Kaur (Migration)

Kaur (Migration) [2023] AATA 1750 (14 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Asmindar Kaur
REPRESENTATIVE:  Mr Kunal Verma (MARN: 1803861)
CASE NUMBER:  2200386
HOME AFFAIRS REFERENCE(S):          BCC2021/2333939
MEMBER:Michael Biviano
DATE:14 April 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.

Statement made on 14 April 2023 at 9:28am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Ministerial Direction No.69 – reasons for undertaking studies in Australia – career plans – highest level of education – financial incentive to remain in Australia – family ties in Fiji – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
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 December 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 3 December 2021. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) for the reason that she was not a genuine applicant for entry and stay as a student because she did not intend to stay in Australia temporarily.
The applicant appeared before the Tribunal on 20 March 2023 to give evidence and present arguments.
The applicant was assisted in relation to the review.
It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making the relevant facts of the individual case must be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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 was a genuine applicant for entry and stay as a student.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The applicant is a 37-year-old Fijian National who first came to Australia in October 2017 on a tourist visa for the purposes of visiting relatives and being on holiday, after which, she stayed here for six weeks and then returned home. The applicant further returned to Australia in November 2018 on a tourist visa for the purposes of visiting family in Melbourne including her two brothers and sisters-in-law and assisting one of her sisters-in-law in relation to providing support regarding a birth of a child.
The applicant subsequently applied for a student visa and the applicant in evidence confirmed that in July 2019 she was granted a student visa offshore to come to this country for the purposes of undertaking a Certificate III in Individual Support and a Certificate IV in Ageing Support at the Australian College of Further Education, which subsequently became known as Kingsford Institute of Technology.
She returned to Australia on 3 August 2019 to study and has been here studying for 3 years and 8 months.
The decision record of the Delegate of the Department of Home Affairs dated 21 December 2021, which was provided to the Tribunal by the applicant, confirms she made the application for a further student (Class TU Subclass 500) visa on 3 December 2021 (Decision Record). Furthermore, the Decision Record sets out the reasons for the visa refusal and confirmed that she was proposing to undertake a Certificate IV in Ageing Support and a Diploma of Community Services.
On 20 September 2022, prior to the hearing, the applicant filed with the Tribunal a response within time pursuant to an invitation to supply student visa information about the courses she was studying and information about her entry and stay in Australia, in accordance with s.359(2) of the Act (Response). In addition to the Response, the applicant filed with the Tribunal the following documents in support of her visa application:-
a.GTE Statement;
b.passport extract;
c.letter dated 10 January 2022 regarding her circumstances and why she was a genuine temporary entrant;
d.record of result from Australian Centre of Further Education regarding the applicant’s studies in the Certificate III in Individual Support together with the Certificate III;
e.Confirmation of Enrolment (COE) No. CA08A163 for the applicant to study a Diploma of Community Services at Brighton College from 14 February 2022 to 11 August 2023 which was created on 3 December 2021;
f.COE No. CA047D59 for the applicant to study a Certificate IV in Ageing Support at Brighton College with a course start date of 6 December 2021 and a course end date of 30 January 2022 which was created on 2 December 2021;
g.statement of account for the applicant’s Fijian National Provident Fund (superannuation);
h.course progress report dated 20 January 2021 from the Australian Centre of Further Education for the applicant’s studies in Certificate IV in Ageing Support;
i.tax invoice from Australian Centre of Further Education for her studies in the Certificate IV in Ageing Support dated 9 October 2020;
j.Certificate IV in Ageing Support from the Kingsford Institute of Australia dated 18 February 2022 together with record of results and letter of completion;
k.updated statement of the applicant dated 19 September 2022;
l.letter from Signet Institute confirming that the applicant had completed the Certificate III in Individual Support and Certificate IV in Ageing Support at the Australian Centre of Further Education and Kingsford Institute of Australia which had been taken over by Signet Institute;
m.letter of employment from Georjose Pty Ltd trading as Vermont Family Owned Aged Care dated 14 March 2023 confirming the applicant’s employment in the role of Personal Care Worker in accordance with that organisation since 6 April 2020.
Prior to coming to Australia, the applicant had completed several short-form courses in Computing, Business Administration, Japanese language and Infection Control. Those courses were completed in Fiji and conducted predominantly between 2004 and 2006, with the short course in Infection Control in 2013. The courses included Computing courses relating to spreadsheets, word processing and introduction to computers.
Whilst in Fiji the applicant has had various roles as a cashier, a sales and marketing role, as a laundry staff member, as a dental assistant and receptionist and as a sales and marketing supervisor from 2005 to 2019. The range of annual income received by the applicant during that course of time has ranged from A$7,000 to A$9,000.
The applicant gave evidence that she arrived in Australia on 3 August 2019 on her student visa for the purposes of completing the Certificate III in Individual Support and Certificate IV in Ageing Support so that it would improve her prospects of obtaining a position in employment as a social worker, either working for charities or for Government back in Fiji. The applicant in evidence confirmed that she has studied and completed both the Certificate III in Individual Support and Certificate IV in Ageing Support , which concluded in February 2022. The applicant gave evidence that at the conclusion of those courses, her educators recommended that it would be beneficial for her career to complete a Diploma of Community Services to further enhance her qualifications. She is currently enrolled in and studying a Diploma of Community Services at Brighton College which is expected to conclude in August 2023 which is in four months. Such course would be her highest level of qualification.
The applicant in evidence confirmed that if she obtains those qualifications she would be able to obtain one of various jobs, either working as a welfare worker, early intervention worker, youth officer, client service assessor, case co-ordinator, case management supervisor, community services worker, program co-ordinator or team leader for organisations such as the Fijian Charitable Trust, a foundation for the Peoples of the South Pacific International and the Fiji Disabled Persons Association, Wanimate and Pacific Concerns Resource Centre.
The applicant in the Response claimed she would earn approximately 2,000 Fijian dollars per calendar month which equates to approximately A$1,800 per calendar month. This would improve her level of income back in Fiji, to around A$20,000 per annum, which would be a marked improvement on her previous salary. Having considered the applicant’s evidence and the fact that she has completed the Certificate III and Certificate IV courses, the Tribunal accepts that by reason of the studies that she is currently undertaking it will improve both her employment prospects and level of remuneration back in Fiji.
The applicant gave evidence that there are courses back in Fiji, but they are not at the same level as those in Australia. She decided to study in Australia by reason that she had family members here and, in particular, her brothers in Melbourne. She confirmed that she had not investigated studying in New Zealand but made that decision on the basis that she had not been to New Zealand previously.
The applicant in the Response outlined the following reasons for not undertaking those courses in her home country or region:-
Fiji is a great country but they are yet to come to Australian level of education in the technical sectors. There are almost no certificate and diploma courses specific to my line of interest and also, I wanted to finish what I have started. The student life in Australia is much better and less stressful. Though I could have done the same course in my home country for the same or probably less cost, I opted Australia for the exposure that a student gains. The courses are tailor made for the international students like me and the curriculum makes a student think out of the box. Many
international students come to study in Australia which gives a global exposure thereby inculcate a broader perspective.
Studying with peers of different cultures and thinking, different ways of doing basic things helps to learn a lot and develop that emotional intelligence while being adaptable. I am enthusiastic to learn so much and make the most of the opportunity.
The Tribunal accepts having considered those matters and as the applicant only has 4 months left on her studies in Australia, that the applicant has a reasonable motive for undertaking those studies here in Australia.
The applicant has maintained studies in the social work area and the Tribunal accepts that the courses she has undertaken are connected to each other and do lead to a career path and position in employment.
Furthermore, the Tribunal recognises that the applicant has not previously completed any tertiary qualifications back in Fiji or in Australia, other than the Certificate III and Certificate IV courses discussed above. The Diploma course that she is currently undertaking, is the highest level of education she would have completed and is consistent with her level of education.
The applicant has lived in Australia for the last 3 years and 8 months. She has a substantial degree of knowledge about living in Australia. She has been studying at Brighton College for only a month but has undertaken previous studies as set out above in regard to aged support and individual support. They are closely connected with the Diploma of Community Services. The Tribunal has also had regard to the applicant’s GTE Statement, which sets out that the Diploma of Community Services would assist in developing skills in case management and social housing and delivering services to the community. Having considered all those matters and also why she has studied at Brighton College, the Tribunal accepts that she has a substantial degree of knowledge about the course and the provider.
The Tribunal notes that the applicant has been here for a substantial period of time. However, the duration of time was extended because the applicant was unable to complete the practical components of her course at the Certificate III level due to the COVID-19 pandemic. This affected her ability to attain placements at relevant institutions to complete the practical components of the course. For those reasons, the Tribunal accepts that the duration of her stay here in Australia has been reasonable in light of her studies and the Tribunal notes that there is no gap in her period of studies while she has been here.
The applicant in evidence confirmed that since March 2020 she has worked as Vermont Aged Care and her level of income is approximately $45,000, per annum which she concedes is a very high level of income and substantially a lot higher than what she would receive in Fiji. Such level of income would provide her with a substantive financial incentive to remain here rather than to return home.
The applicant also conceded that economic conditions in Australia are more favourable than those in Fiji, which would also provide a substantial financial incentive to remain here rather than to return home.
The applicant in evidence confirmed that she does not have any property either in Australia or in Fiji which would provide some incentive to either stay or return home. The applicant in evidence confirmed she has various assets. Those assets comprise in Australia a Toyota Yaris car worth approximately A$4,000 and an iPhone 12 pro worth A$900. The Tribunal notes that the iPhone is obviously portable. Whereas in Fiji she has a Honda Insight motor vehicle worth approximately A$8,000 and a superannuation fund with FNPF worth approximately A$12,000. Whilst the applicant has more assets in Fiji, when one considers the higher level of income she can earn here, the Tribunal considers that her asset position would provide some incentive for her to remain in this country rather than to return home.
The applicant confirmed she has not returned home since coming to Australia in August 2019 and claimed that she was somewhat saddened by that in that she had been unable to see her parents and her young daughter who is 8 years of age and living with the applicant’s father.
For a substantial part of her stay in Australia, from March 2020 through to the commencement of 2022, there have been travel restrictions imposed by reason of the COVID-19 pandemic. In those circumstances the Tribunal makes no adverse findings about the applicant’s failure to return home during her stay in this country.
The applicant both in the Response and in evidence did not have any concerns about returning home to Fiji and she had no concerns about military service commitments or political or civil unrest in her home country. The Tribunal finds they do not present as a significant incentive for her not to return home.
The applicant gave evidence that her studies in Australia have been predominantly funded by her work here.
The Tribunal finds that based on the applicant’s evidence and circumstances in her home country, including her education and support from her family who have assisted her in looking after her child, relative to others in that country she is in a good position, and it would provide a significant incentive for her to return home.
The applicant confirmed she is not currently in a relationship and therefore the Tribunal accepts she is not in a relationship of concern for a successful visa outcome.
The applicant gave evidence that, back home, she has her mother, father, a son who is living with his father, her daughter who is living with the applicant’s father and a brother, which would provide a significant incentive for her to return home. The applicant also claimed that she keeps in contact with them constantly via phone, Zoom and What’s App calls and speaks to them every day. Her daughter is 8 years of age, and her son is 16 years of age. The applicant also has connections with community groups in Fiji, including Lifeline Fiji which she wishes to return to and contribute to those organisations.. Such ties would provide a substantial incentive for her to return home and they must be considered in light of her circumstances in this country including her high paid employment.
The applicant has substantial ties to Australia. She has been in a long-term employment with the Vermont Aged Care facility. She also has her brothers here in Melbourne. She gave evidence that she lives separately from them and is living with housemates. She has been in stable accommodation whilst in Australia living with two housemates. In relation to her elder brother, she has not seen him in person for nearly two years, whilst she has been in more regular contact with her younger brother, seeing him approximately three weeks earlier. She gave evidence that she remains in close contact with her younger brother.

The applicant in the Response also outlined that she has a community tie working with the Vermont Aged Care facility and in evidence confirmed that she does follow Melbourne Fijian community events online. The ties to Australia would provide some incentive for her to remain here rather than to return home. However, the applicant has only four months left on her course and the Tribunal accepts that the personal ties to her family would provide in all the circumstances an incentive to return home.
The applicant in the Response has not identified any other visa refusals or cancellations in Australia or elsewhere. There is nothing before the Tribunal from the Delegate’s Decision Record to indicate that the applicant has experienced any other visa refusals or any immigration issues either in or outside of Australia.
The applicant gave evidence that she will return home after completing the Diploma in August 2023, which is in only 4 months time as she misses her daughter. Considering the level of application by the applicant to her studies and the courses she has completed, the Tribunal accepts her evidence on this point.
Having considered the applicant’s circumstances in their entirety and all the above matters, the Tribunal is satisfied that the applicant has made this application to gain a student visa to study temporarily, and considers that the primary objective of the applicant is to complete her studies and to return home.
On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily.
Accordingly, the applicant does meet cl.500.212(a).
Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
DECISION
The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.
Michael Biviano
Member

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

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

[2023] AATA 1750

14 April 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies