Gurvinder Singh (Migration)

Gurvinder Singh (Migration) [2019] AATA 3046 (2 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gurvinder Singh
CASE NUMBER:  1712774
HOME AFFAIRS REFERENCE(S):          BCC2017/993254
MEMBER:Margaret Forrest
DATE:2 June 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 02 June 2019 at 12:35pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–genuine temporary entrant criterion not met – number of short and inexpensive courses – lack of academic progress – using student visa to maintain ongoing residence –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359,360, 363, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212, 500.218
CASES
Hasran v MIAC [2010] FCAFC 40
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 June 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 14 March 2017. 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 (the Regulations) because the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.
The applicant was assisted in relation to the review by their registered migration agent.
On 24 January 2019 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information about the course(s) of study he is undertaking and his entry and stay in Australia as a student, in writing. The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by 7 February 2019, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
In his response, the review applicant indicated that he consents to the Tribunal deciding the review without a hearing. The Tribunal is satisfied that the necessary consent has been given under s.360(2)(b) of the Act and that, pursuant to s.360(3), the review applicant is no longer entitled to appear before it. Crucially, the effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40. This matter has therefore been determined on the evidence available to the Tribunal.
It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
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 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 Tribunal had access to the delegate’s decision record dated 15 June 2017. The Tribunal also had access to the relevant file of the Department of Home Affairs (which includes a genuine temporary entrant statement from the applicant) and the Tribunal file.
In relation to the applicant’s potential circumstances in Australia, in the information form submitted to the Tribunal the applicant listed nil community ties in Australia. In the information form, the applicant indicated that he owns property in Australia being a car worth AUD$5000 and furniture worth AUD$2000. The applicant also indicated that his partner resides in New Zealand and the last time he saw her was 25 December 2019 [sic]. On the basis of this evidence, the Tribunal considers that the applicant’s family and community ties with Australia do not constitute a strong incentive to remain in Australia.
In the information form submitted to the Tribunal, the applicant told the Tribunal that he arrived in Australia on 13 June 2013. The applicant provided evidence to the Department that showed that since arriving in Australia he has completed the following courses:
a.Certificate IV in Business Administration;
b.Diploma of Business;
c.Advanced Diploma of Business;
d.Certificate IV in Commercial Cookery.
According to the delegate’s decision record, when the applicant was granted his initial student visa, he was enrolled to undertake the following courses:
a.Diploma of Nursing;
b.Bachelor of Nursing.
According to the delegate’s decision record, the applicant requested to withdraw from the Diploma of Nursing course because it was his intention to return home. In the Genuine Temporary Entrant statement the applicant submitted to the Department, the applicant states that he enrolled in the Diploma and Bachelor of Nursing because his parents wanted him to and he withdraw from these courses because he did not want to do something that he was not interested in.
According to the delegate’s decision record, when the applicant submitted his current application for a student visa on14 March 2017, the applicant was proposing to study a Bachelor of Business from 13 March 2017 to 31 December 2019. In the information form submitted to the Tribunal, the applicant indicates that he is currently enrolled in a Bachelor of Business which commenced on 13 March 2017 and is scheduled to conclude on 31 July 2021.
In the information form, the applicant states that between 12 March 2018 and 14 May 2018, he was not enrolled in a course of study because he had severe back pain and could not sit for long hours. The applicant said the he “discussed with college with test reports and got deferred approved” [sic]. The Tribunal accepts this.
In the information form submitted to the Tribunal, the applicant said that he chose to study a Bachelor of Business at the Holmes Institute because “I have few friends in college who, I know of and they help me with my studies and also, if I difficulties, can speak to them in my language and sort it out. Staff is very helpful. It has students from all different cultures. Its not very far from my house” [sic].
In the Genuine Temporary Entrant statement that the applicant submitted to the Department the applicant states that he swapped from Nursing to Business because he did not want to study something that he was not interested in. In the statement, the applicant says that he swapped from business to cookery because the applicant’s friend told him he was a good cook and the applicant decided he wanted to open his own restaurant. In the statement, the applicant says that he swapped from cookery back to business because he foresees that an environment like that of Holmes will be the most conducive to his holistic growth and will give him a launch pad to propel himself towards unending opportunities.
In the information form submitted to the Tribunal, the applicant listed nil work experience before arriving in Australia. In the information form, the applicant indicates that since arriving in Australia on 13 June 2013, the applicant has worked as crew member at McDonalds and a retail assistant at Charlie’s Fruit Market. The applicant presently works as a retail assistant at Global Auto Parts.
In relation to the applicant’s plans for the future, in the genuine temporary entrant statement the applicant submitted to the Department, the applicant indicates that his plan is to finish off his bachelor’s degree and work on his plan of working in the hospitality industry. In the statement, the applicant says that his ultimate goal is to open his own restaurant. The applicant did not provide any evidence to the Tribunal to indicate that he has ever worked in the hospitality industry. In the information form submitted to the Tribunal the applicant indicates that, “My plans after studies are to start my own car parts business as I have wide range of knowledge in ongoing market overseas. To use my study knowledge of business to use it in my future as it gives me main cretaria how to be a successful business man with low risk. I have future plans to settle with my partner either in India or New Zealand after I finish my course” [sic]. In the information form the applicant also says “As explained above that my studies helping me develop my skills both practically and theoretically allowing me in depth study of range of specialities. There is lot of demands of new and used cars/car parts and other automotive stuff” [sic].
The applicant has made distinct changes to his study and proposed career objectives numerous times. This casts doubt on the value of all the courses and the applicant’s associated career plans. Since arriving in Australia, the applicant has swapped the focus of his studies from nursing to business to cookery and back to business. The applicant told the Department that he planned to open his own restaurant and he told the Tribunal that he plans to open a car parts business in India or New Zealand. The Direction indicates that reasonable changes to career or study pathways should be accommodated. The Tribunal considers that the evidence described in paragraphs [21] and [23] above demonstrates a pattern of changes which is now a clear trend going beyond the changes contemplated in the Direction. The Tribunal does not accept the applicant’s evidence regarding his future plans.
In the information form submitted to the Tribunal, the applicant confirmed that since arriving in Australia on 13 June 2013, he has departed Australia twice for approximately 41 days in January 2015 (to attend his brother’s wedding and see family) and for 12 days in December 2017 (to visit family and to receive treatment for his back problem). The applicant also indicated that he was planning to travel to India between 4 February and 9 March 2019.
The Tribunal is concerned that the applicant is proposing to stay in Australia until 31 July 2021. In this case, the applicant has been in Australia for almost 6 years and has changed the focus of his study and career plans a number of times. The applicant is now enrolled in a course which is scheduled to conclude on 31 July 2021. The Tribunal does not consider his academic progress to be that of a genuine student. The Tribunal is not satisfied that the applicant is not simply now proposing further short, inexpensive courses in order to gain a student visa with the primary objective of maintaining ongoing residence in Australia.
In relation to the applicant’s circumstances in his home country, in the information form provided to the Tribunal, the applicant indicated that he is not concerned about military service commitments or political or civil unrest in India. The Tribunal accepts this.
In the information form submitted to the Tribunal, the applicant stated that he chose to study a Bachelor of Business in Australia because “Australia has better exposes. There are student from every different country that help me understand how business works in every different country. Australia has modern techniques of doing business and more knowledgable. The other main reason is that it helped me a lot to study in English environment which would not be able to of hard to gain such requirement back in home country” [sic]. In the absence of any further evidence to support this claim and taking into account the amount of time the applicant has now spent in Australia on student and associated bridging visas and the fact that the applicant has changed the focus of his studies and his career plans a number of times, the Tribunal does not accept this.
In the information form submitted to the Tribunal, the applicant identified that his parents and brother continue to reside in India and the last time that he saw them was 20 December 2017. In the information form, the applicant also indicated that he was planning to travel to India between 4 February and 9 March 2019. The applicant said that he contacts his family in India 3 or 4 days per week via phone or Facetime. The applicant did not provide the Tribunal with any evidence that he owns any real property in India in his name. In the information form, the applicant said that “our family is religious and organises event that are related to our culture and religion. For homless and needy people. I was contributing before arriving Australia and at present and whenever I go back home I help organise them events within our community” [sic]. Taking into account the fact that the applicant has not provided the Tribunal with any evidence that there is any real property in his name in India and the fact that the applicant has only returned home to visit his family at most three times in the six years that he has been in Australia, the Tribunal does not accept that the presence of the applicant’s family and his community ties there would constitute an incentive to return to India.
In relation to the value of the course to the applicant’s future, in the information form the applicant submitted to the Tribunal, the applicant stated that he completed high school in India. The Tribunal accepts the applicant’s education history in his home country as presented to the Tribunal.
In the information form submitted to the Tribunal, the applicant indicates that since arriving in Australia on 13 June 2013, the applicant has worked as crew member at McDonalds and a retail assistant at Charlie’s Fruit Market. The applicant presently works as a retail assistant at Global Auto Parts. The applicant stated that he present earns approximately AUD$18,500 per year.
The applicant did not provide any information to the Tribunal about his expected remuneration in his home country.
The Tribunal considers that the applicant’s economic circumstances in Australia, specifically his capacity to earn Australian dollars in ordinary employment, presents a significant incentive for the applicant to remain in Australia.
In relation to the applicant’s immigration history, in the information form submitted to the Tribunal, the applicant indicates that he has been granted one student visa between May 2013 and March 2017.
According to the delegate’s decision record, the applicant’s initial student visa was granted on the basis of Streamlined Visa Processing arrangements, as the applicant was enrolled in an eligible course at an approved education provider. One of the visa conditions of a student visa is 8516 which provides that the holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. According to the delegate’s decision record, the applicant ceased studying his Diploma of Nursing within three months after commencing the course. The applicant subsequently enrolled in courses at the Vocational Education Sector level in a different field of study. As the applicant did not continue to study the approved courses under the Streamline Visa Processing arrangements, he has breached condition 8516 of his student visa. According to the delegate’s decision record, the applicant requested to withdraw from the Diploma of Nursing course because it was his intention to return home. In the Genuine Temporary Entrant statement the applicant submitted to the Department, the applicant states that he enrolled in the Diploma and Bachelor of Nursing because his parents wanted him to and he withdraw from these courses because he did not want to do something that he was not interested in. The applicant’s breach of condition 8516 raises concerns that he is utilising the student visa program to maintain ongoing residence in Australia and is not a genuine student.
In the information form submitted to the Tribunal, the applicant stated that he applied for a 461 visa on 14 December 2017. A subclass 461 visa is a New Zealand Citizen Family Relationship visa. This visa is for a person who is not a New Zealand citizen but is a member of a family unit of a New Zealand citizen. It lets you live and work in Australia for five years. This is evidence that the applicant’s primary goal is to live and work in Australia. This raises concerns that the applicant is utilising the student visa program to maintain ongoing residence in Australia and is not a genuine student.
The information form submitted by the applicant indicates that (other than the current student visa application) the applicant has never been refused a visa to any country (including Australia) and the applicant has never held a visa to any country (including Australia) that was cancelled or considered for cancellation. The Tribunal does not make any findings in relation to these matters.

There is no evidence before the Tribunal regarding the following factors indicated by the Direction: the applicant’s circumstances in India relative to others in that Country, any previous travel to Australia or other countries by the applicant including, if the applicant previously travelled to Australia whether the applicant complied with conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control and if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country.
As the applicant is over 18 years of age, the intent of any parent, legal guardian or spouse is not relevant to the Tribunal’s assessment.
The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. The Tribunal has found that the applicant’s family and community ties with Australia do not constitute a strong incentive to remain in Australia. However, taking into account the amount of time the applicant has now spent in Australia on student and associated bridging visas, the fact that the applicant has changed the focus of his studies and his career plans a number of times, that fact that the applicant has also applied for a subclass 461 visa and the fact that the applicant breached condition 8516, on balance, the Tribunal is concerned that a further student visa may be used primarily for maintaining ongoing residence.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
Conclusion on cl.500.212
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Margaret Forrest
Member

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

Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

[2019] AATA 3046

2 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Procedural Fairness

Judicial Review

Statutory Construction

Consent

Jurisdiction