LIM (Migration)

[2019] AATA 2070

LIM (Migration) [2019] AATA 2070 (9 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr JACKY BENG LIANG LIM

CASE NUMBER:  1719673

HOME AFFAIRS REFERENCE(S):           BCC2017/1674566

MEMBER:Michael Bradford

DATE:9 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·Clause 500.212(a) of Schedule 2 to the Regulations.

Statement made on 09 May 2019 at 9:12am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – genuine temporary student – currently enrolled in a registered course of study – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218

STATEMENT OF DECISION AND REASONS

Applications and procedural aspects

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 9 August 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 10 May 2017. 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.

3. The delegate in this case 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) because he was not a genuine temporary student.

4. Having been duly notified of that decision, the applicant lodged his review application on 28 August 2017, this being within the prescribed period of 21 days.

5. On 27 February 2019 the Tribunal sent to the applicant a Sec 359(2) letter inviting him to provide information on the course or courses of study he was undertaking and on his entry and stay in Australia as a temporary student.

6. Information on those matters was received by the Tribunal on 12 March 2019 in the online response form and in the additional documents referred to on page 21 of the form.

7. On 16 April of this year the applicant was invited by letter to attend the hearing set down for 3 May 2019. In this letter he was also asked to provide any further information on the matters identified in the letter not less than 7 days prior to the hearing.

8. On 25 April 2019 the applicant sent a written submission to the Tribunal in accordance with that request in which he responded to the Department’s decision.

9. On 26 April the Tribunal obtained further documents from sources other than the applicant, namely a PRISMS record and Movements Details, relevant parts of which will be referred to later in these reasons.

10. The hearing took place on 3 May 2019 when the applicant appeared in person to give oral evidence and present his case. A Mandarin interpreter was also in attendance, the applicant having previously requested one. Most of his oral evidence was given with the assistance of the interpreter.

11. At the start of the hearing, the Tribunal informed the applicant that the Department’s file could not be located and that, once the applicant had completed his oral evidence, an adjournment would be necessary to enable the file to be obtained and, once that had been done, the Tribunal would either arrange for a further hearing to take place or for the applicant to be given the opportunity to respond in writing to any unfavourable information in that file.

12. The Tribunal thus adjourned the matter at the end of the hearing to enable those matters to be attended to and also made a direction to the effect that the applicant provide, no later than 17 May, documentary evidence showing that he is the registered owner of a certain property in Malaysia. The Tribunal notes that oral evidence to this effect had been given by the applicant, although he had not identified this property as being an asset of his in the relevant section of the on-line form.

13. A copy of the Department file was made available to the Tribunal shortly after the hearing. On examination of the file contents, there is no unfavourable information to which the applicant need respond.

14. As to the direction regarding the Malaysian property, having reviewed the evidence, the Tribunal is satisfied that the applicant is the owner of that property and it thus no longer requires him to provide corroborative evidence.

15. For the reasons which follow, the Tribunal has concluded that the matter should be remitted for reconsideration.

    The issues and the Tribunal’s approach to them

16. 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 inclusive must in this case be satisfied by the applicant.

17. The Tribunal is satisfied that the applicant is currently enrolled in a registered course of study, namely a Diploma of Business Administration at the Sydney School of Business and Technology (SSBT), as is required by clause 500.211. This course commenced on 11 February of this year and is due to be completed on 9 February 2020. The applicant has provided a Confirmation of Enrolment which contains these details and the data in the PRISMS record is to the same effect. The applicant has also given oral evidence, which the Tribunal accepts, that he is attending classes in this course and that he has already completed 2 out of the 8 units required.

18. The issue on this application is thus the same issue determined by the delegate namely whether the applicant meets the requirements of clause 500.212, in other words whether he is a genuine temporary student in Australia.

19. In considering whether the applicant satisfies clause 500.212(a), the Tribunal must have regard to Ministerial Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act (MD69). This Direction, a copy of which is attached to this decision, requires the Tribunal to have regard to a number of specified factors of which the following are pertinent to this case;

    ·the applicant’s circumstances in his home country, potential circumstances in Australia, and the value of the course to his 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; and

    ·any other relevant information provided by the applicant, or information otherwise available to the Tribunal, including information that may be either beneficial or unfavourable to the applicant.

20. MD69 indicates that the factors specified should not be used as a checklist but are rather intended only to guide the Tribunal, when considering the applicant’s circumstances as a whole, in reaching a finding about whether he satisfies the genuine temporary entrant (GTE) criterion.

21. Consideration of whether or not an applicant satisfies the GTE criteria involves a balancing exercise. The Tribunal must consider and weigh the various factors insofar as they can be considered and weighed and, in so doing, reach an outcome on that issue which is within the confines of a sound discretionary decision in the overall circumstances of the case.

22. The Tribunal must re-determine the GTE issue at the time of this decision, and it must conduct the review afresh having regard to the material before it, whether or not that material was before the delegate.

    The Department’s decision

23. As noted earlier, the Department refused to grant the visa on the ground that the applicant did not meet the GTE criteria at the time of its decision.

24. The Department had a number of concerns in relation to this issue.

25. Firstly, although finding that the applicant had parents and a sibling in Malaysia, the delegate was not satisfied that he had significant personal ties there, pointing out that he claimed to have worked in Singapore for 10 years before coming out here without providing evidence to support this claim. Secondly, the applicant had not put forward any reasons as to why he could not undertake similar studies in his home country and had not demonstrated that he had investigated other options there. Thirdly, although acknowledging that he planned to establish his own business in Malaysia on his return, the delegate was not satisfied that he had strong potential economic ties there which outweighed what the delegate saw to be a significant incentive for him not to return home. Fourthly, the delegate was not satisfied that the proposed courses of study would likely increase the applicant’s remuneration level or career prospects in Malaysia. Lastly, the delegate found that the applicant had significantly altered his migration intentions since entering Australia, noting that he had come out here on an electronically generated tourist visa after having his original student visa application refused while offshore. This suggested to the delegate that the applicant had utilised the Electronic Travel Authority as a means of entering Australia with the sole intention to apply for a student visa within Australia.

26. On the basis of the material before the Tribunal, a good deal of which it must be said was not before the delegate, the Tribunal does not share those concerns and is satisfied that the applicant is indeed a genuine temporary student in Australia.

    Evidence and findings

27. In the Tribunal’s ultimate assessment, the applicant was a straight forward witness who endeavoured to accurately inform the Tribunal about the matters discussed with him at the hearing. Despite having initial misgivings about certain aspects of his documentary case, the Tribunal has reviewed the whole of his oral evidence against that background and is satisfied that the vast bulk of it is consistent and reliable.

28. The applicant was born in Malaysia on 16 December 1988 and is thus 30 years of age. He was educated to the secondary level before finding employment in Singapore as an application programmer with the Centurion Corporation Limited in early 2006. He says that he remained in that employment until late 2016, a period of some 11 years. Although the applicant has not provided any corroborative evidence to support this claim, the Tribunal is prepared to accept it given that it was disclosed in his visa application, reiterated in his online form and in his 25 April submission.

29. In that submission, which the Tribunal will treat as part of his evidence on this review, he also says that he was advised by his supervisor at Centurion and other colleagues in that organisation to gain higher academic qualifications if he wanted to take his career to another level. He says that he gave this advice careful consideration, consulted AUG Education Malaysia about the prospect of overseas study and decided to undertake study in Australia because it would expose him to different cultures, an experience he considered would be of value to him in the future. The Tribunal accepts this evidence.

30. He arrived in Australia under the tourist visa on 22 February 2017.

31. In his student visa application, the applicant stated that he had enrolled in a package of 3 courses at the Australian College of Vocational Studies (ACVS), namely Certificates III and IV in Business and a Diploma of Business Administration. This information was included in the relevant section of his online form and is confirmed by the PRISMS record.

32. The applicant gave oral evidence to the effect that he could not proceed with or complete any of those courses for various reasons, these being either because of the initial visa refusal on 2 February 2017, internal changes to the courses instigated by ACVS or because of the eventual deregistration of that College in April 2018. The data in the PRISMS record confirms some of these claims, or at least it appears to be not inconsistent with them. These enrolment and course details were discussed at some length with the applicant at the hearing when he gave oral evidence to the effect that he could not start or finish any of these courses for those reasons, or some of them. The Tribunal accepts this evidence.

33. In his on-line form, the applicant stated that he had also enrolled in a Certificate III in Tourism in May 2017 and a Diploma of Travel and Tourism Management in September 2017, also at ACVS. The applicant said that he commenced study in the Certificate course in May 2017, that it was converted by the College to the Diploma in September 2017 but that he could not finish it because of the deregistration. Again, PRISMS appears to either confirm his evidence on this or is not inconsistent with it. Nor is the other documentary material, namely the interim Academic Transcripts for these courses, copies of which the applicant has provided to the Tribunal, which establish that he had been making satisfactory progress in them at the relevant times.

34. When asked to explain to the Tribunal why he enrolled in tourism courses given his previous work experience and stated career plan of eventually establishing his own IT business in Malaysia, the applicant said that he was interested in the idea of pursuing an IT career in that industry but he ultimately decided that the courses were of little value to him. The Tribunal accepts this evidence.

35. In May 2018, the applicant enrolled in a Certificate IV in Business Administration at the SSBT completing that course in January of this year and, in February of this year, he enrolled in the Diploma of Business Administration referred to in paragraph 17 of these reasons.

36. The applicant has consistently stated, both in his documentary material (including his visa application) and in his oral evidence to the Tribunal, that his career plan on completion of the Diploma is to go back to Malaysia and find employment as a manager in an IT company before eventually setting up his own IT business there. Again, the Tribunal accepts that the applicant genuinely has that plan and that intention.

37. With the possible exception of the aborted tourism courses, the applicant’s vocational study program at SSBT will clearly be of value to him in the implementation of that plan. Firstly, he had already been given apparently reliable advice to that effect from his superiors in Centurion before he came out here and, secondly, he has given evidence regarding the content of the Diploma and the relevance of it to his intended career in the online form. The Tribunal accepts this evidence.

38. The Tribunal does not regard the time spent in undertaking the tourism courses to be a significant factor in these circumstances and, indeed, the fact that the disruptions to his academic program came about because of things beyond his control is a matter which the Tribunal can and does take into account in his favour.

39. Given the applicant’s consistently stated career plan and his extensive prior IT work experience in Singapore, he plainly has realistic prosects of finding employment in Malaysia as a manager in that industry on his return and, consequently, has a reasonably strong incentive to return to that country on completion of the course and implement his plan.

40. There is also documentary evidence from him to the effect that he has close family ties in Malaysia in the form of his father and sister and, according to this evidence, has deeply rooted cultural obligations to his father to help look after him in his advancing years. The Tribunal notes that, according to the visa application, his father was born in March 1958 and is now 60 years of age. The applicant has given evidence elsewhere that he intends to honour those obligations and the Tribunal accepts that he will endeavour to do so.

41. Moreover, he has given oral evidence that his father currently lives in a flat which the applicant owns in the Pulau Pinang region of Malaysia. The applicant said that he purchased this property in about 2013 or 2014 for the Malaysian equivalent of $20,000 AUD. He says that he has regular telephone contact with his father. His mother died in1996, apparently. The Tribunal accepts all of this evidence. In his online form the applicant stated that he returned to Malaysia to see his family in February 2018 and celebrate the Chinese New year with them and, again, the Movements record confirms that he did in fact go back there at that time. The Tribunal accepts that he did so for the reasons he has given.

42. The mere fact that the applicant worked in the Philippines for 11 years before he came out here does not, in the Tribunal’s view, suggest that he does not have close family ties in Malaysia. The applicant went to the Philippines to find work when he was 18 years of age and he has gained valuable work experience there.

43. There is other evidence from him in his online form to the effect that he could expect to be paid the usual salary for a manager in the IT industry in his home country. The Tribunal has no reason not to accept this evidence and, indeed, has good reason to do so in light of his relatively mature age and work history in the Philippines.   

44. As to the applicant’s potential circumstances in Australia, with all due respect to the delegate, the Tribunal has difficulty in seeing how the applicant can be said to have any real incentive to remain here after he completes the Diploma. He has firmly denied in his submission that he has any such incentive or intention and there is nothing in his objective circumstances to indicate the contrary. Indeed those circumstances serve only to reinforce what the applicant has said about this. He has no concerns about military commitments or political unrest in his home country. The Tribunal accepts his evidence on these matters and accepts his assurances that he will return to Malaysia on completion of that course in February of next year.

45. As to the applicant’s immigration history, it may well be that the applicant came out here with the intention to re-apply for a student visa. Certainly he has not denied that he had that intention in his submission in response to the delegate’s reasons, and his broader circumstances in Malaysia immediately before he came out here tend to suggest that he did have such an intention. But this of itself does not suggest to the Tribunal that he has altered course once he arrived here. It is clear that he unsuccessfully applied for a student visa offshore in January 2017 and that he re-applied for the same visa onshore in May of that year. The applicant has stated that he always intended to re-apply for the visa and the Tribunal accepts that he did. In any event, the Tribunal places no or little weight on his altered immigration status, if in fact there be any.

46. Other factors not expressly referred to in these reasons are either due to no evidence having been given about them or they are not, in the Tribunal’s assessment, of any real significance or weight.

    Conclusion on the GTE issue

47. Considering the applicant’s circumstances as a whole, the Tribunal is satisfied that he is a genuine applicant for entry and stay temporarily as a student as is required by clause 500.212(a) of the Regulations.

48. Given these findings and this conclusion, the appropriate course is to remit the application   for the visa for re-consideration by the Minister with a direction that the applicant meets that requirement.

    DECISION

49. Accordingly, the Tribunal remits the application for the Student (Temporary) (Class TU) visa for re-consideration with a direction in those terms.

    Michael Bradford
    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.