KOONMANEE (Migration)

KOONMANEE (Migration) [2020] AATA 2747 (4 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Suphitchaya KOONMANEE
CASE NUMBER:  1834949
HOME AFFAIRS REFERENCE(S):          BCC2018/4336247
MEMBER:Tamara Quinn
DATE:4 June 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 04 June 2020 at 10:26am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not a genuine temporary entrant – previous grant of 485 visa – significant length of time onshore – downgrade of study plans from existing Masters level of education – completed majority of proposed study – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 338(2), 347, 359(2)
Migration Regulations 1994, Schedule 2, cl 500.212
CASES
Tshering v Minister for Home Affairs [2019] FCCA 2667
Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372
Khan v Minister for Immigration & Another [2019] FCCA 565

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 (‘the delegate’) on 27 November 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).
The applicant applied for the visa on 5 October 2018 (‘the application’). At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
On 27 November 2018, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that the applicant was not considered to be a genuine applicant 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 28 November 2018, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.
More than 18 months have elapsed since the making of the delegate’s decision and the applicant’s application for review with the Tribunal. 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 during that time. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information to the Tribunal for the purposes of determining the outcome of their application for review. To this end, on 9 April 2020, 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 applicant responded to the s359(2) letter on 23 April 2020 which was within the prescribed time period. In that response, the applicant elected to have their matter decided without a hearing.
It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The 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.
The Tribunal has proceeded to a decision having had regard to all the information before it, including the information previously provided by the applicant to the Department and all submissions filed with the Tribunal by the applicant.
For the following reasons, the Tribunal has concluded that the decision under review ought to be affirmed in this case. In reaching its decision, the Tribunal has had regard to:
a.all written material filed by or on behalf of the applicant; and
b.other relevant documents on the Tribunal and Department files.
The Tribunal notes that not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference only to that information that the Tribunal has been found to be fundamental or materially significant to the determination of the issues in the case.
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.
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 clause 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’ (‘the Direction’), made under section 499 of the Act. The Direction 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 Direction is a lawful direction of the Minister made in accordance with section 499 of the Act. The Tribunal is therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[1] Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before the Tribunal. The Tribunal, however, recognises that it is an independent statutory body. It must therefore reach its 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, the Tribunal also notes the decision of Judge McNab in Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]), wherein his Honour referred to the decisions of Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]) and Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) in relation to the proper approach to the consideration of guidelines such as the Direction. Most pertinently, his Honour endorses the view espoused in those cases, 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.
[1]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].
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant in this case is a 31-year-old female Thai citizen who first arrived in Australia on 25 May 2012 on a TU-570 Student visa which valid until 12 December 2012.[2] The delegate’s decision and applicant’s response to the s359(2) letter outline her subsequent history onshore, being that she remained onshore on the basis of four further student visas, one Graduate Work Stream (VC 485) visa (‘the 485 visa’) and associated bridging visas.
[2] See delegate’s decision and applicant’s response to the s359(2) letter.
Prior to coming to Australia, the applicant completed secondary school and a Bachelor of Arts with a major in Economics and a minor in Marketing in Thailand in February 2010.[3] The applicant refers to this as a Bachelor of International Economics in her submissions dated 5 October 2018, filed with the Tribunal contemporaneously with her application for review on 28 November 2018 (‘the October 2018 submissions’). This is not consistent with the name on the academic documents from her course provider in Thailand and it perplexes the Tribunal that the applicant has not provided the correct name of her completed tertiary education in Thailand in those submissions (although the Tribunal notes the correct name was given in her response to the s359(2) letter). After completion of that course, the applicant worked as a sales representative in Thailand for two years.[4] In her response to the s359(2) letter, the applicant states that her annual income in that job was $23,800AUD equivalent, however, she has also provided a reference from her previous employer which corroborates the details in relation to that she worked for two years as a sales executive, however, that document states that her salary was 40,000baht which is approximately $1,830AUD equivalent.[5] The Tribunal considers it likely that the figure provided by the applicant’s employer is the correct one and is therefore troubled by the fact that the applicant has given a previous income figure so far in excess of what her employer discloses. This raises concerns for the Tribunal that the applicant may not be being forthright in her provision of information to the Tribunal.
[3]See applicant’s response to the s359(2) letter.
[4]
[5] See applicant’s response to the s359(2) letter and letter dated 11 May 2012 from her employer therein.
The applicant’s application which is the subject of this review is to undertake a Certificate IV in Accounting and Bookkeeping and a Diploma of Accounting. Due to delays in this matter coming before the Tribunal, the applicant has now completed her Certificate IV course and is part way through her Diploma of Accounting, due to complete same in November of this year. The applicant’s academic progress is to her credit and the Tribunal commends her in this regard.
Since her arrival in Australia, the applicant has completed the following courses (and provided corroborating certificates for same with her response to the s359(2) letter):
a.English Language Programs in 2013;
b.IELTS Preparation Course in 2013;
c.Master of Business Marketing in 2014;
d.Master of International Business in 2016.[6]
[6]See applicant’s response to the s359(2) letter with corroborating evidence supplied.
The applicant remained onshore between August 2016 and October 2018 on the basis of the 485 visa which is a visa for international students who have recently graduated with skills and qualifications that are relevant to specific occupations in Australia needs. During that time, the applicant worked as an Assistant Administrator and Assistance Accountant and has provided a letter from her previous employer corroborating this. She was earning $16,250AUD per annum in that role and has worked onshore as a waitress for some of that time as well as prior to the 485 visa earning $5,200AUD per annum.[7]
[7] See applicant’s response to the s359(2) letter.
In the October 2018 submissions, the applicant stated that she intended to look for opportunities in Finance and Accounting in Thailand as a consultant or analyst predicting business performance goals using her economic and marketing background as well as her proposed accounting studies. She even included a job advertisement for a CFO position at a large organisation as an example. However, in her response to the s359(2) letter, the applicant stated she now plans to work in the family business which is a middleman delivering meat to hotels and restaurants and that her proposed accounting studies will assist her in expanding this business to the international domain. She has not provided an estimate of her likely future remuneration using the qualifications gained in her response to the 359(2) letter. The Tribunal allows for reasonable changes to study and career pathways but is troubled by the applicant’s evidence in this regard for several reasons. The Tribunal is concerned by the significant downgrade the proposed study represents for the applicant – she holds a Bachelor qualification from Thailand and two Masters qualifications from Australia. The proposed study is well below her existing education level. Whilst the Tribunal allows for reasonable changes to study and career pathways, the applicant has now been onshore for in excess of eight years, has already completed courses likely to assist and improve her employment prospects and the Tribunal holds concerns about the true nature of the applicant’s intentions in seeking this student visa. The Tribunal accepts that a Certificate IV in Accounting and Bookkeeping and a Diploma of Accounting be relevant to running a business, however, the applicant already holds a Bachelor of Arts (Economics), a Master of Business Marketing, a Master of International Business and has already completed the Certificate IV in Accounting and Bookkeeping. Further, she has been working as an Assistant Administrator and Assistant Accountant for two years in Australia on the 485 visa. In such circumstances, it is difficult to see any marked benefit from an additional Diploma qualification, particularly given her new goal of working in a family business as a middleman delivering meat to hotels and restaurants. It is difficult for the Tribunal to consider there is any significant assistance or improvement to the applicant’s likely future employment prospects using the qualification gained, beyond that which her existing qualifications and work experience already give her. Certainly, any benefit is outweighed by the factors which fall against the applicant in this case.
Further, the applicant could have studied these courses while she was onshore on the basis of the 485 visa and chose not to.
The Tribunal is also very concerned by the significant length of time the applicant has been onshore for – in excess of eight years. It is difficult to reconcile this period with the meaning of ‘temporary’ as required by the Act and Regulations in relation to student visas.
The applicant stated in her response to the s359(2) letter learning in English in an English-speaking country will help her enhance her skills and that the multicultural aspect of interacting with classmates and teachers in invaluable. Whilst the Tribunal accepts these submissions to some extent, it also considers the applicant has had ample time to gain the benefit of these aspects of studying and living and working in Australia and in those circumstances, her reasons for undertaking these further courses in Australia as opposed to her home country or region are not reasonable.
The applicant provides states that her community ties to Australia are ‘none’.[8] The Tribunal finds this difficult to accept. The applicant has been residing onshore, working, living and studying in Australia for in excess of eight years. The length of the applicant’s stay in Australia for in excess of eight years suggests that the applicant has a preference to remain onshore. It is reasonable to conclude that after a period of over eight years, the applicant has cultivated a satisfactory life and established strong ties to the Australian community. As each day passes, those ties strengthen.
[8] See applicant’s response to the s359(2) letter.
The applicant has supplied her taxation documents which indicate she has been earning as follows: $13,000AUD in 2016, $19,000AUD in 2017, $17,000AUD in 2018 and $20,000AUD in 2019 which would appear to indicate she is still working (which was not apparent in the information she provided in relation to her work onshore in the questionnaire associated with the s359(2) letter).[9] Her expenses in Australia are $21,780AUD per annum onshore and she does not hold any assets.[10] The applicant has described her family as middle class and healthy financially and stated her mother is retired and supporting her financially in the October 2018 submissions. The Tribunal notes that the United Nations Human Development Index ranks Thailand as 77^th in the world as compared to Australia’s ranking of 6^th in the world and that the applicant is earning far in excess of her previous Thai income.[11] Whilst the Tribunal acknowledges that the applicant’s expenses appear to indicate she is not earning in excess of her expenses onshore, taking the evidence as a whole (including the incorrect information provided by the applicant in her questionnaire in relation to: her previous income as a sales executive in Thailand; and her list of employment positions which appears to suggest she is was not working after June 2018, yet her taxation documents indicate she earned $19,000AUD in the 2018-2019 financial year; in combination with the length of her extended stay onshore and the difference in currency value between Thailand and Australia), that the applicant’s economic circumstances in Australia may acting as a significant incentive for her to not return to her home country.
[9] See applicant’s response to the s359(2) letter.
[10] See applicant’s response to the s359(2) letter.
[11]See Table 1 of United Nations’ Human Development Report 2019 commencing at page 300 <>
The Tribunal notes that the applicant is an only child and both of her parents are in Thailand.[12] She speaks to them via telephone 2-3 times per week and claims to have family, friends and a university community which she remains connected to via social platforms which form community ties to Thailand for her.[13] The applicant has returned to Thailand to visit family on four occasions since her arrival: for 28 days in 2013; for 43 days in 2014; for 27 days in 2016 and 14 days in 2017.[14] The applicant has not returned to Thailand for over three years at the time of this decision. The Tribunal acknowledges the applicant’s descriptions of her parents, in particular, in her submissions, including their financial and emotional support for her in her study in Australia and her intentions to work in the family business upon her return to Thailand. The Tribunal accepts that the applicant’s ties to Thailand may serve as an incentive for the applicant to return to her home country but, given the length of time she has been onshore for and the fact that she has not returned for over three years now, it appears to the Tribunal that any such incentive is not acting as a significant incentive and is outweighed by the applicant’s desires and incentives to remain onshore.
[12] See applicant’s response to the s359(2) letter.
[13] See applicant’s response to the s359(2) letter.
[14] See applicant’s response to the s359(2) letter.

The applicant has travelled for holidays to: Singapore for three days in 2010; Hong Kong for three days in 2011; Laos for four days in 2011; New Zealand for nine days in 2013; Vietnam for four days in 2016 and New Zealand for seven days in 2018.[15] There is no evidence before the Tribunal that the applicant has had any travel, visa or immigration issues in the past.
[15] See applicant’s response to the s359(2) letter.
The applicant states she does not have any potential military service or political or civil unrest concerns in Thailand.[16] The Tribunal accepts this evidence.
[16] See applicant’s response to the s359(2) letter.
The applicant’s application and submissions do not satisfy the Tribunal that the applicant genuinely intends to stay in Australia temporarily. In making this comment, the Tribunal is particularly concerned by: the length of the applicant’s time onshore, being in excess of eight years; the significant downgrade this study represents from the applicant’s existing Masters level of education; the fact that she has already completed the majority of her proposed study and likely to have gained the majority of any benefit such study could offer her; and the fact that any remaining benefit in the context of the applicant’s education and work experience is likely to be marginal at best given her plan to work in her family business as a middleman delivering meat to hotels and restaurants. The Tribunal is concerned that the visa is being sought primarily to maintain residence in Australia.
Having had regard to the applicant’s circumstances, her immigration history and all other relevant matters, the Tribunal cannot be 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 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. 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
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 2747

4 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction