Singh (Migration)

Singh (Migration) [2019] AATA 5227 (3 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr VIKRANT SINGH
CASE NUMBER:  1722166
HOME AFFAIRS REFERENCE(S):           BCC2017/2768597
MEMBER:Margaret Forrest
DATE:3 September 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 03 September 2019 at 5:46pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – consent to decision without hearing – not entitled to appear before the Tribunal – genuine temporary entrant – length of time in Australia – study inconsistent with level of education – unsatisfactory academic progress – relevance of course to future plans – immigration history – compliance with visa conditions –decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 8 September 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 3 August 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.
On 2 April 2019 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information about the course(s) of study he is undertaking and his entry and stay in Australia as a student, in writing. The invitation was sent to the last email address provided in connection with the review and advised that, if the information was not provided in writing by 16 April 2019, 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.
In their response, the review applicant indicated that “Yes, I/we consent to the Tribunal deciding the review without a hearing”. The Tribunal is satisfied that the necessary consent has been given under s.360(2)(b) of the Act and that, pursuant to s.360(3), the review applicant is no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal. After submitting material to the Tribunal on 16 April 2019, the applicant also submitted further material to the Tribunal on 17 April 2019. This material has been considered by the Tribunal.
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.
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 provided the Tribunal with a copy of the delegate’s decision record dated 8 September 2017. The Tribunal also had access to the relevant file of the Department of Home Affairs (which includes a genuine temporary entrant statement from the applicant dated 3 August 2017 (the Department GTE statement)) and the Tribunal file (including a further genuine temporary entrant statement from the applicant dated 5 April 2019 (the Tribunal GTE statement)).
In relation to the applicant’s potential circumstances in Australia, in the Tribunal GTE statement, the applicant states that, “I do not have any family member here in Australia”. In the applicant’s information form, the applicant states that his community ties in Australia are, “only few new college friends are in Australia”. In his information form, the applicant also does not list any property in Australia. On the basis of this evidence, the Tribunal considers that the applicant’s family and community ties with Australia do not constitute a strong incentive to remain in Australia.
According to the applicant’s information form, the applicant arrived in Australia on 6 June 2014. According to the Delegate’s decision record, the applicant arrived in Australia on 6 August 2014. The Tribunal prefers the evidence of the applicant in relation to this matter.
According to the applicant’s information form, since arriving in Australia, the applicant has completed the following courses:
a.General Intensive English (Beginner to Advanced) (9/2014 to 12/2014);
b.English for Academic Purposes (Upper Intermediate to Advanced) (02/2015 to 06/2015);
c.English for Academic Purposes (Upper Intermediate to Advanced) (06/2015 to 07/2015);
d.General English (10/2015 to 12/2015);
e.Certificate IV in Business (02/2016 to 07/2016);
f.Diploma of Business (07/2016 to 07/2017).
According to the applicant’s information form, since arriving in Australia, the applicant has been enrolled in the following courses, but did not complete them:
a.MBA (07/2015);
b.Bachelor of Business (01/2020).
According to the applicant’s information form, when the applicant submitted his information form, he was enrolled in the following courses:
a.Advanced Diploma of Business (08/2018 to 08/2019);
b.Bachelor of Business (09/2019).
According to the Delegate’s decision record, the applicant arrived in Australia in 2014 on a TU573 Higher Education student visa that was granted under Streamlined Visa Processing arrangements based on an enrolment in a Master of Business Administration course at Asia Pacific University International College.
In the Tribunal GTE statement, the applicant states that he was unable to commence his MBA because, “I was still not being able to meet the conditions of Enrolment of Master of Business Administration (‘MBA’) at the Asia Pacific International College which was subject to meeting the IELTS requirement of an overall band score of 6.5 with no individual band score below 6.0 or achieving the required English language proficiency via successful completing of EAP 2 English course achieving a minimum grade A delivered at ELSIS. I attempted twice and also extended my English Coe twice to meet the conditions of Enrolment of MBA but failed. Subsequently as the result, my eCOE for Master of Business Administration was also re-issued twice. The Case Officer at the Department of Immigration rightly pointed that my eCOE for Master Degree was cancelled twice but failed to consider as to why it was cancelled and also failed to consider any compelling and compassionate circumstance in my situation”.
In the Tribunal GTE statement, the applicant says these compelling and compassionate circumstances are, “[t]he only reason I failed to study the degree I came to study in Australia was absolutely due to my poor English, I accept that. However, I did not run away for the problem as I continuously tried and even requested my college to allow me to sit for an alternative English test. However, my request was denied. Little I knew then that I had to inform the Department of Immigration about the course change and my future course of study. If it was not, I would have definitely done that. Since I came to Australia, I continuously maintained my study, even when my case was at AAT for a review, I never gave up my hope to continue my study. I had few bumps on my way during the course of my study but now I have overcome all hurdles and made consistent progress towards my study now to complete a Bachelor Degree from Australia”.
The applicant has provided documents to the Tribunal that show that he struggled to achieve the required level of English to commence his MBA and that he contacted his course provider to find out if there was any other way that he would be able to commence his MBA. The Tribunal accepts the applicant’s evidence in this regard. However, the applicant has also told the Tribunal that he did not contact the Department to advise them that he was unable to commence his MBA because he did not know he had to. It is not unreasonable to expect the applicant to have contacted the Department to let them know that he was not able to commence the course for which his TU573 Higher Education student visa was granted. The Tribunal does not accept the applicant’s evidence regarding his failure to contact the Department.
The applicant then swapped to study a Certificate IV in Business and a Diploma of Business. In relation to this change, in the Tribunal GTE statement, the applicant states, “[s]ince I was not able to meet the conditions of Enrolment of Master of Business Administration, I was extremely disappointed but determined to start my study from a basic level to develop my knowledge in Business Sector and also improve my English level to complete a degree from Australia from my future growth career opportunity in my home country”.
When the applicant submitted his current visa application he was enrolled to complete a Bachelor of Business which was schedule to conclude on 26 March 2020. The applicant did not complete this course. In the Tribunal GTE statement the applicant states, “I studied two semesters of my Bachelor of Business at Australian Institute of Higher Education. Despite of my hard work, I found extremely difficult to do a good course progress towards my Bachelor Degree course and therefore, I decided to complete the followings course at Australian Harbour International College: i) Advanced Diploma of Business…[and] ii) Bachelor of Business (Major in Management)”.
There is no evidence before the Tribunal indicating that the applicant consulted a psychologist or suffered any mental condition that would have prevented him from completing his Bachelor of Business which that was scheduled to conclude on 26 March 2020. The explanation provided by the applicant lacks detail and the Tribunal does not accept the applicant’s explanation for not completing his Bachelor of Business.
When the applicant submitted his information form, he was enrolled in an Advanced Diploma of Business that he was scheduled to complete on 18 August 2019. The applicant submitted a Reference Letter from the Australian Harbour International College dated 3 April 2019 that states that as at 3 April 2019, the applicant was studying an Advanced Diploma of Business on a full-time basis. The Tribunal accepts this.
The applicant is currently enrolled in a Bachelor of Business. This course commenced and is scheduled to conclude on 12 August 2022. In the Tribunal GTE statement the applicant states that, “[s]hould not I able to complete a degree from Australia, it will bring shame in my family”.
In the applicant’s information form, the applicant states that he chose to study an Advanced Diploma of Business/Bachelor of Business because, “this course helps me to gain an in-depth understanding and specialised knowledge in the business management field and will help me to find a better job in India on my return to my home country. This course is based on practical education and current industry standard in western world which is a obevious advanctage for me when I return to India (sic)”.
In the applicant’s information form, the applicant indicates that before arriving in Australia he completed his Senior Secondary Certificate and a Bachelor of Arts in India. The applicant has provided documents evidencing this and the Tribunal accepts the applicant’s education history in his home country as presented to the Tribunal.
The Tribunal considers that the university level study completed by the applicant in India to be at a higher level than study at the vocational level. It is of concern to the Tribunal that the applicant was already a university graduate before ever coming to Australia and has over many years, although having attempted to study at the higher education level in Australia, has only completed courses in the Vocational Education and Training (VET) sector, at a level below his university accomplishments.
In the applicant’s information form, the applicant did not provide any information about previous work in India prior to coming to Australia. The applicant also did not provide any information about work he has undertaken in Australia.
In relation to the applicant’s plans for the future, in his information form he states, “plenty of job opportunities in national and international company in India and also in my home town”.
In the Tribunal GTE statement the applicant states, “I anticipate to complete my Advanced Diploma of Accounting on time and then recommence Bachelor of Business (Major in Management) at Group College Australia. I would then would like to grab an opportunity to get two years’ Australian work experience I stay in post study work right visa before going back to my home country for better opportunity”. The applicant goes on to state, “My home country India got plenty of job opportunities when I finish and return. I will have potential opportunity in the highly dynamic environment of the 21^st century. I am confident a combination of Australian vocational program and a Bachelor will prepare me for the entry level positions and will equip me with knowledge and skills, that will be able me to advance to a senior position in any organisations. As these programs concentrates on Accounting, Finance, Information Technology, Marketing, E-business, Human Resource Management, Business Management and Entrepreneurship. These will equip me with deep knowledge to seek jobs in any business organisation”.
In the Department GTE statement the applicant states, “[m]y home country India got plenty of job opportunities when I will finish and return. I will have potential opportunity in the highly dynamic global environment of the 21^st century. The program will prepare me for entry-level positions and will equip me with knowledge and skills, that will be able me to advance to a senior positions in any organization. As this program concentrates on Accounting, Finance, information technology, Marketing, E-business, Human Resource Management , Computer Information Management, and Entrepreneurship. These specialisations will enable me to seek jobs in any business organization. “
The applicant has not provided any further information to the Tribunal to support his claims that he requires a Bachelor of Business to acquire an entry level position in a national or international business organisation in India. The applicant has also indicated that he intends to stay in Australia for two years after he finishes his study to gain work experience. The applicant has not demonstrated that the skills he will acquire as a result of obtaining a Bachelor of Business are necessary over and above the skills he has already acquired from his other studies in Australia and his Arts degree in India in order to acquire an entry level position in a national or international business organisation in India. The Tribunal does not accept the applicant’s evidence regarding his future plans.
In the applicant’s information form he confirms that since arriving in Australia on 6 June 2014, the applicant has departed Australia 2 times for short periods to visit family back home. Once for 3 weeks in February 2018 and once for 3 weeks in February 2019.
The Tribunal is concerned that the applicant is proposing to stay in Australia until at least August 2022. In this case, the applicant has been in Australia for over 5 years, he did not inform the Department when he was unable to start his MBA, he did not complete his first Bachelor of Business, he has been unable to demonstrate why he requires a Bachelor of Business to achieve his future plans and he plans to stay in Australia for two years after completing his studies, to work. The applicant is now enrolled in a course which is scheduled to conclude on 12 August 2022. The Tribunal considers that if the applicant was committed to completing any further study in Australia, his studies would be further progressed. The Tribunal does not consider his academic progress to be that of a genuine student. The Tribunal is not satisfied that the applicant is not simply now proposing further courses in order to gain a student visa with the primary objective of maintaining ongoing resident in Australia.
In relation to the applicant’s circumstances in his home country, in the applicant’s information form, the applicant indicates that he is not concerned about military service commitments or political or civil unrest in India. The Tribunal accepts this.
In the applicant’s information form he states that he chose to study an Advanced Diploma of Business/Bachelor of Business in Australia because, “Indian education is based on book only thats why I came to Australia to study practical based (sic)”. In the Tribunal GTE statement, the applicant further states that, “[i]t is well accepted that the Australia degree is well recognised in India”. In the absence of any further evidence to support these claims and taking into account the amount of time the applicant has now spent in Australia on student and associated bridging visas, the Tribunal does not accept this.

In the applicant’s information form, the applicant indicates that his parents, sister and grandmother continue to reside in India. The applicant indicates that he speaks to his family in India 3-5 times a week by Viber/Whatsapp, messenger and phone. The applicant says that his community ties in India are, “family, friends, relative all are residing in India”. The applicant also indicates that he owns a house and land worth AUD300,000 in India. However, in the Tribunal GTE statement, the applicant indicates that, “[m]y parents have property in their name. I do not have business or property in my name” and “[i]t is cultural that I will inherit all my parent’s property in due time”. In the Tribunal GTE statement, the applicant also says that, “I am a student whose study and living expenses are entirely funded by parents”. Taking into account the fact that the applicant does not presently have any property in his name in India and the fact that the applicant has managed to maintain regular contact with his family via electronic means in the 5 years since he arrived in Australia, the Tribunal does not accept that the presence of the applicant’s family and any property in India would constitute an incentive to return to India.
In relation to the value of the course to the applicant’s future, in the applicant’s information form, the applicant indicates that before arriving in Australia he completed his Senior Secondary Certificate and a Bachelor of Arts in India. The applicant has provided documents evidencing this and the Tribunal accepts the applicant’s education history in his home country as presented to the Tribunal.
In the applicant’s information form, the applicant did not provide any information about previous work in India prior to coming to Australia. The applicant also did not provide any information about work he has undertaken in Australia.
In the applicant’s information form the applicant indicates that he expects to earn an average of AUD2,500 per month when he returns to India. In the absence of any further evidence to support this claim, the Tribunal does not accept this.
In relation to the applicant’s immigration history, according to the Delegate’s decision record, the applicant arrived in Australia in 2014 on a TU573 Higher Education student visa that was granted under Streamlined Visa Processing arrangements based on an enrolment in a Master of Business Administration course at Asia Pacific University International College. The applicant’s current visa application was made on 3 August 2017. The Tribunal does not have any further information about any other visa applications made by the applicant.
When the applicant first arrived in Australia he was enrolled in a set of courses that would lead to him studying an MBA in the higher education sector. However, the applicant never commenced his MBA. The applicant subsequently enrolled and completed lower level courses in the VET sector, being a Certificate IV in Business and a Diploma of Business. The applicant commenced a Bachelor of Business in 2017 but only completed two semesters of this course. The applicant then enrolled in another VET sector course, an Advanced Diploma of Business and only recently commenced a Bachelor of Business on 2 September 2019.
This demonstrates a failure to comply with condition 8516 attached to the applicant's student visa. This condition requires that the holder of a student visa must continue to satisfy the requirements for the grant of the student visa which means the main course of study must continue to be a course in the education sector that matches your student visa. In this case the applicant was required to maintain enrolment in a course in the higher education sector, not the VET sector.
The Tribunal has already found that the applicant struggled to achieve the required level of English to commence his MBA and that he contacted his course provider to find out if there was any other way that he would be able to commence his MBA. However, the Tribunal has also found that the applicant did not contact the Department to advise them that he was unable to commence his MBA because he did not know he had to and that is not unreasonable to expect the applicant to have contacted the Department to let them know that he was not able to commence the course for which his TU573 Higher Education student visa was granted. The Tribunal does not accept the applicant’s evidence regarding his failure to contact the Department and takes the applicant’s breach of condition 8516 into account.
The information form submitted by the applicant indicates that the applicant has never applied for any other Australian visa where a decision on that application has not yet been made. The information form also indicates that (other than the current student visa application) the applicant has never been refused a visa to any country (including Australia) and has never held a visa to any country (including Australia) that was cancelled or considered for cancellation. The Tribunal does not make any findings in relation to these matters.
There is no evidence before the Tribunal regarding the following factors indicated by the Direction: the applicant’s circumstances in India relative to others in that Country, any previous travel to Australia or other countries by the applicant including, if the applicant previously travelled to Australia whether the applicant complied with conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control and if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country.
As the applicant is over 18 years of age, the intent of any parent, legal guardian or spouse is not relevant to the Tribunal’s assessment.
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. The Tribunal has found that the applicant’s family and community ties in Australia do not constitute an incentive to remain in Australia. However, taking into account that fact that the applicant has been in Australia for over 5 years, he did not inform the Department when he was unable to start his MBA, he did not complete his first Bachelor of Business, he has been unable to demonstrate why he requires a Bachelor of Business to achieve his future plans and he plans to stay in Australia for two years after completing his studies, to work, on balance, the Tribunal is concerned that a further 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).
Conclusion on cl.500.212
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.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Margaret Forrest
Member

Attachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton

Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

[2019] AATA 5227

3 September 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Intention

Standing