Verma (Migration)

Verma (Migration) [2020] AATA 6167 (17 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Rushal Verma
CASE NUMBER:  1906235
HOME AFFAIRS REFERENCE(S):          BCC2019/273005
MEMBER:Peter Booth
DATE:17 November 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 17 November 2020 at 11:59am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine temporary entrant as student – plans to develop family business – applicant regressed to vocational level courses – value of course to future career – maintaining ongoing residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212; r 1.03
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 March 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 30 January 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 applicant was not a genuine temporary entrant.
The applicant appeared before the Tribunal on 4 November 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
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 is a genuine temporary entrant.
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 gave evidence at the hearing, the substance of which was as follows. The applicant had read the delegate’s decision dated 13 March 2019 refusing her application for a student visa. The applicant understood and that the issue for determination was whether she was a genuine temporary entrant.
The applicant said that she is currently enrolled in an Advanced Diploma of Business which commenced on 20 April 2020 and is scheduled to be completed on 19 September 2021. The applicant had produced a confirmation of enrolment document to the Tribunal in that regard. The applicant had also provided a confirmation of enrolment document in respect of an Advanced Diploma of Information Technology. That course was scheduled to commence on 20 April 2020 and be completed on 19 September 2021. When asked to explain that enrolment the applicant said “they cancel that course because they did not get enough students to enrol”.
The applicant had also provided information to the Tribunal in the form of a response to a request to do so pursuant to s.359(2). The applicant confirmed that she did not want to add to or vary this document. In summary the information provided by the applicant was as follows.
Prior to arriving in Australia the applicant completed secondary education in March 2017 and then commenced a course described as “ B.Sc.IT” in July 2017 but she added “not continue as I am studying in Australia (incomplete)”. She did not give any details of her employment prior to arriving in Australia.
The applicant arrived in Australia on 14 November 2018 and has not returned to India since that time.
The application for the student visa in question was made on 30 January 2019. The applicant stated that she also held a “tourist visa” granted in November 2018 and valid until February 2019.
As to her study history in Australia the applicant stated that she completed a Diploma of Information Technology (Networking) between January 2019 and April 2020, she was enrolled in an “Advanced Diploma of Information” due to commence in April 2020 but did not commence it and that she is “studying now” an Advanced Diploma of Business which commenced in April 2020 and is due to be completed in September 2021.
The applicant stated that her father, mother and brother reside in India.
The applicant stated that her assets in India comprise a “car”. However she stated that the location of the asset was “Devonport”. This rather suggests that she misread the question and has no assets in India.
As to her future employment plans the applicant stated “as stated above my plan is to go back to India. My knowledge of information technology and business study will have a impact in my future plans”.
As to her expected future remuneration she stated “my intent is to expand and grow the family business in my home town and the remuneration will be a year according to my ability to do the needful”.
The Tribunal proceeded to ask the applicant some questions arising from the responses paraphrased above. The questions and the answers, in summary were as follows.
The applicant confirmed that she had been enrolled in but did not complete a Bachelor of Information Technology in India. When asked when she had ceased studying that course she said “14 November 2018”.
The applicant arrived in Australia as the holder of a tourist visa on 14 November 2018. She confirmed that the visa was valid for the purposes of an entry for a period of three months. She confirmed that the visa expired, for the purposes of that entry, on approximately 14 February 2019. When asked as to the purpose of the visit she said “I heard a lot about Australian Christmas, I wanted to come here to celebrate Christmas, my mother’s brother lives here, I came here to see my uncle”.
When asked as to the intended duration of the visit she said “two or two and half months”.
The applicant confirmed that she had applied for the student visa in question on 30 January 2019. When asked when she had applied to enrol in courses of study she stated “I applied for two courses, Advanced Diploma of IT and Diploma of IT”. When the question was repeated she said “not sure, end of December or early January”.
When asked what made the applicant change her mind as to the purpose of visiting Australia she replied “my aim was not to stop here, I came here as tourist, I did research before coming here to USA and Canada also, I did research to what was the requirements, then I got a golden chance to come to Australia, after doing research about Canada, I found in Australia, I consulted education consultant also, I found a lot of confidence in the children here in the way they speak which I was lacking, in India children don’t have much confidence to talk, that I wanted to take some education after coming here I realised Australia government looks after international students and I was given a very warm welcome to them, then I thought of starting my education career here, my uncle also lives here, my parents did not want me to go to Canada”.
The applicant confirmed that she had been enrolled in but did not commence an Advanced Diploma of Information Technology course. She referred to a letter from the course provider. The applicant had provided a letter from the course provider dated 5 May 2020. It does state that the course was cancelled due to inadequate student numbers.
The applicant confirmed that she has not been employed while being in Australia.
When asked whether she had relatives living in Australia she said “My mother’s brother, his wife and their daughter”.
The applicant was invited to explain the change in direction of her study from information technology to a vocational course in business. She replied “because I was doing in IT, I started looking at I father who had a small business, and I will be studying IT course in India so I would help my father’s business, I started IT course in Australia, then the college cancelled IT course, after consulting the education consultant, Advanced Diploma of Business will be of equal value to help my father, I want to help my father’s business to grow, with education I have gained, the course in IT and Advanced Diploma of Business will help me take my father’s business to the next level, these skills will help me to take my father’s business to upper level, even if I don’t help my father, it can help me in those sectors in software and hardware, I will be able to get a better job”.
When invited to add anything further to her evidence the applicant said “before also I have written again, there is another one, I submitted on 30 October”. When asked to explain this response she said “30 January 2019, SOP”. When asked to explain what documents she was referring to she replied “SOP, 30 January 2019, I signed”. This apparently was a reference to a document previously provided to the Department although curiously the applicant was unable to articulate that. The Tribunal informed the applicant that it had located the document within the Department file and asked the applicant whether she intended to rely upon it. She said “yes you should look at that document”. She added “I have submitted old and new documents, you can differentiate them yourself, I have improved this new SOP now, I am aware of my student visa conditions, I am aware of the health requirements, and study continue, I should be given a chance to complete my studies, after completing study I will go back to India, I am a lawful student, I have a golden chance to complete my study in Australia, already the course I am doing there are eight units, I have already completed, and the fourth unit I start next week, give me a chance to build up my future”.
Prior to the hearing the applicant provided a variety of documents to the Tribunal. The applicant did not refer to any of these documents during the course of giving evidence at the hearing except as stated above. Nonetheless they have been taken into account by the Tribunal to the extent relevant and given appropriate weight. The Tribunal makes a number of observations in relation to those documents. The applicant provided an academic transcript and a certificate confirming that she completed a Diploma of Information Technology (Networking) on 5 April 2020. An affidavit from the applicant’s grandfather dated 8 January which, amongst other things contains an assurance that the applicant will “return back to their home within the timeframe of visa”. A statement from a relative attesting that the other person will do something in the future is of little probative value. It is given little weight. A letter from the course provider dated 5 May 2020 stating that the applicant’s enrolment in an Advanced Diploma of Information Technology was cancelled due to insufficient student numbers.
Prior to the hearing the applicant provided several statements in support of her application for review.
The first statement is titled “statement of purpose”. It is dated 30 January 2019, and without page numbers or paragraph numbers. The statement was not otherwise referred to by the applicant during the course of giving evidence at the hearing. Nonetheless it has been taken into account by the Tribunal to the extent relevant and given appropriate weight. The Tribunal makes a number of observations in relation to the statement. It is generally laudatory of Australia and of Tasmania in particular. As to the applicant’s decision to study an Advanced Diploma of Information Technology she stated: “companies in India are spending up on skilling their employees and I know if I have this international recognised qualification I will have an advantage over my peers and companies always look for something new and different while hiring people”. The applicant does not otherwise explain the relevance of the course to a future career path other than to add “this qualification from Australia will be a golden and valuable asset for me lifetime”.
The second statement is also titled “statement of purpose”. It is undated, and without page numbers or paragraph numbers. At the hearing the applicant was asked by the Tribunal whether she intended adding to or varying this document. She said “no”. The statement was not otherwise referred to by the applicant during the course of giving evidence at the hearing. Nonetheless it has been taken into account by the Tribunal to the extent relevant and given appropriate weight. The Tribunal makes a number of observations in relation to the statement. It is generally laudatory of Australia and of its education system. As to the applicant’s decision to enrol in the business course she’s stated that her initial enrolment in the Advanced Diploma of Information Technology was cancelled due to “smaller number of students”. She changed to study in an Advanced Diploma of Business “because I believe the skills and knowledge that I will gain from this course will make capable to support my father in his business and take his business to next level of success”. As to the nature of her father’s business she stated that he, together with her grandfather, “run a small business of printing visiting cards, stickers, screen printing, letterheads and more”. The particular relevance of either information technology or the study of business to this business is explained by the applicant as being able to contribute to “make apps and design new kinds of graphics”… “Create visual content”… “Explain my father importance of human resources and how to manage them. I will also be able to prepare a marketing plan for his current business… I will be able to digitise most of the work”. The size of her father’s business including turnover, number of employees and the need for technological assistance were not explained by the applicant in any detail.
Without diminishing the applicant’s evidence it can be summarised as follows. The applicant commenced but did not complete a BSC IT in India. She arrived in Australia on 14 November 2018 as a tourist. She intended to visit her uncle and experience an Australian Christmas. She applied for the student visa on 30 January 2019. Apparently she had applied to be enrolled in courses of study at the end of December 2018 or in early January 2019. She has not returned to India. She completed a Diploma of IT (Networking) in April 2020. She was enrolled in an Advanced Diploma of IT but did not commence it. This course was cancelled by the course provider due to insufficient student numbers. Instead she enrolled in and is currently studying an Advanced Diploma of Business. This course is due to be completed in September 2021. The applicant’s father, mother and brother reside in India. Her uncle and aunt reside in Australia, in Tasmania. She has no assets in India. In her statement dated 30 January 2019 she stated she intended to study the Advanced Diploma of Information Technology for career reasons. In her second undated statement she stated that she intended to study the Advanced Diploma of Business because the Advanced Diploma of Information Technology had been cancelled. Her articulated reason for completing the Advanced Diploma of Business was to assist her father in his small printing business. She did not explain the size or complexity of the business or the particular need for her skills. She has not explained to the Tribunal’s satisfaction why her existing qualification is insufficient for her vague career path, why she has regressed to vocational level courses in Australia having commenced a bachelor level course in India, the need for a vocational qualification in business to assist her father’s business, any detail as to her future career path or her expected future remuneration.
In considering whether the applicant has met the genuine temporary entry criterion, the Tribunal had regard to the following factors consistent with cl.500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether she has satisfied the genuine temporary entrant criterion.
The Tribunal has considered the applicant’s circumstances in her home country. The applicant is unmarried and is from India. The applicant has provided evidence of social, direct family and financial ties to her home country or other economic incentives to return. The Tribunal finds that she has been able to demonstrate ties to act as an incentive to return to her home country at the completion of the actual or proposed study. Whilst the Tribunal accepts that the applicant may have family ties to India, having regard to the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to India.
The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 14 November 2018 as a holder of a tourist visa valid to 14 February 2019. The proposed study would extend the applicant’s stay until at least September 2021. The Tribunal considers that the length of the proposed stay suggests that the applicant is studying for the purposes of staying in Australia. Whilst plans can change, in the Tribunal’s view this is not the conduct of a genuine temporary student. On balance it is consistent with the applicant having decided to extend her stay in Australia by utilising the student visa programme.

The Tribunal places little weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. There are several reasons for this. In her first statement dated 30 January 2019 the applicant extols the virtues of and relevance of a Diploma of Information Technology and an Advanced Diploma of Information Technology. These courses are asserted to have relevance to vague career plans. However it is clear from her second undated statement that, when the Advanced Diploma of IT was cancelled, she chose to enrol in an Advanced Diploma of Business. This demonstrates a degree of flexibility on the part of the applicant and which only arose because her course of choice was cancelled. Changing from a course in information technology to a course in business is suggestive of a person who is not intent on pursuing a particular field of study but rather a person who is intent on staying in Australia. Next the relevance of the course in business is asserted to be in order to assist her father’s printing business. The particular need of the business for the applicant’s skills is not explained in any detail. Lastly the applicant is vague as to her general career path by reference to the Advanced Diploma of Business.
On balance, the Tribunal is not satisfied that the applicant has established that study will provide her with significant benefits in her proposed career plan, considering the cost of the study and the fact that the applicant already has qualifications in information technology obtained in Australia. Accordingly, the Tribunal is not satisfied that the proposed additional study has a reasonable prospect of providing significant value to her career beyond the existing qualifications.
The Tribunal turns to consider whether there are any other relevant matters. The Tribunal finds that there are no other relevant matters to consider that may be beneficial or adverse to the applicant, and that this aspect is not relevant.
The Tribunal has considered the applicant’s economic circumstances in her home country relative to her potential circumstances in Australia. Having regard to the disparity in economic circumstances between India and Australia, the Tribunal is not satisfied that the applicant has significant incentive to return to India. The applicant has been unable to demonstrate substantial ties or personal assets in her home country which diminishes her incentive to return to India.
The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from her proposed study which will outweigh the significant time and monetary commitment this course will require. Accordingly the Tribunal is not satisfied that the applicant has demonstrated the value of her proposed course to her future.
The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 14 November 2018 the applicant has spent nearly 2 years in Australia and has not returned to India, which indicates that she does not appear to have strong personal ties to India. On balance, the Tribunal assesses the applicant’s incentive to return to India to be poor.
The Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. On balance it appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study.
The Tribunal has considered all information provided by the applicant in support of her application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in her home country, potential circumstances in Australia, the value of the proposed course to her future, her immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.
On the contrary, the evidence suggests that the applicant has enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study. The Tribunal considers that the applicant is using the student visa programme as a means of maintaining ongoing residence in Australia, and does not have a genuine intention to stay in Australia temporarily.
There is no evidence before the Tribunal regarding the following factors indicated by Direction No.69: economic circumstances of the applicant; any potential military service in India; political or civil unrest circumstances in India; remuneration the applicant could expect to receive in India or a third country compared with Australia; circumstances in India relative to Australia or any other country; and the applicant’s circumstances in India relative to others in that country.
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 Booth
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 6167

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Intention