Guo (Migration)

Guo (Migration) [2023] AATA 4349 (18 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Yanlin Guo
REPRESENTATIVE:  Ms Ying Liu (MARN: 0746343)
CASE NUMBER:  2203838
HOME AFFAIRS REFERENCE(S):          BCC2021/300941
MEMBER:David Thompson
DATE:18 December 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 18 December 2023 at 8:52pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – limited academic progress – value of courses to future career – multiple course cancellations – limited ties to home country – maintaining ongoing residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 499; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212; r 1.03
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 3 March 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 2 March 2021. 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 she was not satisfied that the applicant intended genuinely to stay temporarily in Australia.
The applicant appeared before the Tribunal on 21 July 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Seika Esakia, who is a member of the administrative and marketing staff of the applicant's course provider, Canberra College. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was assisted in relation to the review. The representative attended the Tribunal hearing.
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 meets the requirements of cl 500.212.
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.
Evidence
As well as giving oral evidence at hearing, the applicant provided the following items of documentary evidence to the Tribunal:
a.copies of the delegate’s decision record and notification letter, both dated 3 March 2022;
b.a completed ‘Request for Student Visa Information’ form (M17), provided in response to a request for information made by the Tribunal pursuant to s 359(2) of the Act on 3 May 2023;
c.Confirmation of Enrolment (CoE) B0206779, in respect of the applicant’s enrolment in a Diploma of Hospitality Management at Austrasia College, scheduled to run from 7 October 2019 to 3 October 2021;
d.CoE C1F3FA24, in respect of the applicant’s enrolment in an Advanced Diploma of Hospitality Management at Austrasia College, scheduled to run from 15 November 2021 to 12 November 2023;
e.a statement of attainment issued by Austrasia College and dated 25 August 2021, setting out the applicant’s progress in his Diploma of Hospitality Management as at that date;
f.a certificate of completion of a Diploma of Hospitality Management, with record of results attached, issued to the applicant on 6 July 2022 and recording the completion date as 3 October 2021;
g.a statement prepared by the applicant, undated; and
h.a letter dated 13 June 2023 from Canberra College addressed ‘to whom it may concern’, confirming the applicant’s enrolment in a Graduate Diploma of Management (Learning) commencing on 8 May 2023 and finishing on 8 May 2025.
Prior to hearing, the Tribunal obtained the Department’s file on the applicant’s student visa application. That file contains, and I have considered, the following relevant documents not already mentioned above:
a.The applicant’s student visa application, lodged on 2 March 2021; and
b.a statement of attainment issued by Austrasia College and dated 18 February 2021, setting out the applicant’s progress in his Diploma of Hospitality Management at that date.
Prior to hearing, the Tribunal obtained a copy of the applicant’s record from the Provider Registration and International Student Management System (PRISMS). Information from the applicant’s PRISMS record was put to him in the course of hearing, pursuant to s 359AA of the Act. I will return to that matter below. The Tribunal also obtained a copy of the applicant’s movement record. That record contained no relevant information other than information separately provided by the applicant. The applicant’s movement record was not, therefore, put to him at hearing pursuant to s 359AA.
Background
The applicant is a citizen of the Peoples Republic of China. He first arrived in Australia on 18 June 2018 as the holder of a TU-500 student visa granted on 13 June 2018 and valid until 3 March 2021. At that time, he was enrolled in a package of courses comprised of General English (Beginner to Advanced), Certificate IV in Business, and Diploma of Business. He finished the first of those courses, but not the remainder of the package. Instead, he transferred to a package of hospitality courses, comprised of a Diploma of Hospitality Management, scheduled to run from 7 October 2019 to 3 October 2021, and an Advanced Diploma of Hospitality Management scheduled to run from 15 November 2021 to 12 November 2023. The applicant completed the first of those courses successfully in early October 2021, but did not commence studies for the second course.
The applicant applied for a further student visa on 11 March 2021, while he was studying for his Diploma of Hospitality Management. He was granted a bridging visa pending determination of his application. His application was refused on 3 March 2022, and the applicant in due course applied to the Tribunal for a review of the delegate’s decision.
At the date of this decision, the applicant is enrolled in a Graduate Diploma in Management (Learning). That course commenced on 8 May 2023, and is due to finish on 8 May 2025.
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’s circumstances in his home country
The applicant gave evidence at hearing that he has family in his home country, in the form of his parents, paternal grandmother, and elder brother. He stated that he contacts them by WeChat every few days. He was unable to give evidence of any particular community ties other than stating that he had classmates, relatives, and friends in his home country. I find that the applicant has personal ties in his home country. I am not, however, satisfied on the evidence before me that they are so strong as to amount to a significant incentive to return there once he has finished his studies in Australia.
The applicant gave evidence that the highest level of education he had attained in his home country was the completion of his secondary schooling. He stated that he had commenced studying a course in automobile manufacture and maintenance, but had left that course unfinished in order to come to Australia to study. He also stated that he had no record of employment in his home country, and has no property there. There is nothing in this evidence to suggest that the applicant has any economic ties with his home country that would provide him with an incentive to return there once he has finished his studies in Australia. That being said, there is no evidence of any economic incentive that he might have to positively avoid returning to his home country.
The applicant gave evidence at hearing that he has no military service obligations to complete on his return to China, and has no concerns regarding civil or political unrest in that country. There is nothing before me to contract this evidence and I accept it, finding accordingly. These factors do not give the applicant any reason to avoid returning to his home country once he has finished his studies.
At hearing, I asked the applicant whether similar courses to that which he is currently undertaking are available in China. His answer was, simply, that he did not know. I note that in addressing a similar question in document 9(b), the applicant referred the reader to a statement he had provided separately for his answer. That statement is, presumably, document 9(g), as no other document before the Tribunal fits that description. That statement does not address this question at all. There is, in fact, no evidence before me as to the applicant’s motivations for choosing to study in Australia, and I can make no finding in that regard. The fact that the applicant’s reasons for choosing to study in Australia are obscure detracts considerably from his case.
Considering the matters discussed together, I find that on the whole the applicant’s circumstances in his home country do not support his claim to be genuine temporary entrant.
The applicant’s potential circumstances in Australia
The applicant gave evidence at hearing that he has no family in Australia, and no particular community ties beyond relationships with classmates and other friends and occasional church attendance. The applicant also gave evidence that he has no property in Australia, and has never worked in this country. There is no evidence before me to suggest otherwise, and I accept this evidence. I find that the applicant has no strong personal or economic ties with Australia. This gives some support to his claim to be a genuine temporary entrant.
The applicant stated that he has not entered into any relationship in Australia. There is no evidence before me to suggest otherwise, and I accept his evidence in this regard. That being the case, I am satisfied that he has not entered into any relationship of concern, in the sense of a relationship contrived or contracted in order to obtain a better immigration outcome than might otherwise be available. There is no direct evidence before me that the applicant is attempting to circumvent the intentions of the Australian migration system, whether by using the student visa programme to maintain residence or otherwise. However, some circumstances of the applicant’s immigration record provide the basis for an inference to that effect. I will discuss this below.
The applicant had lived and studied in Australia for approximately 2 ¾ years before making the student visa application that gave rise to this review. Considering his level of preparedness for life and study in Australia does not, therefore, assist me to reach my decision in this matter. Noting that he had not addressed his choice of course provider in document 9(b) (other than be directing the reader to document 9(g), which did not deal with the issue either), I put this question to the applicant at hearing. It appears from his evidence that he has simply continued with the course provider he initially chose when he first came to Australia, in the main because he wanted to remain amongst teachers and fellow students he already knew. That is not unreasonable in itself, but is not particularly helpful in considering whether he genuinely intends to remain in Australia temporarily in order to study.
Taking these matters together, I find that the applicant’s circumstances in Australia (both potential and actual) provide some limited support for his claim to be a genuine temporary entrant.
The value of the applicant’s courses to his future
Before the date of the student visa application the subject of this review, the applicant’s highest level of academic achievement was the completion of his secondary schooling in China. At the date of the applicant’s student visa application, he was studying for his Diploma of Hospitality Management (which he later completed) and enrolled in an Advanced Diploma in the same subject. He did not complete that course, choosing instead to transfer to a Graduate Diploma of Management (Learning). He has not, therefore, regressed in his level of study.
The applicant gave evidence as to his plans on completion of his studies. He stated that he would return to China, and seek work in hotel management. His Graduate Diploma of Management (Learning) would not appear to be especially relevant to that plan, except to the extent that the course teaches generic management skills that would be equally useful in hospitality management and the management of educational businesses. There is no evidence before me that would allow me to make any more detailed findings on that point.
I asked the applicant at hearing whether he had taken any concrete steps to find work in hotel management in China, and what his remuneration was likely to be. He stated that he had not taken any such steps, and that he thought he could earn between RMB15,000 and 16,000 per month. At exchange rates prevailing at the date of this decision, that would equate to some AUD3,100 to 3,330 per month. The applicant gave no evidence, either in writing or orally, as to how he had arrived at that figure, and consequently I have no basis upon which to assess his statement. It is clear, however, that if he were to obtain work in hotel management in Australia he could earn much more, at least in absolute terms.
On the basis of the matters discussed above, I am not satisfied that the applicant’s studies have any significant value for his future. This weights against his claim to be a genuine temporary entrant.
The applicant’s immigration record
The applicant gave evidence that he has never before travelled outside of China, that he has never previously been refused a visa, and that he has never had a visa issued to him cancelled. He also gave evidence that he has no other Australian visa application on foot at present. There is nothing in the evidence before me to contradict any of these statements, and I accept them.
As was noted above, the applicant has been resident in Australia for some 6 ½ years at the date of these reasons. That is a considerable period, and it is relevant to consider how the applicant has used that time. The applicant’s PRISMS record indicates that upon his arrival in Australia, the applicant was enrolled in a General English (Beginner to Advanced) course, a Certificate IV in Business, and a Diploma of Business. He completed the first of those courses, but did not complete the second or third. His Certificate IV enrolment was cancelled for non-payment of fees on 2 October 2019, and on the same date his Diploma of Business enrolment was cancelled for non-commencement of studies. When these cancellations were put to the applicant at hearing pursuant to s. 359AA of the Act, he explained that his Certificate IV enrolment had not been cancelled for non-payment of fees, but because he had decided that he was studying in the wrong discipline for him, and had transferred to hotel management studies.
The applicant commenced his Diploma of Hospitality on 7 October 2019. The evidence as to when he finished that course is inconsistent. On the face of document 9(f), the applicant completed the course on 3 October 2021, although a review of the transcript attached suggests that the applicant completed his last unit in July 2021. The applicant himself stated at hearing that he had completed the course in July 2022, and that the delay had been a result of the COVID-19 pandemic in that practical placements were unavailable for a period. However, the applicant clearly stated at hearing that he had enrolled in his Advanced Diploma of Hospitality Management course after finishing his Diploma of Hospitality Management. However, his CoE for the Advanced Diploma course (document 9(d)) was on its face created no later than 17 February 2021. He must therefore have enrolled in the Advanced Diploma course while his Diploma course was still on foot, and I find that to have been the case. The applicant’s enrolment in his Advanced Diploma course was cancelled on 23 March 2022 for non-commencement of studies, according to his PRISMS record. When this was put to him at hearing pursuant to s. 359AA of the Act, he stated that the reason given for the cancellation was incorrect, and that the real reason that his enrolment was cancelled was that his course provider ceased offering the Advanced Diploma and required him to change to a different course. He did not, however, demur as to the date of cancellation. Again, this is inconsistent with a completion date in July 2022 for his Diploma of Hospitality Management course. I prefer the documentary evidence, and find that the applicant had finished his Diploma of Hospitality Management by 3 October 2021.
I turn to the applicant’s evidence that his course provider (Austrasia College) ceased to offer the Advanced Diploma of Hospitality Management course, and that his enrolment was cancelled for that reason. I do not accept that evidence. The applicant has not provided any documentary support for his statement. Further, when asked to explain the gap in enrolments between his Advanced Diploma of Hospitality Management and his current course (Graduate Diploma of Management (Learning), which he commenced in May 2023), the applicant stated that he had decided not to attend college because courses were being offered online and he felt that such courses were useless. That statement is not consistent with his evidence as to the reason for his Advanced Diploma cancellation. It is, however, consistent with the reason for cancellation given in the applicant’s PRISMS record – non-commencement of studies. I find, therefore, that the applicant in fact ceased to study at some time after completing his Diploma of Hospitality Management in October 2021 and the formal cancellation of his Advanced Diploma enrolment in March 2022.

There is no evidence before me as to what the applicant did during the gap in his enrolments. The precise length of that gap is uncertain, but on the evidence, it was at least 10 months long and was most likely longer than that. I note that the applicant has been resident on a bridging visa since 11 March 2021, and that as a result this gap does not constitute a breach of visa conditions. Even so, it is not consistent with a genuine intention to remain in Australia temporarily in order to study. It strongly suggests an intention to use the student visa programme to maintain residence. I note at this point that I have had regard to the evidence given by Ms Esakia in reaching this conclusion. Ms Esakia is an administrator at the applicant’s current course provider, Canberra College of Management & Technology. Her evidence amounted to a statement that the applicant has been attending college regularly. Whilst I accept that evidence, it does not displace the conclusions I have reached.
For these reasons, I find that the applicant’s immigration record does not support his claim to intend genuinely to remain in Australia temporarily for the purpose of studying.
Conclusion on cl 500.212(a)
On the basis of the above, I am not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a). That being the case, it is not necessary to consider sub-clauses 500.212(b) or (c).
Given the above findings, I find that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
David Thompson
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.

[2023] AATA 4349

18 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction