Pedraza Pena (Migration)

Pedraza Pena (Migration) [2023] AATA 1461 (12 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Diana Yaneth Pedraza Pena
Mr Edinzon Saldarriaga Pascuas
Miss Sara Lorena Saldarriaga Pedraza
REPRESENTATIVE:  Ms Sarah Leora Frankel
CASE NUMBER:  2212735
HOME AFFAIRS REFERENCE(S):          BCC2019/677658
MEMBER:T. Quinn
DATE:12 January 2023
PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·clause 500.212(a) of Schedule 2 to the Regulations.

Statement made on 12 January 2023 at 10:32am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Circuit and Family Court remittal – Tribunal asked itself the wrong question – genuine temporary entrant – Direction No.69 – academic progress – regression in level of study – economic circumstances in Australia – method in which the applicant arrived onshore – benefit of the doubt – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 28 February 2019, the applicants applied for Student visas (the visa) to undertake study in Australia (‘the application’) with the first named applicant (‘the applicant’) proposing to undertake study in Australia as the primary visa holder and the second and third named applicants secondary visa holders.[1]
[1]Specifically, a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’). At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary applicant applied for the former and neither applicant claims to meet the criteria for a Subclass 590 (Student Guardian) visa.
On 28 May 2019, a delegate of the Minister for Home Affairs (‘the delegate’) refused to grant the application on the basis that the primary applicant did not satisfy the genuine temporary entrant requirements in relation to student visas.[2]
[2]See clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) which requires that student visa applicants be genuine applicants for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicants’ review application
On 12 June 2019, the applicant applied to this Tribunal for a review of the delegate’s decision.[3]
On 7 October 2020, a Member of this Tribunal affirmed the delegate’s decision to refuse the applicant’s student visa (‘the Tribunal’s first decision’).[4]
[3] Pursuant to sections 338(2) and 347 of the Act.
[4] See case number 1915102.
On 4 November 2020, the applicant applied to the Federal Circuit and Family Court of Australia (‘the FCFCA’) for a review of the Tribunal’s first decision.
On 12 August, the FCFCA remitted the applicant’s application to this Tribunal for reconsideration because a review of the Tribunal’s first decision revealed an error of law. The FCFCA reasons for judgment indicate that the Tribunal asked itself the wrong question, did not make a finding that the applicants did not intend genuinely to stay in Australia ‘temporarily’ and ‘as a student’ and did not consider a claim made by the applicant regarding permanent residence paths.[5]
[5]See Pena v MICMA [2022] FedCFamC2G 637.
The applicants were assisted in relation to the review.
In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed since making their original application. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information for the purposes of determining the outcome of their application for review. To this end, on 21 December 2022, the Tribunal wrote to the applicant requesting that they provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student by completing a student visa information questionnaire (‘the questionnaire’).
The applicant responded to the s359(2) letter on 4 January 2023, including filing the questionnaire.
The applicants were listed to appear before the Tribunal on 11 January 2023 to give evidence and present arguments. However, upon considering all material before me, I have determined that the matter should be remitted for reconsideration.
STATUTORY FRAMEWORK
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant. Information in relation to clauses 500.211 and 500.212 is attached to this decision.
The secondary criteria must be satisfied by any secondary applicants.[6] Information in relation to clause 500.312 is attached to this decision.
[6] See Regulation 500.3 – Secondary criteria of Schedule 2 to the Regulations.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies clause 500.212(a), I must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (‘the Direction’), made under section 499 of the Act. The Direction is attached in full to this decision but broadly it requires Tribunal Members 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 Direction is a lawful direction of the Minister.[7] I am therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[8] Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before me. However, I recognise that the Tribunal is an independent statutory body. I must therefore reach my own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate. In this regard, I note well established case authority as to the proper approach by decision makers to guidelines such as the Direction[9] and McNab J’s view that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.[10]
[7] In accordance with section 499 of the Act.
[8]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].
[9]Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]), Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) and Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]).
[10]Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47] per McNab J).
CONSIDERATION OF CLAIMS AND EVIDENCE
The primary applicant is a 40-year-old female Colombian citizen who is the spouse of the secondary applicant (aged 45 years) and the mother of the third applicant (aged 19 years).[11] The applicant first arrived in Australia on 3 December 2018 on a visitor visa.[12] The applicant then made the application which is the subject of this review and has remained onshore since that time.[13]
[11]See the questionnaire.
[12]See the questionnaire.
[13]See the questionnaire.
Prior to her arrival onshore, the applicant completed a Bachelor of Spanish and English in 2011 in Colombia.[14] The applicant worked: as a receptionist from January 2007-September 2009 earning AUD4,131 per annum equivalent; as an Assistant from October 2009-October 2010 earning AUD6,201 equivalent per annum; and as an Assistant from October 2010-January 2019 earning AUD19,617 equivalent per annum in her home country.[15]
[14]See the questionnaire.
[15]See the questionnaire.
The applicant’s application which is the subject of this review was to undertake a General English course and a Diploma of Early Childhood Education and Care.[16] Due to delays in this matter coming before the Tribunal, the applicant ought now to have completed these courses, returned to her home country and put into motion any future plan.[17] This concerns me.
[16]See delegate’s decision.
[17]See delegate’s decision.
The applicant has filed corroborating certificates for three English courses undertaken between February 2019-May 2020 during which time she studied virtually continuously.[18] She has filed a copy of a Certificate III in Early Childhood Education and Care which she undertook between May 2020-September 2021.[19] She has also filed a letter dated 8 December 2022 from her course provider indicating that she is complying with her academic and attendance requirements in her Diploma of Early Childhood Education and Care which has course dates from October 2022-September 2023.[20]
[18]See response to the s359(2) letter and submissions of 10 January 2023.
[19]See response to the s359(2) letter.
[20]See response to the s359(2) letter.
The applicant submits that she is on track to complete her Diploma on time later this year and will then return to Colombia.[21] I have relied heavily upon this submission in finding in the applicant’s favour in this case and should she apply for a further visa upon completion of her course in September 2023 it would raise seriously questions about her credibility and genuine intentions onshore.
[21]See submissions of 10 January 2023.
I commend the applicant on her academic progress. She has had only few and brief gaps in her study and has made excellent academic progress, much of which was during a global pandemic which significantly changed the educational landscape, while also onshore on a bridging visa managing the uncertainty of the outcome of this application. This is very much to her credit and it is strong evidence that she is a genuine student I have placed considerable weight in her favour accordingly.
The applicant plans to use her Australian qualifications to open a Bilingual early childcare education centre that teaches in English and Spanish in Colombia where she anticipates earning AUD7,500 per month.[22] I allow for reasonable changes to study and career pathways and although I note these courses are a downgrade from the applicant’s Bachelor level of education, I also note the courses complement each other in relation to her language related career goals. I consider these courses are relevant to and likely to assist and improve the applicant’s proposed future career.
[22]See the questionnaire.
The applicant submits that (inter alia): an Australian qualification provides a strong advantage for her future career prospects as a bilingual childhood educator; childcare course are not offered by good universities in Colombia, are short, out of date and not specialised; Australian courses offer knowledge about work health and safety, teaching methods for early childhood education and better training than any courses offered in Colombia; and the instruction in Australia is in English.[23] The applicant has provided reasonable reasons for not undertaking the study in her home country or region.
[23]See the questionnaire.
The applicant has been working onshore as a family day care education since November 2022 earning AUD45,760 per annum.[24] The second applicant has been working onshore as a delivery driver since March 2021 earning AUD700 per week and also works a sole trading handyman earning AUD500 per week (AUD62,400 total per annum).[25] The third applicant recently obtained holiday work in hospitality earning no more than AUD400 per week and the first and second applicants are supporting her financially.[26] The applicants have expenses onshore of AUD75,240 per annum.[27] They own an apartment in Colombia worth AUD51,676 equivalent and two cars in Australia worth a total of AUD15,000 total.[28] Taking the evidence as a whole, I am concerned that the applicant’s may be acting as a significant incentive for her to remain.
[24]See the questionnaire and reference from employer dated 16 December 2022.
[25]See submission of 10 January 2023.
[26]See submission of 10 January 2023.
[27]See the questionnaire.
[28]See the questionnaire.
The applicant states that she does not have community ties to Australia in the questionnaire. However, she is living onshore with her immediate family unit and her daughter is well entrenched in the education system in Australia, including receiving a scholarship for university studies commencing in 2023.[29] She has also been living onshore for over four years. I am concerned that the applicant may have formed ties to the Australian community acting as a strong incentive for her to remain onshore, however, I consider this Direction factor finely balanced and make no firm findings in this regard. Should the applicant make a further visa application upon completion of her study later this year, having made submissions to the contrary in this case, this factor will need to be reconsidered.
[29]See response to the s359(2) letter and submissions of 10 January 2023.
The applicant has not returned to her home country since her arrival.[30] The COVID19 Pandemic and associated travel restrictions have made international travel virtually impossible from early 2020 to early 2022 and I place no weight against her in relation to this period. The applicant’s parents, aunt and cousin live in Colombia and she speaks to her parents five times per week and to her aunt and cousin once a week.[31] She claims to have strong ties to Colombia, including most of her family, friends and previous work colleagues.[32] I accept the applicant has community ties in her home country acting as an incentive to return but do not consider the evidence supports a finding that those ties are acting as a significant incentive for her to return.
[30] See the questionnaire.
[31]See the questionnaire.
[32]See the questionnaire.
I am concerned about the way in which the applicant arrived onshore (being on a tourist visa and only then, once onshore, applying for a student visa). It is difficult to accept that the applicant, in such a short space of time after their arrival onshore as a tourist, could have then promptly researched all study and living options and decided to remain onshore for a further four-year period (which is now a proposed five years). I accept that it is possible that an applicant may seek a change in plans or to further their skills for employment reasons and remuneration opportunities, but I am puzzled when an applicant arrives on a visitor visa and then makes sudden changes to their plans within a short period of time after arriving. It seems unlikely that a person travelling as a tourist would make such a significant change from their initial intentions to visit. Such a significant change would necessarily include a greater level of planning and preparation before arriving in Australia considering the length of time (three years) that the applicant proposed to spend in Australia. This conduct raises concerns about whether the applicant is using the student visa migration program to circumvent the intentions of the migration programme.
The applicant travelled to: Mexico in 2014 for one week; Ecuador in 2015 for one day; and to Indonesia in 2019 for six days – all for tourism.[33] There is no evidence that the applicant has had any travel, visa or immigration issues in the past.[34] The applicant does not have any potential military service obligations or political or civil unrest concerns in Colombia.[35]
[33]See the questionnaire.
[34] See applicant’s response to the s359(2) letter.
[35] See applicant’s response to the s359(2) letter.
I consider the factors for and against the applicant in this case are finely balanced in this case. Ultimately, I consider it appropriate to give the benefit of the doubt to the applicant, most particularly given her assurance that she will return to Colombia upon completion of her Diploma in September 2023.[36] Should the applicant make a further temporary visa application upon completion of her study in September 2023, the evidence and submissions she made to the contrary in connection with this case will be relevant to any assessment of her credibility and genuine intentions in relation to her residence in Australia.
[36]See response to the s359(2) letter and submissions of 10 January 2023.
Having had regard to the applicant’s circumstances, her immigration history and all other relevant matters, I am satisfied that the applicant is a genuine applicant for entry and stay as a student temporarily as required by clause 500.212. Accordingly, the applicant meets clause 500.212(a) of Schedule 2 to the Regulations and the applicant’s application for the visa is remitted to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
Consequently, as the decision in relation primary applicant’s review has been remitted, the Minister should also reconsider whether clause 500.311 in Schedule 2 of the Regulations is met by the second and third applicants as members of the family unit of a person who satisfies, or has satisfied, the relevant primary criteria. In this regard, I note that the third applicant intends to apply for a student visa as primary visa holder to undertake tertiary studies onshore – this will be a matter for the Department to assess upon reconsideration.[37]
[37]See submissions of 10 January 2023.
Therefore, the decisions in relation to the second and third applicants’ review must also be remitted.
DECISION
The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa: clause 500.212(a) of Schedule 2 to the Regulations.
T. Quinn
Member
Attachment – Clauses 500.211, 500.212 and 500.312 of Schedule 2 of the Regulations
Enrolment (clause 500.211)
·Clause 500.211 requires that, at the time of decision, the student visa application in question be founded on evidence that the applicant is enrolled in a course of study.[38]
[38]Clause 500.211(a) of Schedule 2 to the Regulations.
·‘Course of study’ is defined as a ‘full-time registered course’ and a ‘registered course’ is a course provided by an institution which has been registered under the Education Services for Overseas Students Act2000 (Cth) (‘the ESOS Act’) to provide that course to overseas students.[39]
[39]Regulation 1.03 of the Regulations.
·All registered courses and course providers are listed in the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’), an online register kept in accordance with the requirements of the ESOS Act.[40] Details of courses listed in CRICOS are integrated into the Provider Registration and International Student Management System (‘PRISMS’), a database maintained by the Australian government.[41] The PRISMS database is the principal means by which registered course providers comply with legislative requirements relating to the monitoring of international students studying in Australia. Upon enrolling an international student into a registered course of study, the course provider enters the details of that enrolment into the PRISMS database. The database then records a Confirmation of Enrolment (‘COE’) for the student. The COE functions as a record of the student’s enrolment status in the course and as proof of enrolment for the purposes of clause 500.211 of Schedule 2 of the Regulations.
[40]Section 10 of the ESOS Act.
[41]See generally, Department of Education and Training, Provider Registration International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018).
Genuine Temporary Entrant (clause 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.
Genuine Temporary Entrant (clause 500.312)
Clause 500.312 requires that any secondary applicant(s):
is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa, having satisfied the primary criteria for that visa 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.
Attachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton

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

[2023] AATA 1461

12 January 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies