Galindo Toapanta (Migration)

Galindo Toapanta (Migration) [2022] AATA 4298 (7 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Oscar Alexander Galindo Toapanta
Mrs Lorena Herrera Palacio
REPRESENTATIVE:  Mr Jorge Eliecer Gamba Jaramillo (MARN: 1805594)
CASE NUMBER:  2116696
HOME AFFAIRS REFERENCE(S):          BCC2021/1871658
MEMBER:Peter Booth
DATE:7 September 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.

Statement made on 07 September 2022 at 2:01pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No 69 – general English course – audiovisual technician – desire to work in film and television production – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 November 2021 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 30 September 2021. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas 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 was not a genuine temporary entrant.
The applicants appeared before the Tribunal on 1 June 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.
The applicants were assisted in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary entrant.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The applicant gave evidence at the hearing, the substance of which was follows.
The applicant had read the delegate’s decision dated 9 November 2022 refusing his application for a student visa.
The applicant understood that the issue for determination was whether he was a genuine temporary entrant.
The applicant was asked to describe his current enrolment including commencement and completion dates. The applicant said, “I studied English in October, general English andIELTS at Cambridge”. He did not elaborate. When invited to continue, he said, “started in October 21 and this going to end in November this year, I studied general English in October, November and December in January and February I went through ILS course in March and April studied Cambridge”. He did not elaborate. He was asked whether he had a current enrolment document to prove that he was currently enrolled. He said, “I made a note about ILTS course which say I am enrolled”. The applicant’s representative confirmed that the applicant had a current confirmation of enrolment document. The Tribunal informed the representative that the document had not been provided to the Tribunal and and asked as to the details. The Tribunal was informed that the applicant was enrolled in a general English course which commenced on 11 October 2021 and was scheduled to be completed on 11 November 2022. The Tribunal asked the applicant whether he was currently attending courses and studying the subject. He said “yes”.
The applicant did not provide proof of enrolment until after the hearing.
Prior to the hearing the applicant had been requested to provide information to the Tribunal pursuant to a request to do so pursuant to s 359(2). The applicant did not do so. Accordingly, the Tribunal proceeded to examine him along the lines of the request to provide information.
The applicant was invited to state his highest education qualifications obtained in Colombia. He said, “I graduate as technologist in AV in 2017”.
When asked to state his employment history in Colombia he said, “I was a cameraman for a news broadcast and worked there for five years”. The applicant was asked to state his income from that employment. He said “1.8 million Colombian peso”.
He was asked when he arrived in Australia and what visa he held at the time. He said, “under student visa arrived 15 September 2019”. The applicant was asked what he intended to study at that time. He said “English”.
The Tribunal asked the applicant to state his visa history in Australia. He said, “first visa allowed to study for six-month”. He was asked when the visa expired. He said, “visa start 17 July 2019 and expire 10 May 2020”. The tribunal observed that the duration of the visa was more than six months. He replied, “17 July was when granted, but when did not start until September 2019”. He was invited to continue with his response. He said, “after this visa we applied for new one with wife student visa that she could study English, this visa started in May and expired on 6 October 2021 granted 12 June 2020”.
The applicant confirmed that he made the application for the student visa in question on 30 September 2021. The Tribunal observed that this was approximately one week prior to the expiry of the previous student visa. The applicant agreed.
When asked whether his wife travelled to Australia at the same time as the applicant, he said “yes I bought was been with me as a partner visa”. The Tribunal asked were that he met on a student dependent visa. He said “yes”.
The Tribunal invited the applicant to explain his study history in Australia. He said, “first six-month study English, then wife study for eight or nine a month also English”. The Tribunal informed him that the response was too vague and invited him to be more precise. He said, “always completed my courses first court start 30 September 2019, English general”.
The Tribunal invited the applicant to provide a concise study history after the completion of the hearing. He agreed to do so. He added “general English started September 2019 until September 2020”.
He was asked whether he had any gaps in this study history. He said, “yes when my wife began study, we decided to change visa”. The Tribunal asked him whether he was contending that he had two student visas in sequence. He said, “no I had one visa when I was main applicant to arrive in Australia, and second visa the main visa it was my wife”. The Tribunal asked whether he was contending that the first student visa was in his name as a primary visa holder, but the second student visa was in his wife’s name is the primary visa holder. The applicant agreed.
The applicant was invited to provide a concise visa history after the completion of the hearing. He agreed to do so.
The applicant was asked whether he was contending there was a period of approximately nine months when he held a student dependent visa and did not study. The applicant agreed. He was asked why he decided to return to study when his wife’s student visa expired. He said, “because I was lacking one more academic course in English for my professional studies”. He was asked why he did not study that English course during the nine-month period when he held a student dependent visa. He said, “because my intention to try and find some work in my career so I would increase my vocabulary for my profession, so I can speak with people in the cinema industry”.
He was asked whether he studied English in Colombia and if so for how long. He said, “no did not study English in Colombia”. He was asked whether he was able to work in Colombia in his chosen field for five years without the ability to conversion English. He said, “because I was work working in the field where Spanish main language but opportunities kept arising which offered opportunity to learn English”. The Tribunal asked the applicant why he did not study English in Colombia in order to take up those opportunities. He said, “because my work schedule in Colombia was too demanding and no course would adjust also wanted an immersive experience”. The Tribunal observed that he had not made the most of the opportunity in Australia by taking a period of nine months of study. He said, “I mention lockdown happen then but I continue to study English on my own”.
The Tribunal asked the applicant what courses his wife had studied when she was the primary student visa holder. He said, “English general”. He was asked whether she was able to do so during the lockdown. In Australia. He said “yes, she study online”. The Tribunal observed that the applicant could have chosen to study English online also. He said, “there are no courses in English, better to immerse”. When the question was repeated, he said “we wanted wife to study English for her personal and educational development”. The Tribunal observed that the applicant had not answered the question which had been asked of him on two occasions. The applicant was unresponsive.
He was asked to state how many times he had returned Colombia. He said, “we have not returned Colombia”. He was asked whether he will return to Colombia permanently when he finishes his current course on 11 November 2022. He said “yes”.
The applicant was asked whether his wife had intended to make another student visa application in the future. He said, “we don’t have any plan to do so, we want to complete study and go back to Colombia”.
The applicant was asked whether his wife is currently studying. He said, “she is studying English on her own”. When asked to state his wife’s employment and income he said, “she work helping manager as caretaker of buildings”. When asked to state her income he said, “between the AU$3500 and for AU$4500 each month”.
The applicant was asked to state whether he was employed and including the details. He said, “I work in a company which digitisers film and photo, I work as camera operator income AU$3600 each month”. He was asked how long he had been so employed. He said “from seven February 22” from when asked to state’s employment history prior to that time he said “during lockdown work is cleaner and assisted in caretaker of buildings, after lockdown I got current job”. He was asked whether he was able to conduct his current employment utilising his existing English language skills. He said “yes”.
When asked to state the members of his immediate family in Colombia he said, “mother and father, brother in states”.
He was asked whether he owned any assets in Colombia. He said, “I have a block of land which is going to be under construction”. He was asked whether the land was in his name. He said, “it is a flat under construction belong to myself and my wife”.
The applicant was invited to state his employment intentions when he returns to Colombia. He said, “my ambition is to work in films, the types which I want, require a level of English with considerable proficiency, majority happens between Colombia, Mexico United States and Canada”.
The applicant declined an opportunity to add anything further to his application for review. The second applicant did not attend the hearing.
The applicant’s representative declined an opportunity to make submissions to the Tribunal.
Written submissions had been filed prior to the hearing by the applicant’s representative. These submissions are dated 30 May 2022, and without page numbers or paragraph numbers. They have been taken into account by the Tribunal and given appropriate weight.
Prior to the hearing the applicant provided a variety of documents to the Tribunal. The applicant did not refer to any of these documents during the course of giving evidence at the hearing. Nonetheless they have been taken into account by the Tribunal to the extent relevant and given appropriate weight.
The applicant provided a statement to the Department in support of his application for review. The statement is signed and dated 24 September 2021. The statement was not referred to by the applicant during the course of giving evidence at the hearing. Nonetheless it has been taken into account by the Tribunal to the extent relevant and given appropriate weight. The Tribunal makes a number of observations in relation to the statement. First, the applicant states that he arrived in Australia together with his wife. Secondly, that he studied an English course for nine months. Further that he intends to work in film and television when he returns to Colombia. Finally, he stated that when he completed his course of study he will return to Colombia.
After the hearing the applicant provided the information which the Tribunal had previously requested pursuant to s 359(2).
In summary the information provided by the applicant was as follows.
Prior to arriving in Australia, the applicant completed a course described as “technologist in audiovisual production between January 2013 and October 2017 and a diploma in audiovisual production between January 2017 and October 2017”. He stated that prior to arriving in Australia he was employed as an audiovisual technician from March 2014 until December 2014 and as a camera operator between December 2014 and September 2019.
The applicant arrived in Australia on 14 September 2019 and since that time has not returned to his home country.
The application for the student visa in question was made in September 2021. The applicant stated his visa history in Australia to be as follows: he held a “student” visa between July 2019 and May 2020 and a “student (dependent)” visa between June 2020 and October 2021.
The applicant stated his study history in Australia to be as follows: he completed a general English course between September 2019 and April 2020 and was “studying now” in general English course which commenced in October 2021 is due to be concluded in November 2022.
The applicant stated that he was employed in photographic digitisation between February 2022 and May 2022 and as a caretaker/cleaner between January 2020 and May 2022. He stated his income from photographic job to be AU$58,000 each year.
The applicant stated that his wife resides in Australia, his mother, father, and sister reside in Colombia and his brother resides in United States of America.
The applicant stated that he owned assets in Colombia comprising “off the plan apartment”.
As to his future employment plans the applicant stated, “I plan to seek employment in the film industry especially in Netflix and other big production companies that were previously out of reach because of lack of English. Please see GTE attached.”
As to his expected future remuneration the applicant stated “Between $70000 - $80000 AUD as these companies pay higher wages than local news stations were I used to work. Please see attached GTE.”
A variety of other documents were also provided to the Tribunal after the conclusion of the hearing. They have been taken into account by the Tribunal and given appropriate weight. The Tribunal makes a number of observations in relation to several documents. The applicant provided a statement. It is undated, unsigned and with no page and paragraph numbers. It is broadly consistent with the applicant’s evidence at the hearing. A confirmation of enrolment was provided in respect of a general English course which commenced on 11 October 2021 and is due to be completed on 11 November 2022. The Tribunal accepts that the applicant is enrolled in such a course. A document confirms that the applicant was granted a subclass 500 student visa on 17 July 2019 and which expired on 10 May 2020. Another such document confirms that the applicant was granted a second subclass 500 student visa on 12 June 2020 and which expired on 6 October 2021. This is described by the applicant’s representative as the dependent student visa.
CONCLUSIONS
The evidence of the applicant was often unresponsive to the question, vague, imprecise or discursive. Often the evidence of the applicant contained elements of all these issues. The Tribunal has rehearsed the evidence as a representative narrative, given in real time, which was often quite disjointed. The Tribunal’s rehearsal of the evidence is not intended to be a transcript of the evidence, rather the best recording as it transpired. It does give and is intended to give an appreciation of the nature and quality of the applicant’s evidence.
Without diminishing the applicant’s evidence, it can be summarised as follows.
The applicant completed courses in audiovisual studies in Colombia in 2017. He was employed as a technical operative in film and television production in Colombia between 2014 and 2019. He arrived in Australia on 14 September 2019 together with his wife, the second applicant. They have not returned to Colombia. The applicant arrived as the holder of a subclass 500 student visa. His wife was presumably dependent on that these are although that is not clear. The applicant studied a general English course for approximately nine months. The first student visa expired on 10 May 2020. Thereafter the applicant’s wife was granted a student visa and the applicant was dependent on his wife student visa. This visa was granted on 12 June 2020 and expired on 6 October 2021. The applicant did not study during this period. The applicant made the application for the student visa question on 30 September 2021, approximately six days prior to the expiry of his wife’s student visa.

The applicant’s immediate family resides in Colombia. He owns assets in Colombia together with his wife. The applicant’s wife resides with him in Australia. The applicant’s current course of study will shortly be completed, and the applicant has stated that he will then return to Colombia.
The Tribunal considers the factors for and against the applicant being a genuine temporary entrant for study in Australia are closely balanced in this case. On the one hand the applicant has been in Australia since September 2019 and has only completed one general English course of approximately nine months duration, he has not returned to Colombia since he arrived, he has not maximised his study opportunities in Australia and did not study while he was a dependent on his wife’s student visa. The applicant has stable employment in Australia, he made the application for the student visa in question approximately six days prior to the expiry of his wife’s student visa and his wife resides with him in Australia. However, in the applicant’s favour he has successfully completed one general English course, he has not embarked on a series of diverse courses of study, he has not enrolled in and then abandoned courses of study and will shortly complete his course of study. The study of general English appears relevant to his desire to work in English-speaking film and television production, and he has stated that he will return to Colombia once he completes his current course of study production. Should the applicant make a further student visa application on the basis of his intention to undertake further study after this, the evidence he gave to the contrary in connection with this case will clearly be relevant to any assessment his intention to stay in Australia temporarily only to study.
However, on balance, and not without some misgivings the Tribunal considers it appropriate to give the benefit of the doubt to the applicant.
On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).
Accordingly, the Tribunal is 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 appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
It follows that the application of the applicant having been successful, that the application of the second applicant must also succeed.
DECISION
The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.
Peter Booth
Member

Attachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton

Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
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.

[2022] AATA 4298

7 September 2022

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Immigration

Administrative Law

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Judicial Review

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