Chinthamallu (Migration)

Chinthamallu (Migration) [2024] AATA 91 (4 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Shalem Manohar Chinthamallu
REPRESENTATIVE:  Mr Vikas Mor (MARN: 2217782)
CASE NUMBER:  2212808
HOME AFFAIRS REFERENCE(S):          BCC2020/2909491
MEMBER:Warren Stooke AM
DATE:4 January 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 04 January 2024 at 8:47am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant and stay as student – academic progress – incomplete study record provided – multiple non-commencements and non-completions of courses – one subject completed in current course – continuing employment – 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 12 August 2022 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 31 December 2020. 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) because the applicant has provided documentation to evidence study undertaken; however, the transcripts provided only detail subjects undertaken from 21 August 2017 until November 2018 and provides no indication of their academic progress since these dates. Further, the delegate’s finding was that the applicant first arrived in Australia on 12 February 2017 and up to the date of this visa application, the applicant spent a total of 2007 days in Australia and a total of 50 days away from Australia as a student visa holder.
The applicant appeared before the Tribunal on 21 November 2023 to give evidence and present arguments.
The applicant was assisted in relation to the review.
The Tribunal, as background to the hearing, noted that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate.
At the commencement of the hearing, the Tribunal confirmed that the applicant had read the delegate’s decision of 12 August 2022 and that he understood the content of the decision. The applicant stated that he understood that he had too many COE’s and did not complete his courses.
The applicant provided the Tribunal with a copy of the delegate’s decision with the application for review.
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.
The applicant arrived in Australia on 12 February 2017 and was granted a Bridging Visa A on 31 December 2020 with an 8105 work limitation.
The applicant provided the Department with evidence of health insurance with Allianz that commenced on 16 January 2021 and was valid until 15 July 2022. The applicant claimed that he has health insurance currently with Allianz.
The applicant completed a PTE English language course on 19 February 2019 with an overall score of 61.
The delegate’s decision of 31 December 2020, which was provided to the Tribunal with the application for review noted that the applicant had been enrolled in the following courses of study, where he did not undertake or complete any study:
·     Confirmation of Enrolment (CoE) 8119FF46: Certificate IV in Ministry 20 July 2016 to 09 July 2017, cancelled 28 June 2016 due to ‘Non-commencement of studies’. PRISMS states student did not undertake any study.
·     CoE 88606532: Certificate IV in Ministry 23 January 2017 to 05 December 2017,
cancelled 29 August 2017 due to ‘Student Notifies Cessation of Studies’. PRISMS
states students last day of study 09 July 2017.
·     CoE 849E7A27: Certificate IV in Ministry 24 January 2017 to 05 December 2017,
cancelled 10 January 2017 due to ‘Change to CoE/Student Details’. PRISMS states student did not undertake any study.
·     CoE 811A0663: Diploma of Ministry 19 July 2017 to 08 July 2018, cancelled 28 June 2016 due to ‘Non-commencement of studies’. PRISMS states student did not undertake any study.
·     CoE 91224715: Certificate IV in Commercial Cookery 28 August 2017 to 07 December 2018, cancelled 14 August 2019 due to ‘Unsatisfactory course progress’. Comments in PRISMS state ‘There was an administrative error in reporting this student, they were not reported on completion’. PRISMS states students last day of study 07 December 2018.
·     CoE 849E8661: Diploma of Ministry 30 January 2018 to 04 December 2018, cancelled 10 January 2017 due to ‘Change to CoE/Student Details’. PRISMS states student did not undertake any study.
·     CoE 88607498: Diploma of Ministry 30 January 2018 to 04 December 2018, cancelled 29 August 2017 due to ‘Non-commencement of studies’. PRISMS states student did not undertake any study.
·     CoE A224D969: Certificate IV in Commercial Cookery 07 January 2019 to 14 June 2020, cancelled 12 March 2019 due to ‘Change to a course in the same sector, gap created either at start or end of course OR the study period of the new CoE is shorter than the original’. Comments in PRISMS state ‘credit transfer’. PRISMS states students last day of study 12 March 2019.
·     CoE A7178134: Certificate IV in Commercial Cookery 07 January 2019 to 19 April 2020, cancelled 08 May 2019 due to ‘Non payment of fees’. Comments in PRISMS state ‘cancelled due to overdue fees’. PRISMS states students last day of study 13 February 2019.
·     CoE 9192D744: Diploma of Hospitality Management 04 February 2019 to 20 September 2019, cancelled 25 February 2019 due to ‘Non-commencement of studies’. PRISMS states student did not undertake any study.
·     CoE AA75A379: Certificate III in Commercial Cookery 10 June 2019 to 21 June 2020, cancelled 03 July 2019 due to ‘Non-commencement of studies’. Comments in PRISMS state ‘Student requested to postpone the course start date due to medical condition’. PRISMS states student did not undertake any study.
·     CoE AB9F1671: Certificate III in Commercial Cookery 22 July 2019 to 26 July 2020, cancelled 22 April 2020 due to ‘Non payment of fees’. PRISMS states students last day of study 10 December 2019.
·     CoE A7178F25: Diploma of Hospitality Management 11 May 2020 to 29 November 2020, cancelled 08 May 2019 due to ‘Non-commencement of studies’. Comments in PRISMS state ‘packaged course, 1st cancelled’. PRISMS states student did not undertake any study.
·     CoE A224ED35: Diploma of Leadership and Management 29 June 2020 to 17 January 2021, cancelled 21 November 2018 due to ‘Change to CoE/Student Details’. PRISMS states student did not undertake any study.
·     CoE A22F7731: Diploma of Leadership and Management 29 June 2020 to 17 January 2021, cancelled 21 November 2018 due to ‘Change to CoE/Student Details’. PRISMS states student did not undertake any study.
·     CoE A22F9262: Diploma of Hospitality Management 29 June 2020 to 17 January 2021, cancelled 12 March 2019 due to ‘Change to CoE/Student Details’. PRISMS states student did not undertake any study.
·     CoE B7EF5A55: Certificate IV in Commercial Cookery 17 May 2021 to 19 December 2021, cancelled 02 December 2020 due to ‘Change to CoE/Student Details’. PRISMS states student did not undertake any study.
·     CoE B7EF6F91: Diploma of Hospitality Management 17 January 2022 to 15 May 2022, cancelled 02 December 2020 due to ‘Change to CoE/Student Details’. PRISMS states student did not undertake any study.
The applicant provided evidence of a COE to undertake a Certificate IV in Kitchen Management at the Australian Careers College from 23 January 2023 to 22 July 2024 and a Diploma of Hospitality Management from 28 August 2024 to 26 February 2025. The applicant provided the Tribunal with a progress report dated 17 August 2023, where the applicant had completed one subject: ‘Monitor work operations’
In response to a s359(2) request for information from the Tribunal, the applicant stated that he sought to undertake his currently enrolled courses of study for the following purpose:
“I chose ACC because they offer a variety of course packages in a variety of subject areas, as well as blended learning options to match our specific needs. Australian Careers College offers a tailored experience that is enriched by international programs and innovative digital engagement. They are dedicated to building an extraordinary workforce with educational quality and expertise. Environment that strives for quality, promotes creativity, embraces cultural variety, and prepares students to be lifelong learners. Strong governance and leadership maintain stability and assist in
developing interesting future plans. They're dedicated in developing knowledge that their local and global communities value highly.
There are similar courses available in my country but the education system in India is more conceptual instead of skill based and Indian education providers follows poor delivery of education among the students. India is having many Educational Institutes for higher education but for the specialization and trade, Education system in India is very poor.
Study system does not provide the practical implementations of the education in our real life. There are many drawbacks of education system which include information- oriented approach. Getting high score does not means that student have knowledge on subject because mark sheet does not ascertain that student can able to apply his/her
knowledge practically on the field. The biggest drawback of Indian education system is reservation system, such as reserving access to seats in the various legislatures, to government jobs, and to enrolment in higher educational institutions. 60 percent of seats are reserved in India.
At the same time the course content in Australia is very detailed with the usage of advance technology. I chose this country as the study provided in Australia is quite affordable for international students. Hence my decision to study in Australia seems to be fair and better. The Australian education helps students to develop comprehensive personality through theoretical and practical education with high class education with affordable costs and the degree is recognized worldwide e. Australian Government invests huge amount every year in developing education, universities and other
facilities for students.”
The applicant stated at hearing that he had not completed any courses of study since arriving in Australia on 12 February 2017 because he was stressed and that he promised his father that he would find a course. He stated he will finish his course and return to his home country when he finishes.
The Tribunal asked that applicant what about the promise to his father in relation to the last 6 years and the applicant did not respond.
In response to a s359(2) request for information from the Tribunal, the applicant stated that he had returned to India on the following occasions:
a.12/2017 - 1.5 months for Sister's Wedding;
b.05/2022 - 2 months Medical Treatment (the applicant stated at hearing that the medical treatment related to stress)
In response to a s359(2) request for information from the Tribunal, the applicant stated that he has the following family in India:
a.Dasari Swarnalatha – Mother, India whom he last saw on 01/2023
b.Showrie Chinthamallu – Father, India whom he last saw on 01/2023
c.Sharon – Sister, United States of America whom he last saw on 02/2015
In response to a s359(2) request for information from the Tribunal, the applicant stated that he has held the following employment whilst resident in Australia:
a.Radhe Chatpata - House Chef from 02/2017 to 07/2018 with earnings of $25,000 p.a.
b.Kesari - Chef from 05/2020 to 06/2021 with earnings of $22,000 p.a.
c.MC Donalds - Crew Member from 04/2023 to 08/2023 with earnings of $24,000 p.a.
In response to a s359(2) request for information from the Tribunal, the applicant stated:
“There are four members in my family, first of my respected father, he looks after our family. Then my mother, she is a homemaker and I have my sister, she is living in USA. I am not married yet and I am planning to get married. My father will be taking care of my all study expenses. Being only son of my parents, its my moral duties to take care of my parents in their old age as they are having lot of expectations from me. We have properties and very huge social circle in India.
I want to emphasize my pure intention to study in Australia and consciousness to follow student visa condition in Australia. I believe that my chosen course and Australian qualification will add to my all-around personality and prepare me for my future. My only motive is to build a bright career in life. After completing my course, I will be equipped with professional skills and knowledge in hospitality in India.”
The applicant claimed at hearing that he will soon have a house in India that his parents will transfer to his name.
The Tribunal asked the applicant whether he would have any difficulty in assimilating back into Indian society and he responded: “No”.
The Tribunal asked the applicant if there was any reason as to why he could not return to India and the applicant responded: “No”.
The Tribunal asked the applicant if it was his motivation to remain in Australia permanently and the applicant responded: “No”.
The Tribunal asked if the applicant had any job offers and the applicant responded that he wanted to establish a continental restaurant and that the cost of the business would be about $300,000, which he intends to finance through a bank loan. He stated that the business plan is his dream.
In response to a s359(2) request for information from the Tribunal, the applicant stated:
“After completing my course, I can work in areas like commercial cookery and kitchen operations, Food and Beverage, or front of house and can opt for profiles like banquet or function manager, chef de cuisine, kitchen manager, restaurant manager, sous chef, unit manager (catering operations), banquet or function manager, bar manager, café manager etc. in big multinational hotels and restaurants etc. India is a place, where one can get variety of food with different flavor which include Indian Cuisine and western Cuisine. On successful completion of mu studies, I can give western cuisine to next level in my home country.”
The applicant stated at hearing that he was married last month to a partner in India and that he has no children.
The applicant provided the Tribunal with a detailed GTE Statement dated 26 January 2021.
The Tribunal asked the applicant, if he wanted to make any further comment and he responded that he had promised his father to finish the course and that he wanted to stand by his promise and finish it.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Tribunal has considered the evidence, provided by the applicant, in the context of Direction 69 and finds that the applicant is not a genuine temporary entrant for the following reasons:
a.The Tribunal is satisfied that since the applicant’s arrival in Australia on 12 February 2017, the applicant has not completed any course of study, despite having enrolled in a multiplicity of courses during this period of time. As such, the Tribunal finds that the applicant is not a genuine temporary entrant for entry and stay as a student;
b.The Tribunal finds that the applicant has used his residency to participate in part-time work with advised earnings in response to the Tribunal’s request for information of between $22,000 and $25,000 per annum and that he continues to work at McDonald’s as a crew member. As such, the Tribunal is satisfied that the applicant has maintained residency to access an Australian lifestyle and earnings, in preference to participating in and completing studies;
c.The Tribunal is satisfied that the applicant has only returned to his home country on two occasions in more than 6 years and has demonstrated that he has stronger ties to Australia than with his home country;
d.The applicant stated at hearing that he suffered from stress, however, the applicant has not provided documentary medical evidence to support this claim, nor sought to defer studies with the Department during the more than 6 years of residency;
The Tribunal gives weight to the lack of academic participation and the discontinuation of studies, when the stated purpose was to remain in Australia for the purposes of academic study. The applicant has exhibited more than 6 years, where no study has been completed or the participation has been discontinued without commencement or completion.

The Tribunal finds that the significant non-participation in studies during more than 6 years of residency, does not support that the applicant is a genuine entrant for stay and study as a student.
Further, there is no evidence before the Tribunal that would suggest that the applicant has any reason not to return to India and that the applicant has developed a desire to remain in Australia for the purposes of residency, lifestyle and access to earnings, particularly given the financial benefits derived from his part-time work opportunities and the earnings he has accessed whilst resident relative to potential earnings in India.
Based on what is evidenced of the applicant’s circumstances overall, in the absence of any other relevant information, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for temporary entry and stay as a student. As such, the Tribunal is not satisfied that after a period of more than 6 years in Australia on temporary visas, and an expectation of another 15 months of study on a Student visa, if granted, that the applicant intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Warren Stooke AM
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.

[2024] AATA 91

4 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction