Han (Migration)

Han (Migration) [2020] AATA 1975 (12 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Hwa Seong Han
CASE NUMBER:  1822961
HOME AFFAIRS REFERENCE(S):          BCC2018/1997452
MEMBER:Darren Renton
DATE:12 June 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 12 June 2020 at 9:47am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – no response to s 359(2) invitation – not entitled to appear before the Tribunal – reasons for studying in Australia – strength of ties to Korea – economic ties to Australia – evidence of academic progress – value of proposed course – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
CASES
Hasran v MIAC [2010] FCAFC 40
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16
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 23 July 2018 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 8 May 2018. 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 applicant was not a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal by the applicant.
The applicant was assisted in relation to the review by their registered migration agent.
The Tribunal wrote to the applicant on 2 March 2020 pursuant to s.359(2) of the Act, inviting her to provide information to satisfy it that she met her visa requirements regarding enrolment in a registered course of study and being a genuine applicant for entry and stay as a student and to give, in writing, all relevant information about the course(s) of study she was undertaking and her entry and stay in Australia as a student. The invitation was sent to the email address of the applicant’s migration agent as set out in the applicant’s review application form lodged with the Tribunal dated 8 August 2018 and advised that, if the information was not provided in writing by the prescribed period, being 16 March 2020, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. There was no evidence that the email was not received.
The review applicant did not provide the information within the prescribed period and no extension of time was requested. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to a decision without taking further steps to obtain the information.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student.
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion. The Tribunal has also had regard to the decision in Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 and the principles emerging from that decision in its application to the Tribunal’s consideration of Direction No. 69.
The applicant arrived in Australia in February 2013 on a tourist visa, having travelled with her husband and daughter from New Zealand. The applicant’s husband subsequently applied for a subclass 572 student visa which was granted on 28 May 2013. The applicant was a secondary applicant on her husband’s visa.
The applicant is a citizen of the Republic of Korea, or as it is more commonly known, South Korea (“Korea”).
As noted in the delegate’s decision, the applicant’s student visa application was made four days before the expiration of her husband’s student visa. In that application the applicant indicated she was enrolled in a General English (Beginner to Upper Intermediate) course and an Advanced Diploma in Hospitality Management.
According to the Department’s file, it wrote to the applicant on 8 June 2018 inviting her to provide further information in relation to a range of matters connected with her claim to be a genuine temporary entrant. The applicant responded to that request on 6 July 2018.
As part of her response, the applicant indicated why she wanted to study in Australia rather than Korea. In essence, it boiled down to the following matters:
a.Australia has a well-developed tourism industry with world-wide renowned excellence;
b.Australia has globally recognised qualifications;
c.Australia has a diverse and multicultural society, with a supportive, study-for-all approach, enabling her to interact with other international students and share their diversity of food and culture;
d.Australia is a beautiful country with a high standard of living, great climate, is safe, has a great economy and is friendly.
The only reference made by the applicant to study in Korea was in relation to her decision to want her daughter to study overseas because the Korean system was very competitive.
The Tribunal is not persuaded that the matters put forward by the applicant demonstrate reasonable reasons for not undertaking the study in her home country. The applicant has not for example, provided details regarding the courses in Korea; outlined what their curriculum is; indicated how the courses offered by Australian providers offer a superior education; stated why Korea’s competitive education system cannot cater to her needs; the costs of those courses or any other substantive reasons beyond Australia effectively being a desirable location in which to study. This consideration weighs against the applicant.
The applicant provided a brief response concerning her ties to Korea. She indicated that she missed her parents, siblings and other relatives very much. She claimed that taking care of elderly parents is a significant responsibility in Korea. On her return she planned to open a café.
The Tribunal was not presented with evidence of any assets held by the applicant in Korea or any details of community ties. In terms of employment, the applicant did not indicate she had a job to return to, only that she planned to open a café. The Tribunal notes that the applicant has not returned to Korea since arriving in 2013. She claims this was because she and her family in Australia could never find a two to three-week block when they were all available to travel as they were too busy with study and work.
The applicant provided no evidence of contact with her relatives in Korea since arriving in Australia. Together with the length of time the applicant has been in Australia, this causes the Tribunal to have concerns about the strength of the applicant’s family ties to serve as an incentive to return.
When the matters in [19] – [21] are balanced, the Tribunal does not consider the extent of the applicant’s personal ties to Korea and the associated circumstances would serve as a significant incentive to return home. These considerations also weigh against the applicant.
The applicant provided limited evidence concerning her economic circumstances. She has been in Australia since 2013 and in New Zealand for a period before that studying. It is reasonable to infer that the applicant has no employment to return to. This inference is strengthened by the applicant’s stated intention to open a café upon her return to Korea. In contrast, the applicant advised that she has worked while in Australia, having spent over three years working as a chef.
The applicant provided evidence that she has been working in Australia as a chef/Assistant Manager with Ochef Pty Ltd since March 2015. The applicant submitted a copy of her 2016/2017 income tax return noting gross earnings of $29,050. When these earnings are compared against the economic uncertainty facing the applicant on her return to Korea, the Tribunal is satisfied that the economic circumstances of the applicant would present as a significant incentive for her not to return home, especially given the absence of reliable and persuasive evidence concerning how the applicant would fund the purchase or construction of her café; where it would be located; how it was proposed to be operated or any other information from which to make an informed assessment of its prospects of viability. Again, these matters weigh against the applicant.
There was no evidence before the Tribunal that the applicant held any concerns regarding military service commitments in Korea or in relation to political/civil unrest there such as would present as a significant incentive for the applicant not to return home. In the circumstances, the Tribunal gives these matters some weight in favour of the applicant, but not to the extent that it outweighs the matters adverse to the applicant.
The Tribunal has already noted the applicant’s economic ties to Australia. There was no other evidence placed before the Tribunal of ties held by the applicant with Australia, notwithstanding the applicant and her family having been in Australia since 2013. In the circumstances, the Tribunal places weight on the applicant’s economic ties as providing a strong incentive for her to remain. The Tribunal also notes that whilst her husband and daughter remain in Australia (each being a non-permanent resident), the applicant’s incentive to remain in Australia is strengthened. No evidence was put before the Tribunal of their ongoing intentions, other than in the context of the applicant stating that she would live with her daughter while she (the applicant) studied. The Tribunal also notes that neither was included in the applicant’s student visa application. In addition, the applicant’s husband’s passport expired during his stay in Australia (a matter noted by the applicant in her student visa application and confirmed by information on the Department’s file) and that the applicant’s own passport was due to expire on 10 February 2019. No updated passport information was provided to the Tribunal by the applicant. While it is possible to obtain new travel documents permitting the applicant and her family to return to Korea, the expiration of the passports during the applicant’s stay in Australia is a concern for the Tribunal.
The timing of the applicant’s student visa application some four days before the expiration of her husband’s student visa on which the applicant was a named dependant raises questions about the applicant as a genuine student. The applicant claimed that she did not commence her studies during the previous five years she and her family had been in Australia as both her husband and daughter were studying, and she needed to support them. She claimed she needed the more composed environment of them not studying so that she could commence her studies. The Tribunal accepts that this could be a reasonable explanation; however, notes that there is an inconsistency in the applicant’s evidence as she indicated that she would be living with her daughter while her daughter completed her university studies in advanced science. No evidence was provided in relation to what her husband would be doing while the applicant and her daughter studied, and the applicant made no reference to her husband’s living arrangements during that time.
Further concerns are raised as to the applicant has provided no evidence of any academic progress in relation to either her General English course or Advanced Diploma of Hospitality Management course. The applicant’s failure to respond to the Tribunal’s s.359(2) invitation means that the applicant has provided no current information concerning her circumstances.
In the absence of evidence of academic progress, the timing of the application and the uncertain nature of the applicant’s explanation for the delay in commencing her studies, the Tribunal considers that the applicant is using the student visa program to circumvent the intentions of the migration program and to maintain ongoing residency in Australia. These matters also weigh against the applicant.
The applicant provided generally vague and unconvincing evidence concerning her knowledge of her course and course provider. In that regard, the applicant stated:
“…SSBT (her education provider, Sydney School of Business and Technology) provides desirable condition for myself to study in terms of the curriculum they provide, the location and the school fees. My friends who have studied at SSBT recommended this institute and gave good review.”
The applicant also stated that studying at SSBT would provide her with a great environment.
The Tribunal does not consider the above statements to demonstrate a realistic level of knowledge that an applicant would be expected to know if they had conducted a reasonable level of research into their proposed studies. The applicant did not indicate who her “friends” were or the basis upon which she felt she could rely on their recommendations. Consequently, the Tribunal gives this matter weight against the applicant.
In terms of knowledge of her course, the applicant stated
“I think that The Advanced Diploma of Hospitality Management would be able to add the values such as efficiency, productivity on how to perform those roles and responsibilities that comes with operating a café. From studying this course I expect that I will be able to learn the commitment required in various areas such as having a business plans, recruiting staff members, orientating the staff roles and ensuring the work health practices.”
Again, the Tribunal is concerned that the applicant’s research into her proposed course does not reflect a realistic level of knowledge to be expected of an applicant. While the comments may reflect some awareness by the applicant of her proposed course of study, the Tribunal is not satisfied that they meet the relevant standard. Accordingly, the Tribunal gives this consideration weight against the applicant.
The applicant presented limited evidence regarding her knowledge of living in Australia. It is to be expected that after having lived and worked in Australia for a number of years that the applicant would have acquired a reasonable level of knowledge of living here. The Tribunal is prepared to proceed on the basis that the applicant does possess a realistic knowledge of living in Australia and gives this some weight in her favour.
There was limited evidence put before the Tribunal of the applicant’s previous studies. She had completed a Diploma in Professional Cooking (level 5) in New Zealand following studies there in 2011/2012. The proposal to study an Advanced Diploma is therefore consistent with the applicant’s current level of education and the Tribunal gives that matter some weight in her favour.
A more difficult issue is whether the proposed course will assist the applicant to obtain employment or improve her employment prospects in Korea. As noted previously at [24] above, there was an absence of evidence regarding the applicant’s proposal to run her own café in Korea following completion of her studies in Australia. The absence of such evidence creates too great a level of uncertainty about the café being a viable option and in turn, whether completion of the course will assist the applicant’s employment prospects. The Tribunal notes that the applicant already has both academic and work experience as a chef and that those skills would provide her with a basis for employment in Korea or elsewhere. Given the uncertainty surrounding the opening of the applicant’s café, the Tribunal is not satisfied that the evidence demonstrates that the course will improve the applicant’s employment prospects and gives the matter weight against her.
In terms of the relevance of the course to the applicant’s past or proposed future employment, she indicated that she wanted to continue her interest in the cookery and hospitality industry but also wanted to develop her knowledge of management and the required responsibilities for a hospitality business. She also indicated that she wanted to study hospitality in a more professional way so she could take care of her business, noting that the course structure covered financial business problems, marketing strategies, ensuring work health and safety practices and environment and staff management.
The Tribunal accepts that if the applicant is to operate her own café on return to Korea, that acquiring skills to assist in the management and running of that business are relevant to her proposed future employment. The degree of relevance; however, is tempered by the likelihood of the applicant being able to pursue such future employment. In light of the concerns previously identified in this regard, the Tribunal gives some weight to this consideration in favour of the applicant but not to the extent that it overrides the matters adverse to the applicant.

The applicant did not provide evidence concerning her expected remuneration following completion of her studies in Australia. Accordingly, there is no evidence that the applicant will be in a more beneficial position from the point of view of remuneration using the qualifications to be gained from the proposed course of study. The Tribunal gives this some weight against the applicant.
Aside from the timing of the applicant’s student visa application, there is no other evidence that would support an adverse finding in relation to her immigration history arising from her previous visa applications or travels to Australia or elsewhere. In the circumstances, the Tribunal gives this matter limited weight in favour of the applicant.
There is no evidence of any other relevant matters either beneficial or unfavourable to the applicant, before the Tribunal. The Tribunal notes that the current COVID-19 pandemic has caused considerable disruption worldwide and has resulted in travel bans and restrictions, social isolation and numerous other impacts on society aside from the obvious health ramifications.
There is no evidence before the Tribunal that the COVID-19 pandemic has any special application to the applicant. The applicant failed to provide additional information to the Tribunal about her GTE circumstances and so the Tribunal is again limited to the information before it. In the circumstances, the Tribunal gives no weight to this matter either in favour of or adverse to, the applicant.
Based on the above, and taking all matters into account, both in favour of and adverse to the applicant, on balance, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Darren Renton
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.

[2020] AATA 1975

12 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice