Jung (Migration)

Jung (Migration) [2021] AATA 3903 (27 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Eunjoo Jung
Mr Simoon Yoo
CASE NUMBER:  1935024
HOME AFFAIRS REFERENCE(S):          BCC2019/4499834
MEMBER:Vanessa Plain
DATE:27 July 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 27 July 2021 at 2:00pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No.69 – circumstances in home country – potential circumstances in Australia – value of the course to the applicant’s future – immigration history – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.212, 500.311

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 21 November 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 9 September 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The applicants appeared before the Tribunal on 23 July 2021 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The applicants were assisted in relation to the review by their registered migration agent.
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 primary applicant is a genuine applicant for entry and stay in Australia temporarily 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.
Evidence in support of application
The applicant submitted the following documents in support of her application, as follows:
·    COEs for General English, a Certificate III in Individual Support, Certificate IV in Ageing Support and Diploma of Community Services
·    A Response to Request for Student Visa Information (s.359(2) of the Act)
·    A suite of academic documents evidencing course attendance, grade attainment and course completion
·    The delegate’s decision record
The Tribunal has read and considered these documents, together with all the material before the delegate.
Entry and Visa History
The applicant in this case is a 45 year-old Korean woman who first arrived in Australia on 26 February 2014 utilising an initial 457 Temporary Work visa which ceased in 2017. Since that time, the applicant has held a further 457 Temporary Work visa and associated bridging visas.
The student visa the subject of this application is the applicant’s first student visa application.
Current Status
The applicant is currently enrolled in a Certificate III in Individual Support. Thereafter she is enrolled in a Certificate IV in Ageing Support and a Diploma of Community Service which is scheduled to conclude in April 2025, thereby extending the applicant’s time in Australia to approximately 9 years.
The applicant has included her husband as the dependant applicant on her student visa application.
Previous Study and Work History before entering Australia
The applicant finished high school in her home country and obtained a nurse assistant qualification. She worked as an assistant nurse before arriving in Australia.
Study History in Australia
Since arriving in Australia, the applicant has been enrolled in the following courses:
·General English which she completed;
·A Certificate III in Early Childhood Education which she did not complete;
·A Certificate III in Individual Support which she is studying presently; and
·A Certificate IV in Aging Support and a Diploma of Community Services which are future enrolments and scheduled to conclude in April 2025.
Applicant’s circumstances in their home country
The Tribunal has had regard to the applicant’s circumstances in South Korea, as follows:
Reasons for not studying in home country
·In her Response, the applicant stated (verbatim) as follows:
“There is a common misconception about Korea as the country is well-known for the rapid economic and technological advancements. In fact, Korea has advanced a lot quicker than any other countries in the world in terms of economy and technology. People also only see the bright side of Korea through glamorous K-pop and K-drama. After the tragic Korean War, Koreans only focused on quantitative growth while neglecting qualitative growth. On the surface, Korea is a wealthy country with high-tech and advanced culture but the side effect of the rapid development resulted in the biggest rich-poor gap in the world. The people in need are neglected in the shadow of the social security system as it was never high priority in the country. Therefore, the level of the social security system and its education is worse than many developing countries. Studying any part of social services in Korea is not preferred among all Koreans.
When I came to Australia, I was extremely shocked to witness Australia’s advanced social systems and began comparing it to my country. The experience inspired my forgotten aspiration towards helping sick and weak people again. I would like to learn the advanced system from the world’s best so I can improve my country’s mediocre system.”
Personal ties to home country
·As to the applicant’s personal ties to South Korea, the applicant is a married woman, her husband lives with her in Australia, her two sons live in Australia and reside in the country on temporary visas. Her mother and two brothers reside in South Korea. She maintains contact with them regularly via telephone.
·The applicant contended that she has been involved with her local Church and Nurses Association in her home country.
·The applicant claimed to own a house valued at $250,000 in South Korea.
·The applicant has returned home to South Korea once since arriving onshore in 2014.
Economic circumstances in Australia as incentive not to return home
·In her Response, the applicant set out her working history in Australia as follows:
- BIC Services – cleaner – 08/2017 – 02/2021 - $23,251 p/a
·In her oral evidence, the applicant informed the Tribunal that she quit her job in February 2021 because she was preparing to study and her shifts were changed to evening which was too difficult to manage with a study load. Her husband is working some hours presently.
Military service or civil/political unrest concerns in home country
·The applicant has no such concerns.
The Tribunal asked the applicant why she did not complete her studies in early childhood education. The applicant stated that she worked as a nursing aid in Korea, so she looked for a course to study, but if the course was longer than 3 months she had to apply for a student visa. In 2016, when she was looking for a suitable short course, she thought that early childhood studies might be appropriate.
The Tribunal asked the applicant why she had not taken up study sooner, given that she had been in Australia utilizing two temporary 457 work visas since 2014. The applicant stated that she first started English lessons at community church in 2014 and then people that she got to know within the church gave her information about other English courses, but as an international student she had to pay $3,800 per subject which she couldn’t afford. Her visa was due to expire in October 2019 so in 2018 when she became interested in getting a qualification in aged care she made enquiries about what sort of courses she could take and was told with the 457 visa she couldn’t study for more than 3 months.
The Tribunal is unable to accept the applicant’s reasons for not studying in South Korea, due to the fact that the applicant’s evidence as set out above demonstrates that she has not undertaken an objectively reasonable amount of research into the availability of the course in her home country.
The Tribunal finds that the applicant’s family ties to South Korea, in and of themselves, do not present as a significant incentive for her to return to South Korea, when considered against her family ties in Australia, in the form of her husband and two sons.
The Tribunal is unable to place significant weight upon the applicant’s claims to property ownership in South Korea as she has not provided any objective evidence to substantiate her claims.
The Tribunal finds that the fact the applicant has been in Australia since 2014 and has only returned home to visit her family on one occasion is indicative of an intention on the part od the applicant to remain in Australia on a more permanent basis.
Although the Tribunal acknowledges that the applicant is not working presently, the Tribunal finds that the applicant’s strong working history in Australia may provide an incentive to remain in Australia for economic reasons, rather than out of a genuine desire to temporarily reside in Australia as a student, particularly where strong economic opportunities in the applicant’s home country have not been evidenced.
While the Tribunal accepts that the applicant has not studied sooner for financial reasons and that individuals may choose different areas of study on the basis of a change of decision as to career course or to acquire more practical skills in a particular area of interest, the Tribunal cannot be satisfied that the current course in which the applicant is enrolled will further assist her career development or earning potential in view of the qualifications she already holds, noting that the applicant is an assistant nurse.
Taking in account all the aforementioned matters, the Tribunal finds that the applicant’s circumstances in her home country did not provide a significant incentive for her to return there at the conclusion of her studies.
Applicant’s potential circumstances in Australia
The Tribunal has had regard to the applicant’s potential circumstances in Australia, as follows:
Applicant’s ties with Australia
·The applicant’s husband resides in Australia with her and is included in the applicant’s visa application as a dependant person. The applicant’s two sons reside in Australia. The applicant attends her local church in Sydney.
Evidence visa program being used to circumvent migration program
·The applicant has been in Australia since 2014 utilising multiple temporary working visas and now proposes to undertake vocational level courses that will extend her stay in Australia to approximately 9 years, in circumstances where she has similar qualifications and work experience arising out of her occupation as an assistance nurse.
Primary and secondary applicants relationship of concern
·The applicant’s spouse is included in the applicant’s visa application as a dependant person.
Applicant’s knowledge of living in Australia, their intended course and level of research into their intended course
·In her Response, the applicant stated (verbatim) as follows:
“In my community, I have met many alumni of the school. I have been told a lot from them about the higher level of education and practical experience gained from the school. When I talked to them about my plans, they recommended the school without any hesitation. I was extremely impressed by their confidence in the high quality of the school’s curriculum in both theoretical and practical aspects. Even though I searched for other schools, I was already convinced by the recommendations. After careful consideration and comparison, I am quite sure that this is the best fit for my future education.”
The Tribunal finds that the applicant has not undertaken a reasonable amount of research into her proposed course, course contents, education provider and educational objectives based on the general assertions set out above, which is not behaviour consistent with a genuine student.
Given the applicant’s visa history and length of time and proposed length of time for staying in Australia, the Tribunal is of the view that the applicant has enrolled in her current courses for the purpose of seeking to further economic opportunity in Australia and circumvent the intention of the student migration program, rather than out of any genuine desire to study a further vocational level course.
The Tribunal places significant weight on the fact that the applicant’s husband is in Australia with her, and both children reside in Australia, as being key factors which serve as a significant incentive for her not to return to South Korea. The presence of the applicant’s husband in Australia and his ongoing economic tie in the form of paid employment, leads to the conclusion that the applicant’s desire to study in Australia is secondary to her intention to remain in Australia on a more permanent basis.
Value of the course to the applicant’s future
The Tribunal has had regard to the value of the course of study to the applicant’s future, as follows:
Is the course consistent with the applicant’s current level of education?
·The Diploma course is a minor progression academically from the nursing qualification the applicant has obtained.
Will the course assist applicant to obtain employment or improve employment prospects?
·In her Response, the applicant stated (verbatim) as follows:
“When I finish my courses, I am going back to my country to get a job in the social security field. As I learned from the best, I will be able to not only work in the field to help people in need, but also I can spread the best theory and practice in the field. I hope to be the one who can enhance the level of my country’s mediocre social security system. As helping people in need has been my aspiration in my life, I will be able to possess competent skills I study here in Australia.”
Relevance of course to past study?
·The applicant’s current course is in a similar field to the nursing qualification the applicant has already completed.
Expected remuneration using qualifications in home country compared to what is receivable in Australia?
·In her Response, the applicant stated (verbatim) as follows:
“Before coming to Australia, I worked as a nursing assistant to help people in need. Even though I loved my satisfactory job, I had to leave the field due to taking care of my family. Now, I can go back to work, but I have been away from the field for a long time. I am afraid that I will never find a job as a nursing assistant again due to the discontinuation of
my career. Even though the Korean government neglected the social services for a long time, they started realising the importance after experiencing the C OVID pandemic.
Recently, the Korean government announced the plan to make 96,000 new social worker jobs as they witnessed the tragic outcome of fragile social security services. They also announced a long term plan to make 340,000 new social worker jobs in the near future in preparation of improving the level of social security. If I gain the certification and diploma from the world’s best education system, I will be able to reignite my passion of helping people. If I go back to my country without the education, I will not be able to get any job
in the field except for minion jobs. If I gain the qualification from the world’s best, I will be able to continue my career to help people in need. Furthermore, my country’s social
security system will be boosted when I spread my advanced theory and practice. Therefore, the gain from studying the course here is vast in my life. Please consider my appeal to study the advanced system in Australia as I am fully committed to helping people in need.”
.
The Tribunal is not satisfied that the applicant has demonstrated the value of the proposed course to her future. The Tribunal is unable to accept the applicant’s assertions as to the value of the course to her future as she has not provided any objective evidence of her research into the job market in South Korea to substantiate the claims set out above, demonstrating how the completion of her current course will improve her employment prospects or add value to her earning capacity, in view of the qualifications and work experience (referred to above) which the applicant already possess.
While it is not uncommon for an applicant to re-educate themselves or make a change in study plans or work pathways, the Tribunal finds that it is not consistent with the behaviour of a genuine student to seek to undertake a suite of vocational level courses, where it is not objectively demonstrated how those pathway changes will be beneficial to the applicant in the future, to an extent that would outweigh the financial commitment involved in doing further study.

Based upon the applicant’s qualifications and work history to date, the Tribunal is of the view that the applicant has demonstrated that she is more than qualified to return home and seek employment in the social services sector in South Korea.
Immigration history
The Tribunal has had regard to the applicant’s immigration history. There is no evidence of other visa refusals, or cancellations. The Tribunal further accepts that the applicant has demonstrated an awareness of her visa conditions.
However, the Tribunal notes that the applicant has been onshore since 2014 and has not demonstrated the value of the proposed courses to her future. The Tribunal simply does not find this behaviour to be consistent with that of a genuine student who intends to remain in Australia temporarily. Rather, the Tribunal finds that this behaviour demonstrates an intention to use the student migration program to maintain ongoing residence in Australia.
Any other relevant matters
The applicant stated to the Tribunal that she desperately need to complete this course and once she does so, she will be able to work as a social worker or assistant in South Korea, because of her work experience as a nursing aid and also her volunteer work in Australia she’ll be in a good position to find work.
The Tribunal takes these claims into account. However, on balance, when considered against the other findings as set out above, the Tribunal is not satisfied that the applicant is a genuine temporary entrant.
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.
Although the applicant provided information to the Tribunal demonstrating that she has successfully completed studies she has undertaken to date, considering all the circumstances and all the evidence before the Tribunal, the Tribunal does not accept the applicant’s claims to be those of a genuine temporary entrant, primarily on the basis that the Tribunal considers that the applicant’s current course simply will not add value to her future in view of the qualifications and experience she holds.
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).
As the primary applicant is found not to meet clause 500.212(a), the dependant applicant does not satisfy cl 500.311. Accordingly, no further enquiry is required with regards to the dependant applicant.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Vanessa Plain
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.

[2021] AATA 3903

27 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice