Verma (Migration)

Verma (Migration) [2022] AATA 4474 (1 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Aastha Verma
REPRESENTATIVE:  Mr Harpal Bajwa (MARN: 0955800)
CASE NUMBER:  2117096
HOME AFFAIRS REFERENCE(S):          BCC2021/1572311
MEMBER:Michael Biviano
DATE:1 November 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 1 November 2022 at 8:30 am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – enrolment ceased – no academic progress – several course changes – family bereavement – course benefit to future career – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 499; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 November 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 12 August 2021. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) for the reason that she was not a genuine applicant for entry and stay as a student because she did not intend to stay in Australia temporarily.
The applicant appeared before the Tribunal on 22 June 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
The applicant was assisted in relation to the review.
It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary, to enable the examiner to establish the relevant facts.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant was a genuine applicant for entry and stay as a student.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The applicant is a 32-year-old Indian National who first came to Australia on 15 June 2019 on a student visa for the purposes of studying a Master of Teaching English to Speakers of Other Languages (TESOL). The applicant has been in Australia for a period of 3 years and 4 months.
The decision record of the Delegate of the Department of Home Affairs dated 4 November 2021, which was provided to the Tribunal by the applicant, confirms that the applicant made an application for a student (Class TU Subclass 500) visa on 12 August 2021 (Decision Record).
The Decision Record confirmed that the applicant had completed a Bachelor’s degree in India in 2018 and that she was proposing to study a Certificate III and a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management (the Hospitality Courses).
The Decision Record confirmed that the applicant’s proposed courses were to be completed in July 2023 extending her stay in Australia beyond 4 years.
On 29 April 2022 the applicant filed with the Tribunal a response within time pursuant to an invitation to supply student visa information about the courses she was studying and information about her entry and stay in Australia in accordance with s.359(2) of the Act (Response).
On 27 May 2022, prior to the hearing, the Tribunal filed in conjunction with the Response to hearing invitation the following documents in support of her application: -
a.applicant’s submission signed by the applicant (Submission);
b.confirmation of enrolment (COE) No. CBEDA944 for the applicant to study a Diploma of Community Services at Stott’s College with a course start date of 31 January 2022 and a course end date of 21 January 2024 which was created on 31 January 2022;
c.death certificate for the applicant’s father advising as to the date of death being 31 May 2011;
d.extract of statement from Acknowledge Education of units she is undertaking in her studies;
e.statement addressed To Whom It May Concern from Neelam Verma, the applicant’s mother, dated 6 June 2022 confirming that she did not object to the applicant commencing her own business on her mother’s property;
f.floor plan for anticipated establishment of a business which provides for a community hall to be established;
g.income tax returns for the applicant’s mother for financial years 2018 to 2019, 2020 to 2021 and 2021 to 2022;
h.passport extract for the applicant;
i.further income tax returns for the financial years 2018 to 2019, 2020 to 2021 and 2021 to 2022;
j.medical handwritten notes regarding the applicant’s mother dated 11 May 2022 confirming that she has a chronic lower back condition and recommends physiotherapy;
k.translation of property sale deed;
l.handwritten sketch of house plan;
m.documents relating to property transfer;
n.Pearsons PTE Academic Test report undertaken 28 June 2021;
o.marriage certificate for the applicant’s sister;
p.passport extract for applicant’s sister;
q.income tax assessment returns for the applicant’s sister dated 2020 to 2021;
r.applicant’s mother’s bank statement.
The Tribunal has given consideration to the applicant’s evidence in this hearing together with the documentation provided to the Tribunal and the documents the applicant provided to the Department as well as the Submission filed in this matter.
The applicant gave evidence that prior to coming to Australia she completed a Bachelor of Arts majoring in English back in India which concluded in 2018. She gave evidence that after completing that course she was involved in teaching and tutoring as a volunteer, students who wanted to learn English without payment of tuition fees. She also gave evidence that she was influenced by her mother to improve her English standard and to come to Australia for the purposes of obtaining a Master’s course majoring in English which would assist her in getting a good job as a teacher. The applicant claimed that she had an interest in psychology but agreed that she would come to Australia for the purposes of undertaking a Master’s course in English for students of an overseas language. The applicant enrolled in that course at La Trobe University. The applicant claimed that she studied first semester and cleared all subjects but did not complete any subjects in semester 2 and confirmed that her studies stopped in November 2019 when her enrolment came to an end.
The applicant claimed that when her enrolment came to an end in November 2019, she was not in a mental position to be able to decide what to do as she had relationship problems with her partner back in India. She claimed that at that time she wanted to go back to India however her relationship ended in December 2019. The applicant did not undertake any further enrolment until July 2021 when she enrolled in a Certificate III and IV in Commercial Cookery and a Diploma of Hospitality Management (Hospitality Courses) at Acacia College. The applicant claimed that she had been working in a bakery and was interested in studying cooking and hospitality courses.
However, in evidence she claimed that she was pressurised into studying the Hospitality Courses by the people that she worked for who insisted it was a good career change for her. The difficulty with the applicant’s evidence is it is unclear how her employer could pressure her to study those courses. The applicant in evidence confirmed that she had left employment with the bakery in June 2021, before she enrolled in the Hospitality Courses in July 2021. and at its highest it probably encouraged her in the event that she was wanting to develop a career in that field. The applicant in the Submission stated in relation to her studies regarding the Hospitality Courses as follows: -
To be honest, I always had an interest in the field of hospitality and cookery. But the profession is not considered much respectable and remunerative in India. I thought I could use the pertaining vocational courses in hospitality to earn required knowledge and skill set. I realized that I could put my hard earned skills and knowledge to productive use in the accelerating hospitality sector in my home country. My academic qualifications would have definitely made me more efficient and would have certainly contributed towards my personal and professional development. This is why I had enrolled in the cookery courses, namely Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery and Diploma of Hospitality Management.
The applicant claimed she completed six months of studies in the Certificate III in Commercial Cookery when she ended her enrolment. The Tribunal notes that the applicant in her Submissions outlined the reasons for undertaking the Diploma of Community Services in which she enrolled on 31 January 2022 were for the following reasons: -
The onset of covid-19 pandemic and the devastation it brought was unprecedented. Not only did it shake up the work economies and wreak havoc, it was really a life changing and perception altering experience for me as well.
What this whole set of events installed into me was a humane side. Steadily, I developed an inclination towards the community service and health field so that I can cater to health and medical needs of the people and community around me. This is a fact that the pandemic induced great stress and anxiety in the population and I wanted to develop personally and professionally so that I can make a difference in their life and help communities remain calm, focused and thrive.
This is why I decided to proceed with Diploma of Community Services. I thought this would be a major step in my career in community services with this advanced qualification. I am very confident of gaining the skills, knowledge and understanding to work in the community welfare sector.
The difficulty with the applicant’s evidence on this issue is that at the time she commenced the Hospitality Courses, the COVID-19 pandemic had been in operation for well over a year and the matters which led her to studying a Diploma of Community Services had been ongoing for a long time. At the time of commencing the Diploma of Community Services the COVID-19 pandemic restrictions in Australia had been relaxed extensively. It appears that the applicant has changed courses from the Hospitality Courses to the Diploma of Community Services after her visa refusal. The Tribunal has serious concerns that the applicant has changed both the course she was studying and course provider for the purposes of improving the prospects of obtaining a successful visa outcome to continue to reside here rather than by reason of career advancement.
The applicant claimed she wanted to study the Diploma of Community Services so that she can return back to India with a view of setting up a community centre back in her home country which will focus on training people and assist in looking after children, whose parents are worried about their children, drug problems and people with psychological conditions so that they can be looked after by the centre. The applicant had claimed that the community centre would be able to implement activities and play motivational movies and if those procedures weren’t working then they could send people to rehabilitation.
It was unclear how the model would be successful and a viable business. The applicant confirmed in evidence she had not developed a business plan, and there was no evidence how the community centre would be profitable in such circumstances. The applicant was insistent that people who wanted to pay could pay for the services of the community centre. She claimed that her mother would invest in it and provide the property for the purpose of establishing it. However, without supporting documentation including business plans and budgets it was unclear how the applicant could successfully establish such a centre merely by completing a Diploma of Community Services.
The applicant claimed that the centre would act to help people with psychological problems. It is important to note that the qualification would not be sufficient for her to practice as a psychologist.
The applicant claimed that with the qualifications of a Diploma of Community Services she would be able to obtain employment either in an NGO in either old age or disability and she would be likely to earn the equivalent of A$3,000 to A$4,000 per calendar month. She believed that by operating a community centre she could earn between A$4,000 and A$5,000 per calendar month but this amount is merely aspirational.
The applicant in evidence confirmed that she had worked in various roles whilst in Australia. She claimed that in or around 2020 she worked for seven to eight months as an Uber driver and she earned a total of approximately A$6,000. From December 2020 to June 2021, she worked at Sammy’s Bakehouse as a coffee maker earning between A$700 and A$800 per week. She claimed that she left that role in June 2021 because she had been pressured to undertake a career in the hospitality management field.
From August 2021 to April 2022 the applicant worked for Couriers Please as a driver and she claimed that her weekly level of income was approximately A$1,500 per week. From April 2022 she has continued to work as a courier driver for Fast Way earning A$1,500 per week. The Tribunal notes that the level of income that she is earning is a very high level of income and would provide her with a substantial financial incentive to remain here rather than to return home.
The Tribunal considers that the applicant’s studies in the Diploma of Community Services will provide her with greater job prospects back in India, although it is unclear whether it would necessarily improve the level of remuneration, she would expect to earn having regard to her qualifications with a Bachelor of Arts.
The applicant in the Response outlined in response to the request whether there are similar courses available in the applicant’s home country or region and the reasons for not undertaking those courses in their home country and region was that “The way Indian providers deal with community sector is not a great practical way of dealing with intensive units incorporated in”. The Tribunal accepts the applicant’s contention that the courses in Australia are probably at a higher level and more practical than those in India. However, the applicant by her Response has accepted that there are education providers that do provide community service courses back in India and that such courses would provide the applicant with sufficient skill and knowledge to work in the community sector industry back in India. When one considers the costs associated with studying in a foreign country together with the additional tuition costs in this country the Tribunal considers that the applicant does not have a reasonable motive for undertaking these studies in Australia.
The applicant has changed her career path initially from English to teaching to cooking and hospitality management and now to community services. The courses studied are not connected to each other, are not complimentary to each other and do not lead to a career path or position in employment. The courses appear to be scattered and demonstrate that the applicant has changed career and study pathways during her stay in this country. The Tribunal has concerns that she has changed her career and study pathways to enrolling in the Diploma of Community Services after her initial visa refusal for the purposes of improving the prospects of obtaining a successful visa outcome to maintain residency here.
The Tribunal recognises it is important to allow for reasonable changes to career and study pathways. However, this is not the case when an applicant has merely decided to change careers through undertaking short vocational education training (VET) courses. Further the Tribunal notes that the courses that the applicant has enrolled in since ceasing studies in the Master’s course in November 2019 are all short VET courses and do not reveal any progression in her course of study and in fact show regression having regard to the applicant having completed a Bachelor’s degree back in India.
The Tribunal finds that her present course of study is inconsistent with her level of education and is not a reasonable change to her career and study pathway. Moreover, the applicant’s course progress reveals a gap in studies from November 2019 until July 2021. The Tribunal notes that the purpose of a student visa is to come to this country and complete one’s studies in a timely manner. Gaps in studies of over a year and a half are inconsistent with that purpose and are more consistent with someone staying in this country for the purpose of maintaining residence rather than study. The Tribunal notes the applicant did have some issues as a consequence of her relationship breakup at the end of 2019 and she claimed that she was suffering from depression and had issues with mental health. However, the applicant has not submitted any medical evidence that supports those findings or that she was unable to undertake study. In those circumstances the Tribunal does not accept she has a reasonable explanation for a gap in study of in excess of a year and a half notwithstanding the existence of the COVID-19 pandemic, as there was nothing preventing the applicant from completing to undertake studies online.

The applicant has lived in Australia for the last 3 years and 4 months and, based on the COE for the Diploma of Community Services that she has filed with the Tribunal, intends staying in Australia for at least a further period of 1 year and 3 months. That would extend her stay in Australia to a period of in excess of 4 and a half years which is a long period of time especially for someone who came to this country to undertake a Master’s course. It is also important to note that the applicant has not completed any courses whilst in Australia and the applicant has not demonstrated course progression or that she is undertaking those studies in a genuine fashion in accordance with the purpose of the student visa.
Ultimately the Tribunal accepts that she has a substantial degree of knowledge by reason of the duration of her stay here about living in Australia, but she is utilising the student visa program for the purposes of maintaining residency here. The applicant has been enrolled at Stott’s College since January 2022 and accordingly the Tribunal accepts by reason of the duration of her studies in that course that she would have a substantial degree of knowledge about both the course and the education provider.
The applicant confirmed in evidence that Australia has a higher level of wages than those in India albeit with higher living expenses which in any event would provide the applicant with a substantial financial incentive to remain here rather than to return home especially considering her high level of income.
The applicant also gave evidence that the economic conditions in Australia were better than those in India which would also provide a substantial financial incentive for her to remain here rather than to return home.
The applicant gave evidence that she has been financially supported from her mother back in India who has paid for her tuition fees. However, the applicant has not returned home during her stay in Australia. The Tribunal notes for a substantial period of her stay there have been travel restrictions imposed by reason of the COVID-19 pandemic from March 2020 through to the commencement of 2022. In those circumstances the Tribunal makes no adverse findings regarding the applicant’s failure to return home at all during her stay in Australia.
The applicant in the Response had outlined that she had an asset which was described as “FD” which was worth A$3,700. When questioned at the hearing the applicant responded that she did not know about that asset. She confirmed that she had no assets in Australia or in India but that her mother had substantial land and a business back in India and as discussed above had provided her with financial support. The Tribunal notes that by reason of her asset position when coupled with her employment in Australia earning a high level of income that her economic circumstances would present her with a significant incentive to remain here in Australia rather than to return home.
The applicant both in the Response and in evidence confirmed that she did not have any concerns about returning back to India and no concerns about military service commitments or political and civil unrest in her home country. Ultimately the Tribunal finds they do not present as a significant incentive for her not to return home.
The Tribunal finds that based on the applicant’s evidence and circumstances in her home country including her education and the support she has had from her family relative to others in that country she is in a good position, and it would not provide a significant incentive for her not to return home.
The Tribunal accepts that the applicant is currently not in a relationship and therefore not in a relationship of concern for a successful visa outcome. The applicant has both personal ties to Australia and to India. The applicant has her grandmother, mother and two sisters back in India and that would provide some incentive for her to return home. However she has not seen them since June 2019 but claimed in the Response she contacts them regularly by using phone or social media. The applicant in the Response did not identify any other community ties at home and in evidence confirmed that she had no assets or business ties back home. Furthermore, her circumstances in India need to be considered in light of her circumstances in Australia having stayed here for a period of 3 years and 4 months and intending to stay for at least a further 1 year and 3 months and considering her employment earning a high level of wages, the Tribunal finds that such ties to her home country would not provide a significant incentive for her to return home.
The applicant has substantial ties to Australia. She gave evidence that she has been living in Pakenham for one and a half years in shared accommodation and that she has a good friend here and some friends back in India. The Tribunal notes that she is in paid employment earning a high level of income and when coupled with her intention to remain here for a substantial period of time the Tribunal finds that such ties provide her with a strong incentive to remain here rather than to return home. The applicant in her Response has not identified any visa refusals or cancellations in Australia or elsewhere. There is nothing before the Tribunal from the Delegate’s Decision Record or elsewhere to indicate that the applicant has experienced any other visa refusals or immigration issues either in or outside of Australia.
The applicant has been in this country for a long period of time and not completed any courses and has changed the courses that she is studying for the purposes of maintaining a student visa in order that she can continue to reside here. In those circumstances the Tribunal considers that the applicant is using the student visa program for the purpose of maintaining residency here.
Based on the above matters the Tribunal is not satisfied the applicant has made this application to gain a student visa to study temporarily.
On the basis of the above the Tribunal is not satisfied the applicant intends genuinely to stay in Australia temporarily. Accordingly the applicant does not meet cl 500.212(a).
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Michael Biviano
Member

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

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

[2022] AATA 4474

1 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction