Kasturi (Migration)

Kasturi (Migration) [2020] AATA 4339 (12 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Venkata Ravi Kumar Kasturi
CASE NUMBER:  1912519
HOME AFFAIRS REFERENCE(S):          BCC2019/1194847
MEMBER:Vanessa Plain
DATE:12 October 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 12 October 2020 at 4:17pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa, travel, study and work history – incomplete and repeated study at lower levels than highest study in home country – change of study area and plans for further study – personal ties to home country – death of close friend and start of relationship in Australia – value of course to applicant’s future – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 May 2019 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 9 March 2019. 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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The applicant appeared before the Tribunal on 12 October 2020 to give evidence and present arguments.
The applicant was 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 applicant is a genuine temporary entrant for entry and stay in Australia 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 his application, as follows:
·    COE for an Advanced Diploma of Leadership and Management and for a Graduate Diploma of Management Learning
·    A Response to Request for Student Visa Information (s.359(2) of the Act) (Response)
·    A suite of academic documents evidencing grade attainment and course completion
·    A suite of financial documents evidencing business interests and land holdings
·    Letter of Offer (Masters of Business Administration)
·    Deed of relationship dated 26 June 2018
·    Social media posts and emails regarding death of a friend
·    Migration agent submissions
The Tribunal has considered these documents, the material before the delegate, the decision record and the applicant’s oral evidence at hearing.
Entry and Visa History
The applicant in this case is an Indian man who first arrived in Australia on 9 April 2015 utilising an initial Student (Class TU) (Subclass 573) visa. Thereafter the applicant was granted a further student visa.
The student visa application the subject of this hearing was lodged on 9 March 2019 and will be the applicant’s third student visa application.
Current Status
The applicant is currently enrolled in an Advanced Diploma of Leadership and Management which is scheduled to conclude in May 2021, thereby extending the applicant’s time in Australia to approximately 6 years. Thereafter, the applicant intends to study a Masters of Business Administration, although did not have a COE at the time of hearing.
Previous Study and Work History before entering Australia
The applicant completed a Bachelor of Business Administration in his home country and worked as a Site Incharge at Sai Sai Enterprises prior to entry into Australia.
Study History in Australia
Since arriving in Australia, the applicant has been enrolled in the following courses:
·A Certificate IV in EAL which he completed;
·A Diploma of Leadership and Management (FMEDGE) which he completed;
·A Masters of Professional Accounting which he did not complete;
·A further Diploma of Leadership and Management which he complete;
·An Advanced Diploma of Leadership and Management which he is studying now and which is scheduled to conclude in May 2021;
·A Graduate Diploma of Management (Learning) which the applicant did not state that he is actually studying, or ever studied; and
·The applicant has obtained an offer of enrolment in a Masters of Business Administration, which he plans to study after completing his Advanced Diploma of Leadership and Management.
Applicant’s circumstances in their home country
The Tribunal has had regard to the applicant’s circumstances in India, as follows:
Reasons for not studying in home country
·In his Response, the applicant stated (verbatim), as follows:
“Amongst the many other countries that could have applied to, he chose Australia. He wanted to study in Australia because it gives global exposure to varied business houses. Studies in Australia will provide him the unique combination of accelerated growth and the flexibility to pursue this career path as it is the epic center of the world economy. Australia gives an opportunity to gain an excellent education at a very competitive price. Studying here is a step to enhance the career because of the faculty members who are qualified and experienced to prepare for a better future. It is a forward-looking institution that actively strives to update and improve its facility. The Australian lifestyle is more hassle free and relaxed if we compare it to the present state of India which is more academically focused. Australia is a very open country which encourages people running their small businesses. However, in India, most of the parents send their children to study IT or engineering because these two occupations give them pride and almost all the children strive to study well on those two fields only which is woefully sad because every child is different and has their own potential. The quality of education, safe environment, the multicultural background of the students, beautiful and peaceful country and on top of that is the support of government for international students are the aspects that have made Australia a very attractive destination for students from all over the world. Australian degrees are recognized by all the universities for further education in Indian Universities and good employment opportunities. Australia is a multi-cultural society which proves that there is no racial discrimination in this country. Australians in particular are very humble and friendly by nature, Australia is a country full of opportunities and international exposure. Australian societies believe in providing equal opportunities for everyone. Precisely, the combination of tuition fee and living cost makes it affordable for international students making Australia a better place to invest.”
Personal ties to home country
·As to the applicant’s personal ties to India, the applicant’s parents and siblings live in India and he maintains contact with them via skype and whatsapp.
·As to the applicant’s community ties to India, he claimed to have active ties to his local cricket club.
·As to the applicant’s financial ties to India, he owns two houses and a vehicle situated in India.
·The applicant has returned home to India five times since arriving onshore in 2015.
Economic circumstances in Australia as incentive not to return home
·In his oral evidence, the applicant stated that he is working since January 2020 at a service station, approximately 15-20 hours per week, but did not do much other work over his time in Australia.
Military service or civil/political unrest concerns in home country
·The applicant has no concerns about military service of civil unrest
While the Tribunal accepts that the applicant may wish to study in Australia, the Tribunal is unable to accept the applicant’s reasons for not studying in India, due to the fact that the applicant has failed to demonstrate that he has undertaken any significant research into the availability of the course in his home country.
The Tribunal finds that the applicant’s family ties to India, in and of themselves, do not present as a significant incentive for him to return to India, when considered against his potential circumstances in Australia, in the form of his current employment.
The Tribunal finds that while the applicant has reasonable financial ties to his home country, it is not satisfied that these financial ties present as a significant incentive to return home when considered against the fact that strong economic prospects in the applicant’s home country have not been evidenced.
The Tribunal finds that the length of time the applicant has been onshore coupled with his stated intention that he does not wish to return home after the conclusion of his current course of study, but rather proposes to undertake a further Masters degree and thereby extend his stay even further, to be indicative of an intention on the part of the applicant, to remain in Australia on a more permanent basis.
The Tribunal finds that the applicant’s current employment in Australia, when considered against the fact that strong economic prospects in his home country have not been evidenced, may be a motivating factor for the applicant to remain in Australia on a more permanent basis, rather than out of a genuine desire to temporarily reside in Australia as a student.
The Tribunal places significant weight on the fact that the applicant has been in Australia since 2015, has regressed academically, changed course direction and failed to complete the Masters degree he initially embarked upon, as being behaviour that is inconsistent with that of a genuine student. The Tribunal informed the applicant that his study history may be the reason or part of the reason for affirming the delegate’s decision and invited the applicant to comment or respond.
The applicant stated that he failed some subjects in his Masters degree, he suffered a challenging time enduring the death of a close friend, upon whom he had to perform CPR before the friend passed away. That experience was painful and caused him substantial difficulties in focusing on his studies thereafter. He failed subjects. He then moved to Tasmania, he met a woman with whom he commenced a serious relationship and on that basis, he started to look for courses in Tasmania. He spoke with a migration agent who recommended Diploma courses. He moved to Tasmania permanently to stay with his girlfriend. He stated further that his parents have invested a lot of time and money in his education, that he wishes to go home and take over the family business one day. He believes that he can do his Masters after his current course, then return home and take over his family business.
While the Tribunal accepts that individuals may choose different areas of study on the basis of a change of decision as to career course, the Tribunal cannot be satisfied that the current course in which the applicant is enrolled will further assist his career development or earning potential in view of the Bachelor level qualifications he already holds and it appears from the applicant’s evidence, that he was motivated to study the current Diploma course in Tasmania on the basis that he was in a relationship with a woman in Tasmania, rather than out of any genuine desire to study Leadership and Management.
The Tribunal accepts the difficulties endured by the applicant regarding the death of his friend, which impacted upon his capacity to complete his Masters degree. No adverse inference is drawn against the applicant for his failure to complete the Masters of Professional Accounting in these circumstances. The Tribunal further notes that there is no evidence before it to suggest that the applicant cannot undertake further Masters level studies in his home country.
Taking in account all the aforementioned matters, the Tribunal finds that the applicant’s circumstances in his home country do not provide a significant incentive for him to return there at the conclusion of his 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 is a relationship with a woman in Tasmania. The Tribunal otherwise acknowledges there is no further evidence of any significant ties to the Australian community.
Evidence visa program being used to circumvent migration program
·The applicant has held multiple visas during his time in Australia, during which time he has failed to complete a Masters degree, with reasonable excuse, however, he downgraded his course of study and changed course direction primarily based upon his decision to commence a relationship with a woman in Tasmania, rather than out of any genuine desire to undertake a vocational level course in Leadership and Management.
Applicant’s knowledge of living in Australia, their intended course and level of research into their intended course and course provider
·In his Response, the applicant stated (verbatim) as follows:
“He chooses International College of Tasmania Pty Ltd to study Diploma and Advance Diploma of Leadership and Management because every profession should have knowledge of managing different kinds of project and should have leadership and Business skills. Today, the whole world is in the phase of development. Every nation is more developed in the context of everything compared to the past and further, it goes on in the future. Likewise, in the field of business also, everything is growing rapidly with advanced resources and technology. In his home country there is a lot of scope of management and leadership. From his past experience he was working as a site in-charge in India, he found that good management and leadership with vision is the key to success of the business because, without good management,
the company cannot run properly because everyone working in the company will need to be managed properly to make sure everyone is doing their job properly. The course he is going to study in Australia will enable him to learn new strategies and he is mindful of this responsibility and also determined to succeed. The courses at International College of Tasmania Pty Ltd will enhance his management skills in a more practical and theoretical level, for example, drafting business plan, managing employee relations, managing finance, managing quality customer service, managing recruitment and so on.”
The Tribunal finds that the applicant has not undertaken any significant research into his proposed course, course contents, education provider or educational objectives based on the general assertions set out above, rather, based upon the applicant’s oral evidence, the Tribunal is of the view that he chose his current course based upon the advice of an agent and motivated by a relationship he was in at the time, rather than out of any genuine desire to study leadership and management.
Due to the nature of the vocational level course the applicant is currently undertaking, when considered against the higher level Bachelor degree he has already obtained and his stated intention to do a further Masters degree, the Tribunal is of the view that the applicant is enrolled in his current vocational level course with the primary intention of attempting to circumvent the intention of the student migration program and remain in Australia on a more permanent basis.
Although the Tribunal acknowledges that there is no evidence before it demonstrating the that applicant has significant community ties to Australia, the presence of the applicant’s partner may present as an incentive to the applicant 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 course is a regression from the applicant’s Bachelor level studies.
Will the course assist applicant to obtain employment or improve employment prospects?
·In his Response, the applicant stated;
“A diploma of Leadership and Management offers key advantage, it helps unlock management positions. There are a few reasons for this. First, a higher education demonstrates discipline, hard work, and determination. It also shows that you’re committed to your career. This course prepare him for future careers. The whole purpose of vocational training is to equip him with the practical skills and knowledge to perform a particular role. Employers generally value current, applicable, real world knowledge and many more. He will study global challenges companies face, looking at international boundaries, trade, global economics and how to negotiate with diverse cultures. This approach to problem solving will broaden his world view and help him understand the different perspectives.
Relevance of course to past study?
·The course content is not consistent with the subject matter of the applicant’s Bachelor degree or the Masters degree he unsuccessfully embarked upon.
Expected remuneration using qualifications in home country compared to what is receivable in Australia?
·In his Response, the applicant stated:
“The courses from International College of Tasmania will enhance his leadership and management skills in a more practical and theoretical level, for example, drafting business plan, managing employee relations, managing finance, managing quality customer service, managing recruitment and so on. The courses will improve his communication skills, both verbal and written, give him a deeper understanding of business processes and protocols, analytical skills to interpret data and statistics and draw conclusions and create Management skills to boost productivity and results. He can contribute better knowledge and practical exposure to his business to grow it in the other cities of India as well
because he is only one to take care of his family.”

The Tribunal is not satisfied that the applicant has demonstrated the value of the proposed course to his future. The Tribunal is unable to accept the applicant’s assertions as to the value of the course to his future as he has not provided any objective evidence of his understanding of the job market in India, a business plan demonstrating the substance of his family’s business, or other objective research as to projected salary, demonstrating how the completion of his current course will improve his employment prospects or add value to his earning capacity, in view of the Bachelor’s degree he already holds.
While it is not uncommon for an applicant to re-educate themselves or seek to acquire more practical skills, the Tribunal finds that it is not consistent with the behaviour of a genuine student to seek to academically regress in course selection to the extent that the applicant has, where it is not objectively demonstrated how that academic regression will be beneficial to the applicant in the future, to an extent that would outweigh the financial commitment involved in doing further study.
Immigration history
The Tribunal has had regard to the applicant’s immigration history. The Tribunal notes that there is no evidence of further visa refusals or of any visa cancellations before the Tribunal. However, the Tribunal is concerned by the fact that the applicant has been in Australia since 2015 and is undertaking a vocational level course which he has not objectively demonstrated will add value to his 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.
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 he has successfully completed some studies to date, courses 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.
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).
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.
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.

[2020] AATA 4339

12 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice