Singh (Migration)

Singh (Migration) [2023] AATA 3349 (8 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Amritpal Singh
REPRESENTATIVE:  Mr Pankaj Dumra (MARN: 0959608)
CASE NUMBER:  2201642
HOME AFFAIRS REFERENCE(S):          BCC2020/1624519
MEMBER:Michael Biviano
DATE:8 September 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 8 September 2023 at 4:04pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– courses only provide limited improvement in employment prospects – lack of academic progress ––applicant was not a genuine applicant for entry and stay as a student – strong personal and economic ties to Australia – applicant is seeking to undertake low level VET courses – significant period of time living in Australia – genuine temporary entrant criterion not met–use the student migration program to maintain ongoing residence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, Schedule 2, cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 January 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 26 May 2020. At the time of application, Class TU contained 2 subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) for the reason that he was not a genuine applicant for entry and stay because he did not intend to stay in Australia temporarily.
The applicant appeared before the Tribunal on 21 April 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was assisted in relation to the review.
It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
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 was a genuine applicant for entry and stay as a student.
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 is a 36 year old Indian national who first came to Australia on 29 June 2013 on a dependant student visa for the purposes of supporting his then spouse during her studies here in Australia.
The Decision Record of the delegate of the Department of Home Affairs dated 20 January 2022, which was provided to the Tribunal by the applicant, confirms that the applicant made his application for a student (Class TU Subclass 500) visa on 26 May 2020 (Decision Record). The Decision Record sets out the reasons for the visa refusal and confirms that the applicant’s last substantive visa was a Temporary Graduate (Subclass 485) visa. Further the Decision Record outlined that the applicant intended to study a Diploma of Business and an Advanced Diploma of Business here in Australia.
Prior to the hearing the applicant filed with the Tribunal a response within time pursuant to an invitation to supply student visa information about the courses he was studying and information about his entry and stay in Australia in accordance with s 359(2) of the Act (the Response). In addition to the Response the applicant filed a number of documents in support of his application which comprised:
a.Passport Extract;
b.National Australia Bank statement for the period 7 November 2021 to 4 February 2022;
c.Confirmation of Enrolment (COE) No. DD076F21 for the applicant to study a Certificate III in Commercial Cookery at Nortwest with a course start date of 20 February 2023 and a course end date of 24 May 2024 which was created on 16 January 2023;
d.COE No. DD077C31 for the applicant to study a Certificate IV in Kitchen Management from Nortwest with a course start date of 24 June 2024 and an end date of 20 December 2024 which was created on 16 January 2023;
e.COE No. DD078B97 for the applicant to study a Diploma of Hospitality Management at Nortwest with a course start date of 13 January 2025 and a course end date of 11 July 2025 which was created on 16 January 2023.
The applicant gave evidence that prior to coming to Australia he completed a Year 12 education and after finishing school, he worked in agriculture on the family farm back in India. The applicant subsequently married in 2013. The applicant gave evidence that whilst he was working on the family farm he was earning between 3-4 Indian lakh per annum which equates to approximately A$5,500 to A$7,400 per annum.
The applicant gave evidence that he joined his spouse to study here in Australia in 2013 and that she was studying a Bachelor of Accounting. He gave evidence that whilst she was studying, he was working here supporting his spouse. He claimed that he worked in the following jobs whilst in Australia:
a.from 2013 to 2019 he worked as a cook at a restaurant called The Indian Temptation and claimed that his income was approximately A$400 per week which equates to approximately A$20,000 per annum;
b.between October 2019 to July 2021, he worked as a cook at Kababish Food & Hospitality where his income was approximately A$17,800 per annum;
c.from July 2019 to May 2022, he worked at Uber Eats earning approximately A$15,000 per annum.
He claimed that from August 2022 until the hearing he was working as a pasta maker and his income was approximately A$1,150 per fortnight working at Cucina Classica. Consequently, that income equated to approximately A$30,000 per annum. Furthermore, he claimed during the COVID-19 pandemic, he was also working at Uber Eats 1-2 days per week earning approximately A$500-A$550 per week which would have approximated A$25,000 per annum. When working on a full time basis the applicant had the ability to earn A$55,000 per annum which is a high level of income and which would provide the applicant with a substantial financial incentive to remain here rather than to return home.
The applicant in evidence confirmed that he divorced his wife on 21 July 2020.
Prior to the divorce, on 26 May 2020 he enrolled at Aspen College to study a Diploma of Business and an Advanced Diploma of Business. The applicant claimed he decided to undertake these studies having been here for a very long period of time to provide him with qualifications which would enable him to get a good job back in India. He claimed that obtaining the qualifications in Australia would provide him with better opportunities back home.
The applicant claimed that he had been unable to study prior to May 2020 in part because he was supporting his spouse during her studies but also then due to the relationship break-up and subsequently their divorce. The applicant gave evidence that having enrolled in May 2020 he studied the Diploma of Business for approximately a month and after that time he could not continue studies due to his circumstances arising from the COVID-19 pandemic, his divorce from his spouse and the subsequent depression that arose after these events which made his studies extremely difficult to complete. The applicant did not submit any medical evidence to suggest that he was depressed or undertaking treatment from a psychologist or medical practitioner for that condition. He ceased studies in or about June or July 2020. The applicant claimed due to his medical condition he was unable to undertake studies and his work was limited to Uber driving.
The applicant claims that he returned home in November 2022 until December 2022 and was able to get himself stable and prepare himself to undertake studies.
The applicant claimed that after getting better he returned to Australia and after receiving encouragement from his friends and family that he should complete studies here in Australia before returning home to India he enrolled in a Certificate III in Commercial Cookery, a Certificate IV in Kitchen Management and a Diploma of Hospitality Management. The applicant has submitted the COEs for those courses to this Tribunal and the Tribunal notes that those courses commenced on 20 February 2023 and are not expected to conclude until 11 July 2025 which would extend his stay in this country to 12 years which is a very long period of time and inconsistent with his stay being temporary.
Moreover it does not appear that the applicant has undertaken any study from July 2020 through to February 2023 which is a gap of more than 2½ years. Whilst the Tribunal notes that the applicant may have been having a difficult time due to his divorce and the COVID-19 pandemic and that may have caused some interruption in his studies, the fact is that the applicant has had more than ample opportunity to undertake studies during a significant period of the time and had he undertaken those studies he would have completed the courses he is seeking to now undertake. The purpose of a student visa is to come to this country and complete one’s studies in a timely manner. The applicant’s history is inconsistent with that policy and gaps of some 2½ years in study are more consistent with persons who are seeking to use the student visa program to maintain residency here.
The Tribunal notes that the applicant has not completed any tertiary studies and accepts that completion of the courses he has enrolled in would be the highest level of qualifications that he has obtained and is likely to provide some improvement in his employment prospects and remuneration. However, the Tribunal notes that the applicant has substantive cooking experience in restaurants from July 2013 to July 2021 and also as a pasta maker from August 2022. As a consequence of his experience the Tribunal considers it would limit the advantage of obtaining qualifications. In all the circumstances the Tribunal considers that the courses that he is undertaking will only provide limited improvement in employment prospects and the level of remuneration he can earn in obtaining employment back in India.
The applicant in the hearing accepted that there was nothing stopping him from returning to India and undertaking further training there to become a chef. However, the applicant claimed that he wants to undertake studies here in Australia because the level of education here was very good and it would provide him with better opportunities back in India to obtain employment. He claimed that he could not go back to India ‘empty-handed’ and the Indian education system for cooks is not as good as those in Australia. Moreover he had made enquiries with his friends and family who informed him that studying back in India would not provide value and his priority was to get a job and that in those circumstances he should undertake and complete his studies in Australia. The applicant in the Response outlined the following reasons for undertaking studies in Australia:
I researched the study options in India in hospitality vocational sector. I found that the vocational education system in India does not focus upon practical aspects. It focuses more on theoretical aspects instead. There are one-year diploma courses available in this sector in India. However, these courses only provide limited knowledge to the students. Studying these courses do not fully equip the students with the required skills to work in the hospitality industry. The students graduate with missing skills and training and then learn on the job with trial and error. The students are not job ready. The Indian education providers also do not have the best infrastructure to provide a great learning experience to the students. These education providers are also not widely recognized in the international arena. The employers are aware about the limited knowledge and skills these courses impart to the students. So, they offer lesser starting salaries to the students when they apply for jobs to enter into the job market. Chefs in India become skilled after experience not after studying. There is also shortage of chefs skilled in contemporary culinary skills. Most of them are skilled in Indian style of cooking. My dream is to become a chef who knows both type of cooking. I will have a great fusion combination of skills.
Having considered the applicant’s evidence and the Response which outlined that there were courses available back in India that he could study, and while they may not provide the same level of practical training, the applicant has had nearly 10 years of practical skills working in kitchens here in Australia, and that aspect of the course would not be as necessary for the applicant. Furthermore the applicant confirmed in evidence that he had not approached any education providers in India about undertaking studies there before commencing studies here in Australia. He claimed that his knowledge about the education providers and available courses was predominantly as a consequence of queries he made with friends and family back in India. If he was seriously concerned about the level of education offered by Indian institutions and how they compared with the Australian institutions, he would have made those enquiries himself. In such circumstances the Tribunal is not satisfied he has a reasonable motive to undertake these studies in Australia rather than back in his home country in India.
The applicant in evidence claimed he wishes to complete these hospitality courses so he can return home and obtain a job as a chef and then subsequently open his own business in the future.
The applicant has changed his career path initially from Business to Cooking and Kitchen Management to Hospitality Management. Whilst there is some loose connection between the Business courses and the Cooking/Hospitality courses, in the event the applicant commences his own business, the Tribunal considers that those courses in combination do not lead to a specific position in employment. However, the Tribunal accepts doing the courses in both fields would be advantageous if he was intending to set up his own business.
The applicant during his studies here in Australia has undertaken short vocational education training (VET) courses. The applicant has yet to complete a course. The lack of academic progression over his studies since the time he has brought the application to enrol on 26 May 2020 is somewhat troubling and, as discussed above, consistent with someone using the student visa program to maintain residency rather than being consistent with someone undertaking their studies in a timely manner.
The Tribunal recognises that it is important to allow for reasonable changes to career and study pathways but this does not occur where an applicant merely decides to change careers through undertaking short VET courses to extend their stay in this country. The courses in which the applicant has studied here in Australia are all short VET courses and by reason of his failure to complete a course has not revealed any progression in his course of studies over the previous 3 years. In such circumstances the Tribunal does not accept that the changes to his study pathway are reasonable.
The applicant has lived in Australia for more than 10 years and has a substantial degree of knowledge about living in Australia. He has been studying at Nortwest since February this year in the Certificate III in Commercial Cookery and as a consequence of those studies has a substantial degree of knowledge about the course and the provider.
The applicant whilst in Australia has been here on 4 Student Subclass 573 visas and also as a dependant on a Temporary Graduate visa which expired in June 2020 and led to the applicant making this application for a student visa in May 2020. Whilst in Australia the applicant has made four visits home during the course of 2016, 2 visits in 2019 and one visit in 2022. The visits back home did not exceed a period of more than a month. The Tribunal also notes that from March 2020 through to the commencement of 2022 there were travel restrictions imposed by reason of the COVID-19 pandemic. Such restrictions made it difficult for the applicant to return home during that time. Notwithstanding those issues the applicant has only returned home on 4 occasions for a period in what appears to be approximately 4 months and in those circumstances notwithstanding the travel restrictions the Tribunal considers that he has only been home for a relatively short period of time over the last 10 years and that the relatively few visits home and the short period of time that he has spent in India, while residing here is consistent with him wanting to remain in Australia on a permanent basis rather than wanting to return home.

The applicant in evidence confirmed that the economic conditions in Australia were more favourable than those in India which would not present as a significant economic incentive for him to return home to India. The applicant claimed that he was unaware as to which country had the higher level of wages although based on the applicant’s evidence about the level of income he has earnt here when compared to the level of income he was receiving back in India the Tribunal considers that the level of wages would provide an economic incentive for him to remain here rather than to return home.
The applicant in the Response outlined that the only asset he had was a family home which is to be inherited which is currently owned by his mother which is worth approximately A$100,000. In evidence he claimed that he did actually have half an acre of property which was both in his name and his brother’s name which was worth A$100,000. No documentary evidence was presented as to this fact. Even if accepted the Tribunal notes that the land that he owns is worth approximately A$50,000 and when compared to the level of wages he could earn in this country it would not provide an economic incentive for him to return home and rather it would provide a significant incentive for him to remain here.
The applicant both in the Response and in evidence did not have any concerns about returning to India and he had no concerns about military service commitments or political or civil unrest in his home country. The Tribunal finds they do not present as a significant incentive for the applicant not to return home.
The Tribunal notes that the applicant has been supported by his family in his studies here in Australia. Based on the applicant’s evidence and circumstances in his home country including his family’s assets and the support from his family that relative to others in that country he is in a good position and it would not provide a significant incentive for him not to return home.
The Tribunal accepts that the applicant is no longer married and not in any relationship of concern for a successful visa outcome.
The applicant has both personal ties here to Australia but also to India. In relation to India the applicant has his mother, father, brother and sister which would ordinarily provide an incentive for him to return home. However, those ties need to be considered in the context of his circumstances here in Australia. He has been here for a very long period of time and intends to extend his stay in this country for at least a further year and 10 months to undertake studies. In addition to that he has been in high paid employment and when one considers that he has only returned home on 4 occasions in the last 10 years the Tribunal considers that his ties back home do not provide a strong incentive for him to return home.
The applicant has substantial ties to this country. He has been here for a long period of time in excess of 10 years, intends remaining here for at least a further year and 10 months, is currently living with a friend with whom he has been living with for approximately 2-3 years and claims that he has several other friends here in Australia. The duration and stability of his living arrangements coupled with his employment in stable and well-paid jobs demonstrate his strong ties to Australia. Accordingly the Tribunal accepts that he has a strong incentive to remain here rather than to return home by reason of his substantial ties to this country.
The applicant in the Response has not identified any visa refusal or cancellation in Australia or elsewhere. There is nothing before the Tribunal from the delegate’s Decision Record to indicate that the applicant has experienced any other visa refusals or any Immigration issues either in or outside of Australia.
The applicant has been in this country for a very long period of time. Whilst the Tribunal understands that he has been supporting his spouse here, if studies were so important he could have commenced his studies a lot earlier than in 2020. Moreover from the time of bringing his application for a student visa and commencing studies in the Diploma of Business until commencing the Certificate III in Commercial Cookery there was a gap of some 2½ years in his studies which is not consistent with someone who is in this country as a genuine temporary entrant undertaking studies on a temporary basis. The Tribunal has serious concerns that the applicant is using the student visa program for the purposes of extending his stay here and maintaining ongoing employment and residency in this country.
Based on the above matters the Tribunal is not satisfied that the applicant has made this application to gain a student visa to study temporarily and that it considers that the primary objective of the application is to maintain an ongoing residence in Australia with a view to remain here permanently.
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 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.
Michael Biviano
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.

[2023] AATA 3349

8 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction