WEN (Migration)

WEN (Migration) [2020] AATA 6206 (2 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr DA WEN
CASE NUMBER:  1828805
HOME AFFAIRS REFERENCE(S):          BCC2018/2721361
MEMBER:Mark Bishop
DATE:2 July 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 02 July 2020 at 3:14pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – lack of academic progress – multiple enrolments in short courses in related subjects but no proof of completion of any vocational course – limited response to tribunal’s request for information – consent to decision without hearing – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 September 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 20 July 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 applicant provided a copy of the decision record, dated 26 November 2018 to the Tribunal.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The applicant consented in writing to the Tribunal determining the review application without a hearing. The Tribunal resolved the review application on the papers.
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 GTE.
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.
Meaning of ‘Genuine Applicant’
As has been often noted elsewhere in many Tribunal decisions while not defined in the Regulations, the word ‘genuine’ may be taken to mean ‘authentic, ‘real’ or ‘true’, according to its ordinary and natural meaning. The Regulations also specify two constituent elements of a genuine student visa applicant.
First, an applicant is regarded as a genuine applicant because he or she ‘intends genuinely to stay in Australia temporarily.’ The applicant must demonstrate an intention to stay in Australia for a limited time only – not permanently. That intention must be unqualified. This requirement reflects the temporary nature of being a student. A person chooses to study to meet a passing need to obtain specific skills and formal qualifications that will, in turn, place them in a better position with respect to future employment opportunities. Once they have had a reasonable amount of time to complete their studies, it is expected that the visa holder will immediately depart Australia.
The Tribunal acknowledges that this expectation is not without qualification. A student visa holder’s circumstances may change while studying in Australia. They may genuinely wish to extend their stay so they can undertake further study, such that there is a need for a further student visa application to be made. Alternatively, as a result of a personal relationship entered into with a permanent resident or Australian citizen, or an employer sponsorship, or for some other reason, they may wish to extend their stay in Australia by other legitimate means. And so, the student visa holder may become eligible to apply for another kind of visa before their student visa expires. However, in the absence of such circumstances arising, the general expectation remains. A student visa is granted anticipating that the visa holder will eventually cease being a student, return to their home country, and enter the workforce to put their newly acquired skills to economically productive use.
Secondly, a genuine applicant is one who ‘intends to comply with any conditions to which the visa may be subject.’ There are several conditions that attach to student visas. The most important of these conditions oblige the visa holder to remain enrolled in a registered course of study, to make satisfactory course progress in their studies, and to attend classes.
Furthermore, if the visa holder changes their enrolment, they must avoid ‘downgrading’ to a course that will lead to a qualification of a level that is lower than that of the proposed qualification that resulted in the grant of the visa. These conditions reflect the very essence of being a student.
A genuine applicant must demonstrate both an intention to study and an intention to complete a course that is as challenging as the visa grant contemplates.
The Tribunal has carefully considered the delegate’s decision record dated 26 November 2018, a copy of which was provided to the Tribunal by the review applicant with the application for review.
The applicant provided a copy of a brief GTE Statement to the Department that outlined the following:
·Since coming to Australia he has completed an English language program;
·He has enrolled in numerous courses of study (Business, Marketing, Marketing and Communication, Business, Leadership and Management;
·Because of his various study experiences his career goal is now to start a small business. He has registered a company. He now wishes to study an Advanced Diploma of Leadership and Management;
·He chose Australia to experience the cultural differences between Australia and China. The education system in Australia is more students focused. He wishes to continue studying in Australia;
·His chosen education provider has a fine reputation;
·He plans to open a new café in his home town
The applicant provided a second GTE Statement to the Department that outlined the following:
·He addressed population densities in Australia, Sydney is an extraordinary place to live, it has excellent infrastructure. Australia is far from war and disease;
·Studying Leadership and Management will enhance his skills. He is interested in business;
·His chosen education provider has built a fine reputation. It is recognised for teaching excellence. It has internships and a work placement programs;
·At the completion of his studies he will return to his hometown.
The applicant did not provided any proof of completion of any course to the Department. The applicant did not provide any Certificates of Graduation or Statements of Attainment to the Department.
The applicant did not provided any proof of completion of any course to the Tribunal. The applicant did not provide any Certificates of Graduation or Statements of Attainment to the Tribunal.
The applicant provided a copy of a current COE. This COE was in an Advanced Diploma of IT. This course concludes on 26 November 2021.
The applicant in his written response to a s.359(2) Request for Information failed to advise of the completion of any course of study in Australia (despite multiple enrolments in courses relating to Business, Marketing, Marketing and Communication, Business, Leadership and Management.
The applicant has been continuously resident in Australia since his arrival on 18 June 2014 as the holder of multiple temporary visas.
The applicant was born on 20 May 1990. He is currently 30 years of age.
The applicant provided a copy of a written response to a s.359(2) Request for Information as follows:
·He consented to the Tribunal deciding the review without a hearing;
·He completed technical secondary school in June 2009. He did not advise of any further education in his home country;
·He declined to advise of any work experience in his home country;
·He declined to advise of travel to other countries;
·He has not been refused a visa to any other country
·He declined to provide any advice as to enrolment in courses of study or completion of any courses of study prior to August 2018. He advised he did not complete a Diploma in Leadership and Management in 2019
·He advised he was interested in IT;
·He enjoys the teaching system in Australia. The tuition fee is reasonable;
·He declined to provide any information about work in Australia;
·His annual living expenses are $30,000;
·He last saw his parents in April 2020;
·He declined to provide any information about community ties in China or Australia;
·He declined to provide any information about assets;
·He advised his employment plans were to “work in one of the famous IT company in China”;
·He advised he expected to earn about 10K RMB per month;
·He does not have any concerns about military service commitments or political or civil unrest in his home country;
The Tribunal has considered all the information on the Departmental and Tribunal files. The Tribunal has reviewed the delegate’s decision. The Tribunal has considered the various GTE Statements made to the Department and the Tribunal. The Tribunal has considered the s.359(2) response to a Request for Information. The Tribunal has considered the appellant’s academic history, employment record and enrolment documentation.
Applicant’s circumstances in his home country
The delegate summarised the applicant’s circumstances in his home country as follows:
·“The applicant has resided in Australia since 18 June 2014.
·The applicant has stated in their initial GTE statement they will return to their country, they love their country and their family, they are grateful for their parents’ support, and their goal is to start a company in China.
·On 13 August 2018, the applicant was asked to provide further details about the company they plan to start in China, and evidence of their ties to, and economic circumstances in, their home country. On 7 September 2018, the applicant advised of their intention to open a café in their hometown Shijiazhuang, however provided no evidence to support their claims, or to indicate their incentives to return.
·On the basis of the evidence provided, the applicant has not demonstrated their ties to China that would incentivise them to return at the end of their stay. Given that the applicant has not provided evidence in this regard despite being asked to do so, and the fact that the applicant has spent more than four years onshore without departure or academic progress, I find that the applicant has more incentive to prolong their stay in Australia than return to China”
He did not advise of any community ties in China.
He has not advised of any assets or business interests in his home country in his name. He has not outline title to property in his name in his home country.
He has resided in Australia for six years and has annual expenses of $30,000. He did not advise of working in Australia or receiving remittances in any form from China. He did not advise of title to any assets in Australia.
The applicant’s ties to his home country appear to be minimal and the Tribunal is of the view those circumstances do not serve as a significant incentive to return to the home country.
The applicant has lived in Australia for six years. He advised his annual expenses were approximately $30,000 and did not provide advice as to employment in Australia. There was minimal information as to circumstances in the home country.
The Tribunal is of the view the economic circumstances of the applicant present as a significant incentive for the applicant not to return to the home country.
The applicant advised he “does not have any concerns about military service commitments or political or civil unrest in his home country”. The Tribunal does not make an adverse finding concerning cl.9(d) or (e) of MD69.
There was minimal information concerning the applicant’s circumstances in the home county relative to the circumstances of others in that country. The Tribunal does not make an adverse finding concerning cl.10 of MD69.
Applicant’s potential circumstances in Australia
The delegate summarised the applicant’s circumstances in Australia as follows:
·“The applicant has resided in Australia since 18 June 2014.
·The applicant has not departed Australia on a single occasion since their arrival more than four years ago.
·The applicant has started a business, Dreams Angela Pty Ltd, in Australia. Throughout the applicant’s time in Australia they have held 26 previous and current COEs, however records indicate they have completed only 4 low value English courses.
·On 13 August 2018, the applicant was asked to comment on their lack of academic progress, and provide evidence to support any claims that may choose to make in this regard. On 7 September 2018, the applicant advised they had “…had a bumpy road when finding what major is what I am really interest in and what major is good for my career and my future.” The applicant further advised they had switched their major from Business to Marketing, and “…with my amazing study experience, I have developed my career goal and it is getting clearer and clearer every day: I want to start a small business.” The applicant did not elaborate on their multiple cancelled COEs or lack of academic progress otherwise, nor did they provide any evidence to support their claims.
·On the basis of the evidence provided, I do not find that the applicant’s primary reason for residing in Australia is to undertake study. Given that the applicant has not left Australia since their first arrival more than four years ago, has started a business in Australia, has not progressed in their studies in any meaningful way, and has not provided comment on their lack of progress despite being asked to do so, I find that the applicant is using the Student visa program as a meanings of maintaining de facto residence in Australia”
The applicant has lived in Australia for six years. He wishes to remain for a significant further additional period of time. He advised his annual expenses were approximately $30,000 and failed to provide any detail as to his income or source of such income.
As outlined above the applicant has shifted from course to course. He advised he enrolled in many courses of study. He did not provide any advice to the Department or Tribunal of completion of any of these courses post his early studies in English. His statement of expenses as provided in his response to a s.359(2) Request for Information did not make any reference to outlays for tuition fees.
In response to a question concerning his community ties in Australia the applicant provided a zero response. The Tribunal finds this non-response difficult to accept. The applicant has lived in Australia for six years and (he advises) he has been (mostly) enrolled in study for lengthy periods. Study, even if accompanied by minimal attendance involves a degree of interaction within a community. The applicant did not provide any detail as to having left Australia since his arrival in mid-2014.The Tribunal is of the view the life of the applicant during his entire period of residency in Australia has necessarily required engagement with the student and educational community on an ongoing basis.
The singular continuing feature of the applicant’s life in Australia is continuing residence in Australia. The Tribunal is unable to discern any consistency in study, work or enterprise. He does not return home. He does not return home to put in practice the theoretical skills or knowledge he might have gained in Australia. He does not return home to be with his parents (if they should reside in China).
He chooses to remain in Australia and engage in continuing study in the VET system over time. The Tribunal has considered cl.12(a) of MD69 as to reasonable changes to career or study pathways. The Tribunal commenced his period of residency in Australia in English and has progressively enrolled in different courses of study related to business or aspects of business. There is no evidence the applicant has completed any of those business related courses. It appears to the Tribunal the applicant has been on a pathway of residence and the route of academic study has been the vehicle of choice.
The Tribunal is satisfied the applicant’s ties with Australia do present as a strong incentive to remain in Australia. The Tribunal is satisfied the applicant is using the student visa program to circumvent the intentions of the migration program.
The Tribunal is of the view the applicant has provided only the most basic and limited information about his chosen education provider, course content, course detail, educational objectives and possible future remuneration. He provided only the most general comment as to his educational purpose.
There is insufficient information before the tribunal as to cl.11(c) (d) and (e) of MD69 for the Tribunal to reach a view. The Tribunal does not make any adverse findings concerning cl.11(c) (d) and (e) of MD69.
Value of the Course

The delegate summarised the value of the course as follows
·“The applicant is enrolled to undertake a Diploma, and Advanced Diploma, of Leadership and Management – VET courses, comparatively of lower value than the Bachelor of Commerce course the applicant was initially granted a visa to undertake on 10 June 2014.
·The applicant has stated their intention is to operate a small business in China, and that leadership and management skills – “…learning how to manager employees and how to run the business smoothly and properly”- are essential in this regard.
·The applicant has held 26 previous and current COEs, however records indicate they have only completed 4 low value English courses.
·On 13 August 2018, the applicant was asked to provide evidence of all studies inside and outside Australia. The applicant provided a Graduation Certificate from Shijiazhuang Zhenhua Polytechnic School for an Application of Electronic Technique only.
·The applicant obtained COEs for these two courses on 20 July 2018 – the same day their previous Student visa was due to expire.
·On 13 August 2018, it was put to the applicant that obtaining enrolments and lodging a Student visa application on the same day their current visa was due to expire suggests a pattern of enrolling in courses they have no intention of completing in order to stay in Australia. The applicant did not provide comment on this finding.
·I acknowledge that the courses the applicant is seeking a Student visa to undertake may have some relevance to the applicant’s stated career goals. Given however that the applicant has a poor academic record in Australia, has not provided comment in this regard despite being asked to do so, and sought enrolment in future study only on the day their previous Student visa was due to expire, I ascribe no weight to the applicant’s claims that these courses are essential or relevant to the applicant’s future.
·On the basis of the evidence provided, I find that the applicant is using the Student visa program as a means of maintaining de facto residence in Australia rather than due to a genuine interest in study and academic progress”
The applicant is studying or proposes to continue study an Advanced Diploma in IT. The applicant does not hold any VET level qualifications earned from study in Australia as he has not completed any course of study in the VET system in Australia. He has studied in many fields of Communication, Marketing, IT, Business and Management in Australia. He has achieved little and gained no qualifications despite repeated high praise for the Australian education system. There is no evidence he is qualified or experienced in any field of work despite some six years in the education system in Australia.
The applicant is studying or proposes to continue study an Advanced Diploma of IT He only provided the most cursory comment as to his reasons for choosing this change in his education pathway. He did not advise of any IT links or connections in his home country. He did not advise of any ancillary employment in this industry in Australia that would be normal for a person seeking to gain additional skills. He did not provide any detail that supports his assertion of a possible wage in his home country of10K RMB per month. He did not refer to any market rates surveys that outline this figure. He did not advise of any discussions or negotiation with employer groups, trade associations, industry bodies or companies that might provide advice as to employment options or possible remuneration in this field in his home country.
The Tribunal does not accept there is much value in terms of the relevance of the Advanced Diploma study to the applicant’s past or proposed future employment in either his home country or a third country.
There is little evidenced before the Tribunal as to the utility of the proposed Advanced Diploma to employers in the applicant’s home country or elsewhere.
The Tribunal is of the view the applicant is undertaking a course that is consistent with his current level of education. The Tribunal is unable to see how this course will assist the applicant to obtain employment or improve employment prospects in his home country.
Immigration history
The delegate summarised the applicant’s immigration history as follows:
·“The applicant has resided in Australia since 18 June 2014.
·The applicant has not departed Australia on a single occasion since their arrival more than four years ago.
·The applicant was granted a Student visa to complete a Bachelor of Commerce, an English for Academic Purposes course, and an English Language (Programs)
·(Elementary to Advanced) course. The primary course the applicant was seeking to undertake – the Bachelor of Commerce – was never commenced.
·The applicant has held 26 previous and current COEs, however records indicate they have only completed 4 low value English courses.
·On the basis of the evidence provided, I find that the applicant is attempting to obtain a Student visa as a means of maintaining de facto residency in Australia, and therefore is incapable of meeting the GTE criterion”
The Tribunal notes the applicant now wishes to remain in Australia until at least November 2021 bringing his stay as a genuine temporary entrant to almost 8 years as the holder of successive temporary visas.
The Tribunal notes that based upon the applicant’s submissions to the Department and the Tribunal the outline in paragraph 52 above is arguably the correct narrative of the applicant’s period of residence in Australia. The Tribunal does not have any material before that contradicts this finding of the delegate.
The Tribunal has considered the applicant’s brief, cursory and in large part non-response to the s.359(2) Request for Information as summarised in paragraph 26 above. The most notable feature of the response was a repeated and continuing decline on the part of the applicant to provide information to the Tribunal despite the review application having been lodged by the applicant. The applicant has not challenged the findings of the delegate in any way. He has not suggested the findings of the delegate are incorrect or flawed in any way. The Tribunal gives weight to the findings of the delegate as outlined in paragraph 52 above.
When considering all of the above the Tribunal is not persuaded the applicant will return to his home country at the expiry of his visa.
The applicant has been onshore for a lengthy period of time. He has repeatedly enrolled in courses in the VET sector. These courses are low cost and of short duration. The Tribunal finds the applicant has undertaken a series of short, inexpensive courses (albeit the same course). The Tribunal is of the view the applicant has been onshore for some time without successfully completing a qualification.
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).
Conclusion on cl.500.212
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.
Mark Bishop
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 6206

2 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Intention