Lin (Migration)

Lin (Migration) [2023] AATA 301 (13 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Ge-Fan Lin
REPRESENTATIVE:  Ms Junyu Wang (MARN: 1912870)
CASE NUMBER:  2115267
HOME AFFAIRS REFERENCE(S):          BCC2020/521655
MEMBER:David Thompson
DATE:13 February 2023
PLACE OF DECISION:  Perth
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 13 February 2023 at 8:26pm
CATCHWORDS
MIGRATION – Student (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – incentives to remain or return – arrived on working holiday visa – family, community ties, multiple return visits and future employment and business plans in home country – marriage to Australian citizen, change of subject area and study at lower level – study consistent with previous study and work, and future plans – previous compliant travel to other countries – no partner visa application in progress – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
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 20 October 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 21 February 2020. 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 they were not satisfied that the applicant intended genuinely to stay temporarily in Australia.
The applicant appeared before the Tribunal on 11 May 2022 to give evidence and present arguments.
The applicant was assisted in relation to the review.
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 meets the requirements of cl 500.212.
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.
Evidence
As well as giving evidence at hearing, the applicant provided numerous items of documentary evidence to the Tribunal. Rather than listing them, I will identify and discuss them as necessary in what follows.
The Tribunal also obtained, prior to hearing, the Departmental file in relation to the applicant’s visa application. I have considered the contents of that file, and especially documents the applicant provided to the Department that do not form part of the Tribunal’s own file, in reaching my decision. Once again, I will not list them here but will identify and discuss them as necessary in the course of my reasons.
I have also had reference to the applicant’s record from the Provider Registration and International Student Management System (PRISMS). That record contained in relevant information beyond that given by the applicant in the course of her evidence. It was not, therefore, necessary to put her PRISMS record to her pursuant to s 359AA of the Act. In addition, I have obtained and considered the applicant’s movement record. That record contains relevant information that the applicant did not volunteer in her evidence, but none of it is prejudicial in the sense of providing a reason or part of a reason to affirm the delegate’s decision. There was, accordingly, no need to put it to her pursuant to s 359AA.
Consideration
The applicant’s circumstances in her home country
The applicant is a citizen of the Republic of China (Taiwan). At the date of this decision, she is 34 years old. She gave evidence at hearing that she has family in Taiwan, namely, her parents and 2 brothers. She stated that she contacts her mother almost every day by social media and telephone, and the rest of her family in Taiwan every 3 days or thereabouts. She also stated that she married an Australian citizen (Mr Goran Oziziki) on 13 February 2022. She has given evidence of community ties in Taiwan, in the form of active political engagement and an extensive network of friends, both from her school days and ex-colleagues. I accept this evidence, and find that the applicant has personal ties to Taiwan that would give her a significant incentive to return there when she finishes his studies.
The applicant’s highest level of education achieved before coming to Australia was the completion of a Bachelor of Science in Applied Psychology, which she obtained from the Hsuan Chuang University in Taiwan. She has some history of employment in Taiwan having worked following her graduation as a teacher at the Licheng Training College, and as an assistant in a private firm. Her evidence is that she earned the equivalent of A$15,600 in the first of those positions and the equivalent of A$15,000 in the second. The applicant has also given the Tribunal evidence that she has assets in Taiwan in the form of shares and deposits held in Taiwan, and also the quantity of gold. She has given that portfolio value of approximately A$136,000. I find that the applicant has economic ties with Taiwan that would give her some incentive to return to that country once she has finished her studies in Australia. There is no evidence before me to suggest that she has any economic reason to avoid returning to Taiwan.
The applicant has given evidence that she has no military service commitments to complete on her return to her home country, and no concerns regarding political or civil unrest in that country. There is no evidence before me to contradict those statements, and I accept the evidence in that regard. I find that these factors do not give the applicant any incentive to avoid returning to Taiwan in due course.
The applicant is currently studying the package of courses in the area of Early Childhood Education and Care. The highest-level course in that package is a Diploma of Early Childhood Education and Care. The applicant did not state in her evidence whether equivalent courses were available in Taiwan. However, she made it clear that her ultimate ambition is to open a bilingual childcare and early childhood education centre in Taiwan, and that being able to study in an environment where English is the first language spoken is a key element in that plan. She also referred to the high regard in which Australian qualifications are held in her home country, and to her expectation that holding such qualifications will raise the profile of her intended business and give her an advantage in attracting custom. I find that these are reasonable motives to decide to study in Australia.
Wang these matters together, I find that the applicant circumstances in her home country support her claim to intend to remain in Australia temporarily in order to study.
The applicant’s potential circumstances in Australia
The applicant gave evidence at hearing that her only family in Australia is her husband. I have noted her relatively recent marriage to an Australian citizen above. On that topic, the applicant gave evidence that her husband intends to return to Taiwan with her and seek work there. She stated that his current work is in the area of property management, and that he will seek similar work in Taiwan. I asked the applicant at hearing whether she had any community ties in Australia. Her response was that she has made a number of friends through her studies, with whom she keeps in touch, but that she has been hampered in forming community ties by the relative difficulty she has in communicating on a day-to-day level in English (she noted that her ability to communicate, both in speech and in writing, on technical or professional topics is markedly better). Despite the applicant’s evidence as to her husband’s intentions, I find that her marriage to an Australian citizen may give her a strong incentive to remain in Australia once she has finished her studies, particularly if his plans to accompany her to Taiwan change or if he is unable to do so.
The applicant gave evidence that she has no property of any kind in Australia, and stated that her husband has no property either stop the applicant has some history of working in Australia, in that when she initially arrived in Australia she worked for a period as a packer and general worker. This was during a time when she was present in Australia on a working holiday visa, and the amounts she earned in those positions (between A$8000 and A$10,000) reflect the nature of that employment. She stated that she has not worked in Australia since March 2018. At hearing, the applicant gave evidence that her husband is currently working as a property manager for a church. He is, presumably, remunerated for that work and by reason of marriage has a moral responsibility to support his wife. Taking all of these matters together, I find that the applicant has some economic ties to Australia that might provide her with an incentive to remain here other than temporarily, but that those ties are not strong.
One of the matters I must consider in determining this application is whether the applicant has entered into a relationship of concern in Australia, in the sense of a relationship contracted or contrived to give her a better chance of a positive outcome to her visa application and would otherwise be available. The applicant’s marriage to an Australian citizen has given me considerable concern. In principle, it opens a path for her to remain in Australia permanently. However, there is no evidence before me to suggest that her marriage is anything but genuine, and the path it opens for her towards permanent residence is a path that can be taken legitimately. I note that the applicant had enrolled in her current course of studies well before the date of her marriage, and indeed well before the date of her most recent student visa application, the refusal of which has given rise to this review. There is no indication in the evidence before me that the applicant has taken any steps on the strength of her marriage to remain in Australia permanently. In those circumstances, I find that the applicant’s marriage is a neutral factor in the decision I must reach. There is no other evidence before me that the applicant is using the student visa system primarily to maintain residence, or is attempting to circumvent the intentions of the Australian immigration program in any other way. These considerations give some support to her claim to intend genuinely to remain in Australia only temporarily.
The applicant first arrived in Australia in December 2015, as the holder of a working holiday visa (TZ-417) she applied for her first student visa in December 2017, and was granted it in the same month. She made her current visa application on 21 February 2020. By that date, she had lived and worked in Australia for some 4 years (although she had made a number of return visits to Taiwan in that time). She must necessarily have had considerable practical experience of living and studying conditions in Australia. In those circumstances, I find that a consideration of her preparedness for life in this country at the date of her visa application does not assist me in reaching my decision in this matter. I asked the applicant at hearing how she had chosen her current course provider. Her evidence on that point was that she had chosen it on the basis of its partnership with TAFE New South Wales, with which institution its courses are articulated. She takes the view that this provides an assurance of quality which is valuable to her. She also gave evidence that she chose the current provider because it assured her of a significant amount of practical experience in the childcare industry, and because its courses in this area have a good reputation. I find that these are good reasons to choose a course provider, and that the applicant’s evidence on this point supports her claim to be a genuine temporary entrant.
Weighing these matters together, I find that the applicant’s evidence as to her potential (and indeed actual) circumstances in Australia gives some support, although not strong support, to her claim to intend genuinely to remain in Australia only temporarily for the purpose of study.
The value of the applicant’s courses for her future
The applicant had achieved a bachelor’s degree in applied psychology before coming to Australia. She is currently studying at the diploma level, and has therefore strictly speaking regressed in her level of study. However, she is studying in a distinct although related area. I therefore do not consider that regression indicative of an intention to remain in Australia other than temporarily, or to circumvent the intentions of the Australian immigration system in any other way.
The applicant has given evidence that her plan is to return to Taiwan on the conclusion of her studies and to work in the childcare sector, ultimately opening her own bilingual childcare and early education business. Her current courses are directly relevant to that plan, and it is consistent with her previous education and work experience in that country.
The applicant’s evidence is that her Australian qualifications will allow her to obtain a position in an already existing childcare and early education Centre in Taiwan, and that she can expect to earn the equivalent of TWD2589 per month, which is almost double the salary she was making as a clerical assistant in her last employment in that country. She expects that she will also qualify for bonuses, which will increase earnings considerably. Whilst it is likely that she wouldn’t more in a similar position in Australia, one must take account of differences in cost of living between the 2 countries. Having considered those matters, I find that it is likely that the applicants Australian qualifications will significantly improve her chances of obtaining remunerative employment in her home country, and will equip her to earn considerably more than she previously did.
For these reasons, I find that the applicants courses have a real value for her future in Taiwan. This provides considerable support to per claim to intend to remain in Australia only temporarily in order to study.
The applicant’s immigration history
The applicant gave evidence at hearing that she had previously travelled to Japan, Korea, China, Malaysia, and India. She stated that she had never previously been refused a visa to enter any country. She also stated that she had never had a visa granted to her cancelled, either by Australia or any other country she had visited. There is no evidence before me to contradict those statements, and I accept them. Nor is there any evidence before me to suggest that the applicant has ever breached immigration laws of any of the countries she has visited. At hearing, I asked the applicant whether she had any other Australian visa application on foot, and in particular whether she had applied for a visa as her husband’s partner. She stated that she had not. There is no evidence contradicting those statements.
The applicant first came to Australia on 12 December 2015, as the holder of a TZ-417 working holiday visa. On or about 22 June 2016 she applied for another such visa, and her application was granted on 20 July 2016. The 2^nd working holiday visa expired on 12 December 2017. By that date, the applicant had enrolled in a Gen English course and a Diploma of Business course. On 6 December 2017, she applied for a student visa and was granted a TU-500 temporary student visa on 21 December 2017, valid until 15 March 2020. She made the application that gave rise to this review on 21 February 2020. She has, therefore, been resident in Australia for a little over 7 years. That is a significant amount of time to reside in a country on temporary visas, and gives rise to the possible inference that her intention was to stay permanently. I note, however, that the applicant has been continuously enrolled in courses of study whilst on or applying for student visas. I further note that the applicant has returned to her home country 6 times since their arrival in Australia. The length of her visits varies, but the shortest was for a period of approximately 3 weeks. Most of her visits and have been longer. The last visit was made in late 2019. I note that shortly afterwards, in early 2020, the arrival of the COVID-19 pandemic rendered international travel to and from Australia practically impossible, and I draw no adverse inference from the fact that the applicant has not travelled since then. In view of these factors, I find that the length of the applicant stay does not lead to an inference that she intends to stay permanently in Australia.
For these reasons, I find that the applicant’s immigration history supports her claim to intend genuinely to remain in Australia only temporarily.
Conclusion on cl 500.212(a)

On the basis of the above, I am 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 gave evidence at hearing that she was aware of the fact that conditions would be imposed on any student visa granted to her, and demonstrated knowledge of the nature of at least the most substantial of those conditions. There is no evidence before me to suggest that she has ever breached a visa condition previously.
On the basis of the above, I am 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)).
In order to meet the requirements of cl 500.212 applicant must not only intend genuinely to stay in Australia temporarily, but must intend to do so as a student. This requirement is contained in the chapeau to cl 500.212, and may properly be considered as an “other relevant matter” under cl 500.212(c).
In this case, the applicant did not originally come to Australia as a student. She was granted a first student visa on 21 December 2017. At that date she was enrolled in a General English course. She completed several iterations of that course and enrolled in a Diploma of Business, which she also finished, in that case honour about 9 November 2019 she then enrolled in a Diploma of Leadership and Management, which she finished honour about 3 January 2021, and an Advanced Diploma of Leadership and Management, which she finished honour about 30 January 2022. She then changed her area of study to Early Childhood Education and Care, enrolling in a Certificate III and a Diploma course in that subject. She has completed her Certificate III, and is currently studying for her Diploma. She explained her move from business studies to early childhood education and care by referring to the demand for such services she saw existing in Taiwan. The ultimate ambition is to open her own childcare centre, and to run it as a business. Her apparent change in area of study is, therefore, more a matter of learning the skills necessary for the industry in which she wishes to start a business than a complete change in study area. The applicant has progressed through her various courses with very little delay, and has completed all of those years undertaken to date. I am satisfied that she intends genuinely to remain in Australia temporarily as a student, as required by cl 500.212.
No other relevant matters arise for consideration on the evidence before me.
Accordingly, I am 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.
David Thompson
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.

[2023] AATA 301

13 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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