Suhagiya (Migration)

Suhagiya (Migration) [2021] AATA 240 (3 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Nirav Maheshbhai Suhagiya
CASE NUMBER:  1924654
HOME AFFAIRS REFERENCE(S):          BCC2019/3336856
MEMBER:Peter Haag
DATE:3 February 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 03 February 2021 at 10:01am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – incentives to remain or return – applied for student visa one day before visitor visa due to expire – non-completion of course and enrolment in lower-level courses in different subject area – little documentary evidence or business plans and vague reasons for choice of subject and not studying in home country – previous visitor visa application refused on genuine temporary entry grounds – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 August 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 3 July 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant intends genuinely to stay temporarily in Australia.
The applicant appeared before the Tribunal on 24 September 2020 to give evidence and present arguments.
The applicant was assisted in relation to the review by their registered migration agent.
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 intends genuinely to stay temporarily in Australia as a student.
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Tribunal has read the copy of the record of the delegate’s decision that the applicant provided to the Tribunal.
The applicant initially arrived in Australia on 4 April 2019 as the holder of a FA 600 visitor visa that expired on 4 July 2019. On 3 July 2019 the applicant applied for the Student visa: the application was refused on 15 August 2019. That application is the subject of this review.
The applicant is married, and his wife resides in India. At the time he arrived in Australia as a visitor it is evident his wife was expecting their first child. According to a Birth Certificate the applicant provided to the Tribunal his daughter was born on 8 November 2019 and according to the applicant’s s.359(2) response document, the applicant returned to his home country in November 2019 for 17 days to visit his newborn child. That is the only occasion the applicant has returned to his home country since he arrived in Australia as a short stay visitor in April 2019.
The applicant claimed in evidence to the Tribunal that upon completion of his studies in Australia he will return to India to be with this wife and child. Currently the applicant is enrolled in a package of two hospitality related courses, the last of the two courses being the Diploma of Hospitality and Management ending 15 February 2022. There is no evidence the applicant has any plans to return to India before that date.
The applicant’s parents reside in India. The applicant is in regular contact with them and other members of his family via the internet.
According to the evidence, the applicant is a member of a large family in India which gathers annually, and the applicant actively engaged with members of his family when he was living in India. There is no evidence of the applicant’s involvement in community organisations or non-family community groups in India before he arrived in Australia.
The applicant is residing in Melbourne with his younger brother and his wife. The applicant’s younger brother is a permanent resident of Australia.
The applicant claims in his s.359(2) response document that his property assets in India comprise a house and land. The applicant valued his house at AU$157621 and his land at AU$59510. The applicant’s s.359(2) response is accompanied by a set of valuation documents that applied to a parcel of agricultural land and a residential house. The documents are dated 18 December 2018 and they demonstrate a parcel of agricultural land in India is owned by the applicant’s father and a residential property is owned by the applicant’s grandmother. The documentary evidence does not support the claim the applicant made in respect of his asset position in India.
The applicant may ultimately inherit some part of the house and/or the land that is subject of the valuations at some unidentified or unidentifiable time in the future. Nevertheless, the Tribunal is not satisfied the applicant’s claim in relation to his current asset position in India is accurate and reliable.
There is no evidence of the applicant’s ownership of significant financial assets in India such as business investments or other significant personal property.
The applicant claims in his s.359(2) response document that he was employed between May 2009 and April 2019 by various employers as either an assistant accountant or an accountant. He provided no documentary evidence to the Tribunal to verify his employment history. The applicant also claims he completed a Bachelor of Commerce in April 2009, but he provided no documentary evidence to verify this claim. Despite the absence of supporting evidence, the Tribunal accepts as accurate the applicant’s claims about his education and employment history in India.
The applicant claimed in his application for the Student visa submitted on 3 July 2019 that he has a job to return to in India with the business that employed him as an accountant before he travelled to Australia on the Visitor visa. Since lodging the application for the purpose of studying two business related courses, including a post graduate level course, the applicant abandoned the business courses and enrolled in a package of cookery and hospitality courses. There is no evidence that any potential employer in India has offered the applicant employment in the hospitality sector upon his return to India.
The applicant claims in evidence that his family owns significant property holdings in India and his family will support him in establishing his own restaurant business in India. This claim is not verified by documentary evidence or other evidence that satisfies the Tribunal that his parents of other members of his family have committed their support to the applicant establishing his own restaurant in India.
On balance, the Tribunal accepts the applicant’s personal ties to India may serve as an incentive to visit India periodically, but the evidence material to the applicant’s personal ties to his home country does not satisfy the Tribunal that the extent of his personal ties to his home country would serve as a significant incentive to return to his home country.
According to the delegate’s decision the applicant applied for the Student visa for the purpose of undertaking the Diploma of Leadership and Management and a Graduate Certificate in Management. The application was submitted on 3 July 2019. The applicant did not provide documentation with his visa application that established he had researched whether similar courses are available in India or the region.
According to the applicant’s evidence in February 2020 he left the two business courses and abandoned his intention to obtain the Student visa for the purpose of undertaking the two business courses referred to above.
According to the two Certificate of Enrolment documents the applicant provided to the Tribunal on 12 February 2020, he enrolled in two courses related to commercial cookery: the Certificate IV in Commercial Cookery starting on 18 March 2020 and ending on 31 August 2021 and the Diploma of Hospitality Management starting on September 2021 and ending on 15 February 2022. According to the applicant’s evidence his brother reminded him that he always had a passion for cooking and the applicant also claimed his passion for cooking existed since childhood. These circumstances, according to the applicant’s evidence, motivated him to decide to study cookery and hospitality management in Australia. The Tribunal is not persuaded these reasons for undertaking the cookery and hospitality related courses in Australia are credible. In the view of the Tribunal it is improbable the applicant was moved to study the courses because his brother reminded him that since childhood, his passion was for cooking. The applicant provided no explanation for not enrolling in the cooking course initially, if cooking truly was his childhood passion, instead of enrolling in business related courses that were consistent with his education history and long history of employment as an accountant in India.
The applicant in his s.359(2) response advanced reasons for not undertaking the courses in India or the region. The reasons he advanced are vague and unsupported by credible material such as documentation that is capable of verifying that in fact he researched the availability of, and content of similar courses in his home country, or the region, so as to demonstrate through relevant research he has a reasonable basis for not undertaking the study in India or the region. It is concerning that corroborative material of this sort was not put into evidence by the applicant, considering he arrived in Australia as a short stay visitor on 4 April 2019 and now proposes to remain until February 2022, having left in India an established career as an accountant, an employment opportunity with his immediate past employer,[1] and his pregnant wife who, in the applicant’s case, would have been expecting him to remain in Australia for only a relatively short period as a visitor.
[1] Student visa application form and the applicant’s employment history as described in his s.359(2) response document.
Further, and more specifically, without credible supporting evidence, the Tribunal is not satisfied the applicant’s claims that those “who study in Australia become successful in their endeavours rather than becoming bookworms”[2] is a reasonable reason for not undertaking the study in India or the region.
[2] Section 359(2) response document.
Furthermore, the applicant’s claim in his s.359(2) response that study in Australia is more practical than simple theory; and that study in Australia will provide hands on skills and knowledge, and that study in Australia will give him the edge over other candidates in developing countries like India are general statements that are easily made: in the absence of supporting evidence that demonstrates these general statements are based on reasonable research into the availability of similar courses in India, or the region, the Tribunal is not satisfied these reasons constitute reasonable reasons for not undertaking the study in India or the region.
The applicant also claimed his current course provider emphasises new business ideas and innovation and marketing strategies. These general statements are easily made, they are not supported by evidence of comparative research into cooking and hospitality management studies in India or elsewhere in the region, and in the absence of supporting documentary evidence of such comparative research the Tribunal is not satisfied the applicant has established reasonable reasons for not undertaking the study in India or the region.
The Tribunal has given regard to what it has determined to be the material reasons advanced by the applicant for undertaking his current package of two courses relating to commercial cookery and hospitality management, and it is not satisfied the applicant has reasonable reasons for not undertaking the study in his home country or the region.
In written submissions made by the applicant’s representative and provided to the Tribunal after the hearing, it was submitted the applicant’s father is a prominent diamond merchant in Ahmedabad and that the applicant “comes from a well-to-do family which is able to invest in his business”. These submissions relevant to the applicant’s economic circumstances in India are not supported by evidence. The applicant has not claimed his father is a diamond merchant, nor has he provided evidence from his father about his economic circumstances in India or his father’s intentions in relation to advancing the economic circumstances of the applicant in India by investing in the applicant’s proposed restaurant business. Having regard to these considerations and that the applicant has not provided cogent evidence of his personal asset position in India, including savings; that the applicant’s annual salary (unverified) as an assistant accountant and an accountant ranged from AU$4200 to AU$6500; and, as a matter of common knowledge, the general disparity in wages and living standards in India compared to Australia, the Tribunal is concerned the applicant’s economic circumstances in India would present as a significant incentive for the applicant not to return to India.
There is no evidence of military service commitments or political or civil unrest in India that would present as a significant incentive for the applicant not to return to India or to apply for a Student visa as a means of gaining entry to Australia for the purpose of remaining indefinitely.
The applicant’s brother is a permanent resident of Australia, he is married and resides with his wife. The applicant is living in his brother’s household and, according to his brother’s Statutory Declaration, he supports the applicant financially. This position accords with the gist of the applicant’s evidence, and his evidence that he has not worked in Australia. There is no evidence that the applicant is being provided with financial support by members of his family in India. It is evident the applicant benefits from a sound and supportive set of relationships in his brother’s household.
According to the applicant’s s.359(2) response he is an active member of the Swaminarayan Temple community in Melbourne. Considering the applicant holds a Bachelor of Commerce Degree and his work experience in India as an accountant gained between 2009 and 2019, combined with the course of study he proposes to complete in Australia – factors that indicate the applicant is likely to be readily employable in Australia – and the well known general disparity in wages and living standards in Australia relative to India, the Tribunal is concerned that these factors, considered in the context of the applicant departing Australia on one occasion only for 17 days since he arrived in Australia in April 2019 on a short stay Visitor visa, would present as a strong incentive to remain in Australia.
The applicant has provided reasonable reasons for choosing his current course provider and he has presented reasonable reasons for undertaking the cookery and hospitality studies offered by that course provider. Considering the applicant has resided in Australia since April 2019 and that he is a member of his younger brother’s household, the Tribunal is satisfied he has a reasonable degree of knowledge of living in Australia and his living arrangements in Australia. The applicant has also demonstrated a reasonable degree of knowledge of his current package of hospitality courses.
The applicant’s courses of study in hospitality amount to a significant change to his study pathway and employment history. The applicant completed a Bachelor of Commerce in India in April 2009. Between May 2009 and April 2019, a period of almost 10 years, the applicant was consistently employed as an accountant in various companies unrelated to commercial cookery and the business of establishing and operating a restaurant.
After enrolling in two business courses, being the courses for which the applicant applied for the Student visa – two courses that were directly relevant to his past employment – the applicant changed his study pathway and his well established career as an accountant, to studying a Certificate IV in Commercial Cookery, followed by a Diploma of Hospitality Management. He claimed in evidence that he did so because his brother reminded him of his passionate interest in cooking. The applicant gave evidence that his passion for cooking existed since childhood, and that the hospitality courses are relevant to establishing his own restaurant in India to be followed by his own chain of restaurants in various named cities in India.
According to the applicant’s evidence his plan for his future employment in his own restaurant(s) in India was made in Australia, after he arrived on a short stay Visitor visa and he had enrolled in two business related courses, and submitted his application for the Student visa for the purpose of undertaking those courses. He was motivated to abandon his business studies in February 2020 to study (first) the commercial cookery course in response to his brother reminding him of his childhood passion for cooking. The Tribunal finds this evidence unpersuasive. The Tribunal is not satisfied the applicant’s current course of study is being pursued because it is relevant to a genuine plan to establish and operate a restaurant in India followed by a chain of restaurants, rather it is evidence the student visa programme is being used to circumvent the intentions of the migration programme and the Student visa is being used to maintain ongoing residence.

The foregoing view is strengthened by the absence of verifiable evidence of the existence of a thoroughly considered and researched plan to establish and operate the proposed restaurant business in India. In evidence before the Tribunal the applicant claimed in broad terms, he had calculated rent, staff salaries and expenditures relevant to establishing and running the proposed restaurant business. The applicant also claimed his family will support the establishment of the business and that the restaurant industry in India is booming. These claims are easily made. They are unverified by documentary evidence capable of demonstrating that the applicant in fact made the claimed calculations and evidence from relevant members of the applicant’s family which verifies that they are aware of his claim that they agreed to supporting his business plan, and the nature of the support, if any, they are willing to provide to him. The Tribunal is not satisfied the applicant’s plan to return to India and establish his own restaurant business, to be followed by a chain of restaurants, is genuine and that the course of study related to commercial cookery and hospitality is genuinely intended by the applicant to assist him to improve his prospects of employment in India by way of establishing and operating his own restaurant and later a chain of restaurants in India.
The applicant claimed in evidence that his research established that by undertaking the proposed course in Australia he will earn more money than he will earn from accounting. This claim is unverified by evidence such as relevant documentation of the nature and results of relevant research. The applicant also claimed in evidence his research demonstrated he could reasonably expect to receive a monthly income of AU$1800 to AU$2000 from the proposed restaurant. Again, this claim is unverified by supporting evidence, and considering the applicant is an experienced accountant, his failure to provide documentary evidence of his business plan and research into the remuneration he could expect to receive from the proposed restaurant business is a matter of concern to the Tribunal.
The Tribunal finds the applicant’s evidence in relation to the remuneration he could expect to receive from the proposed restaurant business in India using the qualifications to be gained from the proposed course of study to be unpersuasive.
According to the delegate’s decision, and it is not disputed, the applicant applied for an FA 600 Visitor visa on 14 September 2016 which was refused because he failed to satisfy the Genuine Temporary Entrant criterion. There is no evidence the applicant has previously applied for a visa to another country that was refused.
There is no evidence the applicant previously travelled to Australia and failed to comply with a visa condition, or that he previously held a visa that was cancelled or considered for cancellation.
The applicant has not competed any course of study since he arrived in Australia.
The applicant arrived in Australia on 4 April 2019 as the holder of a Visitor visa which expired on 4 July 2019. On 3 April 2019, one day before his Visitor visa was due to expire, he applied for a Student visa for the purpose of studying a Diploma of Management and a Graduate Certificate in Management. According to the delegate’s decision the end date of this package of courses was 29 August 2021. These courses were consistent with the applicant’s prior university level qualifications and his extensive employment experience as an accountant. The studies in which the applicant first enrolled in Australia were consistent with his claim that he had employment from Savita Containers PVT Ltd[3] – his employer immediately before he arrived in Australia on the Visitor visa – waiting for him to return to in India.
[3] Visa application form.
According to the applicant’s evidence to the Tribunal he abandoned the Diploma of Management in February 2020 and he did not complete the course. He did not start the Graduate Certificate in Management. The applicant abandoned the package of business related courses to study the Certificate IV in Commercial Cookery and the Diploma of Hospitality Management resulting in a potential extension of his stay in Australia from 4 April 2019, the expiry date of his (short stay) Visitor visa to February 2022, the end date of the Diploma of Hospitality Management. There is no evidence the applicant has any prior experience or training in commercial cookery. As discussed earlier in this decision, the applicant claims he was initially motivated to change his education pathway and extend his stay in Australia to February 2022 because his brother reminded him that he had a passion for cooking. The applicant also claimed in evidence that his passion for cookery existed since childhood. These claims are easily articulated but they are unverified by supporting evidence such as evidence from the applicant’s brother. Giving regard to the matters discussed at [46]–[47] and the matters discussed in this paragraph, on balance, the Tribunal finds the applicant’s explanation for his sudden decision to undertake his current package of hospitality courses is unpersuasive. The Tribunal is concerned the applicant is primarily motivated to extend his stay in Australia and that the Student visa may be used primarily for maintaining ongoing residence.
There is no evidence the applicant has travelled to countries other than Australia and failed to comply with the migration laws of that country.
After considering the totality of the information, evidence and submissions before the Tribunal in relation to the considerations in Ministerial Direction No.69, the Tribunal is satisfied it has given regard to all the available information, evidence and submissions relevant to assessing the applicant’s intention to stay temporarily in Australia as a student, and that there is nothing else that was provided by the applicant in support of his application that, according to the principles of materiality discussed in Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 is material to the issue of whether the applicant is a genuine applicant for entry and stay as a student, that has not been considered by the Tribunal.
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 not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Peter Haag
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.

[2021] AATA 240

3 February 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction