Pathak (Migration)

Pathak (Migration) [2020] AATA 6145 (16 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Dinesh Pathak
CASE NUMBER:  1923617
HOME AFFAIRS REFERENCE(S):          BCC2019/3049358
MEMBER:Peter Booth
DATE:16 September 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 16 September 2020 at 1:14pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–– genuine temporary entrant criterion not met – is not currently studying – no strong incentive to return to home country – use the student migration program to maintain ongoing residence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 August 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 15 June 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was not a genuine temporary entrant.
The applicant appeared before the Tribunal by telephone on 28 August 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was assisted in relation to the review by his 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. The issue in the present case is whether the applicant is a genuine temporary entrant.
Genuine applicant for entry and stay as a student (cl.500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The applicant gave evidence at the hearing, the substance of which was as follows. The applicant said that his migration agent had explained the delegate’s decision dated 7 August 2019 refusing his application for a student visa. The applicant understood that the issue for determination was whether he was a genuine temporary entrant.
The applicant said that he is currently enrolled in a General English course which had commenced on 6 July 2020 and which will be completed on 27 July 2021. The applicant had produced a confirmation of enrolment document to the Tribunal in that regard.
The applicant had also provided information to the Tribunal in the form of a response to a request to do so pursuant to s.359(2). The applicant confirmed that he did not want to add to or vary this document. In summary the information provided by the applicant was as follows.
The applicant was born on 29 October 1979. The applicant did not disclose his education history in India. He stated that prior to arriving in Australia he was employed as “owner and driver” of a tour and travel business which commenced in April 2014. He stated that his annual income was AU$8000.
The applicant arrived in Australia on 28 June 2018. Since that time he has returned to India on one occasion in September 2018 for eight months. In relation to this he stated “applicant arrived in Australia on a visitor visa and then went back to his country because of his work commitments”.
The application for the student visa in question was made in June 2019. The applicant stated that he held a visitor visa granted in June 2018 and which ceased in August 2019.
The applicant stated that he enrolled in a General English course in June 2019 but did not commence it. He stated that he had a future enrolment in a General English course which was due to commence in July 2020 and be completed in July 2021. As to whether there were similar courses available in India he stated: “It is safe to say that India is not an English speaking country so we still need to learn English in a proper way. Even we have English speaking teachers teaching English in India, as mentioned India is not an English speaking country so I will have less chances of practicing English outside the classroom.”
As to whether he had been enrolled in a registered course at all times in Australia while the holder of a student visa he stated “no”. He further stated that he was not enrolled from June 2019 to May 2020 because “prior to coming to Australia applicant had a back injury and it was unfortunate that he started feeling the pain again so he took chiropractic treatment in Australia (evidence attached). He couldn’t sit for longer hours and education provider cancelled his enrolment because he couldn’t study for longer hours. He is now fit for study and would like to finish what he started”.
The applicant did not provide any information in relation to his employment history in Australia.
The applicant stated that his spouse resides in the United States of America. He did not provide any information in relation to his family in India.
The applicant did not disclose any assets in India.
As to his future employment plans the applicant stated he was running his own tour agency business for local tourists in India before coming to Australia. Tourism is one of the most important sectors driving the Indian economy. Over 10 million international tourists arrived in India in 2018 and India received approximately USD240 billion in revenue from the arrival of international tourists and it is projected to grow. He would like to expand his business to international tourists who would love to explore India, and for this reason, it is necessary that he learn English.
As to his future expected remuneration he stated: “Applicant is currently earning AUD 8000 per year with his current circumstances and he has plan to expand his business. it is difficult to give accurate figures about the remuneration part.”
The Tribunal proceeded to ask the applicant some questions arising from the information paraphrased above. The substance of the questions and the applicant’s responses were as follows. The applicant confirmed that he completed Year 10 of his secondary education in India although he could not identify the year in which he completed that education. He stated that he owned a transport business and a taxi and had done so for “nearly 10 years I have 10 years experience”. When asked when he commenced this business he said “10 years ago”.
The applicant confirmed that he arrived in Australia on 28 June 2018 as a tourist and stayed for “two months and 20 days” and then he returned to India. When asked why he travelled to Australia in June 2018 he said “I came here to see things around”. When asked how long he intended staying on that occasion he said “a one-year visa, I stayed two months and 25 days”. He confirmed that he travelled to Australia on a tourist visa. He went on to say, in answer to a question from the Tribunal, that he returned to Australia in “May or June 2019”. When asked why he returned he said “I came here to see things around again”. When asked how long he intended staying on that occasion he said “I had a four-month visa”. When the question was repeated he said “I came here for that period of time, I consulted with my brother why I should not stay and study here”. When asked when he had applied to be enrolled in relation to the expiry of the tourist visa he said “nearly one month before that”. The applicant confirmed that he has not returned to India since his arrival in Australia on the second occasion.
The applicant confirmed that the application for the student visa in question was made on 15 June 2019.
The Tribunal observed the applicant had enrolled in a General English course in June 2019 but did not commence it. He responded “I had back pain, I attended chiropractic to take a rest”. He did not elaborate. The Tribunal observed that the applicant had provided a statement of account from a chiropractic clinic confirming that he had attended on several occasions between May and June 2019. When asked whether he provided any other medical evidence the applicant said “no”.
The Tribunal observed that the applicant had next enrolled in a General English course that commenced on 6 July 2020. The applicant confirmed this was correct. When asked what the applicant had done between June 2019 and July 2020 he said “I was trying to practice with English”. When asked why he had not enrolled in any course until 6 July 2020 he said “I was getting myself ready, doing exercise for my back”. The Tribunal observed this was for a period of more than one year to which the applicant said “Lower back exercise”. He did not elaborate.
When asked why the applicant had decided to enrol in a course commencing in July 2020 he said “there was not a big issue about that, I can study at home”. He did not elaborate.
The Tribunal observed that in his response to the request to provide information the applicant had stated that the education provider had cancelled his first enrolment. When asked to discuss that he said “that kind of issue my brother would know”. He did not elaborate.
The applicant confirmed that he is not currently employed in Australia. In response to a further question from the Tribunal he said that his brother and wife were assisting him with living expenses and tuition.
He confirmed that his wife resides in the United States of America.
When asked whether he had any assets in India in his own name he stated “two houses, a joint family, in my mothers name”.
When invited to add anything further to his application for review he stated “I want that these are to learning less, sitting at home, so I can learning was, I am facing a lot of problems due to no knowledge of English”.
The applicant provided a variety of documents to the Tribunal, prior to the hearing. He did not refer to the documents in his oral evidence. Nonetheless the Tribunal has taken them into account, to the extent relevant, and given them appropriate weight.
The applicant also provided a statement in support of his application for review, prior to the hearing. It is dated 15 May 2020 and titled “statement of purpose”. The applicant did not refer to the document during the course of giving his oral evidence. Nonetheless the Tribunal has taken it into account and given it appropriate weight. The Tribunal makes several observations in relation to this document. First, he refers to “a back injury” without providing any detail. The statement of the account from the chiropractor, does not provide any detail of the injury or injuries. Secondly the statement provides no detail of the reasonable reasons why the applicant was unfit to study for more than one year. Thirdly the applicant asserts that the reason for studying English is to expand his tour agency business. Whilst this may be generally understandable the applicant provided no details of the tour agency business, whether he had staff who could speak English, and the extent of foreign tourists who were using his services. Fourthly, why after 10 years of operating the tourist business, apparently successfully, the applicant needed to study English in a foreign country. Lastly why the applicant could not study English in his own country.
In considering whether the applicant has met the genuine temporary entry criterion, the Tribunal had regard to the following factors consistent with cl.500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether he has satisfied the genuine temporary entrant criterion.
The Tribunal has considered the applicant’s circumstances in his home country. The applicant is married and is from India. The applicant has provided evidence of financial ties to his home country or other economic incentives to return. When considering the applicant’s circumstances in his home country, the Tribunal therefore finds that he has been able to demonstrate ties to act as an incentive to return to his home country at the completion of the proposed study. The Tribunal accepts that the applicant may have financial ties to India, however, given the time the applicant has spent in Australia, the lack of evidence regarding immediate family in India, the evidence that he owns no assets in India, the evidence that his wife resides in the United States of America, the evidence that his brother resides in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to India.
The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 28 June 2018 as the holder of a tourist visa. He stayed for either two months and 20 days or two months and 25 days. He then returned to India, but arrived in Australia eight or nine months later in “May or June 2019”. He stated that he again arrived for the purposes of tourism. He has not returned to India since that time. The proposed study would extend the applicant’s stay until at least 27 July 2021. The Tribunal finds that the length of this proposed additional stay creates serious concerns that the applicant is studying for the purposes of staying in Australia. Whilst the Tribunal accepts that plans can change, this is not the conduct of a genuine temporary student. Rather, it suggests the applicant has decided to extend his stay in Australia by utilising the student visa programme.
The Tribunal places little weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. There are several reasons for this. Whilst the Tribunal accepts that a degree of proficiency in English would be of assistance to a tour operator the applicant did not provide any details. The applicant did not explain how he was able to conduct a tour business for 10 years apparently without proficiency in English. He did not explain the requirement to speak English and the extent to which he was required to speak English in order to conduct his business. He did not explain the number of tourists utilising his tour services in relation to whom he needed to speak English.
The Tribunal has considered the applicant’s study history since arrival and notes that he enrolled to study a General English course commencing in June 2019 but did not commence it. He said that he was unable to commence the course because of a back injury. Whilst this may be understandable he did not provide any expert evidence to support the assertion. The statement of account from the chiropractic practice does not descend into detail of the injury and is only in respect of attendances in May and June 2019. The applicant asserts that the back injury was such that he could not study for more than a year. He has provided no evidence in support of this assertion.
The Tribunal notes that this course plan is inconsistent with the applicant’s plans when he initially entered Australia.
The applicant has provided a statement in which he attempts to address the genuine temporary entry criterion. It has been taken into account by the Tribunal and given appropriate weight. However for the reasons discussed above it does not significantly advance the application.
The Tribunal notes that the applicant worked as a tour operator and driver in India. He has apparently conducted this business for more than 10 years. The Tribunal is not satisfied that the applicant has established that study will provide him with significant benefits in his proposed career plan, considering the cost of the study and the fact that the applicant already has experience as a driver and tour operator. The Tribunal therefore is not satisfied that the applicant has demonstrated that the proposed additional study has a realistic prospect of providing significant value to his future beyond the qualifications he already holds.
The Tribunal has had regard to whether there are any other relevant matters. The Tribunal finds that there are no other relevant matters to consider that may be beneficial or adverse to the applicant, and that this aspect is not relevant.
The Tribunal has considered all the information provided with the visa application. After weighing up these factors as a whole, the Tribunal finds that the applicant has not been able to satisfy it that the applicant genuinely intends a temporary stay in Australia as a student.
The Tribunal has considered the evidence and has taken into account the applicant’s economic circumstances in his home country relative to his potential circumstances in Australia. Given the disparity in economic circumstances between India and Australia the Tribunal cannot be satisfied that the applicant has significant incentive to return to India. The applicant has been unable to demonstrate substantial ties or personal assets in his home country which diminishes his incentive to return to India.
The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from his proposed study which will outweigh the significant time and monetary commitment this course will require. Therefore the Tribunal is not satisfied that the applicant has demonstrated the value of his proposed course to his future.

The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia in May or June 2019 the applicant has spent more than one year in Australia and no time outside of Australia, he has no assets in India in his name, he has identified no immediate family in India, he is apparently able to leave his business in India for extended periods of time, his wife resides in the United States of America, and his brother resides in Australia all of which indicate that he does not appear to have strong personal ties to India. Based on this evidence the Tribunal assesses the applicant’s incentive to return to India to be poor.
On balance, the Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. It appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study. The Tribunal has also had regard to whether there is any other relevant matter and finds there to be no other relevant matter to the assessment of the applicant’s intentions to stay in Australia temporarily. The Tribunal has considered all information provided by the applicant in support of his application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in his home country, potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.
On the contrary, the factors indicate that the applicant appears to have enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study and overall academic progress. The applicant appears to be using the student visa programme as a means of maintaining ongoing residence in Australia, and does not have a genuine intention to stay in Australia temporarily.
There is no evidence before the Tribunal regarding the following factors indicated by Direction No.69: economic circumstances of the applicant; any potential military service in India; political or civil unrest circumstances in India; remuneration the applicant could expect to receive in India or a third country compared with Australia; circumstances in India relative to Australia or any other country; and the applicant’s circumstances in India relative to others in that country.
The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time, to utilise lawful means to remain in Australia. Given the amount of time the applicant has now spent in Australia, the Tribunal is concerned the student visa may be used primarily for maintaining ongoing residence.
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.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Peter Booth
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 6145

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Intention

Natural Justice