Akepakinwijit (Migration)

Akepakinwijit (Migration) [2019] AATA 2261 (5 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Pasornmon Akepakinwijit
CASE NUMBER:  1720668
HOME AFFAIRS REFERENCE(S):           BCC2017/1012677
MEMBER:T. Quinn
DATE:5 May 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 05 May 2019 at 3:44pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant criterion not met– lack of academic progress–maintain ongoing residence –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 338, 347,359,499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212, 500.218
CASES
Baker v Minister for Immigration and Citizenship [2012] FCAFC 145
Chen v Minister for Immigration and Border Protection [2017] FCA 46
Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345
FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555
Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112
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 Immigration and Border Protection (‘the delegate’) on 17 August 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).
The applicant applied for the visa on 14 March 2017 (‘the application’). At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
On 17 August 2017, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that the applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.
On 5 September 2017, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.
More than 19 months have elapsed since the making of the delegate’s decision and the applicant’s application for review with the Tribunal. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed during that time. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information to the Tribunal for the purposes of determining the outcome of her application for review. To this end, on 7 February 2019, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting him to provide information in writing about the course(s) of study the applicant was undertaking and his entry and stay in Australia as a student (‘the s359(2) letter’). The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by the prescribed date, being 21 February 2019, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The Tribunal is satisfied that the applicant was properly sent an invitation to provide further information under section 359(2) of the Act.
The review applicant provided some information within the prescribed period and also sought an extension of time on 21 February 2019. On 22 February 2019, the Tribunal wrote to the applicant granting the extension of time to 1 March 2019. The review applicant provided the information within the prescribed extended time period and in that material elected to have the Tribunal decide the review without a hearing.
The Tribunal has proceeded to a decision having had regard to all the information before it, including the information previously provided by the applicant in relation to the visa and all the material filed with the Tribunal since the delegate’s decision which includes the additional information sought by this Tribunal under section 359(2) of the Act.
It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
STATUTORY FRAMEWORK
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant.
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 clause 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’ (‘the Direction’), made under section 499 of the Act. The Direction 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 Direction is a lawful direction of the Minister made in accordance with section 499 of the Act. The Tribunal is therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[1] Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before the Tribunal. The Tribunal, however, recognises that it is an independent statutory body. It must therefore reach its own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate.
[1]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant in this case is a 32 year old male Thai citizen who first arrived in Australia on 30 September 2013 as the holder of a previous Student (Class TU subclass 570) visa valid until 27 July 2014 (‘the first student visa’).[2] The applicant returned to his home country for three months in July 2014 due to his visa expiry.[3] The delegate’s decision outlines the applicant’s subsequent history being that he was granted a further Student (Class TU subclass 572) visa on 30 September 2014 which was valid until 15 March 2017 (‘the second student visa’). The day before the second student visa was due to expire, the applicant made the current visa application which is presently the subject of review (‘the third student visa’).
[2] See delegate’s decision.
[3] See applicant’s response to the s359(2) letter filed 1 March 2019.
Prior to coming to Australia, the applicant completed secondary school in 2005 in Thailand and then worked as a sales person in his family’s jewellery business from January 2010 to August 2013 earning $12,000AUD equivalent annually.[4] The Tribunal does not have information in relation to the applicant’s study or work experience from 2005 to 2010.
[4]See applicant’s response to the s359(2) letter filed 1 March 2019.
The delegate’s decision outlines that the applicant, under the second student visa, has previously been enrolled in the following courses:
·Certificate I and II in Spoken and Written English
·Certificate III and IV in Commercial Cookery
·Diploma in Beauty Therapy
·Certificate IV in Massage Therapy
·Certificate IV in Massage Therapy Practice
·Diploma of Hospitality
In his response to the s359(2) letter, the applicant lists the following in the section requesting information about previous courses that the applicant has been enrolled in:
·Leadership and Management (5/2018- 9/2019) – studying now;
·Certificate IV in EAL (11/2017- 5/2018) – complete;
·Certificate IV in Massage Therapy (1/2016- 12/2016) – did not complete;
·Certificate IV in Beauty Therapy (10/2015- 1/2016) – did not complete;
·Diploma of Hospitality (2/2015- 09/2015) – did not complete.
The Tribunal notes that the Massage Therapy Practice Certificate is missing and the beauty therapy studies were Diploma, not certificate level. However, the Tribunal appreciates that the applicant may have had difficulty recalling all the names of the different courses. The Tribunal is, however, troubled by the applicant’s failure to list the Commercial Cookery certificates in his response to the s359(2) letter. The Tribunal notes the applicant’s previous undated genuine temporary entrant statements entitled ‘Statement of Purpose’ provided to the Department wherein the applicant states that in 2014 he planned to open a restaurant in Bangkok (‘the GTE’) and that he applied for the second student visa to study Commercial Cookery as hospitality is a global industry and that he had enjoyed helping his friends in their part time cookery jobs but found that he could not follow the theory and practice and found it so difficult to be in the kitchen and decided he did not wish to study cooking.[5] The Tribunal allows for reasonable changes in career and study pathways, however, the Tribunal is concerned that the applicant failed to list the Cookery courses in his response to the s359(2) letter. It raises concerns about whether the applicant is being forthright in the provision of information.
[5] See Department File page 29.
Although also not listed in the abovementioned section of the applicant’s response to the s359(2) letter, the applicant clearly wishes to undertake an Advanced Diploma of Leadership and Management. The applicant has filed confirmations of enrolment with the Tribunal on 21 February 2019 for a Diploma of Leadership and Management from 15 May 2018 to 14 May 2019 and an Advanced Diploma of Leadership and Management from 15 May 2019 to 11 November 2020. On 21 February 2019, the applicant provided a statement of attainment indicating he has obtained eight competencies in part completion of his Diploma of Leadership and Management. On 1 March 2019, the applicant also filed a letter dated 8 February 2019 from his course provider confirming his enrolment and the commencement and completion dates of the Diploma of Leadership and Management. The completion date on the confirmation of enrolment and the course provider’s letters are both 14 May 2019, however the end date listed in the applicant’s response to the s359(2) letter is September 2019. The provision of inconsistent information by the applicant troubles the Tribunal.
In the GTE, the applicant explains that he worked part time as a masseur and enjoyed it and felt passionate about ‘my long term future in the industry’. He has provided a statement of competencies dated 8 February 2019 indicating he completed three subjects in the Certificate IV in Massage Therapy. The GTE goes on to state that he had relationship difficulties in 2017 which involved legal proceedings spanning seven months and this impacted on his studies giving him mental health trouble. The applicant has not provided any corroborating documentary material in relation to those legal proceedings or his claimed mental health problems.
The GTE states that the applicant was ‘given a good behaviour bond which as just lapsed on 27/04/2017’. The Tribunal is troubled by the applicant’s failure to provide further information in relation to these legal proceedings as good behaviour bonds are a creature of criminal, not civil, legal proceedings and any such proceedings ought to have been disclosed to the Department under the section of the visa application form titled ‘character declarations’.
In the GTE, the applicant also states that his intention is to complete the ‘last course of academic study I enrolled certificate IV in EAL in order to gain academic English’. He explains the benefits and uses of English for his career and his reasons for studying this particular course, the particular benefits and skills this course offers and how studying in Australia where he can practice English in daily life will be particularly beneficial. The Tribunal accepts that the applicant had reasonable reasons for not undertaking the proposed English studies in Thailand and considers his level of knowledge in relation to the benefits the English course will provide him are realistic.
In the GTE, the applicant states that ‘[a]fter completing this course [referring to the Certificate IV in EAL] I want to go back to Bangkok, Thailand to support my family business’. He explains that English is necessary in the family jewellery business to communicate with overseas customers and tourists and repeats that this is his last course of study. In the GTE, the applicant provides a thorough explanation of how the studies in English are relevant to, and will assist in improving, his future intended role as manager of his family jewellery business in Thailand. The Tribunal accepts these explanations in relation to the study in English, but is concerned by the number of times the applicant has changed his intended career path. Further, the applicant’s explanations are primarily in relation to his studies in English. It would appear to the Tribunal that at the time of his application with the Department, the applicant intended only to study the English course and that now due to delay in his application coming before the Tribunal he has engaged in further studies which were not initially part of his intended third student visa. Consequently, the submissions in relation to his further proposed studies in leadership and management are lacking. In his response to the s359(2) letter he makes general statements about taking up a manager role in his family business but does not describe how the proposed study in leadership and management specifically will improve his employment prospects or give reasonable reasons for not studying these courses in Thailand.
In addition to his three month period in Thailand in late 2017, the applicant returned to visit his family for five weeks in March 2016 and for 3 weeks in February 2018. With the exception of these trips, the applicant has now been in Australia for in excess of five years. In that time, he has only completed three English courses and part of a Diploma in Leadership and Management. The Tribunal does not consider this to be adequate academic progress for a genuine student, even allowing for a difficult relationship breakdown and/or a change in study pathways. The applicant has provided little explanation for how he actually spent his time onshore when he was not completing his proposed studies outside of a difficult legal issue in 2017.
The applicant refers to friends in the GTE and in his response to the s359(2) letter but puts forward very little other material regarding his personal ties to Australia. However, the length of his stay in Australia for in excess of five years suggests that he has a preference to remain. It is reasonable to conclude that, after more than five years, the applicant has cultivated a satisfactory life and has established strong ties to the Australian community. As each day passes, those ties strengthen.
In his response to the s359(2) letter, the applicant states that upon completion of the proposed study, he is likely to receive remuneration of $2000AUD equivalent per month in his family business. He has provided a letter from, and photo of the shop front of, the family business in support of this.
The applicant has indicated he has his parents’ financial support and provided documents in support of this to the Department. The Tribunal accepts this. In his response to the s359(2) letter the applicant also claims:
a.he owns a car and an apartment in Thailand;
b.his previous income in the family business was $12,000AUD equivalent per annum;
c.he worked as a kitchen hand from October 2013 to May 2014 earning $9600AUD per annum;
d.he worked as a massage therapist from November 2014 to November 2017 earning $19200AUD per annum and then from January 2018 to February 2019 earning $24000AUD per annum; and
e.he incurs expenses of $17280AUD per annum.
In such circumstances, the Tribunal considers that the applicant’s economic circumstances in Australia are presenting as a significant incentive for the applicant not to return to his home country.
The applicant’s submissions describe a close relationship with his family. He has both parents and two sisters in Thailand and states that he stays in touch regularly via telephone and social media, calling them three or four times a week. He states he also keeps in touch with his friends in Thailand regularly and that he is a member of a Major Bowling Group in Thailand. The applicant’s submissions contained in the Department file and his submissions with the Tribunal indicate his parents are supporting him financially and emotionally and the Tribunal accepts that the applicant’s family members may serve as an incentive for the applicant to return to his home country but, given the limited travel home he has undertaken and the length of time he has been onshore for, it appears to the Tribunal that any such incentive is outweighed by the applicant’s desires and incentives to remain onshore.

The Tribunal accepts that the proposed study may assist the applicant in his future employment, however it considers the primary benefit will be, as reflected in the primary thrust of the applicant’s submissions, the study of the English language. The applicant has completed his proposed studies in English and, in fact, provided he has continued to engage with his studies he ought to have completed the Diploma of Leadership and Management by the time he is notified of this decision. The Tribunal considers he has more than sufficient skills to now set in motion his plan to return to his family business and reunite with his family.
Outside of the travel to Thailand described above, there is no evidence before the Tribunal that the applicant has had any travel, visa or immigration issues in the past.
The applicant indicates in his response to the s359(2) letter that he does not have any potential military service in Thailand or political or civil unrest circumstances of concern.
Taking the applicant’s material as a whole, the Tribunal is concerned by the changes in study pathways and the fact that the applicant has made little academic progress, despite being onshore for a total of in excess of five years altogether. The Tribunal considers it is not the progress or conduct one would expect of a genuine student intending to stay onshore temporarily. Further, the applicant’s missing and inconsistent information raises concerns with the Tribunal about his true intentions. In addition, the Tribunal considers any further study to have little additional benefit on top of the courses already completed to the applicant’s proposed future in his family business given the expense incurred in engaging in such study in another country. Consequently, the applicant’s application and submissions do not satisfy the Tribunal that the applicant genuinely intends to stay in Australia temporarily. The Tribunal considers that the visa is being sought primarily to maintain residence in Australia.
Having had regard to the applicant’s circumstances, his immigration history and all other relevant matters, the Tribunal cannot be satisfied that the applicant is a genuine applicant for entry and stay as a student temporarily as required by clause 500.212. Accordingly, the applicant does not meet clause 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. Therefore, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
T. Quinn
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.

[2019] AATA 2261

5 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction