Vishawdeep Singh (Migration)

Vishawdeep Singh (Migration) [2021] AATA 3949 (9 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Vishawdeep Singh
CASE NUMBER:  2016012
HOME AFFAIRS REFERENCE(S):          BCC2018/761088
MEMBER:Wendy Banfield
DATE:9 October 2021
PLACE OF DECISION:  Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 09 October 2021 at 6:56pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Circuit Court remittal – genuine temporary entrant – long stay with only one return to home country – study and work history – multiple changes of subject area and enrolment in diploma after completing masters – generalised and inconsistent plans for career in home country – work experience in Australia not in sector of planned career – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), 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 19 March 2018 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 15 February 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 (Cth) (the Regulations). It was determined the applicant did not demonstrate he is a genuine applicant for entry and stay as a student.
The matter is before the Tribunal because it was remitted by consent from the Federal Circuit Court.
The applicant appeared before the Tribunal on 16 June 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
Prior to the hearing the applicant submitted the following evidence:
·     Applicant’s statutory declaration dated 9 June 2021
·     Applicant’s statutory declaration dated 23 June 2021
·     Letters of completion, certificates, and transcripts for the applicant’s previous studies in Australia
·     Confirmation of Enrolment certificates (COE) for the applicant’s current and previous studies in Australia
·     Offer of Admission letter from Kaplan Business School for an MBA dated 9 April 2021 including “Estimated scholarship/discount amount applied”.
·     Subject outlines for the applicant’s current course of study
·     Release letter from Holmesglen dated 7 December 2010 confirming applicant’s release from a Bachelor of Business
·     Wedding party booking dated 1 June 2021 in relation to the marriage of Harvinder Singh on 20 November 2022
·     Evidence of the applicant’s family’s business, assets and income in India
·     Applicant’s Boost Mobile call history for the period 01 January 2019 to 07 June 2021
·     Applicant’s interim results for an MBA from Kaplan Business School dated 13 July 2021
The Tribunal also considered the information provided to the Department of Home Affairs (the Department) at the time of application: Application for a Student Visa form; overseas student health cover; passport information; genuine temporary entrant statement.
The applicant provided evidence to the Tribunal at the time of submitting the application for review which has been considered. Those submissions included: Department’s decision record dated 19 March 2018; COE, Certificate and transcript for an Advanced Diploma of Business, COE for a Graduate Diploma of Management; evidence of the applicant’s previous study in Australia; Request for Student Information form; air travel receipt dated 23 May 2018; post decision email to the Tribunal dated 25 March 2020; copy of the applicant’s agent’s email dated 4 December 2019.
The hearing
The applicant confirmed he first came to Australia in 2008 and enrolled to study English followed by a Certificate III in Hairdressing. According to the applicant he completed a general arts degree and had been working in his father’s business in India. The applicant went on to complete a Graduate Certificate and Master of Professional Accounting in Australia and was then granted a Subclass 485 Temporary Graduate visa. The applicant claimed he had tried to get a job as an accountant but because he did not have business studies, no one would hire him. The applicant was asked about applying for entry level accounting jobs, but he said he needed to have business studies. The applicant also claimed employers want full-time accountants. However, the applicant conceded he would have been able when he held a temporary graduate visa.
The applicant advised his work history in Australia has been as an “assistant helper” which included assisting the manager of a business. When asked to clarify he said he was helping the manager in a car cleaning company as well as being a worker. He said he is currently employed as a hairdresser for 20 hours per week. He said he does not have business or accounting experience. The applicant claimed he had enrolled in an MBA because he needed business skills as well as accounting. He said he hopes to finish studying “very soon” and plans to return to India in 2022. The applicant indicated he wants to find employment as a business development manager in India. According to his evidence, the applicant said since he will not be a chartered accountant in India, he decided to study an MBA. He said that was the reason he had also studied a Diploma and Advanced Diploma of Business.
In accordance with section 359AA of the Migration Act, the Tribunal put to the applicant, particulars of information that it considers would be the reason, or a part of the reason, for affirming the decision under review. The applicant was advised the information is relevant to the review because, subject to his comment or response, it appeared he did not meet a requirement for the grant of a student visa. The information put to him was particulars in the Department’s reasons for decision and the Provider Registration and International Student Management System (PRISMS) records. It was put to the applicant that PRISMS indicated he has studied a large number of courses including up to master’s level but then regressed to lower level courses. The applicant was told that if the Tribunal relies on the information it may lead to the decision under review being affirmed. He was invited to comment on or respond to the information and advised that he may seek additional time in which case the Tribunal may adjourn the hearing or allow time after the hearing to provide a response.
The applicant was advised that according to the records, he had first studied English then certificate and diploma courses in hairdressing, a Diploma of Management, a Graduate Certificate and a Master of Accounting. The applicant confirmed this was correct, he also agreed he completed a Diploma and Advanced Diploma of Business. He claimed that during every interview for work he was asked about business studies which is why he undertook diploma courses in business. The applicant pointed out there had been no gap between his Diploma and Advanced Diploma of Business. The applicant then confirmed he enrolled in a Graduate Certificate of Management and is now taking an MBA. The Tribunal advised the applicant it was accepted he may have wished to change study course from hairdressing to accounting but noted he has also changed from accounting to an MBA and claims he will pursue a management role. The applicant said the reason he applied for a Subclass 485 visa was because he wanted to gain experience but he was unsuccessful.
The Tribunal put to the applicant that many people with accounting qualifications can gain employment without also studying business. The applicant repeated that he had enrolled in business because he was told he did not have business studies. The Tribunal suggested to the applicant that it appeared he really needed work experience rather than further study. It was also put to him that he has been out of the professional workforce because he has been a student for so long. The applicant then set out what units he has completed in his MBA and claimed he has finished a large part of the course.
The Tribunal asked the applicant to comment on the fact that he has been out of the full-time workforce in India for a long time and he agreed that was the case. The Tribunal also noted that according to his evidence, the applicant does not have relevant business or accounting experience. The applicant referred to his past when he helped in his father’s business. The applicant said he wants to return to India next year because his brother is planning a wedding. The Tribunal then asked the applicant about the Department’s decision record, specifically about the fact that at the time of decision, he had not returned to India since his arrival in 2008. He agreed this was the case but said in 2018 he had a break and returned then. The applicant claimed he had been focussed on study while working part-time. He said he did not want to burden his parents with money for travel but instead he calls them all the time.
The applicant insisted he wants to return to India after completing the MBA and is confident he will find a job. The applicant said the MBA will be the most useful because it is a master’s degree. The Tribunal asked the applicant about the value of continuing to pay for study in Australia and why he completed other courses when he now claims an MBA will help him find a job. The applicant continued to say he will return to India once he finishes the MBA and will get a job. He was asked about his age and the fact that he will be competing in the workforce in India against younger graduates with work experience. The applicant claimed, “there is no practical experience for students in India” and overseas graduates have an advantage.
The applicant advised he has no family in Australia while in India he has his parents, one brother, his grandmother and aunts and uncles. Regarding an incentive to return, the applicant said he cannot get another Subclass 485 visa and because he does not have relevant work experience, he needs to return to India to attend his brother’s wedding and apply for a job. He said he does not want “a long gap” between finishing the MBA and getting a job. The applicant said he is waiting for his first trimester transcript, but the Tribunal advised it was not a requirement that he submit it as his enrolment is accepted. He claimed he has completed fifty percent of the course. The applicant added the Tribunal can check his phone call history which demonstrates he is very connected to his parents. The Tribunal confirmed it had received his call log and the applicant commented that there was some error with the phone numbers listed.
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 applicant for entry and stay as a student, as required for the grant of a student visa.
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 considered the applicant’s circumstances in his home country. According to the evidence provided the applicant’s immediate family in India are his parents and a brother. He declared he also has a grandmother and extended relatives. The applicant himself is unmarried with no dependents. In his statutory declaration dated 9 June 2021 and in oral evidence the applicant claimed he is close to his parents and contacts them daily. He submitted he did not return to India for nine years after his arrival in Australia because he was busy with his studies; his parents were spending their money on his education and he did not want to ask them for funds to travel to India. In his written and oral evidence, the applicant claimed he wants to return to India next year for his brother’s wedding. A document stating a booking has been made on 20 November 2022 for a wedding party was submitted in evidence. The applicant also provided evidence of his family’s business, assets and income in India. Having reviewed the evidence, the Tribunal acknowledges the applicant may have a close relationship with his family and remains in regular contact. It is also accepted the applicant’s family have business interests and assets in India. However, the applicant has lived independently in Australia for 13 years as of the date of this decision returning to his home country only once, from 3 to 16 June 2018. In addition, the applicant has been employed and supported financially which has allowed him to continue to study for an extended period of time in Australia. While it is accepted the applicant has ongoing personal ties to India and his family have economic interests, the Tribunal is not satisfied those circumstances would serve as a significant incentive to return to his home country.
In assessing the applicant’s potential circumstances in Australia, the Tribunal is required to consider his connections with Australia, including family and community ties, which would present as a strong incentive to remain in Australia. The applicant declared he has no family members living in Australia and claimed to have no ties. He advised he lives in shared accommodation but is planning to return to India and live with his parents. The applicant stated in his statutory declaration of 9 June 2021 that he is not intending to pursue permanent residency, apply for Subclass 485 temporary graduate visa or a Subclass 482 work visa or undertake any further study in Australia. The Tribunal places some weight on these claims in assessing whether the applicant is a genuine temporary entrant for study.
Regarding the value of the course to the applicant’s future; the Tribunal considered the evidence provided in writing to the Department and to the Tribunal. Prior to travelling to Australia for further study the applicant had completed a Bachelor of Art from Punjab University in 2004. The Tribunal notes the applicant also has an extensive study history in Australia including completion of the following courses:
·English language studies
·Certificate III in Hairdressing
·Certificate IV in Hairdressing
·Diploma of Hairdressing Salon Management
·Diploma of Management
·Graduate Certificate in Accounting
·Master of Accounting
·Diploma of Business
·Advanced Diploma of Business
At the time of decision in this case, the applicant is studying for an MBA which is due to be completed on 22 October 2022.
When he applied for the student visa which is the subject of this review, the applicant was studying a Diploma and Advanced Diploma of Business. He claimed he had been unable to obtain employment while holding a Subclass 485 Temporary Graduate visa and undertook business studies to enhance his qualifications. At the time the applicant stated: “After I complete my course in February 2020, I am planning to return to India to apply for managerial positions in top consultancy firms, such as PWC, Deloitte or Ernst & Young as the necessary knowledge and skills would have been acquired from my studies in Australia”.
At the time of applying for a review of the Department’s decision to refuse his visa, (decided by the Tribunal, differently constituted) the applicant was studying an Advanced Diploma of Business. He stated in written evidence to the Tribunal that he was planning to return to India to assist in his parents’ business.
In his statutory declaration of 9 June 2021, the applicant claims “I was hoping to grow my family business in Rebar used for building construction... I will be working towards the family business as payback to my parents for investing in my career.” He also claimed he would like to work “in top managerial positions in consultation firms such as Pricewaterhouse Coopers (PwC) and I will be pursuing jobs at Deloitte and Ernst and Young on my return to India”. The applicant stated he believes his resume will stand out because of the qualifications he has gained in Australia. He also set out the starting salary he will receive in a Business Development Manager position.
In a post-hearing statutory declaration dated 23 June 2021, the applicant responded to Tribunal questions that were put to him at the hearing regarding his study history and career plans. He advised he is planning to get a job after completing an MBA; he has been granted a scholarship to study the course; he was unable to secure a job in accounting due to a lack of business knowledge; feedback from prospective employers referenced a lack of knowledge about business; and he decided to start with lower level studies in business leading up to an MBA. The applicant also claimed he will gain work experience through his family business in India then start work at a lower level before applying for jobs as a “Manager, Assistant Accountant or Business Development Manager”.

In his statutory declaration the applicant reiterated he had not returned to India until 2018 because he was focussed on his studies. Regarding the length of time he has spent as a student, the applicant referred again to advice he claims he was given at interviews that were consistently about his shortcomings in business. He said the fact that he completed a master’s degree in 2016 but had been unable to get a job meant there was a long gap. In response to a question about his reasons for undertaking several other courses, the applicant claimed he was granted a student visa to complete a Bachelor of Accounting and Master of Professional Accounting. He said he then studied a Diploma and Advanced Diploma of Business as a foundation to an MBA. In reference to his current age and competition in the job market, the applicant stated his maturity will be an advantage because “I will be paid according to experience in India”.
In weighing the evidence provided by the applicant, the Tribunal found his career plans to be generalised and lacking consistency. The applicant has claimed that he plans to work for a major corporation in India in a management position on his return to India but also that he intends to expand his parent’s steel manufacturing business. In a post-hearing submission, the applicant changed his evidence claiming he will gain work experience in his family business before applying for entry level positions and then seek a management role. Based on the amount of time the applicant has spent studying in Australia up to master’s level, it would be expected that he would have more defined career plans. The Tribunal also notes the applicant advised the Department in his application for a student visa that he would return to India after completing and Advanced Diploma of Business. However, instead of doing so, the applicant enrolled in an MBA. In his written evidence he referred to having been granted a scholarship to take the course. The Tribunal accepts this is the case since the letter of offer from Kaplan Business school indicates he was given a scholarship/discount of $10,260.However, the estimated course fee is still $23,940 which the Tribunal considers to be an substantial sum, especially given the applicant has already completed a Master of Professional Accounting. Although the applicant claimed he was advised by employers that he lacked business skills, the Tribunal does not accept the applicant’s bare assertions that this was the reason he enrolled in three more courses of study, those being a Diploma and Advanced Diploma of Business and an MBA, requiring significant investment in time, cost and resources.
The Tribunal is not satisfied the applicant has demonstrated the value of continuing to study additional courses in business in Australia following the completion of a master’s degree. The applicant’s employment history in Australia is in the unrelated fields of hairdressing and cleaning. Although the applicant explained he sought employment in accounting while holding a Subclass 485 Temporary Graduate visa, he does not claim to have any relevant experience in accounting or business. The Tribunal considers that in the absence of relevant work experience, studying an MBA is unlikely to be of benefit to the applicant, over and above the qualifications he already holds.
The applicant’s immigration history refers to his visa and travel history. The applicant arrived in Australia on 8 August 2008 as the holder of a Subclass 573 Student visa. The applicant initially studied English followed by a Certificate III and IV in Hairdressing and a Diploma of Salon Management. He is currently enrolled to study an MBA until 22 October 2022. The applicant was granted student visas in Australia followed by a Subclass 485 Temporary Graduate visa. He then enrolled in further courses of study, first at a lower level then in a second master’s degree. Prior to his arrival in Australia, the applicant had already completed a Bachelor of Arts in his home country. As well as his bachelor’s degree from India, the applicant has completed Certificate, Diploma, Advanced Diploma and post-graduate qualification in Australia. When the applicant first arrived in Australia, he was 25 years old. He is now aged 38 and has been away from the full-time workforce in India for more than 13 years. In addition, the applicant does not have work experience in Australia that will assist him in pursuing a professional career in India. The Tribunal finds these issues weigh against the applicant in assessing whether he meets the genuine temporary entrant criteria.
The Tribunal has assessed the evidence individually and cumulatively. While there are some aspects of the applicant’s case that weigh somewhat in his favour such as his enrolment to study and the completion of courses, on balance the weight of evidence is against the applicant in assessing whether he is a genuine temporary entrant for study. The Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily and for this reason, 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.
Wendy Banfield
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.

[2021] AATA 3949

9 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice