Tarandeep Kaur (Migration)

Tarandeep Kaur (Migration) [2020] AATA 2800 (26 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Tarandeep Kaur
CASE NUMBER:  1814581
HOME AFFAIRS REFERENCE(S):          BCC2018/1238804
MEMBER:Elizabeth Tueno
DATE:26 May 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 26 May 2020 at 5:21pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– applicant failed to provide the requested information within the prescribed period – genuine temporary entrant criterion not met–applicant has not completed any of courses– no strong incentive to return to her home country –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363, 499
Migration Regulations 1994, Schedule 2, cl 500.212
CASES
Hasran v MIAC [2010] FCAFC 40
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 30 April 2018 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 15 March 2018. 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). The delegate was not satisfied that the information provided by the applicant demonstrated that she intended to stay temporarily in Australia.
On 6 November 2019, the Tribunal formally wrote to the review applicants pursuant to section 359(2) of the Act inviting the applicant to provide further information, including in relation to their enrolment, to the Tribunal. The Tribunal received a completed s.359(2) questionnaire from the applicant on 21 November 2019. On 18 November 2019, the applicant requested an extension of time to provide further information, which was granted by the Tribunal on 22 November 2019. The applicant was notified that they had until 9 December 2019 to provide the information. The applicant was advised that if the Tribunal did not receive the information by 9 December 2019, it would proceed to make a determination without taking any further action to obtain the information. The applicant did not provide any additional information to the Tribunal.
The Tribunal is satisfied that the review applicants were properly sent an invitation to provide further information under section 359(2) of the Act. The invitation was sent to the review applicant by email, being the address provided by the review applicant in connection with this application for review.
Where an applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action: section 359C(1) of the Act.
The Tribunal finds that the review applicant did not provide further information as requested. In these circumstances, the review applicant is not entitled to appear before the Tribunal: section 360(3). The effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.
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 have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
In these circumstances, the Tribunal has proceeded to make a decision having regard to all the information before it, including the information previously provided by the applicant to the Department.
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 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 delegate’s decision, the Department’s file and material provided Tribunal by the applicant including:
·     A completed s.359(2) questionnaire;
·     A letter dated 18 November 2019 from the applicant’s employer;
·     Medical certificate dated 15 November 2019 and a prescription dated 13 November 2019 for Valdoxin 25mg;
·     Confirmation of enrolment in a Diploma of Leadership and Management;
·     Academic transcript for 4 subjects from an Advanced Diploma of Project Management; and
·     A genuine temporary entrant statement by the applicant (“GTE statement”).
The applicant is a 31-year-old woman from India. She arrived in Australia on 17 May 2016 having been granted a student visa offshore. She has remained in Australia on temporary visas since then. The applicant has been enrolled in a number of courses since arriving Australia but has yet to complete a single course. The courses she has been enrolled in but did not complete include:
·     Master of Environmental Engineering Management;
·     Diploma of Project Management;
·     Advanced Diploma of Project Management.
The applicant is currently enrolled in and studying a Diploma of Leadership and Management which commenced on 9 December 2019. Her enrolment ends on 6 December 2020 in this course.
CIRCUMSTANCES IN THE APPLICANT’S HOME COUNTRY
The applicant stated in her questionnaire response that the Diploma of Leadership and Management is going to “improve my communication skills and analyse the information gained during the course to find out valuable solutions to the problems that can lead my team to efficiency…this course is available in India but I am still preferring Australia only because I want to get a job in same stream which is not possible due to the current scenario in India. This you can figure out from my background that after doing my masters in environment I did my job in a different stream.”
It is not obvious to the Tribunal what “current scenario” in India the applicant is referring to. What the Tribunal can discern from her background is that the applicant has successfully completed a Bachelor degree in Biotechnology and a Master degree in Environmental Science and Technology. In the nearly 4 years she has resided in Australia, she has not completed a single course. What the Tribunal can “figure out” from this is that the applicant has achieved academic success in her home country but not in Australia. On this basis alone, the Tribunal does not consider that the applicant has sound reasons for not studying the proposed course, or similar, in her home country given that the course is available there.
However, the applicant expanded upon her reasons for wanting to study in Australia rather than in India in her GTE statement. She said:
My major reasons to study in Australia was;
·Quality Education System – The University system is well structured for international students; and every student can receive a top-quality education.
·Global Recognition – Graduate from Australian Universities are highly sought after due to the impressive international reputation of the Australian education system. This system is carefully regulated by the Australian government in order to maintain the high standards of education associated with the country.
·Impressive Technology – Australia is at the forefront of new technology and innovations. Students who study in Australia can take advantage of the country’s impressive technology and research resources;
·Cost of Living – Living expenses and tuition costs are considerably lower in Australia than they are able to work part time while they study [sic]. There is also the possibility of scholarships to lower the cost of studying for international students.
·Student Support Service – Help and support with adjust to new surroundings and throughout your stay [sic].
·Language development – use and improve your English every day talking to friendly locals, while studying or working.
First and foremost, reason for studying abroad is the ever-increasing competition in the education sector in India. Students who are scoring as high as 90% are not getting seats in their college of choice in India. There is an unnecessary pressure and burden of clearing entrance exams to get admission in engineering or medical colleges, even after getting a very good percentage in their 10+2 exams. Some study so hard, yet are still unable to clear the entrance exams. Does this mean that they are not intelligent? Hence they are left with no other option, but to pursue a career that they do not want. Another challenge is that the number of students competing for limited seats is extremely high. To get admission in 15 IIT’s across India, which have around 10,000 seats each, almost 500,000 students sat for the entrance exam in the year 2012. Because of this extreme competition and in spite of a much higher cost of education abroad, students prefer studying in foreign universities.
Students getting admission in private colleges have to pay a hefty amount of fees. The quality of education is another big concern in these colleges. So what is the use of spending so much money when you have to compromise on quality? Hence quality of education is another reason for this trend of students moving abroad for studies. Reservation policies are further deteriorating the education system in India. Students are ready to compete, but when a seat is given to a student just on the basis of reservation then it hurts. Reservation system is further increasing the competition in the general category. A double degree benefit provided by foreign universities attracts students from India. Indian education is very strict in terms of courses offered and the way these are taught. But most foreign universities are flexible and you can choose from a range of subjects. A student can choose to do dual major, minor and free elective courses.
Apart from this, better job prospects are another major reason behind this trend of studying abroad. Most global companies prefer candidates who can work well in their own country as well as abroad. And thus getting education from a foreign university is an added advantage. Studying abroad improves one’s personality, communication skills, social contracts, and at the same time one can experience a different quality of life. Also if we were to compare the curriculum of Indian and foreign universities, the latter is better than the former. Unconventional methods of teaching in foreign universities help in personality development and hence attract students. Foreign universities do lots of experiments with the mode and style or teaching which is not done in India. Infrastructure facilities are much better in foreign universities as compared to those in India. Opportunity of working while studying and scholarships brings down the overall burden of fee in foreign universities. But the same is provided only during internship in India.
Because of the fundamental differences in education, competition, quality of life, job after completing studies, overall personality development etc. most students and their parents prefer foreign universities for further studies.
Essentially, the applicant’s reasons for wanting to study in Australia in her last paragraph as set out above, which is: difference in education, competition, quality of life, job after completion of studies, overall personality development etc. most students and their prefer foreign universities for further studies.
The Tribunal has set out the above in full, to show that the applicant described in length why she wants to study in Australia. The Tribunal notes that in her questionnaire, she states that a course similar to the Diploma of Leadership and Management is available in India. However, when it comes to the reasons for not studying in India, her explanation focusses on the reasons why Indian students generally want to study abroad. She provided generic reasons for wanting to study in Australia. Her discussion about the difficulties facing students wanting to study at the tertiary level are irrelevant given that she has already successfully completed and obtained Bachelor and Masters qualifications from universities in India. With regards to better job prospects, the applicant again speaks in general terms about having better job prospects after studying abroad and the chance to study while working or on scholarships. However, the applicant has not been working in a field relevant to her previous or current studies. Nor is there any evidence that the applicant has received a scholarship for her studies. The Tribunal does not accept that these are sound reasons for not studying the proposed course in the applicant’s home country.
As to the applicant’s personal ties to her home country, the Tribunal notes that she has never returned to India since arriving in Australia in 2016. Both of her parents, her two brothers and her sister live in India. She has one brother who lives in Canada. She has provided no details about how often she is contact with them. Even after going through a divorce and experiencing personal hardship while in Australia, she did not return to India to visit her family. She says in her GTE statement that her family will support her financially while she completes her studies. However, it is not clear whether this is her family in India or her aunt and uncle who live in Australia. The information provided by the applicant in relation to her personal ties to indicates that her family are not a strong incentive to return to her home country. She provided no other information about any community ties in India.
In relation to her economic circumstances, prior to coming to Australia, the applicant was earning the equivalent of AUS $3,000 per annum in India working as a biology and English teacher. Since May 2018, the applicant has been working as a shop attendant earning approximately $1,700 per month. She states that she is being financially supported for her living expenses and her tuition fees. Based on this evidence, her earnings are above and beyond what she needs since her family is paying for her to remain in Australia studying. She has provided no information about assets she or her family owns in India. Taking these matters into account, the Tribunal considers that the applicant has significant incentive not to return to her home country.
The applicant stated in her questionnaire that she has no concerns about military service commitment or that there is political or civil unrest in India. Accordingly, the Tribunal does not believe the situation in the applicant’s home country would induce him to apply for a student visa to obtain entry into Australia to remain indefinitely.
POTENTIAL CIRCUMSTANCES IN AUSTRALIA
The applicant has been residing in Australia on temporary visa for nearly four years and the proposed course of study would require her to remain in Australia for a further 7 months. Since her enrolment in the Master’s degree in Environmental Engineering Management was cancelled for non-payment of fees, she has enrolled in VET courses of a shorter duration. She has not completed any of them.
She provided details of her personal circumstances since arriving in Australia. The applicant said that while she arrived in Australia with her husband, he subsequently left her and that she was a victim of domestic violence. After he left her, she was unable to pay the fees for her Master’s degree in Environmental Engineering Management. They divorced in January 2018. She said that her aunt suffered a stroke in May 2017 and she had to look after her and after her visa application was refused her uncle made her left their home causing her to become depressed. She also said that in July 2019 she was taken by a friend to Nepean Hospital when she fell sick and she provided the tax invoice for this emergency department visit. She said she has been supported by her cousin.
None of the issues with her husband or her aunt is documented in any way. She provided a medical certificate that stated she was suffering from anxiety and depression and that it was anticipated that it would “take some time” for her to get better. The medical certificate does not detail when she become depressed and there is no updated material as to whether or not she has now recovered. However, what is also important to take note of is that the applicant provided a letter from her employer dated 18 November 2019 which confirms that she has been working since May 2018 and that she has “consistently exhibited high standards of productively, quality and accuracy”. Her employer also wrote, “Tarandeep has expressed interest in progressing to take on the role of store manager in the near future.”

This does not sound like a person who is greatly affected by anxiety or depression. It appears she has been able to work consistently during her diagnosed anxiety and depression but when it comes to her studies, the whole reason for being in Australia, she is unable to do this. Nor does this give the appearance of a person who intends genuinely to stay in Australia for the purpose of study. The Tribunal considers that the applicant is using the student visa to maintain ongoing residence in Australia and that she is using the student visa program to circumvent the intentions of the migration program.
The applicant came to Australia with her husband, and although they have divorced, she has been supported by her extended family including aunt and uncle. The Tribunal takes notice of the applicant’s evidence that she was kicked out of their home after her visa was refused. However, it is possible with the passing of time that they either have reconciled or will in the future. The Tribunal considers that she has a number of family members residing in Australia as well as employment and that she has ties to Australia that act as an incentive to remain here.
VALUE OF THE COURSE
As noted above, prior to coming to Australia the applicant had already completed a Bachelor degree in Biotechnology and a Master degree in Environmental Science and Technology. She had attempted to complete a Master degree in Environmental Engineering Management. To now be studying at a Diploma level is not consistent with her high level of education.
In her GTE statement, the applicant said:
I have enrolled myself in Diploma of Leadership and Management at yes college [sic] this course will help me to gain the knowledge about work in leadership and management positions in a broad range of industries. People in leadership and management positions display initiative and judgment in planning, organizing, implementing and monitoring their own workload and the workload of others. They use communication skills to support individuals and teams to meet organisational or enterprise requirements. They plan, design, apply and evaluate solutions to unpredictable problems, and identify, analyse and synthesize information from a variety of sources.
…
Once I graduate from a Yes College Australia [sic] with an International Education Qualification in Leadership and Management I would like to return to my mother country India or any other Middle East Country where they have a lot of employment opportunities and good wages, and sever the country with knowledge I gain in Australia. As well as my study record in Australia will give me the best platform to achieve my career and prepares me for a challenges [sic] in my work place.
The above quote from the applicant is a very generalised picture of the qualities and skills held by people in leadership and management roles. The applicant provided in her GTE statement examples of team leader positions being advertised in Canada, the United Arab Emirates and New Zealand and the salaries attached to these positions. There was no information for each of these jobs for what experience or qualifications or even what industry the job related to. There is nothing before the Tribunal that supports the conclusion that obtaining a Diploma of Leadership and Management will assist the applicant in securing this type of work or that it would improve her employment prospects in her home country or in a third country.
In relation to whether or not the proposed course is relevant to her past or future employment, the Tribunal has had regard to the above statement, her work history in India and in Australia. Her tertiary qualifications are in the science and she worked as a teacher teaching biology and English, which relates to her degrees in science. She currently works as a shop attendant. Her employer noted that the applicant was hoping to become store manager and that the proposed course would greatly enable her to “successfully discharge her role as store manager”. Other than a bare assertion that that it would assist, it is unclear how it completing a Diploma of Leadership and Management would assist her working in as a store attendant or store manager.
With regards to the team leader roles mentioned, the applicant is the holder of a Bachelor and Master’s degree with is at a higher level than study at the vocational level. A university degree is designed to provide a degree holder with skills in critical thinking and analysis that may be deployed to solve any challenges encountered. This applies would apply to the team leader roles the applicant referred to. On the evidence before it, the Tribunal considers that the applicant’s claimed career aspirations have been tailored to fit with her VET levels of study without any real plan for the future. It is unclear which came first. The Tribunal is not convinced that the proposed course is relevant to her future employment. The evidence indicates that her intention is to continue working for her current employer and work as a store manager.
It follows that the Tribunal is not convinced that the proposed course will increase the remuneration she could expect to receive in her home country or third country.
IMMIGRATION HISTORY
The Tribunals takes into account the length of time the applicant has remained onshore without ever returning to her home country or elsewhere. The Tribunal is not satisfied that the explanation provided by the application regarding her personal difficulties, as discussed above, fully explains why she has been unable to complete even the most recent course that she was enrolled in. The Tribunal considers that this demonstrates an intention to use the student visa program to maintain ongoing residence.
The applicant stated in her questionnaire that she has never been refused a visa or had a visa cancelled by another other country. The Tribunal takes this into account.
OTHER MATTERS
There were no other matters raised by the applicants for consideration.
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.
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 2800

26 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction