maybe two or three months after that”. When asked whether he had planned a further course, he said “no”.
He was asked whether he was enrolled in any course between April and May 2020 and 28 August 2021. He said “no”. When invited to comment on this point he said “due to COVID and because I didn’t have technology and don’t understand technical requirements, that is why couldn’t complete it”.
He was asked whether he was starting his current course online. He said “yes online as well, but maybe in two or three months would be classes”.
The applicant confirmed that he had two sons in India and when asked to state their ages he said “18 and 12”. He was asked why his wife did not return to India when he decided to stay and study. He said “because I needed someone support, she is biggest support”.
The Tribunal asked the applicant to identify his family members who resided in Australia. He stated “my wife’s brother and wife, and I live with them”. The Tribunal asked why if he was living with relatives, his wife did not return to India. He said “being my wife she is my biggest support”.
The applicant was asked whether his children travelled to Australia with him on his last trip. He said “no”.
When asked whether he had assets in India in his name he said “yes”.
He was asked to state his employment intentions when he returns to India. He said “I will work as transport operator and as businessman”. The Tribunal asked the applicant why he needed to study vocational courses in English in order to do so. He said “English is business language in India, especially in bigger city, a medium of communication, I need good English skill to operate my business”. The Tribunal observed that he had been working as a driver for three years with his then existing English skills and enquired why he needed to improve his English language comprehension. He said “I can speak a little English but I need to learn more for business communication, if improve can do even better business”.
The applicant declined an opportunity to add anything further to his application for review.
The second applicant, the applicant’s wife, declined an opportunity to give evidence at the hearing.
Prior to the hearing the applicant provided a variety of documents to the Tribunal. The applicant did not refer to any of these documents during the course of giving evidence at the hearing. Nonetheless they have been taken into account by the Tribunal to the extent relevant and given appropriate weight.
Prior to the hearing the applicant provided a statement in support of his application for review. The statement is dated 6 September 2021, and without page numbers or paragraph numbers. The statement was not referred to by the applicant during the course of giving evidence at the hearing. Nonetheless it has been taken into account by the Tribunal to the extent relevant and given appropriate weight.
The applicant’s representative was invited to make submissions to the Tribunal. He declined to do so, relying instead on the applicant’s statement dated 6 September 2021.
CONCLUSIONS
The evidence of the applicant was often unresponsive to the question, vague, imprecise or discursive. Often the evidence of the applicant contained elements of all these issues. The Tribunal has rehearsed the evidence as a representative narrative, given in real time, which was often quite disjointed. The Tribunal’s rehearsal of the evidence is not intended to be a transcript of the evidence, rather the best recording as it transpired. It does give and is intended to give an appreciation of the nature and quality of the applicant’s evidence.
Without diminishing the applicant’s evidence, it can be summarised as follows. The applicant completed secondary education in India in 1997. He was employed as a driver in India from 2016 until 2019. He arrived in Australia on 26 February 2019. At that time he held a tourist visa. His wife, the second applicant, accompanied him to Australia. His two sons did not travel to Australia and have remained in India. He returned to India on 21 May 2019 and then again travel to Australia on 29 June 2019, approximately five weeks later. On each occasion on which you travel to Australia he stated that his purpose was to visit relatives in Australia. The student visa application in question was made on 29 September 2019, on the last day of the validity of his tourist visa for the purposes of that entry.
He said that he took three months leave of absence from his employment in order to travel to Australia. After confused and contradictory evidence he said that he resigned from that employment “when I apply for visa”. He enrolled in an English course commencing in October 2019 but did not commence it. He said that this was due to technical difficulties on his part. The course was conducted online and he could not comprehend that technology. He ceased studying in April or May 2020. His enrolment was cancelled two or three months thereafter. He did not study from 8 April 2020 until 28 August 2021. Notably, the course which commenced on 28 August 2021 was also conducted online. He has assets in India. He gave vague evidence about an intention to start a transport business when he returns to India.
The applicant has not explained to the Tribunal’s satisfaction why he changed the purpose of his visit to Australia from that of tourist to that of being a student, why his wife did not return to India when he decided to remain in Australia for the purposes of study, why he did not complete the first general English course, why he did not study between April or May 2020 in August 2021, why he was able to enrol in a course of study in August 2021 that was online but unable to conduct such a course previously, why he chose to re-engage with study in August 2021, why he did not return to India when a student visa application was refused, why his wife remains in Australia, a clear and cogent career path, details of a career path, why he needs to study a general English course in order to conduct the business of a transport operator, and why his existing skills and experience are insufficient to enable him to embark on his vague career path.
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 the Ministerial 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 married and is from India. The applicant has provided evidence of social, direct family and financial ties to his home country or other economic incentives to return. The Tribunal 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 actual or proposed study. Whilst the Tribunal accepts that the applicant may have family ties to India, having regard to 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 India.

The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 26 February 2019, he departed Australia on 21 May 2019 but again returned to Australia on 29 June 2019. At all material times he held a tourist visa and stated that he travelled to Australia for the purposes of visiting relatives and intended to stay for three months on each occasion. The proposed study would extend the applicant’s stay until at least 30 September 2022. The Tribunal considers that the length of the proposed stay suggests that the applicant is studying for the purposes of staying in Australia. Whilst plans can change, in the Tribunal’s view this is not the conduct of a genuine temporary student. On balance it is consistent with the applicant having 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. There are several reasons for this. First the applicant gave extremely vague evidence in relation to his future career path. He has provided no substantial details of that career path. He has not explained to the Tribunal’s satisfaction why he requires a vocational qualification in English, especially having regard to his extensive experience as a driver in India.
The Tribunal observes that this course of study is inconsistent with the applicant’s work history and is inconsistent with his plans when he entered Australia.
The applicant relies on a statement in which he addresses the various genuine temporary entry criterion. As discussed above it has been taken into account and given appropriate weight.
On balance, 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 experience as a driver in India. Accordingly, the Tribunal is not satisfied that the proposed additional study has a reasonable prospect of providing significant value to his career beyond the existing qualifications.
The Tribunal turns to consider whether there are any other relevant matters. The Tribunal finds that there are no other relevant matters to consider that may be beneficial or adverse to the applicant, and that this aspect is not relevant.
The Tribunal has considered the applicant’s economic circumstances in his home country relative to his potential circumstances in Australia. Having regard to the disparity in economic circumstances between India and Australia, the Tribunal is not satisfied that the applicant has significant incentive to return to India. The applicant has been unable to demonstrate substantial ties or personal assets in his home country which diminishes his incentive to return to India.
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. Accordingly, the Tribunal is not satisfied that the applicant has demonstrated the value of his proposed course to his future.
The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 26 February 2019, the applicant has spent more than two and a half years in Australia, has only returned to India on one occasion for approximately five weeks and has not returned to India since applying for a student visa in Australia, which indicates that he does not appear to have strong personal ties to India. On balance, the Tribunal assesses the applicant’s incentive to return to India to be poor.
The Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. The Tribunal also notes that the applicant lodged this application on the same day as the expiry of his tourist 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 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 evidence suggests that the applicant has enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study. The Tribunal considers that the applicant is 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 India; political or civil unrest circumstances in India; remuneration the applicant could expect to receive in India or a third country compared with Australia; circumstances in India relative to Australia or any other country; and the applicant’s circumstances in India relative to others in that country.
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.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
The application of the applicant having been unsuccessful it follows that the second applicants application must also fail.
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;
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.

[2021] AATA 4707

24 November 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction