Kim (Migration)
[2024] AATA 4045
•8 October 2024
Kim (Migration) [2024] AATA 4045 (8 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Ms Jehee Kim
REPRESENTATIVE: Ms Minji Lee (MARN: 1682317)
CASE NUMBER: 2308008
HOME AFFAIRS REFERENCE(S): BCC2023/2538456
MEMBER:T. Quinn
DATE:8 October 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 08 October 2024 at 9:34pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant is motivated by factors other than study – lengthy period of time onshore – not satisfied that applicant is a genuine student who intends genuinely to stay in Australia temporarily – no strong incentive to return to her home country – use the student migration program to maintain ongoing residence – decision under review affirmedLEGISLATION
Migration Act 1958, ss 65, 499Migration Regulations 1994, Schedule 2, cl 500.211
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
On 27 April 2023, the applicant applied for a Student visa (the visa) to undertake study in Australia (‘the application’).[1]
[1]Specifically, a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’). At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the former and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
On 24 May 2023, a delegate of the Minister for Home Affairs (‘the delegate’) refused to grant the application on the basis that the applicant did not satisfy the genuine temporary entrant requirements in relation to student visas.[2]
[2]See clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) which requires that student visa applicants be genuine applicants for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.
On 7 June 2023, the applicant applied to this Tribunal for a review of the delegate’s decision.[3]
[3] Pursuant to sections 338(2) and 347 of the Act.
In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed since making their application. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information for the purposes of determining the outcome of their application for review. To this end, on 15 July 2024, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’). The s359(2) letter requests that a questionnaire (‘the questionnaire’) be completed by the applicant.
The applicant responded to the s359(2) letter on 25 July 2024, including providing the completed questionnaire, which was within the prescribed timeframe.
The applicant was listed to appear before the Tribunal to give evidence and present arguments at a video hearing on 19 September 2024. However, there were technical difficulties, and the applicant requested her hearing be converted to a telephone hearing which the Tribunal accommodated. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The applicant was assisted in relation to the review, but her representative did not attend the hearing of 19 September 2024.
It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. A decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.
For the following reasons, the decision is affirmed. In reaching my conclusions, I have had regard to:
a.the oral evidence given at the hearing;
b.all submissions and written material filed by or on behalf of the applicant; and
c.other relevant documents on the Tribunal and Department files.
Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in my reasons as set out below. The reasons incorporate reference only to that information that I have found to be fundamental or materially significant to the determination of the issues in the case.[4]
[4]In this regard, please see Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (24 February 2020) at [82] and [96].
STATUTORY FRAMEWORK
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant. Information in relation to Clauses 500.211 and 500.212 is attached to this decision.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies clause 500.212(a), I must have regard to Direction No.108, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (‘the Direction’), made under section 499 of the Act. The Direction is attached in full to this decision but broadly it requires Tribunal Members 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 Direction is a lawful direction of the Minister.[5] I am therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[6] Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before me. However, I recognise that the Tribunal is an independent statutory body. I must therefore reach my own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate. In this regard, I note well established case authority as to the proper approach by decision makers to guidelines such as the Direction[7] and McNab J’s view that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.[8]
[5] In accordance with section 499 of the Act.
[6]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].
[7]Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]), Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) and Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]).
[8]Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47] per McNab J).
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant in this case is a 42-year-old female Korean citizen who first arrived in Australia on May 2016.[9] Prior to her arrival in Australia, the applicant completed Bachelor of English Literature in Korea in 2008.[10] She owned her own boutique business from August 2013-December 2016 in Korea earning AUD30,000 equivalent per annum.[11]
[9]See the questionnaire and evidence at hearing. It appears the delegate’s decision has incorrectly recorded the applicant’s first arrival onshore as 2015 and I prefer the applicant’s evidence that she arrived in 2016.
[10]See the questionnaire and evidence at hearing.
[11]See the questionnaire and evidence at hearing.
In Australia, the applicant completed:
a.a Certificate II in Business (corroborating certificate dated August 2016 provided);
b.six units in a Certificate IV in Business (corroborating statement of attainment dated June 2020 provided); and
c.a Diploma of Beauty Therapy (corroborating certificate dated July 2021 provided).
The applicant claims also to have completed a Certificate III in Business but has not provided a corroborating certificate for this.
The applicant has filed medical letters dated August 2020, April 2022 and April 2023 stating that she is suffering from excessive stress, mood issues, social isolation, challenges supporting herself, anxiety, depression and insomnia and this has impacted her ability to attend classes/study. I have read and considered these medical letters and made allowances for the applicant in assessing her case given her mental health issues. I also accept that the COVID19 Pandemic has been very challenging for many individuals and been the source of mental ill health. I empathise with the applicant in this regard.
The applicant has also provided a medical letter dated July 2024 stating that she has had lower back pain for two weeks and it is hard to turn or walk. I do not consider this evidence justified failure to progress her study.
The applicant’s application which is the subject of this review was to complete a Certificate IV in Ageing Support from June 2023-June 2024 and a Diploma of Community Services from July 2024-July 2026.[12] Due to delays in this matter coming before me, the applicant ought now to have completed her course Certificate IV course and have made some progress in her Diploma. Instead, the applicant has remained onshore without making any progress in these courses. In fact, the applicant states in the questionnaire that she was not enrolled from August 2023 -July 2024 due to ‘high stress from visa refusal’.
[12]See confirmations of enrolments filed.
The applicant in fact remained unenrolled until 19 August 2024 when a letter was sent to her pursuant to section 359A of the Act inviting her to comment on her lack of enrolment. The applicant responded to this letter filing a new confirmation of enrolment for a Diploma of Leadership and Management with course dates from November 2024-November 2025. This document was created on 26 August 2024, just one week after the section 359A letter was sent to her. I am very troubled by this. I am concerned that the applicant has recommenced study at this time to ensure she satisfies the requirements of clause 500.211 of the Regulations. This in turn raises questions about whether she may be using the student visa migration programme as a means of maintaining residence in Australia, which is in circumvention of the intentions of the student visa migration program.
The applicant has now filed an entirely new confirmation of enrolment for a Diploma of Leadership and Management. At hearing, she claimed that she wants to combine this qualification with her business qualification to start her own beauty business in Korea. She is currently running a small online business with her sister, and she wants to combine all of her skills and education to run a beauty business in the Global Market. I allow for reasonable changes to study and career pathways and accept that this course is relevant to and may assist and improve her future career. I note that this course is a downgrade in her level of education but acknowledge that her Bachelor of English Literature is of minimal use to her future career.
The applicant has remained onshore without providing any evidence of course progress from July 2021-present.[13] I am troubled by this. It raises concerns that the applicant may be using the student visa migration programme as a means of maintaining residence.
[13]See the questionnaire.
A particularly effective way for an applicant to demonstrate that they hold a genuine desire to study in Australia, while awaiting a review hearing following an initial student visa refusal, is to take positive steps towards achieving the educational qualification they had proposed in their original application. That is to say, an applicant should progress with their proposed course of study in Australia notwithstanding that their visa application has been refused. In doing so, by the time the application on review proceeds to a hearing before the Tribunal, an applicant will be a position to produce compelling evidence at the hearing that shows they are a genuine applicant for a student visa. In this case, I consider the applicant’s behaviour for the last three years is not consistent with the behaviour of a genuine applicant for entry and stay as a student in Australia. Even allowing for her mental ill health described in the medical letters referred to above, I do not consider the applicant has conducted herself in the manner expected of a genuine student.
The applicant has been working onshore: as a beauty therapist from November 2016-March 2017 and from October 2017-October 2019 earning AUD30,000 per annum.[14] She gave evidence that she has not worked onshore since that time but runs a small online business with her sister in Korea. The applicant has expenses onshore of AUD26,400 per annum.[15] She also holds AUD10,000 in the bank and her family has assets in Korea.[16] The evidence does not appear to support a conclusions that the applicant’s economic circumstances are acting as a significant incentive for her to remain onshore.
[14]See the questionnaire.
[15]See the questionnaire.
[16]See the questionnaire.
The applicant has now been onshore for over eight years and her current course will take this time to over nine years. It is very difficult to reconcile this period of time with the meaning of ‘temporary’ as required by the Act and Regulations in relation to student visas. I am concerned that the applicant is using the student visa migration program as a means of maintaining residence in Australia. A student visa applicant must not only be a genuine student, they must also be a genuine temporary entrant.
I also note the applicant’s evidence that she has applied for a partner visa. She gave evidence that she and her partner is also Korean and that they plan to return to Korea to start her business together. I therefore have not placed weight against the evidence in relation to her partner visa application.
The applicant has a de facto partner onshore who is a permanent resident and who she has applied for a partner visa with.[17] The applicant has now been living in Australia for over eight years and her current course will extent his stay onshore to over nine years. The length of the applicant’s stay in Australia, in addition to her application to extend this stay, indicates that the applicant has a preference to remain onshore. It is reasonable to conclude that after such a lengthy period of time onshore, the applicant has cultivated a satisfactory life and established ties to the Australian community acting as a strong incentive for her to remain.
[17]See the questionnaire and evidence at hearing.
The applicant has returned to Korea twice since her arrival: once for three weeks in 2022 and once for two weeks in 2024- both to visit family.[18] The COVID19 Pandemic and associated restrictions made international travel virtually impossible from early 2020 to early 2022 and I place no weight against the applicant in relation to not travelling home during that time. The applicant’s four sisters and one brother live in Korea, and she speaks to them often.[19] The applicant has her family and property in Korea and her business plans.[20] I accept the applicant has ties to Korea acting as an incentive to return but do not consider the evidence supports a finding that those ties are acting as a significant incentive for her to return. I consider any ties acting as an incentive to return to Korea are outweighed by her desires and incentives to remain onshore.
[18]See the questionnaire.
[19]See the questionnaire.
[20]See the questionnaire and evidence at hearing.
The applicant has filed a genuine temporary entrant statement on 9 September 2024 stating that (inter alia): Australia offers high quality education in English which is essential for her future business interactions with global clients; Australian education has an excellent reputation and offers practical training covering key areas of business aligning with her business goals; studying and living in an English speaking country will improve her English skills which will be advantageous running a competitive business; and she will gain international exposure studying in Australia. The applicant has provided reasonable reasons for undertaking the study in Australia rather than her home country or region.
There is no evidence that the applicant has had any travel, visa or immigration issues in the past. The applicant does not have any military service obligations or political or civil unrest concerns in Korea.[21]
[21]See the questionnaire.
I have carefully considered all evidence and submissions before me. I am concerned that the applicant is motivated by factors other than study and is using the student visa program as a means of maintaining residence in Australia. I am particularly concerned by the length of time she has now been onshore for and do not consider she is a genuine temporary entrant.
Having had regard to the applicant’s circumstances, her immigration history and all other relevant matters, I am not satisfied that the applicant is a genuine applicant for entry and stay as a student temporarily as required by clause 500.212. Accordingly, the applicant does not meet clause 500.212.
Given the above findings, 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. Therefore, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
T. Quinn
MemberAttachment – Clauses 500.211 and 500.212 of Schedule 2 of the Regulations
Enrolment (clause 500.211)
·Clause 500.211 requires that, at the time of decision, the student visa application in question be founded on evidence that the applicant is enrolled in a course of study.[22]
[22]Clause 500.211(a) of Schedule 2 to the Regulations.
·‘Course of study’ is defined as a ‘full-time registered course’ and a ‘registered course’ is a course provided by an institution which has been registered under the Education Services for Overseas Students Act2000 (Cth) (‘the ESOS Act’) to provide that course to overseas students.[23]
[23]Regulation 1.03 of the Regulations.
·All registered courses and course providers are listed in the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’), an online register kept in accordance with the requirements of the ESOS Act.[24] Details of courses listed in CRICOS are integrated into the Provider Registration and International Student Management System (‘PRISMS’), a database maintained by the Australian government.[25] The PRISMS database is the principal means by which registered course providers comply with legislative requirements relating to the monitoring of international students studying in Australia. Upon enrolling an international student into a registered course of study, the course provider enters the details of that enrolment into the PRISMS database. The database then records a Confirmation of Enrolment (‘COE’) for the student. The COE functions as a record of the student’s enrolment status in the course and as proof of enrolment for the purposes of clause 500.211 of Schedule 2 of the Regulations.
[24]Section 10 of the ESOS Act.
[25]See generally, Department of Education and Training, Provider Registration International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018).
Genuine Temporary Entrant
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.
Attachment – Direction No.108
DIRECTION NUMBER 108 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, CLARE O’NEIL, Minister for Home Affairs and Minister for Cyber Security, give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 21 March 2024
Clare O’Neil
Minister for Home Affairs and Minister for Cyber SecurityNote: 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 - Preliminary
Name of Direction
This Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 108.
Commencement
This Direction commences on 23 March 2024.
Revocation
Direction No. 69, given under section 499 of the Act, is revoked.
Interpretation
Act means the Migration Act 1958.
Finally determined has the same meaning as is set out in subsections 5(9) and (9A) of the Act.
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 against the genuine temporary entrant criterion for Student visa applications and Student Guardian visa applications (as applicable).
This Direction also applies to members of the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; who review the decisions of primary decision-makers in relation to a Student visa or Student Guardian visa application.
This Direction applies in relation to Student visa applications and Student Guardian visa applications made before 23 March 2024 but not finally determined on that date, including such visa applications that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for a Student visa and seek to satisfy the primary or secondary criteria, or an application for a Student Guardian visa and seek to satisfy the primary criteria.
Note: Direction No. 106 applies in relation to Subclass 500 (Student) visa applications and Student Guardian visa applications made on or after 23 March 2024, including visa applications made on or after that date that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.
Preamble
The Australian Government operates a student visa program 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 program 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 – 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 or Student Guardian 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 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.
iii. b. Previous travels to Australia or other countries, including:
iv. 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;
v. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
vi. 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
vii. 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 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.
0
10
0