Lim (Migration)

Lim (Migration) [2021] AATA 5577 (8 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Jun Yik Lim
CASE NUMBER:  2000147
HOME AFFAIRS REFERENCE(S):          BCC2019/5689062
MEMBER:Frank Russo
DATE:8 November 2021
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:
·cl 500.212 of Schedule 2 to the Regulations.

Statement made on 8 November 2021 at 4:55pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No 69 – Commercial Cookery – Hospitality Management – similar field to courses already undertaken – course extended due to lockdowns as a result of the COVID-19 pandemic – value of the course – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 December 2019 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 11 November 2019. 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) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.
The applicant was assisted in relation to the review by her registered migration agent.
On 30 June 2021 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information in writing about the course(s) of study she is undertaking and her entry and stay in Australia as a student. The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by 14 July 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
In her s.359(2) response, received on 13 July 2021, the applicant indicated in a completed ‘Request for Student Visa Information’ form that she consented to the Tribunal deciding the review without a hearing. The Tribunal is satisfied that the necessary consent has been given under s.360(2)(b) of the Act and that, pursuant to s.360(3), the review applicant is no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.
In these circumstances, the Tribunal has proceeded to make a decision having regard to all the information before it, including the information previously provided by the applicant to the Department.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary applicant for entry and stay as a student.
In addition to the application form and copy of the delegate’s reasons for decision, the applicant provided the Tribunal with a s.359(2) response which included a completed Request for Student Visa Information form, record of results and award of the Advanced Diploma of Leadership and Management and confirmations of enrolment (CoEs) for the Advanced Diploma of Leadership and Management, Certificates III and IV in Commercial Cookery and the Diploma of Hospitality Management. She has also provided transcripts of results for the Certificates III and IV in Hospitality Management.
The Tribunal has had regard to these documents. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The applicant is a 27-year-old Malaysian national. According to information provided in her s.359(2) response, after completing high school in Malaysia, she completed a Diploma in Culinary Art at KDU University College Penang from 2012 to January 2015. She worked as a kitchen hand in Malaysia from 2011 to 2014, as a trainee in a hotel in Xiamen, Fujian Province, China in 2014, then as a pastry chef from 2015 to 2017 in Penang.
She first arrived in Australia on 30 April 2016, holding an Electronic Travel Authority. She applied for a Student visa onshore for the purpose of completing a Diploma and Advanced Diploma of Leadership and Management, which she completed in March 2018. According to the delegate’s reasons for decision, the applicant’s Student visa ceased on 11 November 2019, and she applied for the Student visa under review on the same day. The visa application under review is in respect of the applicant’s enrolments in a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management.
The their reasons for decision, the delegate states that the applicant had enrolled in courses which are in a similar field to courses which she had already undertaken, but was now undertaking studies at lower levels. The delegate noted that the applicant had declared that she had previously completed a Diploma in Professional Chef Training in Malaysia, which was specialised in patisserie, but she aims to be employed as a chef specialised in culinary. The delegate was concerned that the applicant had not provided any evidence that the proposed study in Australia would assist her to improve her career opportunities in Malaysia in the future, over and above her existing ‘higher-level’ qualifications.
The applicant has provided the Tribunal with the following CoEs for the courses which were the subject of her Student visa application:
a.Certificate III in Commercial Cookery commencing on 13 January 2020 and ending on 2 July 2021;
b.Certificate IV in Commercial Cookery commencing on 11 January 2021 and ending on 2 July 2021; and
c.Diploma of Hospitality Management commencing on 5 July 2021 and ending on 24 September 2021.
Each of these CoEs have ended, and a copy of the applicant’s enrolment information from her Provider Registration International Student Management System (PRISMS) record indicates that she has completed these courses. The applicant’s PRISMS record indicates that she has a further enrolment in the Certificate IV in Commercial Cookery from 27 September 2021 to 3 December 2021. A copy of her CoE for this course is also available on her PRISMS record, a copy of which is also on the Tribunal file. This CoE includes comments which indicate that this CoE was created as an extension of the applicant’s previous CoE and contains the following information:
The course has been extended to allow the student to complete the WBT which has been delayed as a result of the various lockdowns in Victoria.
The Tribunal accepts on the basis of this evidence that the applicant required an extension of her CoE for the Certificate IV in Commercial Cookery n order to complete the work-based training component of the course, which she was unable to complete previously due to lockdowns in Victoria as a result of the COVID-19 pandemic. The Tribunal therefore makes no adverse findings regarding the applicant’s enrolment in an extension of the Certificate IV in Commercial Cookery.
In her s.359(2) response, the applicant states that she is passionate about being a chef and mastering her skills in both culinary and patisserie, and that her ultimate goal is to own her own restaurant in Malaysia. She states that through her previous studies towards the Advanced Diploma of Leadership and Management, she recognised the quality of education in Australia. She states that her efforts in building her skills have included her previous studies, taking internships overseas and entering competitions. She states that she would like her restaurant to provide authentic Western-style dishes. As a result, she would like to complete the proposed Commercial Cookery and Hospitality courses in Australia. Some of the reasons provided for wishing to complete these courses are the instruction in Western cooking style, the hands-on experience, placements in local hotels and restaurants, and learning from the different kitchen management style in Australia.
The applicant also acknowledges in her s.359(2) response that she has completed a Diploma course in Malaysia, however she indicates that there are a number of differences, including her existing qualification being focused on patisserie, with very limited coverage of culinary or management, the lack of western cuisine, the practical nature of the studies in Australia, as well as the opportunity to further her English-language skills by studying in Australia.
Having considered the evidence as a whole, the Tribunal is satisfied the applicant’s proposed course of study will be of value to her future. The Tribunal notes that the applicant already holds a Diploma in Culinary Art, which she completed in Malaysia, however the Tribunal is satisfied that the applicant has put forward reasons why her proposed career as a chef and restaurant owner will benefit from the proposed qualifications in Australia, including the greater focus on management, broader training than her previous studies which were focused on patisserie, as well as greater exposure and hand-on training with western cuisine. The Tribunal notes the delegate’s finding that the applicant proposed to enrol in courses at a lower level than her existing qualifications. Although the Tribunal notes that the applicant was enrolled in the Certificates III and IV in Commercial Cookery, these courses articulate to the Diploma of Hospitality Management, which is a course at the same level as her Malaysian qualification. The Tribunal therefore does not find that the applicant has enrolled in courses at a lower level than her existing qualifications and accepts that her current studies at the vocational level are consistent with her existing level of education.
The proposed courses of study are relevant to the applicant’s stated plans to work as a chef and open her own restaurant in Malaysia. They are also consistent with her previous studies in Malaysia, as well as with her employment history, which is entirely within the hospitality industry. In Malaysia the as a kitchen helper and as a pastry chef. She has worked as a trainee for 8 months in a hotel in China. In Australia she has worked as a barista, sandwich hand and currently as a kitchen helper. The Tribunal is therefore satisfied that the applicant intends to have a future career in the hospitality industry.
The applicant has provided some information regarding remuneration as a chef in Malaysia in her s.359(2) response. She indicates that the annual salary of an executive chef in Malaysia is around $30,000 AUD per year. She has provided details of an employment offer from a family friend who owns a restaurant in Malaysia, which she claims will attract a starting salary of $25,000 AUD, which will increase with experience. She also indicates that her expenses in Malaysia are expected to be around $8,000 AUD per year, compared to the high expenses of Australia. The Tribunal therefore makes no adverse findings regarding the remuneration the applicant could expect to receive in her home country compared to in Australia, using the qualifications to be gained from the proposed courses of study.
The Tribunal accepts that in her s,359(2) response, the applicant has provided reasonable reasons as to why she wishes to undertake the courses of study in Australia, in particular how the courses will broaden her existing level of knowledge in the fields of hospitality and hospitality management.
The applicant has stated in her s.359(2) response that her personal ties to Malaysia include her parents, and that she has a sister in Singapore and a brother in the Philippines. She claims that she speaks to her parents by phone or video call two to three times a week. The applicant has given the details of four return trips to Malaysia from 2016 to 2019 to visit her family. The Tribunal accepts that the applicant has been unable to travel since early 2020 due to travel restrictions introduced because of the COVID-19 pandemic. The Tribunal considers the applicant has returned to Malaysia regularly. The applicant has provided a list of assets owned by members of her family in Malaysia. The applicant also claims that she has been offered a job at a family friend’s restaurant in Malaysia and that she intends to open her own restaurant. The Tribunal accepts that the applicant has personal ties to Malaysia which would act as an incentive for her to return to her home country, and gives some weight to her regular return travel prior to the COVID-19 pandemic.
The Tribunal makes no adverse findings regarding the applicant’s economic circumstances, and notes the applicant has provided some limited evidence regarding economic ties to Malaysia.
There is no evidence of any civil or political issues that would act as an incentive for the applicant to remain in Australia. There is no evidence of any military service requirements. There is insufficient evidence before the Tribunal regarding the applicant's circumstances in Malaysia, relative to others in that country, and the Tribunal makes no adverse findings in relation to these factors.
There is no evidence of the applicant having an family or community ties to Australia. There is also no evidence of her being in a relationship. The applicant has previously held a Student visa for the purpose of completing an Advanced Diploma of Leadership and Management, which she completed. The applicant does not have an extensive visa history, having held a Student visa, and prior to that an Electronic Travel Authority. The applicant has proceeded to complete the courses of study which were the subject of the Student visa application under review. She has completed, and provided evidence of the award of, the Certificates III and IV in Commercial Cookery and the Diploma of Hospitality Management. The applicant is now enrolled in an extension of the Certificate IV in Commercial Cookery, which is for the purpose of allowing her to complete the work based training component of her course, which she could not complete previously die to lockdowns associated with the COVID-19 pandemic. The Tribunal considers the applicant has behaved in a manner consistent with that of a genuine student.
There is nothing to indicate that the applicant has been building a career in Australia. She has been employed at four different work places in Australia, none of them as a chef, whereas she has previously worked as a demi-pastry chef in Malaysia.
The applicant has completed all of the requirements for her proposed courses of study, other than the work-based training component of the Certificate IV in Commercial Cookery. The Tribunal therefore accepts that she has a good level of knowledge of her courses and the education provider. Overall, the Tribunal considers that the applicant’s potential circumstances in Australia do not raise any concerns, not do they suggest that the primary motive of the Student visa application is to maintain ongoing residence.
The applicant’s immigration history refers to both her travel and visa history. The applicant first arrived in Australia on 30 April 2016 holding an Electronic Travel Authority. She was subsequently granted a Student visa to study an Advanced Diploma of Leadership and Management, which she completed. The applicant does not have an extensive visa history, and while she has held the Bridging visa following the refusal of the Student visa application under review, she has proceeded to complete all of the requirements for her proposed courses of study, other than the work-based training component, which she was unable to complete earlier due to lockdowns associated with the COVID-19 pandemic. There is no evidence that the applicant has breached the conditions of her visas or has previously had a visa application refused or a visa considered for cancellation. The applicant has travelled extensively to a number of countries, the details of which are recorded in her s.359(2) response, and there is no evidence of any visa issues associated with that travel. The applicant currently has less than one month to complete the work-based training component of her studies, and given her progress to date, the Tribunal considers the applicant should be given the opportunity to complete her course of study and then return to Malaysia as she has repeatedly claimed. Overall, the applicant’s immigration history raises no concerns.
The Tribunal has also given regard to whether there are any other relevant matters and finds there are no other relevant matters to the assessment of the applicant's intentions to stay in Australia temporarily in addition to the matters covered above. The Tribunal has considered all the information provided by the applicant in support of the application, in particular the information contained in her s.359(2) which sets out her claims clearly.

On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).
Does the applicant intend to comply with visa conditions?
For the applicant to meet cl 500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed in some cases (cl.500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).
The applicant has provided with her visa application an undertaking to comply with any conditions the subject of which the visa is granted. There is no evidence to demonstrate that this would not be the case. She has been complying with the conditions of a Student visa by maintaining enrolment in her course of study.
On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).
Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?
For the applicant to meet cl 500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl 500.212(a) and (b)).
There is no evidence before the Tribunal of any other relevant matter that gives rise to a concern by the Tribunal that the applicant is not a genuine applicant for entry and stay as a student.
Accordingly, the Tribunal is 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 appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
DECISION
The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.
Frank Russo
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.

[2021] AATA 5577

8 November 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies