Martinez Ferrada (Migration)

Martinez Ferrada (Migration) [2024] AATA 3732 (9 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Erich Matias Martinez Ferrada
REPRESENTATIVE:  Mr Nicolas Miranda (MARN: 1687254)
CASE NUMBER:  2306243
HOME AFFAIRS REFERENCE(S):          BCC2023/1892776
MEMBER:Lilly Mojsin
DATE:9 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 09 September 2024 at 10:36am
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – genuine temporary entrant criterion not met – applicant has been in Australia since 2016 – using student visa to maintain ongoing residence – does not accept that the applicant’s proposed future employment in Chile is in a restaurant hotel business with his mother – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cls 500.214, 500.311
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 18 April 2023 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 22 March 2023. 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 review refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl 500.214 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because The delegate found that the second applicant did not meet cl.500.311.
The applicant appealed that decision on 5 May 2023 attaching a copy of the Department decision with the review application.
The applicant appeared before the Tribunal on 29 July 2024 via Teams video to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.
The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the format utilised. The applicant confirmed that the applicant could hear and see the Tribunal Member. The Tribunal was able to interact with the applicant and interpreter and was able to maintain line of sight and appropriate communication throughout the proceedings with the applicant.
The applicant was assisted in relation to the review. The representative did not attend the Tribunal hearing.
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 Tribunal has before it the Department file and documents submitted by the applicant to the Tribunal that include a s359(2) response, Confirmation of Enrolment and other relevant documents.
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No. 108 attached herewith. This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs to determine whether the applicant genuinely intends to stay in Australia temporarily.
In Kumar v Minister for Immigration and Border Protection[1] the Full Court of the Federal Court held that the Direction requires that, in reaching the state of satisfaction required by cl 500.212(a), the decision maker should turn his or her attention to each factor during the decision-making process and consider whether and how that factor should be brought to bear in reaching that decision. The Court went on to note that [the Direction] does not impose a jurisdictional obligation to make a finding in respect of each factor irrespective of its materiality to the particular case. Less still is there an obligation, after forming the view that a factor was not material to the particular case, to express that conclusion in the statement of reasons.
[1] [2020] FCAFC 16 (24 February 2020)
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.
The applicant applied to study a General English Program, Certificate III in Commercial Cookery, Certificate IV in Kitchen Management and a Diploma of Hospitality Management and intends to remain in Australia until July 2025.
The delegate of the department verified that between 4 April 2016 to 23 September 2019 the applicant completed General English Beginner to Advanced, English Language Programs, Certificate IV in Marketing and Communication and a Diploma of Marketing and Communication. Then between 12 July 2021 and 28 October 2022 he completed a Diploma of Project Management.
The applicant stated in his Student application he also completed a Certificate III and Certificate IV in Sport and Recreation between 7 October 2019 and 2 April 2021. The delegate found that the applicant had not demonstrated a logical study progression for his duration onshore or detailed or convincing testimony as to how these Australian qualifications would assist him in achieving this goal in comparison to a qualification he already held or a qualification that could be acquired domestically. Nor did not demonstrate the remuneration and how he could reasonably expect to use these qualifications. Given the applicant’s individual circumstances, the significant cost of the course being unlikely to be offset by the potential income derived by the applicant in his expected employment field, the delegate was not satisfied the applicant was a genuine entrant for study and stay as a student. The delegate also found that since the applicant first arrived onshore in Australia on the 31 March 2016 to the date of delegate’s decision, the applicant has been onshore for 2543 days and only a total of 31 days offshore.
It was submitted by the applicant’s advisor that it can be expected that the formation of one's career can be dependent upon the experience gained throughout life. For the applicant, having arrived in Australia, he gained many new experiences but he also supported his career goal by choosing to study subjects that have been related to business, but also with a focus on sports. By choosing marketing and project management, two areas of study from a business perspective are crucial to run a successful business, the applicant has engaged in studies that assist with his career focus.
At the Tribunal hearing the applicant stated that he completed a physiotherapy course in Chile in 2012. He commenced a business administration course in Chile but did not complete it. He was employed in Chile in administration and then in sales and marketing prior to arriving in Australia. He worked for different companies and he left Chile in 2016 because he wanted to learn English and complete studies in English.
The applicant stated that his mother, father, siblings, reside in Chile. He has an uncle in Australia but is not in contact with him. He is not married and does not have any children.
The applicant does not have any property or assets in Chile or in Australia.
The applicant is not working in Australia. His parents support him. He is 37 years of age. He has worked in Australia in construction and removals. He is not working now as he is not allowed to work.
The applicant has provided CoEs for a Certificate III in Commercial Cookery commencing on 17 July 2023 and ending on 14 July 2024, Certificate III in Kitchen Management commencing on 17 July 2024 and ending on 12 January 2025, and a Diploma of Hospitality Management commencing on 13 January 2025 and ending on 13 July 2025.
He did not complete Fitness studies and he did not complete an Advanced Diploma of Marketing and Communication in October 2018. He completed a Diploma in Project Management in January 2023. He told the Tribunal in regard to his return to Chile he had personal projects that he wanted to begin. They were to set up his own business in a restaurant. It was a hospitality restaurant with his mother. It has to do with hospitality. It is a project they want to set up. It is bigger than a restaurant with accommodation and is related to business and marketing.
When he left Australia after his last visa application he went to New Zealand in December 2022 for 20 days and his intention was to travel around South East Asia and Western Australia. He spoke to his family and decided to do cookery in Australia as it is more multicultural than in his country. He changed his plans. He did not return to Chile.
In that period his mother visited him in 2018 and January 2024. The opportunity arose to purchase land in Chile, so that is when he decided to study cooking for 2 years instead of 5 years in Chile. That was the change of plan at end of January 2023.
The Tribunal put to the applicant that he told the previous Tribunal that his career intentions when he returns to Chile were “my intention is to be in charge of and be responsible for a family business”. The intention was to become involved in the family business of mental health clinics. He said that the mental health clinic is the business the family owns and this new project will be undertaken by him and his mother. I put to him that he did not provide consistent evidence with the previous Tribunal. He said that he did not say anything to the previous Tribunal as it did not come up at 2022.
He has completed a Certificate III course in Cookery. He is proposing to do Certificate IV and a Diploma of Hospitality Management..
The Tribunal put to him that he did not return to Chile on the previous occasion and he now claims he will return to Chile at the end of his course. He responded that the project is more advanced and the family have already purchased a block of land and because of his age, it is the place where he wants to settle down.
He has been in Australia for 8 years and he will have been in Australia for 9 years. He has changed a number of courses in a number of directions. He responded that it has been difficult and the reason why he wants to complete the course is because he has invested money and he would not like to stay without completing the course. The Tribunal put that going to New Zealand and return suggests that he came back to Australia in order to work. He responded that it was not the plan to come here and work. He has evidence he purchased flights to travel to WA. The Tribunal put to the applicant that his intention is to get another student visa in order to work again. He disagreed.
The applicant’s representative submitted that when the applicant last attended the Tribunal in September 2022 he left Australia and came back and the new project in Chile developed after he attended the Tribunal in 2022.
Post hearing the applicant provided the following documents:
§Incorporation of company BalanceMed Naming ‘Daisy Elizabeth Ferrada Morales’ (applicant mother) as director and Lucia Andrea Rojas Valenzuela’ as director
§Company Balance Sheet
§Business Plan for a restaurant ‘Balance’.
§Copy Mother’s airline ticket to Sydney in January 2024
§Jetstar flight ticket to Denpassar 6 February 2023
§Mother’s statement Daisy Elizabeth Ferrada Morales certifying that she and her son are working on together-the development of a boutique hotel in southern Chile, in Futrono. This project began to take shape in January 2023, when they started planning from the acquisition of the land to refining the details of the business plan. Their goal is to have the hotel operational within a maximum period of 2 years. She also has other businesses in which she wants her son to become more involved and to assume leadership in managing her projects.
§Land purchase at Futrono Commune by Lucia Andrea Rojas Valenzuela on 22 November 2021 with a lifetime usufructory granted to Enrique Pedro Piccoli Villacora.
§Declaration by applicant that he and his mother are developing a hotel in Futrono where they own the land. He chose to pursue Commercial Cookery to enhance his culinary expertise and to contribute to establishment and growth f the business.
§A post hearing submission by the applicant’s representative
REASONS AND FINDINGS
The applicant is a citizen of Chile. The Tribunal does not have any information before it that citizens of Chile, in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department, that indicate there is need for further scrutiny. Nor does the Tribunal have any information that the applicant or a relative of the applicant has an immigration history of reasonable concern.
The applicant arrived in Australia on 31 March 2016 and since that time has returned to Chile on one occasion in January 2017 for 17 days. There is no information before the Tribunal to suggest that the applicant has made applications for visas that have been refused other than an application made on 24 August 2021 and affirmed by the Tribunal[2].
[2] AAT 2116136
The applicant does not have military service commitments that would present as a significant incentive for the applicant not to return to his home country and there is no political and civil unrest in Chile.
Considering the applicant’s circumstances in Chile, the applicant is 37 years old, he is unmarried. His parents and siblings are in Chile. He has no family in Australia. Whilst he has made travel plans for WA and Bali, the Tribunal does not consider that his incentive to return to Chile is a substantial incentive especially as the applicant departed Australia in December 2022, travelled to New Zealand and returned again to Australia with a visitor visa. The Tribunal places great weight on the applicant not returning to Chile after his visa ceased and instead returning to Australia with a tourist visa.
In regard to the applicant’s economic circumstances in Australia and whether they present an incentive for the applicant to remain in Australia, the applicant claims that he does not work in Australia and is supported solely by his parents. The applicant has worked previously when he was the holder of a student visa. Presently, the applicant’s economic circumstances do not present an incentive for the applicant to remain in Australia. The Tribunal places weight on the applicant not working in Australia as an incentive to return to Chile.
The applicant completed a physiotherapy course in Chile in 2012. He commenced a business administration course in Chile but did not complete it. He was employed in Chile in administration and then in sales and marketing, prior to arriving in Australia. He worked for different companies and he left Chile in 2016 because he wanted to learn English and complete his studies in English. His career intentions have changed since he has been in Australia. He has completed a Diploma in Project Management in January 2023, claimed to have completed Certificate 3 in Fitness in 2021 and has completed a Diploma of Marketing and Communication in 2018. He has now decided to study hospitality in Australia because it is more multicultural. The Tribunal is not satisfied that now studying cookery courses in Australia rather than in Chile because Australia is more multicultural or that it will take longer for him to study in Chile is a reasonable explanation for not undertaking the study in Chile.
The applicant has completed a Certificate III course in Cookery. The Tribunal places weight on his completing this course.
In regard to the applicant’s employment, the applicant left Chile in 2016 and has been working in Australia. Other than his claim that he will be working in a restaurant/hotel business in Chile with his mother he has made no claims to have searched for or enquired about any other jobs in Chile or elsewhere.
It is claimed by the applicant and his mother that they will set up a business together. The Tribunal accepts that the applicant’s mother is a Director of a company BalanceMed with Lucia Andrea Rojas Valenzuela. Lucia Andrea Rojas Valenzuela was the purchaser of the land at Futrono. The deed of sale refers to a usufructary. The usufruct is a right that gives a third party the possibility of using and enjoying an asset that does not belong to them that belongs to the bare owner[3] . The applicant has provided no information regarding the rights of the usufructary nor has the applicant explained how he and his mother together can develop a boutique hotel Futrono on this land. Therefore the Tribunal places no weight on the Business Plan for a restaurant ‘Balance’ to be commenced on land owned by the applicant’s mother as the information provided to the Tribunal suggests the land is owned by another person.
[3]
The applicant's mother is not an independent witness and has a vested interest in the outcome of the applicant's application for review. Therefore, the Tribunal places little weight on the applicant mother’s statement indicating that the project began to take shape in January 2023, when they started planning from the acquisition of the land to refining the details of the business plan. She does not explain how the acquisition of the land by Lucia Andrea Rojas Valenzuela has any relevance to the applicant’s claims that they both are developing a restaurant/hotel in Futrono where she owns the land.
The Tribunal is of the view that the mother’s letter has been created to address perceived weaknesses in the applicant’s claim. Therefore the Tribunal places no weight on the applicant mother’s statement that the hotel will be operational within a maximum period of 2 years. As for the mother’s statement that she also has other businesses in which she wants her son to become more involved and to assume leadership in managing her projects, as the mother has a vested interest in the outcome of the applicant's application for review I place no weight on this claim.
The applicant’s representative opines that in Australia the applicant has pursued studies which have been related to marketing, fitness, project management and now cooking. It can be expected that the formation of one's career can be dependent upon the experience gained throughout life. The applicant has gained many new experiences but he has also supported his career goal by choosing to study subjects that have been related to business, with a focus on sports. By choosing marketing and project management, two areas of study from a business perspective are crucial to run a successful business, the applicant has engaged studies that assist with his career focus. Whilst the Tribunal accepts that students can and do change career paths and career goals the Tribunal must assess whether the applicant as 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.

In regard to the value of the applicant current enrolment to the applicant’s future, the applicant has been in Australia since 2016 and as the Tribunal does not accept that the applicant and his mother own land on which they intend to start a business, the Tribunal does not accept that the applicant’s proposed future employment in Chile is in a restaurant hotel business with his mother, as claimed. The applicant does not claim that he would seek employment in any third country utilising skills obtained from his studies in Australia. Nor does the applicant identify the remuneration he could expect to receive in Chile or a third country, using the qualifications to be gained from the proposed course of study.
The Tribunal has considered the applicant’s singularly and cumulatively. On the basis of the above, the Tribunal is not satisfied, on balance, that the applicant intends genuinely to stay in Australia temporarily.
Accordingly, the applicant does not meet cl 500.212(a).
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Lilly Mojsin
Member

Attachment – Direction No.108
DIRECTION NUMBER 108 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, CLARE O’NEIL, Minister for Home Affairs and Minister for Cyber Security, give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 21 March 2024
Clare O’Neil

Minister for Home Affairs and Minister for Cyber Security
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 - Preliminary
Name of Direction
This Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 108.
Commencement
This Direction commences on 23 March 2024.
Revocation
Direction No. 69, given under section 499 of the Act, is revoked.
Interpretation
Act means the Migration Act 1958.
Finally determined has the same meaning as is set out in subsections 5(9) and (9A) of the Act.
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 against the genuine temporary entrant criterion for Student visa applications and Student Guardian visa applications (as applicable).
This Direction also applies to members of the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; who review the decisions of primary decision-makers in relation to a Student visa or Student Guardian visa application.
This Direction applies in relation to Student visa applications and Student Guardian visa applications made before 23 March 2024 but not finally determined on that date, including such visa applications that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for a Student visa and seek to satisfy the primary or secondary criteria, or an application for a Student Guardian visa and seek to satisfy the primary criteria.
Note: Direction No. 106 applies in relation to Subclass 500 (Student) visa applications and Student Guardian visa applications made on or after 23 March 2024, including visa applications made on or after that date that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.
Preamble
The Australian Government operates a student visa program 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 program 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 – 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 or Student Guardian 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 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.
iii. b. Previous travels to Australia or other countries, including:
iv. 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;
v. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
vi. 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
vii. 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 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.

[2024] AATA 3732

9 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction