Singh (Migration)

Singh (Migration) [2020] AATA 5990 (14 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Priya Singh
Mr Abhishek Sharma
CASE NUMBER:  1930992
HOME AFFAIRS REFERENCE(S):          BCC2019/3651743
MEMBER:Darren Renton
DATE:14 November 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 14 November 2020 at 1:16pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–failed to provide the requested information within the prescribed period – genuine temporary entrant criterion not met– lack of realistic knowledge of the applicant’s present course –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
CASES
Hasran v MIAC [2010] FCAFC 40
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16
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 15 October 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 23 July 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 (the Regulations) because the applicant was not a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal by the applicant.
The applicants were assisted in relation to the review.
The Tribunal wrote to the applicant pursuant to s.359(2) of the Act, on 1 June 2020 inviting her to provide information to satisfy it that she met her visa requirements regarding enrolment in a registered course of study and being a genuine applicant for entry and stay as a student and to give, in writing, all relevant information about the course(s) of study she was undertaking and her entry and stay in Australia as a student. The invitation was sent to the applicant’s authorised recipient’s email address as set out in the applicant’s Application for Review form lodged with the Tribunal and advised that, if the information was not provided in writing by the prescribed period, being 15 June 2020, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. There was no evidence that the email was not received.
The applicant did not provide the information within the prescribed period and no extension of time was requested. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.
The applicant did subsequently provide a response to the Tribunal on 5 November 2020. Attached to that response were further materials from the applicant consisting of:
a.Confirmation of Enrolment with Deakin University for a Bachelor of Design (Architecture) course commencing 9 March 2020 and concluding 30 November 2011. The applicant had paid an initial fee of $4,000 with the total course fee being $52,000;
b.Proof of completion of a Certificate IV Building and Construction (Building) dated 15 February 2020; and
c.Proof of completion of an Advanced Diploma Building Design (Architectural) dated 9 April 2018 and statement of results for that course.
In the applicant’s response, she requested the Tribunal hold a hearing to determine her review. As noted in [6] above, the applicant’s failure to respond within the prescribed period and the operation of the sections referred to, meant that the applicant had lost her right to a hearing. The Tribunal has; however, considered the additional material submitted by the applicant (including her s. 359(2) response) in considering this review.
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 applicant for entry and stay as a student.
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion. The Tribunal has also had regard to the decision in Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 and the principles emerging from that decision in its application to the Tribunal’s consideration of Direction No. 69. The Tribunal has also had regard to the decision in Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 and the principles emerging from that decision in its application to the Tribunal’s consideration of Direction No. 69.
The applicant was born and raised in Italy, completing her high school education before embarking of a diploma of architecture which she completed in June 2015.
According to the applicant’s genuine temporary entrant (GTE) statement lodged with her student visa application the subject of this review, the applicant arrived in Melbourne on 8 December 2015.
In that GTE statement, the applicant noted that she came to Australia on a tourist visa and having spent some time in Melbourne really liked it and the architecture there, which was completely different to Italian architecture. She claimed that she studied and completed an Advanced Diploma in Building and Design before commencing studies in a Bachelor of Built Environment.
Shortly after commencing that bachelor course, the applicant claimed that she realised she was more interested in drafting residential and mixed-use dwellings and consequently, felt the need to focus more on theoretical parts than the design and planning aspects. In order to improve her knowledge about Australian standards, rules, regulations and other aspects related to the actual site works, the applicant claimed that she decided to enrol in a Certificate IV in Building and Construction.
The applicant further claimed that while in Melbourne she met her partner (who she later married). She claimed that Melbourne offered lots of opportunities and she did not find a particular reason or excuse to leave, but as she had a little sister who had medical problems, it would be hard for her family to move or come to Australia. Consequently, upon completion of her Certificate IV course, she would return home.
The applicant has had a disrupted educational history in Australia. After arriving initially on a tourist visa, as noted in the delegate’s decision, the applicant held a VET level student visa between February 2016 and March 2018 and thereafter a higher education student visa between April 2018 and August 2019.
The applicant successfully completed an Advanced Diploma of Building and Design between February 2016 and March 2018. She thereafter enrolled in Bachelor of Built Environment course that she failed to complete and a Diploma of Building and Construction which she also failed to complete. In February 2019 she enrolled in a Certificate IV in Building and Construction which she completed and then a Bachelor of Design (Architecture) which she is currently studying.
Aside from the interest in the architecture of Melbourne, the only other relevant evidence provided by the applicant for wanting to study in Australia was in the form of her s. 359(2) response wherein the applicant claimed that similar courses at home were taught in Italian and thus she decided to pursue education in English and decided to come to Australia.
It is apparent that the response in the preceding paragraph is somewhat at odds with the applicant’s initial GTE statement set out at [16] above wherein the applicant decided to study after having arrived on a tourist visa and being interested in the local architecture.
The Tribunal is not satisfied that the fact an equivalent course in the applicant’s home country is taught in Italian, provides a reasonable reason for not undertaking the study there. The applicant was born, raised and educated in Italy prior to coming to Australia. She also worked for the local council in Castenedolo for several months. The applicant presented no evidence that she could not understand Italian or that Italian would present difficulties to her continuing her education there.
Further, the Tribunal is not satisfied that the applicant’s interest in the architecture of Melbourne or the matters set out in [17] – [18] above provide her with a reasonable reason for not undertaking the study in her home country.
Consequently, the Tribunal finds that the applicant has failed to establish reasonable reasons for not undertaking the proposed study in her home country.
The applicant provided limited evidence of her personal ties to Italy or whether the circumstances of those ties would serve as a significant incentive to return home.
The applicant met her partner in Melbourne and subsequently married him. The applicant’s parents reside in Italy as did her 2 sisters.
In her s. 359(2) response, the applicant claimed that her ties to her community in Italy consisted of “regularly frequenting the town centre of Castenedolo, getting involved in all sort of matters or organisations from religious to multi-cultural events”. The Tribunal considers this response to be vague and lacking any real substance. Further, the applicant did not have any employment in Italy nor did she provide the Tribunal with any evidence to suggest that she owned any assets or property in Italy.
While the Tribunal accepts that family can provide an incentive to return home, the lack of employment and community ties, coupled with the lack of substantial assets causes the Tribunal to not be satisfied that the applicant’s personal ties to Italy would serve as a significant incentive for the applicant to return home.
The applicant provided no evidence from which the Tribunal could conclude that her economic circumstances in Italy would present as a significant incentive for her to return home. The applicant had no offer of employment awaiting her in Italy and as noted previously, the applicant had no current employment to return to. In relation to the previous employment she had undertaken in Italy, the applicant provided no details of the earnings she received from such employment. The applicant indicated that she had been employed in Australia between June 2018 and February 2020, although she provided no evidence of the earnings she received from that employment. When regard is had to the applicant’s circumstances in Australia, including her periods of employment, the level of economic uncertainty surrounding the applicant in Italy leads the Tribunal to conclude that her economic circumstances do not present as a significant incentive for her to return.
There is no evidence before the Tribunal that the applicant holds any concerns regarding military service commitments or in relation to any political/civil unrest in Italy that would present as a significant incentive not to return home.
The applicant claimed limited ties to Australia. She claimed that she was involved in a few community events in Australia from Indian heritage but provided no further details about these. As noted previously, the applicant has had significant periods of employment while in Australia and has been here since 2015. The applicant’s spouse is presently in Australia and is a secondary applicant on the applicant’s visa application. It is reasonable to infer that the applicant’s spouse is not therefore, an Australian citizen, although the Tribunal has no evidence before it that the applicant’s spouse otherwise has an independent basis to remain in Australia. Consequently, while the presence of the applicant’s spouse is a factor that provides a strong incentive to remain in Australia, the lack of evidence concerning his ongoing status limits the weight that the Tribunal gives that factor.
Balancing the matters in the preceding paragraph, particularly the length of the applicant’s employment, the Tribunal is satisfied that the applicant’s ties to Australia present as a strong incentive to remain in Australia.
As noted in the delegate’s decision, concerns were raised about the applicant’s studies during her previous student visa resulting in the applicant providing a natural justice response to adverse information concerning her failure to maintain enrolment in a course of higher education while on her higher education student visa.
It had been alleged that the applicant was potentially in breach of condition 8202 of her higher education student visa. This was based inter alia on the applicant’s withdrawal from her Bachelor of Built Environment course and subsequent studies in the Certificate IV Building and Construction course.
The applicant’s response to the adverse information received by the Department on 11 October 2019 claimed that she withdrew from the Bachelor course because she lost interest in it. She further claimed that she enrolled in the Diploma of Building and Construction, but it too was a mistake as she didn’t want to study that course, withdrawing from it in January 2019. She indicating she was currently studying the Certificate IV in Building and Construction.
The applicant did not seek to challenge her non-compliance with studying an appropriate level course but claimed the mistake was unintentional as she thought she could simply change her course and was under the impression she could still study a Certificate IV course. The applicant provided no evidence to support this impression.
The Tribunal finds the applicant’s explanation to indicate a lack of proper research into those courses and the conditions attached to the applicant’s visa at the time. While the Tribunal accepts that a student may change their courses based on changing circumstances and motives, the Tribunal is not satisfied that the applicant made adequate or proper inquiries into either her Bachelor of Built Environment or Diploma of Building and Construction courses before commencing them. Given the costs associated with each course and the ongoing living expenses incurred by the applicant while in Australia, the Tribunal considers it reasonable for the applicant to have made such inquiries to acquire a realistic level of knowledge about those courses prior to undertaking them. The Tribunal also considers it reasonable for a student visa holder to be familiar with the conditions of their visa and to ensure they comply with them.
The above matters are also relevant to the question of whether the applicant is using the student visa program to circumvent the intentions of the migration program and to using a student visa to maintain ongoing residence.
With her natural justice response, the applicant provided a letter of offer for enrolment at Charles Sturt University in a Bachelor of Business Marketing course to commence February 2020 and conclude October 2023. The cost of the course was $78,720. There was no evidence provided by the applicant that she ever enrolled in, or commenced that course.
As noted by the applicant in her s. 359(2) response, she was enrolled in and presently studying, a Bachelor of Design (Architecture) which commenced in March 2020. According to the Confirmation of Enrolment provided by the applicant for that course, she had paid $4,000 of the total $52,000 course fees.
Of concern to the Tribunal is that in completing 2 sections of the s. 359(2) response, being information about current and proposed courses of study and information about future plans, the applicant has simply cut and paste information taken directly from the Deakin University website ( making only minor modifications to put parts into a first person perspective.
Not only does this indicate a lack of realistic knowledge of the applicant’s present course, course provider and proposed outcomes, it is consistent with the applicant’s past choice of courses that she failed to complete because either the courses did not interest her or were not what she intended studying. This failure to properly understand and research courses being studied causes the Tribunal to hold real concerns that the applicant is using the student visa program to circumvent the migration program and to maintain ongoing residency in Australia. Given the significant costs associated with studying in Australia (both course-related and living), it is reasonable to expect that genuine students will have thoroughly researched their proposed courses of study and be able to explain their choice for doing so. The applicant has not presented evidence that she has put any of her previously attained qualifications into practice while in Australia and the explanations proffered for studying in Australia outlined earlier, do not allay the Tribunal’s concerns.

The Tribunal accepts that given the applicant’s past studies, including successfully completing an Advanced Diploma course, that studying a Bachelor level course is consistent with her current level of education. Likewise, the Tribunal is satisfied that given the previous courses studied, the proposed course of study is a realistic progression.
The Tribunal is not satisfied; however, that the proposed course will assist the applicant to obtain employment or improve her employment prospects in Italy or a third country.
The applicant stated in her s. 359(2) response in answer to the question what remuneration she would expect to receive in her home country or a third country using the qualifications she would gain from the proposed study that the basic pay for a construction manager was 1790 local currency. It is reasonable to assume that this is a reference to Euros, being the present currency in Italy. Taking into account the present exchange rate to AUD$ (as at the date of this decision), the amount is $2,913.98. Assuming this amount was intended to be a reference to a monthly salary (albeit not stated), the equivalent yearly salary is approximately AUD$35,000.
Nowhere previously had the applicant indicated that she intended to seek work as a construction manager. In a statement provided as part of her natural justice response entitled genuine temporary entrant.pdf, the applicant claimed to have “always wanted to be a draftsperson”. Further, the applicant did not indicate how the proposed course of study was relevant to the role of a construction manager.
Consequently, the Tribunal is not satisfied that the proposed course of study will assist the applicant to obtain employment or improve her employment prospects or that it has a demonstrated relevance to her proposed future employment either in Italy or a third country.
The applicant has not presented sufficient reliable and credible evidence to establish that the remuneration she expects to receive in Italy or a third country as a consequence of her to be obtained qualifications would be enhanced by those qualifications. The proposed remuneration of a construction manager set out by the applicant cannot be compared to her previous employment remuneration (either in Italy or Australia) as she provided no details of the earnings from that employment. Consequently, there is insufficient evidence for the Tribunal to be satisfied that the proposed course offers value to the applicant’s future remuneration.
The failure of the applicant to comply with the conditions of her visa as noted previously is a matter that the Tribunal considers weighs against her when considering her immigration history and specifically, her past compliance with the conditions of her visa. As noted, the applicant accepted her breach but claimed it was unintentional. The Tribunal does not accept the applicant’s claim in that regard for the reasons previously set out. The applicant had an obligation to be familiar with and to comply with, the conditions of her visa. Aside from that issue, there is no other evidence before the Tribunal concerning adverse compliance with previous visa applications or travel by the applicant.
There is no evidence of any other relevant matters either beneficial or unfavourable to the applicant, before the Tribunal. The Tribunal notes that the current COVID-19 pandemic has caused considerable disruption worldwide and has resulted in travel bans and restrictions, social isolation and numerous other impacts on society aside from the obvious health ramifications.
There is no evidence before the Tribunal that the COVID-19 pandemic has any special application to the applicant, other than preventing her from returning to Italy for the wedding of one of her sisters. In the circumstances, the Tribunal gives no weight to the impact of COVID-19 either in favour of or adverse to, the applicant.
Based on the above, and taking all matters into account, both in favour of and adverse to the applicant, on balance, 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).
Consequently, 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.
As the main applicant does not meet the criteria for a grant of a student visa, it follows that the secondary applicant does not meet cl.500.311.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Darren Renton
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 5990

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Intention