Sran (Migration)

Sran (Migration) [2020] AATA 5985 (16 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Amandeep Kaur Sran
Mr Dharminder Singh Sran
Master Satkirat Singh Sran
Master Prabhkirat Singh Sran
CASE NUMBER:  1927362
HOME AFFAIRS REFERENCE(S):          BCC2019/3640597
MEMBER:Elizabeth Tueno
DATE:16 November 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 16 November 2020 at 2:53pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– proposed courses have minimal relevance to future work –personal ties in Australia –– 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 13 September 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 22 July 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate was not satisfied that the applicant met the genuine temporary entrant requirement for the grant of a student visa.
The applicants were assisted in relation to the review by their registered migration agent.
On 25 August 2020 the Tribunal wrote to the review applicants by letter addressed to the applicant, advising that it had considered all the material before it relating to their application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the review applicants to give oral evidence and present arguments at a hearing on 9 September 2020. On 7 and 8 September 2020, the Tribunal was advised in writing that the review applicants requested a decision be made on the papers without a hearing. This advice was from the applicant’s registered migration agent, who was appointed as the representative of the review applicants on 29 August 2020. The Tribunal considers that the applicants do not wish to give oral evidence and have consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable them to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.
For the following reasons, the Tribunal has concluded that the decisions 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 genuinely intends to stay in Australia temporarily.
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Tribunal has had regard to the contents of the Department’s file as well as to the documents provided by the applicant to the Tribunal.
The applicant is a 35 year old woman from India, who arrived in Australia with her husband and two young children on visitor visas on 24 April 2019. She then applied for this student visa and enrolled in a Diploma of Leadership and Management, commencing on 12 August 2019 and ending on 9 August 2020, and an Advanced Diploma of Leadership and Management, commencing on 7 September 2020 and ending on 6 March 2022 (“the proposed courses”).
In relation to why she is not undertaking the proposed courses in her home country, the applicant said in her original written statement to the Department that she had looked at various short courses or Diplomas in Leadership and Management in India for mature age students but found that mature age students were not very welcome by colleges, institutions and universities, so she dropped the idea of studying further. She said after they came to Australia and enjoyed seeing the sights here, and during a “casual talk” her sister in law asked her husband about his restaurant business. It was her sister in law who suggested that they look into studying leadership and management courses in Australia. She said that she “could have considered this course in India, however there are less open doors as correlation with Australia”. She said courses taught in Indian universities spoon-feed the students and instructors do not make the classes interesting, nor do their use ‘intuitive methodology and utilization of present-day innovation”.
In her s.359(2) questionnaire response, she said the following:
First of all there are no colleges available in my city who are providing leadership and management, you can check that online and I don’t want to spend years of life studying something which is not up to industry standards. Even if you search on google you wont find many universities offering hospitality courses. When it comes to education one should not compromise. Even though the standard of courses available across colleges in India is developing, there still seems to be a lack of opportunities for practical application of skills learned through conceptual understanding. And because of this, many students in India struggle to get job placements after graduation. The root cause of this problem circles back to the Indian education system emphasis on rote learning to remember concepts rather than understanding them. Another point to raise is that in India either you can study full time or private which means totally at home. Now being a mother of two kids its never going to work so basically I had not option for studies. Now is it fare to a mature age student who just want to study. In Australia they care about this that is why there is option of study or 2 days classes.
In her genuine temporary entrant statement to the Tribunal (“GTE statement”), she provided various reasons shy was studying in Australia rather than New Zealand, the US, Canada or Europe. She also said that it would be more cost effective and time effective for her to study in Australia. She added the following:
I would have opted for a Masters of Business Administration in which each component of marketing, financial management, risk management and human resources are dealt with in detail if I was more ambitious on getting a corporate sector role however diploma and advanced diploma of Leadership and Management will help me gain similar knowledge of each of these areas which are critical for the growth of any business and do it quicker and cheaper.
To pursue this course India, I would be undertaking a Masters in Business Administration as Diploma and Advanced Diploma in Leadership and Management is not very readily offered in India… the fee to undertake Diploma and Advanced Diploma would be much less as compared to a yearly cost of Masters in India ie. Approximately $8500/year for 2 years vs approximately $12000/year for 2 years.
There is also a very competitive process to get into institutes to pursue Masters in Business Administration in India which makes it nearly impossible to get entry in these courses.
I have considered pursuing my studies from my home country, India but I realised that emphasis are given more on theory than practical skills which restricts an active learning. On the other hand, I found that Australia has got modern well established systems, latest infrastructure and technologies that stimulate active learning of the concepts. As compared to India, the delivery of course and learning process are more practical and another beauty of Australian education system is that it encourages the students to ask questions during lectures and classes which prepares them with necessary skills and positive attitudes making it easier to find jobs with the best companies or successfully settle down with their business. International students often enjoy the freedom that comes with being able to tailor their studies that are aligned with their own goals and aspiration. Moreover, Australia offers a world class education at affordable prices. I believe that getting qualified in Leadership and Management, will also prepare me to have more independent approaches towards life and enrich my overall career profile. I will get a chance to further improve my English language skills and due to all that when I return to my home country India, I do not have to struggle for the job with Australian qualifications in hand.
The delivery of courses in Australia includes face to face teaching, lectures, discussions, research, learning activities, group work, and supervised practical sessions. On the flip side, course delivery methods are conventional and lack latest technologies in India. Training techniques and learning process are still traditional and far behind than Australia and I really want the best when it come to quality.
[sic]
As the Tribunal understands the applicant’s evidence, she has provided the following reasons for not undertaking the proposed courses, or similar courses, in her home country:
·     Mature age students are not very welcomed at Indian education providers;
·     Indian universities spoon feed the courses to their students and the courses are not interesting;
·     There are no leadership and management diplomas taught in her city in India;
·     There are also not a lot of hospitality courses taught there;
·     Indian graduates struggle to find work after completing their studies;
·     It is difficult to study being a mother of two children;
·     She could study a Master of Business Administration in India if she were more ambitious on getting a corporate job whereas the proposed courses will give her similar knowledge;
·     The proposed courses in Australia are cheaper than a Master of Business Administration course in India;
·     It is very competitive to secure a place in a Master of Business Administration course in India;
·     Australian courses are more practical than the theoretical courses taught in India;
·     She will be able to improve her English skills studying in Australia; and
·     She will not struggle for work if she holds an Australian qualification.
The Tribunal has given consideration to all of the above but does not consider any of these reasons to be particularly sound for the following reasons:
·     There was no actual evidence about mature age students are not being welcomed at Indian educational institutes. This is solely based on the applicant’s assertion and not based on her actual experience about this and there was not any evidence provided to support this claim;
·     The fact that Indian university spoon feed their students and that the courses are more theoretical did not hinder the applicant from having a successful and long career as a school teacher in India. She completed a Bachelor of Computer Application in May 2009 and then she went on to work as a computer teacher at two schools between April 2011 and May 2014. From July 2014 until July 2019, she worked as a teacher and principal at a third school;
·     While there may be no leadership and management courses taught in her city in India, there may be such courses taught in another city in her home country;
·     There being not a lot of hospitality courses taught in her city does not appear relevant given she has stated that she is not interested in studying hospitality courses (see below at paragraph 32);
·     It is irrelevant that other graduates struggle to obtain work given the applicant intends on going to work for her husband’s restaurant business;
·     Studying in Australia would not be any easier for a mother of two compared to studying in India. At least in India, the applicant would have the support of assistance from her parents and her parents in law;
·     A Master of Business Administration course in India would appear to be the same duration or possibly shorter than the total duration of the proposed courses, and according to the applicant the Master of Business Administration would provide similar knowledge;
·     While the proposed courses in Australia may be cheaper than a Master of Business Administration in India, this does not appear to take into consideration this significant cost of living expenses in Australia an applicant must demonstrate they are able to cover for the duration of their time in Australia;
·     It may be competitive to secure a placement in an Indian Master of Business Administration. But this does not mean that the applicant would not be able to secure a placement. She has already demonstrated that she was able to secure a place in a Bachelor degree in India;
·     There is no evidence that the applicant will require English skills to work for her husband’s restaurant business; and lastly;
·     Given the applicant intends on working for her husband’s business, she would not have to compete with other job applicants for work and therefore whether she holds an Australian qualification will not be something that will assist her in obtaining work.
For all of the above reasons, the Tribunal considers that the applicant does not have sound reasons for not undertaking the proposed courses (or similar courses) in her home country of India.
In relation to the applicant’s personal ties to her home country, she has come to Australia accompanied by her immediate family including her husband and two children who are aged 10 and 5 years of age. Her own parents and her in-laws live in India. She said she is particularly close to her parents-in-law. Her husband has returned to India briefly in July 2019 with their youngest child so he could check on his restaurant, which is being managed by family members while the applicants are in Australia. The applicant said in her questionnaire that in addition to having family in India, she used to participate in regular blood donation and langar sewa twice a month (a Sikh community kitchen providing free meals).
In her GTE statement, the applicant said that she had incentive to return to India because of the growth in the hospitality industry in India. She said her husband owns a restaurant which is doing very well. She said she wants to return to India to implement everything she will have learnt in Australia and to grow the business. The Tribunal accepts that the applicant and her husband have personal ties to their home country and that in particular, having the business in India may be an incentive for them to return to India upon the completion of the proposed courses.
The Tribunal accepts the evidence in relation to the applicant and her husband’s economic circumstances. The Tribunal considers that the applicant’s economic circumstances in her home country are sound and that they would not be an incentive to avoid returning to India upon the completion of the proposed courses in Australia.
There is no evidence that the applicant is using the student visa to avoid any military service commitments or any political or civil unrest in her home country.
In relation to her potential circumstances in Australia, the applicant came to Australia with her husband and two children, the eldest of whom commencing attending primary school in February 2020. The applicant’s sister in law and her husband live in Australia, and it was to visit this sister in law that the applicant and her family came to Australia in the first place.
Neither the applicant nor her husband have worked in Australia as they do not have work rights on their current bridging visas. This has caused some hardship for them during the Covid-19 pandemic as their family in India was financially supporting them in Australia, but they have faced difficulties of their own in maintaining their agricultural business in India due to the current global situation. The Tribunal takes this into account.
However, having her entire immediate family with her in Australia reduces the incentive to leave and return to her home country upon the completion of the proposed courses. Additionally, she has her sister in law here and also friends who she has visited here. The applicant has ties to Australia, namely having immediate family here as well as her sister in law and friends. The Tribunal does have concerns that these ties may be an incentive for the applicant to remain in Australia.
The Tribunal also takes into account that despite the delegate’s refusal, the applicant has continued with her studies and has completed the Diploma course. She has commenced the Advanced Diploma but still has a further 15 months to complete this second course. The Tribunal considers this does demonstrate that she is a genuine student.
However, an applicant can be both a genuine student and at the same time wanting to maintain ongoing residence in Australia. Studying is a way of extending the length of time they are permitted to stay in the country. Given the concerns that the Tribunal has with regards to the value of the proposed courses, as discussed below, the Tribunal considers there it is a possibility that the applicant may be using the student visa to maintain ongoing residence in Australia for herself and her family.

With regards to the value of the proposed courses to the applicant’s future, the Tribunal holds some reservations. Having studied previously at a Bachelor degree level, the courses are not consistent with her current level of education.
The applicant told the Department that she and her husband own a restaurant in India and that the proposed courses would assist her by helping her “create and actualise business and vital plans, oversee hazard, build up and keep up key systems, and utilize advancement in organizations. This course will help me to apply innovative and applied abilities, express thoughts and react fittingly to complex issues. This course will train me to develop a project plan, manage budgets and seek opportunities for further business improvements. I will gain knowledge on how to cooperate with stakeholders and ensure team effectiveness. It will also address the multiple challenges faced by Leaders in today’s rapidly changing business environment and provides solutions and strategies to work under various business conditions.”
In her response in the completed questionnaire, she said,
As mentioned in our original GTE statement running a restaurant. We want to expand our business to a Hotel chain with franchises in other states too. Restaurant’s, Café’s and Hotels are very popular in India, as Indian people love food. These days with the online apps Zomato and Swiggy, restaurant food is getting more and more popular among everyone. In my city there are new restaurants opening almost every day but still all are running well and doing good business. My inspiration in this business is Amrik Sukhdev Restaurant/Hotel. They started their business 50 years ago by the name of Sukhdev Dhaba (Restaurant) on the busy road same like us mainly catering to the needs of truck drivers. Now they are one of the biggest name of the food Industry, still situated at the same place but with a more advanced infrastructure, interiors and the ambience and with a very good Management. The Diploma prompting Advanced Diploma of Leadership and Management will assist me with becoming a decent business manager. I don’t want to learn the hospitality management as my dream is to look after the overall management and showing leadership in day to day activities and this course would furnish me with required abilities, for example, relational abilities, certainty, issue taking care of, circumstance examination, and the most imperative perspective which is required in all fields of like ie. Certainty of a universal degree and instruction encounter.
However, in her GTE statement to the Tribunal, she repeated her evidence about wanting to expand their restaurant into a chain of hotels cafés and restaurants, the food apps such as Zomato and Swiggy, and her inspiration from Amrik Sukhdeve Dhaba Restaurant how the courses would help her to become a “decent business pioneer”. She then went on to state, “I have plans to return back to my country, India, after completing my course. I intend to find a job to start off with and then open my own restaurant specialising in modern fusion cuisine. The advanced skills which I will obtain while working and studying in Australia will help my business immensely. My business will give birth to numerous jobs and that how I will serve my nation. Australian degree has great value in a developing country like India”.
Prior to coming to Australia, the applicant had limited experience in hospitality and was focussed on a career as a teacher in India. She said in her GTE statement that she was “fascinated” by her husband’s restaurant business and would love to help her husband run the restaurant. She said that she has a passion for business. The Tribunal has difficulty accepting that she has a passion for business given that up until she came to Australia she was focussed on teaching as a career. She was described by her most recent employer, for whom she worked from 10 July 2014 until 15 July 2019, as, “an excellent teacher with impressive command over her subject. She is an ambitious person and always prepared to take up responsibility entrusted to her. She also takes part in all activities of the school. She is loyal, hard working and efficient teacher. Her work and conduct has been found good during this period. She is co-operative and diligent, she enjoys the respect of the students.” The applicant also provided a job offer from this employer, offering her employment upon her return to India after completing her studies in Australia. This job offer is dated 15 July 2020 and has clearly been prepared on the understanding that the applicant is studying in Australia. The Tribunal considers this letter contradicts the applicant’s plans to work for her husband’s business in order to expand it into hotels, cafes and more restaurants. This would require a vast amount of time and dedication, all of which would be taken away from the restaurant if the applicant were to take up the job offer to resume teaching again.
In addition to this concern about the applicant’s true intentions when she returns to India in relation to the work she will be undertaking, the applicant is not persuaded by that the proposed courses will in fact be of assistance in helping build up her husband’s restaurant business. She said that she does not want to study hospitality management as it is her dream to look after the overall management business. However, at the very core of her husband’s business is the hospitality industry, which requires a particular and specific set of skills for both the hands on running of the business as well as management skills. To expand a restaurant or other hospitality type of business requires a solid understanding of the restaurant and hospitality industry. Undertaking general leadership and management courses will not teach the applicant the specialised knowledge required for managing a hospitality business.
For these reasons, the Tribunal is not persuaded that the proposed courses will assist the applicant in her proposed future work in her home country or that the proposed courses have any relevance to her prior work experience as a teacher in India. The proposed courses have only minimal relevance to any future work she undertakes in her husband’s business.
It follows that the Tribunal does not consider that the qualifications from the proposed courses will affect the remuneration she can earn in her home country.
Lastly, the Tribunal has taken into account the applicant’s immigration history. There is no evidence that she has any other Australian visa application pending a decision. Nor is there any evidence that she has ever been refused a visa or had a visa cancelled by another country. The fact that she arrived in Australia on a visitor visa and then applied for this student visa once onshore is not something that she was prohibited from doing. The Tribunal accepts that people’s intentions do change, and she should not be prevented from studying in Australia simply because she arrived in Australia on a visitor visa.
In arriving at the findings it has made the Tribunal has had regard to the written submissions dated 5 September 2020 from the applicant’s migration agent.
There were no other relevant matters raised for consideration.
In light of the concerns the Tribunal has about the lack of sound reasons for not undertaking similar courses in her home country, her personal ties to Australia and the lack of perceivable value of the proposed courses to the applicant’s future, taking her circumstances as a whole the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily and therefore the applicant does not meet cl.500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
It follows that the Tribunal also affirms the delegate’s decision in relation to the second, third and fourth applicants.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Elizabeth Tueno
Member

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

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

[2020] AATA 5985

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Intention

Statutory Construction