Lee (Migration)

Lee (Migration) [2022] AATA 1459 (2 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ju Hyon Lee
REPRESENTATIVE:  Mr Sehoon Jun (MARN: 1798516)
CASE NUMBER:  2114476
HOME AFFAIRS REFERENCE(S):          BCC2020/890219
MEMBER:Noelle Hossen
DATE:2 May 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 02 May 2022 at 1:21pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – no current enrolment – COVID19 travel restrictions – lengthy stay in Australia – limited personal ties to home country – changing migration intentions – value of course to future career – maintain ongoing residence in Australia – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 359, 499; Direction No 69
Migration Regulations 1994, 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 29 September 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 7 January 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 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
On the 29 September 2021 the delegate decided to refuse to grant the visa because the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations on the basis that he is not a genuine applicant for entry and stay as a student.
On the18 October 2021 the applicant lodged an appeal to the Tribunal and attached the decision of the Department.
On the 2 December 2021 the Tribunal wrote to the applicant a s.359(2) letter as follows.
As you applied for the visa on the basis of undertaking a course of study in Australia, it is a //requirement of the visa for you to be:
·enrolled in a registered course of study; and
·a genuine applicant for entry and stay as a student.
Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below.
The Tribunal also advised that in considering whether the applicant is a genuine applicant for entry and stay as a student the Tribunal must have regard to ‘Ministerial Direction No.69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ and attached a copy.
The letter also noted the following:
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
The applicant was given until the 16 December 2021 to provide the information requested.
The applicant responded and provided a completed copy of Request for GTE information Form.
The applicant appeared before the Tribunal on 17 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The Tribunal caused a search of PRISMS, being the Provider Registration and International Student Management System register, to be undertaken. The purpose of this search was to ascertain whether the first named applicant was enrolled in a registered course.
According to the PRISMS website, the Department of Education, Skills and Employment is responsible for the Commonwealth Register of Institutions and Courses for Overseas Students. It is recorded that PRISMS is a computer system developed by the Department in association with the Department of Home Affairs for the purpose of receiving and storing information about accepted overseas students that is given to the Secretary under the Education Services for Overseas Students Act 2000. It is further noted that PRISMS provides a secure system for providers of registered educational institutions to comply with legislative requirements by issuing confirmations of enrolments as ‘evidence of enrolment’ in a registered full-time course as required by the Department of Home Affairs and reporting changes in course enrolment, particularly where study ceases, or the duration of the study changes.
It is therefore apparent that PRISMS is a business record of the Department of Education, Skills and Employment and is used by the Department of Home Affairs as evidence of enrolment for the purposes of assessing the grant of student visas. While it is possible providers may not update PRISMS as required, the Tribunal accepts that PRISMS is a reliable record of enrolments, unless there is specific evidence to the contrary in relation to a particular case. There is no such evidence in this case.
The PRISMS search revealed that the applicant did not hold a current confirmation of enrolment in a registered course from September 2015 to February 2021.

16. On 23 March 2022 the Tribunal sent the following s.359A letter to the applicant:
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
A recent check of the Provider Registration and International Student Management System (PRISMS) indicates that you did not hold a current Confirmation of Enrolment in a course of study from September 2015 to February 2021.
This information is relevant to the review because you have applied for a Student visa and it is a requirement for the grant of a Student visa that you are enrolled in a course of study
The consequence of the Tribunal relying on this information is that it would be the reason or part of the reason for the Tribunal to affirm the decision of the delegate to refuse to grant you a Student visa.

The applicant was given until 6 April 2022 to comment on or respond to the information.
The applicant responded on the 7 April 2022. The Tribunal accepted the submissions as being on time.
The applicant was assisted in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.
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 was born in Korea on the 21 August 1984. He came to Australia on the 21 October 2011. He said that initially he was on a working holiday visa until 2013.He was on a student visa 570 from 2013 to 2015. He was then on a dependent student visa from 2019 to June 2020. He applied for Visitor Visa in 2020 due to the covid restrictions. He wanted to wait in Australia until his wife returned from Taiwan. The applicant stated that he only applied for a student visa because his wife was stuck in Taiwan due to the pandemic. He said that she wanted to come back to Australia, but he was not sure.
His wife left for a holiday to Taiwan in April 2020 and had been unable to return to Australia because of the closed borders at the time of the hearing due to the pandemic.
Whilst the applicant has been in Australia, he has engaged in various occupations including the following:
Down to Earth Agribusiness Agriculture Pruning 07/2012 to 10/2012
Used Car     Sale Car Detailer  12/2012 to 03/2013
Galati Pty Ltd    Agriculture Manager  10/2015 to 07/2018
Galati Pty Ltd    General Worker  04/2020 to 06/2020
In 2015 to 2018 he was not enrolled in a registered course of study and he was asked to clarify those facts when the Tribunal gave him 14 days to respond to the PRISMS records.
He responded and provided the Tribunal with an explanation. He said after September 2015 he applied for a 457 Visa and waited for his visa until July 2018, but he had to go back to Korea in July 2018. After he returned to Australia on a student Visa as a defacto. In November 2019 he did not enrol in any study because he had no plan to study and was a dependent on his defacto’s visa. In March 2020 his wife planned to meet her family in Taiwan for 20 days. He said Covid occurred and Australian borders were closed. Her Via expired and so he applied for a visitor visa and waited for the borders to open. He then became interested in horticulture and decided to study and further improve his English.
The details provided by the applicant does provide some details to the Tribunal, but the explanation is vague and confusing. In his Form lodged in answer to the Section 359(2) Request for information the applicant did mention that he had returned to the Republic of Korea in July 2018 for 450 days. He has not returned to his home country for any other time whilst living in Australia since 2011.
The Delegate considered the issue of his incentive to return to his home country as follows;” I have given regard to the applicant’s circumstances in their home country. The applicant has declared completion of study home country. I have considered the applicant’s Jewish and in their home country. The applicant did not provide any evidence to suggest that they own any assets or have any business ties to their home country, which diminishes their incentive to return upon the end of their proposed stay. I have also considered the extent of the applicant’s personal ties to their home country and whether these circumstances would serve as a significant incentive to return. Whilst I acknowledged that the applicant’s spouse, parent and sibling living offshore may act as a motivation to return, I find these ties do not, of themselves, constitute a strong incentive to depart when considered against the fact that strong employment or economic circumstances in their home country have not been evidenced. I am concerned the applicant’s intention to live in Australia is motivated by factors other than study. I therefore have concerns as to the applicant’s incentive to return to their home country upon completion of their proposed studies in Australia.”
In his written evidence the applicant stated that he last saw his mother and sister in November 2019. He last saw his wife in March 2020.He last saw his family in Korea when he left Australia on the one occasion that he retuned to his home country in 2018/2019.He last saw his wife in Australia before her departure for a holiday in Taiwan.
In his oral evidence he said that it would be difficult to live in each other’s countries as his wife cannot speak Korean and he cannot speak the language of her home country. He said that his wife would prefer to live in Australia. He said that she had many friends in Australia. He said that his spouse wants to live with him in Australia. The Tribunal is concerned that the applicant is using the student visa programme to maintain ongoing residence in Australia.
He said that he had no community ties to Australia other than the fact that he played soccer on the weekends with his Korean friends. The Tribunal does not accept his written evidence that he has no other community ties as it does not seem plausible, as he has lived in Australia for over 11 years. Although he did return to Korea in 2018 for 450 days, he has maintained ongoing residence in Australia.
He said that he is no longer working and has not done so since 2020. He was asked by the Tribunal how he was able to afford, his living expenses without work. He said that he had saved $40,000 and he was going to use that money to pay for his expenses. He owns a car valued at $15,000 in Australia and some furniture. He said that he does not have a lot of assets in Australia. He also said that his family help him but did not provide any bank statements or other evidence to prove his assertions. There is no evidence before the Tribunal of any assets that he owns in his home country. The Tribunal places some weight on those facts against the applicant’s case.
He provided some written evidence about his employment plans when he completes his course as follows:” Even after completing the course I think I have to study for the rest of my life because technology in any industry continues to develop. My goal is to have a farm where I can commit myself to and work. I believe that Australia is the place where agriculture can develop more and faster than any other places in the world. If I study in Australia I can see learn and experience a variety of horticulture industry.”
He stated that “I expect to receive income of about $40,000-$50,000 in Korean currency which is worth of 75,000 to 80,000 in AUS dollar. But I would not limit myself to certain countries to gain work experience. That is why want to study in an English-speaking country to become more competitive in the job markets around the world, learning proper English.”
The Tribunal is not satisfied with his explanation regarding his long-term plans. The evidence is vague and generalised. As the applicant has been residing in Australia for a long time one would expect that he would have a more detailed explanation of what he expects to receive in his home country or a third country using the qualifications he will gain from his proposed study. The Tribunal places significant weight against the applicant’s case based on the facts contained in this paragraph.
The applicant did work in the agricultural industry as an Agricultural manager for Galati Pty Ltd from 2015 to 2018 earning $50,000 in Australia. The fact that he held a position as a manager for 2 years in Australia earning a reasonable income means that he is obviously able to carry out the work in Agriculture at a reasonably high standard and may not need the qualification to obtain future employment.
He said that if he had to return to Korea, he would live with his mother and grandmother. He said that he calls his wife and makes facetime calls or text messages every day. He says that he contacts his mother 2 to 3 times a week. The Tribunal agrees with the finding of the Delegate of the Department that although his spouse, mother and sibling live overseas that might be an incentive for the applicant to leave Australia, that, this not in itself constitute a strong incentive to depart Australia.
The applicant has held employment in Australia and has been able to save $40,000 and purchase a car whilst living in Australia. The Tribunal finds that he does not have a significant incentive to return to his home country as he does not have strong community ties or economic ties with his home country. The Tribunal places some weight against the applicant’s case based on the facts contained in this paragraph.
He was 38 years old at the date of the hearing and was 27 years old when he came to Australia.
The Delegate in his Decision did state that” Whilst I accept and have placed weight on the fact the applicant may wish to obtain an internationally recognised qualification given the applicant has not substantively investigated study options in their home country, I cannot be satisfied given their individual circumstances the applicant genuinely intends a temporary stay in Australia.”
The Tribunal agrees with the statement as set out in Paragraph 44 above as the applicant did not provide any substantive evidence to the Tribunal about the reasons for not undertaking the courses in their home country or region, save and except, for the following statement: “Generally the quality and standard of study in Australia is much higher than the standard in South Korea. Also, it is reported that there are 7,600 new daily Covid cases as at 15/12/2021. If I can, I would like to study in courses in his home country as opposed to Australia not in South Korea. I did not apply for subclass 408 Covid 19 visa to extend my stay in Australia. “The Tribunal finds that this explanation is vague and general. The applicant has failed to satisfy the Tribunal that he has seriously considered the different courses available in his home country as opposed to Australia. The Tribunal places some weight against the applicant’s case as a result of the factors considered in this paragraph.
The evidence regarding the applicant’s immigration history is contained in the Decision of the Delegate of the Department as follows:” I have given regard to the applicant’s immigration history. The applicant has declared that they were refused an ETA Visitor (Subclass 600) visa and Subclass 500 visa. I find that these previous visa refusals are a relevant matter as to their genuine intention to remain in Australia temporarily. The applicant has also declared that at time of application they were holding a Visitor Visa 600. The applicant has applied for further stay on a student (Subclass 500) visa on 7 January 2021. The applicant is now proposing to extend their stay in Australia, instead of departing before their visa was to cease, therefore the applicant has changed their intentions and instead sought to extend their stay in Australia to undertake study they have been unable to establish will provide significant value to their future. The applicant’s changing intentions raises serious concerns that they are attempting to circumvent the intentions of the migration program and utilise the student visa program to maintain their stay in Australia.”

In his written evidence before the Tribunal the applicant said that he applied for a Visitor Visa and it was refused on the 31/07/2018. He then applied for a student visa and this was refused on the 8/01/2019.The applicant left Australia and went back to his home country in July 2018 presumably because his visa was refused. He did not return to Australia until November 2019 as a dependent on his defacto spouse’s visa. He had completed a Certificate III and a Certificate IV in Spoken and Written English from July 2014 to September 2015.He enrolled in a further English Course in 2021.
He did not enrol in his Horticulture Course until January 2022.The Tribunal accepts that for most of the time in Australia the applicant did hold various other visas other than student visas, and he did not have to study. Taking all those factors into consideration and having carefully considered the applicant’s oral evidence regarding his career aspirations, the applicant’s evidence appeared to be tailored to fit with his current course selection in Australia. That is not as it should be. If the applicant has career aspirations that claims to lead out of Australia, the courses selected should seek to serve that purpose and not the other way around. The Tribunal considers that if, the applicant did have a plan to pursue a career outside of Australia then he would have already left Australia to implement that plan.
The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time, to utilise lawful means to remain in Australia. In the Tribunal’s view the applicant demonstrated an intention to remain in Australia but did not articulate or suggest a lawful means of doing so outside of the student visa program. It follows that the Tribunal is concerned that the applicant proposes to use the student visa program primarily to maintain ongoing residence in Australia.
The Tribunal does not make any adverse findings against the applicant in relation to his immigration history. The applicant told the Tribunal that he had been to Thailand, Taiwan and Indonesia. The Tribunal accepts this and makes no findings concerning the applicant’s immigration history outside of Australia.
There is no relevant evidence regarding the applicant circumstances in his home country relative to others in that country and the Tribunal makes no findings concerning applicant in that respect.
The applicant indicated to the Tribunal that he does not have to undertake military obligations when he returns to his home country. There is no civil or political unrest in his home country.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Noelle Hossen
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.

[2022] AATA 1459

2 May 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Intention