Nyamsuren (Migration)

Nyamsuren (Migration) [2020] AATA 5312 (23 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Munkhtuya Nyamsuren
Mr Nyamdorj Namjil
Master Bilguuntugs Nyamdorj
CASE NUMBER:  1924836
HOME AFFAIRS REFERENCE(S):          BCC2019/3664344
MEMBER:D Triaca
DATE:23 December 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 23 December 2020 at 12:42pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No. 69 – reasons for studying in Australia – value of course to future career – well-educated and experienced business person – regression in level of study – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
CASES
Kumar v Minister for Immigration and Border Protection (2020) FCAFC 16
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 3 September 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 24 July 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The applicants appeared before the Tribunal on 21 December 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages.
The applicants were assisted in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.
Genuine applicant for entry and stay as a student (cl.500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
This made plain from the following statement of Logan J in Kumar v Minister for Immigration and Border Protection (2020) FCAFC 16 at [4], ‘Of course the Minister’s directions were a relevant consideration. How could it be otherwise in light of s 499 of the Act? But they were guidelines. Reading them as a whole, the Minister did not purport to elevate them beyond that, only to offer guidance to the end of consistency in public administration. Moreover, as Derrington and Thawley JJ explain, the Minister explicitly counselled against a mechanical, “checklist” approach. He recognised that factors might not be all one way; hence his reference to, “on balance”. All this was done in respect of a visa eligibility for which has as a criterion a subject which inherently involves, “a matter of opinion or policy or taste” in terms of satisfaction as to whether an applicant is a genuine student.’
Whilst not defined in the Regulations, the word genuine may be taken to mean ‘authentic, real or true’ in according with its ordinary and natural meaning. The Regulations specify two constituent elements of a genuine student visa applicant. First, a genuine applicant is one who intends genuinely to stay in Australia temporarily. The applicant must demonstrate an intention to stay in Australia for a limited time only, not permanently. That intention must be unqualified. This requirement reflects the temporary nature of being a student.[1] Secondly, a ‘genuine applicant’ is a person who intends to comply with any conditions to which the visa may be subject.[2]
[1] See Singh [2019] (Migration) AATA 2993 at [13]
[2] See the discussion of the meaning of ‘genuine applicant’ in Vu Vu (Migration) [2019] AATA 5740 (18 December 2019) [22] – [25] upheld on appeal in Vu Vu & Ors v Minister for Immigration and anor [2020] FCCA 2292
The issues in this case arose in the following circumstances, the main applicant is a 36 year old citizen of Mongolia. She first arrived in Australia on 17 August 2018 on a student visa to study English. There are two secondary applicants on the application, the applicant’s Husband and son. On 24 July 2019 the applicant applied for a further student visa to enable them to study a Diploma and Advanced Diploma of Leadership and Management at George Brown College until 9 April 2023. On 3 September 2019, a delegate of the Department refused her application (delegate’s decision). On 5 September 2019 she applied to the tribunal for a review of the delegate’s decision and he provided the tribunal with a copy of that decision.
The tribunal has read and had regard to documentation provided by the applicant to the Department and the tribunal including the delegates decision, Bank Statements, Form 956 Advice by Migration Agent, Certificate of Properties, Child enrolment letter, Certificate of Overseas Student Health Cover, Application for a student visa 24 July 2019, Passport, Bachelor Certificate, International English Language Test (IELTS), Marriage Certificate, Form 1229 Consent form to grant an Australian visa to a child under the age of 18, GTE Statement, letter of the Temporary Residence Program NSW, Bridging Visa information. On 5 June 2020 the tribunal wrote to the applicant and invited her to provide further information pursuant to s.359(2) of the Act. On 17 June 2020 the applicant responded in writing (359 Response) and provided further documents in support of the application including evidence of Bachelor Degree, Evidence of short course completed in United Kingdom, evidence of English course completed in Philippines, professional training certificate, accountant Certificate, Evidence of employment letter from LLC, Social Insurance superannuation document, Evidence of English language courses including Canterbury language centre, CoE, family passports, said to be evidence of ties to Mongolia, NGO Membership, Bank Statements, property ownership evidence. The Tribunal has read and had regard to the applicant’s 359 Response, together with the supporting documents and further documents filed on 11 December 2020 including evidence of attendance and progress at George Brown.
The applicant’s evidence in relation to her reasons for studying in Australia and the value of the current study to her future career was unpersuasive and implausible in spots. Having regard to her evidence as a whole, it appears to the tribunal that the applicant’s evidence was tailored in order to justify maintaining an ongoing residence in Australia.
The applicant’s background is that of a well-educated and experienced business person. She completed a Bachelor of Economics in her home country in 2006. She completed a short course in the UK in 2017. She worked as an Accountant at various enterprises in Mongolia between 2006 and 2015. Between 2015 and 2017 she worked at the Taxation office in Bayanzurkh. Since 2017 she has been a Director of the Tax Insurance LLC. In her evidence she stated that despite the title of Executive Director, she was carrying out the role of an Accountant at that company. She says she continues in that role, working on-line from Australia.
On any objective view, the applicant is well placed to find suitable employment in her home country on the strength of her qualifications and work experience.
The applicant has come to Australia on a student visa for the purpose of studying English. She enrolled in a General English language course at Canterbury Language Institute which she completed in August 2019, followed by an IELTS preparation course at Barton International College, which she completed in March 2020. The Tribunal accepts that there is value to an international student in studying the English language and such study may have added value when undertaken in an English speaking country.
The applicant enrolled in a Diploma of Leadership and Management at the George Brown College in April 2020 and is due to complete this course in April 2021. She is also enrolled in an Advanced Diploma of Leadership and Management at George Brown and is due to complete it in April 2023. This will take her time in Australia to over 4.5years.
The Tribunal has considered the applicant’s evidence. In response to questions about how she would use the Leadership and Management courses upon her return home, her answers were vague and non-specific. She said that in Australia she will be able to gain a higher education and skills to make sound decisions and be able to apply for a senior role. She hopes to find work in the economic strategic management or the mining sector in her country. The difficulty for the applicant is that she was unable to give any reason why she could not already apply for such jobs on the strength of her current qualifications, or how an Advanced Diploma of Leadership and Management would assist her in doing so. Her argument seems to be that she is unable to seek a management position without management qualifications. The Tribunal does not accept this evidence. The applicant provided the Tribunal with a letter from the Tax Insurance LLC dated 25 July 2019 that states the applicant held the position of ‘Executive Director’ of that company and held that position from 2016 until August 2016. In her evidence she sought to downplay her role, saying she was ‘an Accountant’ as opposed to a true Director but it is difficult to view that reference as anything other than confirmation that the applicant held a management role within that organisation and was highly regarded. The Tribunal considers that there is no objective evidence to suggest that the applicant would be unable to apply for a management role in Mongolia on the strength of her current qualifications and experience.
The applicant’s evidence in relation to her expenses and finances was vague and difficult to follow. In her 359 Response, she states that her annual expenses in Australia are $33,120AUD per annum. She confirmed in her evidence that this was correct. She gave further evidence that she and her Husband are both unemployed. When asked how she funded her living expenses in Australia, she says that she was able to fund her lifestyle from her investments and work from overseas. She states that she is paid a salary from Mongolia of approximately $1350 per month for work that she does online. She also has income from investments including an income stream of approximately $1000 per month. She says she has access to an international debit card and funds in the bank in Mongolia. She stated that this is how she funds her $33,000AUD in living expenses.
In the hearing, I pointed out to the applicant that she had not included education expenses in her stated living expenses. These costs make up a relatively high proportion of her expenditure noting that she states her son’s primary school cost is approximately $9,800 per annum and her education costs at George Brown are approximately $6000AUD per annum according to her Confirmation of Enrolment. I asked her how she funds these further expenses. She stated that the sum of $500 attributed to ‘other amounts’ in her expenses is, in fact, her George Brown fees. She stated further that she has received further funds from her parents and sister in Mongolia including them bringing her cash from Mongolia when they have visited Australia.
The Tribunal found the applicant’s evidence in relation to her expenses and funding in Australia vague and unconvincing. Whilst it accepts that she has been able to fund her stay in Australia, it is unclear to the Tribunal exactly how she has done so and this is concerning.
The applicant’s evidence in relation to her ‘online’ employment is inconsistent with her GTE Statement in which she says she maintained her employment as a Director of Tax Insurance LLC in Ulaanbaatar from 2016 until August 2018 when she arrived here. On her application for a student visa dated 24 July 2019, she stated that she was not employed and did not have arrangements for employment at the completion of her studies. These matters weigh against the application.
The applicant’s goal of completing her study is to enable her to return home to Mongolia and find employment with a ‘top company’ earning $3000AUD per month. On her evidence before the Tribunal, she earns income in that vicinity from her investments and online work. It is difficult to reconcile the applicant and her family moving across the world, incurring the expense of further study and time involved to enable her to return home in a similar economic position. This weighs against the application.
The Tribunal is concerned that the applicant has a university degree from her home country and is now seeking to study at a lower level in Australia. Her current study at George Brown is not consistent with her level of education. Her Bachelor of Economics is designed to provide a degree holder with skills in critical thinking and analysis that may be deployed to solve disparate challenges, including business management. The tribunal considers that this extends to the type of jobs in management that the applicant states she hopes to apply for upon her return home. The Tribunal considers the combination of her degree and extensive work experience means it is unlikely that the proposed study will assist her in obtaining employment or improve her employment prospects in her home country. It follows that the Tribunal does not consider the Australian study will increase the applicant’s remuneration in her home country.
It is a concern to the Tribunal that the applicant was already a university graduate before coming to Australia and chosen to study at a lower level in Australia. This suggests that the applicant is seeking to utilise the student visa as a means of maintaining an ongoing residence in Australia.
Further, the Tribunal is particularly concerned by the applicant’s evidence that she majored in Business Management in her Bachelor of Economics. This heightens concerns in relation to the value of the Australian study to the applicant. The applicant says that in her business management studies, “I developed excellent communication, negotiation, research and analytical skills as well as good time management and decision making skills.”[3] If this is the case, it is difficult to see how she will benefit from further study in Australia.
[3] See applicant’s GTE Statement.
The applicant also emphasised the benefits of learning English in an English speaking country. The Tribunal accepts there is some benefit to the applicant in so doing. However, the Tribunal places minimal weight on this additional benefit in circumstances in which the applicant has already completed two English courses in Australia and had the collateral benefits of living in Australia for over two years. There is no evidence to suggest that she cannot undertake further English study in Mongolia if she will benefit from improving her understanding of the English language.
The applicant’s evidence is that the value of Australian education is such that it is impossible to compare her potential qualifications from Australia with local qualifications gained in Mongolia. She says Australian qualifications are a good brand and assist in the focus on technical skills. The applicant’s preference is to study in Australia and the Tribunal accepts that having completed a Degree in Mongolia it is reasonable for the applicant to seek to undertake further study abroad. This weighs slightly in her favour, however it does not allay the Tribunal’s concern in relation to the value of the particular study the applicant has chosen.
There is no evidence in relation to the applicant’s circumstances in her home country relative to others there.
The applicant states, and the Tribunal accepts that she has no concerns in relation to political or civil unrest in her home country.
The applicant states, and the Tribunal accepts, that she has no concerns in relation to military service commitments in her home country.
The applicant has a reasonable understanding of living in Australia and her education provider. It is in the applicant’s favour that she has studied in Australia despite the delegate’s refusal of her application and the uncertainty surrounding the outcome of this application. This is in her favour.
The applicant’s family in Mongolia is stated to be her 13 year old daughter, her parents, and two sisters. Her daughter is cared for by her parents. She has travelled to Mongolia, most recently in December 2018. She says she speaks to her family daily via telephone social media. Given that the applicant has resided in Australia for a relatively short period, and has immediate family in Mongolia, the Tribunal accepts that her ties to her home country are likely to operate as a significant incentive for her to return home.
There is no specific evidence to suggest that the applicant has ties to Australia that may operate as a strong incentive for him to remain here. The Tribunal notes the presence of the applicant’s Husband and son in Australia. However, there is no evidence to suggest that their mere presence is likely to operate as a strong incentive for her to remain here.

The evidence in relation to the applicant’s economic circumstances is set out above. The Tribunal accepts that she has assets including a house and funds in the bank. She has provided evidence of property ownership in her home country in the form of title documents. The Tribunal does not consider that ownership of property overseas operates as a significant incentive for her to return home. Property may be readily sold or retained and utilised to produce income in the form of rent. There is no evidence that either scenario would require the applicant’s physical presence in her home country. The applicant’s evidence is that she can earn income working on-line whilst in Australia. She states in her 359 Response that she earns $10,800AUD in that capacity. He income from working online, and her investment income, would seem to be the similar irrespective of her location. Accordingly, the Tribunal does not consider that economic circumstances operate as a significant incentive for her to remain in Australia.
The applicant’s evidence is that he has travelled extensively throughout Asia including China, South Korea, Japan, Hong Kong and the Philippines. She has also travelled to the United Kingdom and the United Arab Emirates in addition to Australia. This travel appears to have occurred without any issues. She otherwise disclosed no concerning travel history. She did have a visa application refused by the United Kingdom in October 2017. She subsequently applied for and was granted a visa to the UK in November 2017 without issue. In these circumstances, the earlier refusal is not adverse to the application. She appears to have complied with the requirements of her visas since arriving here. In these circumstances, the Tribunal makes no adverse findings in relation to her travel or immigration history.
There do not appear to be any further matters relevant to the application.
The Tribunal has considered all the evidence before it. It does not consider the applicant to be a genuine applicant. Simply put the applicant has failed to convince the Tribunal that there is any real value in her remaining in Australia for the purpose of studying a lower level course. She is well qualified and experienced. She has not provided any information that leads to the conclusion that she really requires further qualification in order to find work as a manager. In all the circumstances, the application is refused.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
Secondary Applicants
In circumstances in which the main applicant has not satisfied the criteria for the granting of a student visa, it follows that the Secondary Applicants have also failed to satisfy the criteria for the granting of a student visa.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
D Triaca
Member

Attachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton

Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

[2020] AATA 5312

23 December 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction