Singh (Migration)

Singh (Migration) [2022] AATA 4626 (23 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Harpreet Singh
REPRESENTATIVE:  Mr Shiva Raj Neupane (MARN: 1383508)
CASE NUMBER:  2118220
HOME AFFAIRS REFERENCE(S):          BCC2021/1786355
MEMBER:Michael Biviano
DATE:23 November 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 23 November 2022 at 4.40pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – applicant changed to vocational courses – limited academic progress – multiple changes in study pathways – plans to start a business – employment in Australia – maintaining ongoing residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 499; Direction No 69
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 18 November 2021 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 15 September 2021. 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 (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 15 July 2022 to give evidence and present arguments.
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 23-year-old Indian national who first came to Australia on 27 May 2018 on a student visa (Class TU Subclass 500) for the purposes of undertaking study. The applicant was initially enrolled to undertake studies in the Bachelor of Information Technology at Federation University.
The decision record of the delegate of the Department of Home Affairs dated 18 November 2021, which was provided to the Tribunal by the applicant, confirms the applicant made his application for a student (Class TU Subclass 500) visa on 15 September 2021 (Decision Record). Further the Decision Record set out the reasons for the visa refusal and confirmed that the applicant was intending to study a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Automotive Mechanical Diagnosis and a Diploma of Automotive Technology (Automotive Courses). Further the Decision Record outlined the reasons why the visa application for a student visa was refused.
Prior to the hearing on 14 June 2022 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 (Response).
In addition to the Response the applicant filed with the Tribunal the following documents:
a.Certificate III in Light Vehicle Mechanical Technology from Acumen Institute of Further Education issued 3 June 2022 stating that the date of commencement was 14 January 2022 and date of completion was 12 May 2022 together with record of results and course completion letter;
b.Confirmation of enrolment (COE) No. C4BFD752 for the applicant to study a Certificate IV in Automotive Mechanical Diagnosis from Acumen Institute of Further Education with a course start date of 23 May 2022 and a course end date of 11 October 2022 which was created on 19 May 2021;
c.COE No. C4BFD914 for the applicant to study a Diploma of Automotive Technology at Acumen Institute of Further Education with a course start date of 25 October 2022 and a course end date of 11 July 2023 which was created on 19 May 2021.
At the hearing the Tribunal made directions enabling the applicant to provide further information in writing in support of his application by 22 July 2022. The applicant after the hearing and in accordance with the time provided for in those directions submitted to the Tribunal the following further documents:
a.results statement of the applicant from Federation University for his studies in the Bachelor of Information Technology issued on 6 February 2019, confirming the applicant had not passed any units that he had undertaken in that course;
b.statement of attainment from Education Academy dated 8 February 2020 confirming that the applicant had completed 5 units in the Certificate III in Light Vehicle Mechanical Technology.
The Tribunal has considered the applicant’s evidence at the hearing together with the documents provided to the Department and the Tribunal by the applicant in support of his application.
Prior to coming to Australia the applicant completed secondary school in India and had come to Australia for the purposes of undertaking a Bachelor of Information Technology at Federation University. The applicant in the Statement of Purpose to the Delegate confirmed that when he started that course, he found that there was a huge difference between the level of studies here in Australia compared to the studies that he had undertaken back home. He confirmed that he had difficulties adjusting in his new environment and struggled with those studies resulting in him achieving poor grades. The applicant in evidence confirmed that he failed all subjects that he had studied in the first semester of the course.
The applicant in evidence confirmed that he decided to change his course of study and shifted to undertaking automotive courses. The applicant in the Statement of Purpose to the Delegate stated as follows:
For my early education, I have completed my 10th and 12th grade in my home town in India. For my higher education I came to Australia in 2018 for pursuing Bachelor of Information Technology in Federation University. I have enrolled and commenced the course. When I started my course, I found huge difference comparing to the studies I did back in home. Moreover, I had difficulties to adjust in the new environment and struggled a lot which resulted in poor grades.
I considered that changing my course or study environment could help my situation. Thus I shifted to Automotive Technology. I knew that Australia is known to be one of the only a few countries with the capabilities to design cars from scratch to mass production. When I read extensively about this topic I was drawn towards taking up formal education in the field of automotive technology. I was thrilled that students are given hands on experience and are expected to learn to diagnose, analyse and evaluate respective topic.
The applicant in the Response confirmed that he enrolled in the Automotive Courses on 18 February 2019 at Central Australian College. The courses he enrolled in were a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Automotive Mechanical Diagnosis and a Diploma in Automotive Technology. The applicant gave evidence that he was unable to complete the assignments and due to that problem, he failed a number of units. He claimed that after about a year his enrolment in the course was terminated by the Central Australian College. The applicant in the Statement of Purpose suggested that after receiving his COE he had a few issues with the education provider and therefore he had to withdraw his COE from the institution. The applicant’s evidence was inconsistent with the Statement of Purpose on this issue.
The applicant claimed that after ceasing enrolment with Central Australian College he then enrolled to undertake the Automotive Courses at Australian Education Academy (AEA College) where he claims that he studied several units which commenced on 4 November 2019 but unfortunately due to the COVID-19 pandemic, his studies ceased in March 2020 when the College was closed. The Statement of Results provided by the applicant confirms that as at that time he had completed 5 units in the Certificate III in Light Vehicle Mechanical Technology at AEA College.
On 16 March 2020 the applicant enrolled in a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management at Australian College of Trade (the Hospitality Courses). Those Hospitality Courses were anticipated to conclude on 24 April 2022. He claimed in the Statement of Purpose that after commencing the Hospitality Courses he believed that he would be able to cope with the studies however soon realised that cooking was not his interest. The applicant in the Statement of Purpose confirmed that he came to realise that he was an active student who was pursuing an interest, when he was undertaking the Certificate III in Light Vehicle Mechanical Technology.
Accordingly in June 2021 he enrolled in the Automotive Courses at Acumen Institute of Further Education that were to commence on 10 June 2021 and conclude on 11 July 2023. The applicant has completed the Certificate III in Light Vehicle Mechanical Technology and is studying the remaining courses.
The applicant gave evidence that his intention after completing the Automotive Courses is to return home and set up his own business in the automotive field. The applicant in the Response identified that if he is able to commence his own mechanic workshop in India he believes that he can earn 400,000 Indian rupees per calendar month on average (which equates to approximately A$7,200 per calendar month). The applicant did not provide any documentation supporting that he can earn that level of income and he did not provide any budgets or alternatively any industry documentation or surveys supporting that he could earn that level of income.
The applicant gave evidence that if he was to open his own workshop the likely level of income he would receive from his business was 4 Indian lakh per calendar month but that is before expenses and that the profit he would receive including his income would be 2 lakh per calendar month which equates to approximately A$3,760 per calendar month. The applicant confirmed in evidence that the likely wages that would be received by a mechanic here in Australia would be in the range of A$6,000 to A$8,000 per calendar month. The applicant in evidence confirmed that the level of wages here in Australia are higher than those in India and that would provide a substantial financial incentive for the applicant to remain here rather than return home. Furthermore, even as a mechanic the level of wages in Australia are higher than those in India and also would provide that incentive to remain here.
However, the Tribunal notes that the courses that the applicant is seeking to obtain will improve his prospects back in India and enable him to obtain a certificate which would enable him to commence a business as a motor mechanic back in India. The applicant gave evidence that the Australian qualifications are recognised by the relevant accreditation body in India which would enable him to commence an automotive repair shop back in India. Considering the applicant has not previously obtained any tertiary qualifications the Tribunal accepts that if the applicant completes the Automotive Courses he would be able to work as a motor mechanic back in India and such qualifications would improve both his employment prospects and level of remuneration back at home.
The applicant in evidence claimed that he wanted to undertake the studies here in Australia for the reason that it is difficult to get entry into a college back in India and he would need to move from his local town to obtain enrolment in a suitable course in another part of India. He claimed that entry to Indian colleges requires him to sit a difficult entrance exam. He claims that the studies in Australia are of a better quality and that the costs associated with undertaking studies in India are quite expensive. The applicant in the Response stated as follows:
As for further study in india i might have to move other states as i am from small town and also there is big competition to get seats in colleges which takes plenty of money so i decided to move australia for better study, also home country does not provide practical knowledge which makes me to choose to study here as here i am learning practically and enhancing my knowledge.
Having considered that evidence the Tribunal notes that the applicant would not be barred from undertaking those studies back in India but merely it would require him to sit an entrance exam as part of entry prerequisites to undertake study. Furthermore, the costs associated with undertaking study here in Australia which is a foreign country would be significantly more than undertaking study in his home country.
Having considered those matters the Tribunal does not consider he has a reasonable motive to undertake these low-level courses here in Australia and that he would be able to suitably undertake courses in his home country which would provide him with the necessary qualifications to open his own business back home.
The applicant has changed his career path initially from Information Technology to Automotive Courses to Cooking and Hospitality back to Automotive Courses. The courses that he has studied are not connected to each other and are not complementary. They do not lead to a career path or position in employment. The applicant in evidence outlined the difficulties he had sustained in attempting to finally select a course of study that he was interested in and that he believes he would be able to successfully complete in order that he can return home to operate a business back in India. The Tribunal accepts the applicant’s evidence that he has changed career pathways for the purposes of establishing a career as a motor mechanic.
The Tribunal recognises that it is important to allow for reasonable changes to career and study pathways. However that is not the case when an applicant has merely decided to change study pathways through undertaking short vocational education training (VET) courses. The courses in which the applicant has enrolled whilst in Australia apart from the Bachelor of Information Technology which he ceased studying 6 months after arriving in this country, are all short VET courses. The applicant had originally come to this country to undertake a Bachelor’s degree in Information Technology and has changed that study pathway to undertake Certificate and Diploma courses both in Cooking and Hospitality and Automotive studies. Those changes in study pathways are not reasonable when one considers that this is the applicant’s third attempt at undertaking Automotive Courses having previously enrolled at Central Australian College and AEA College and is now studying at Acumen Institute of Further Education and that he had come to this country to complete higher education studies and develop a career in Information Technology and he has been granted a student visa on that basis. The Tribunal does not accept in the applicant’s circumstances that the change in study pathways is reasonable.
The applicant has lived in Australia for the last 4 years and 6 months and has a substantial degree of knowledge about living in Australia. He has held one student visa whilst in this country and has applied for a second student visa which is the subject of this application.
The applicant has undertaken studies in the Automotive Courses in various colleges but has studied at Acumen Institute of Further Education since June 2021 undertaking Automotive Courses. The Tribunal considers having regard to the period of time that he has studied at Acumen Institute of Further Education coupled with the Automotive Courses that he has undertaken that the applicant has a substantial degree of knowledge about the courses and the provider.
The applicant in evidence confirmed that he had been employed in Australia in various roles. From 27 July 2018 to 15 October 2018 he claimed he worked as a courier driver at Transrapis Pty for which the level of his annual salary was approximately A$5,000. From January 2019 to June 2019, he worked as a courier driver for TMCC where he claimed his level of income was A$10,000 per annum. From August 2019 to December 2020 the applicant claimed he had worked as a car washer and detailer at Correct Accident Repair and his level of income was A$40,000 per annum. The applicant gave evidence that since July 2021 he has worked as a courier driver for Hello Fresh as a sub-contractor and that he is earning between A$800 and A$1,200 per week which is a high level of income. The Tribunal notes that the level of income that the applicant has been receiving since August 2019 is a high level of income, which would provide him with a substantial financial incentive to remain here rather than to return home.

The applicant gave evidence that the economic conditions in Australia were more favourable than those in India which would also provide him with a significant incentive to remain here rather than to return home.
The applicant in the Response outlined that he had returned home once during his stay here in Australia which was for a period of 28 days to attend his sister’s wedding but in addition to that travel he also visited New Zealand for a period of 3 days. The Tribunal notes that for a substantial period of time of the applicant’s stay from March 2020 to the commencement of 2022 there were travel restrictions in place here in Australia which limited the amount of travel that the applicant could have undertaken. The Tribunal having considered those restrictions makes no adverse finding against the applicant in regard to the period of time and the number of visits he has made back home during his stay in Australia.
The applicant in the Response had outlined that he has a house worth A$100,000, land worth A$60,000 and farming equipment worth A$50,000 which in their totality would provide the applicant with a significant number of assets and a financial incentive to return home. However the applicant in evidence confirmed that those assets were in his parents’ names. When the Tribunal considers the level of income he is receiving here and that he has no assets back in India the Tribunal considers that his asset position would present a significant incentive for him to remain here rather than to return home.
The applicant both in the Response and in evidence did not have any concerns about returning back to India. 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 him not to return home.
Furthermore the Tribunal finds that based on the applicant’s evidence and circumstances in his home country including the qualifications he has obtained here in Australia together with 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 not currently in a serious relationship and therefore not in a relationship of concern for a successful visa outcome.
The applicant has both personal ties to Australia and to India. The applicant has his mother, father and a sister in India and that would ordinarily provide him with some incentive to return home. He has another sister in Canada and he has not seen them in person since February 2020. The applicant claims that he calls his parents every day and keeps in contact with them regularly. The applicant in the Response confirmed he had no involvement with any community groups or organisations at home and when his circumstances back home are compared with his circumstances here in Australia including that he has been in regular high-paid employment and has a number of friends here and coupled with the fact that he has been here for a period of 4½ years, the Tribunal considers that the ties he has back to India do not provide a significant incentive for him to return home.
The applicant has substantial ties to Australia. As outlined above he has been here for 4½ years and gave evidence that he wishes to complete his studies which are not scheduled to conclude for at least another 9 months. Furthermore he has been constantly employed and is earning a high level of income and is in stable accommodation living with a housemate for the last year, and prior to that was in stable accommodation. These ties including now working as a sub-contractor provide a strong incentive to remain here rather than to return home.
The applicant in his Response has not identified any visa refusals or cancellations 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 other immigration issues either in or outside of Australia.
The applicant has resided in Australia for the last 4½ years and based on his evidence intends to stay here for at least a further 9 months to complete his studies which will extend his stay in this country to 5 years and 3 months which is a very long period of time for the purposes of completing the Automotive Courses which are short VET courses. Such length of stay is inconsistent with the stay being temporary.
Accordingly 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 it considers that the primary objective of the application is for the applicant to maintain ongoing residence here to earn a high level of income with a view to remaining here on a permanent basis.
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).
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.

[2022] AATA 4626

23 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction