PICHAIPITTAYATON (Migration)

PICHAIPITTAYATON (Migration) [2020] AATA 2088 (2 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Kanudsanun Pichaipittayaton
CASE NUMBER:  1808561
HOME AFFAIRS REFERENCE(S):          BCC2018/410109
MEMBER:Peter Booth
DATE:2 March 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 02 March 2020 at 8:59am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine temporary entrant as a student – applicant’s plans for business in Thailand – applicant completed multiple courses – relevance of courses to career plans – maintaining ongoing residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 14 March 2018 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 24 January 2018. 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 24 February 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
The applicant was assisted in relation to the review by her 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 had read the delegate’s decision dated 14 March 2018 refusing her application for a student visa. The applicant understood that the issue for determination was whether she was a genuine temporary entrant.
The applicant said that she is currently enrolled in a “leadership and management” course which “finishes in June 2020”. She added she is then enrolled in an advanced diploma of leadership and management “which will finish in June 2021”. The Tribunal informed the applicant that there was no independent corroboration of that assertion. She said that she had confirmation of enrolment documents in respect of each course and would provide them after the close of the hearing. The applicant’s migration agent, Mr Egan, provided a confirmation of enrolment in respect of a diploma of leadership and management which commenced on 1 July 2019 and is due to be completed on 28 June 2020, and a confirmation of enrolment document in respect of an advanced diploma of leadership and management which is due to commence on 29 June 2020 and to be completed on 27 June 2021.
The applicant said that prior to arriving in Australia she had completed a bachelor of hospitality industry between 2007 and 2011 and a diploma of business between March 2014 and April 2014, the latter qualification having been obtained in Canada. The applicant said that prior to arriving in Australia she was employed on a part-time basis in Vancouver, “in a restaurant” earning “every two weeks, C$300”.
The applicant arrived in Australia on 20 September 2014. Since that time she has returned to Thailand on two occasions, once for approximately three weeks and once for approximately four weeks. Whilst in Australia she also travelled to Myanmar for three days in September 2016.
The applicant said that when she arrived in Australia she had a “student visa”. She said that she intended to study “an IT course, but then I decided it did not help the business, now I am doing leadership and management”.
The applicant has an extensive study history in Australia. She completed a certificate IV in information technology between September 2014 and September 2015, a diploma of system analysis between September 2015 and September 2016, an advanced diploma of system analysis between September 2016 and September 2017, a general English course between October 2018 and November 2019, a certificate IV in leadership and management between January 2019 and May 2019 and is currently studying a diploma of leadership and management which she expects to complete in June to 2020. Thereafter she is enrolled in an advanced diploma of leadership and management.
The Tribunal observed that after three years of studying information technology the applicant decided “it would not help the business”. The applicant said “it would help the business, online”. She added “it helps but I wanted to do leadership and management”. The Tribunal enquired as to the applicant’s employment intentions when she returns to Thailand, to which she said “doing the business”. The Tribunal enquired as to the nature of the business, to which she said “selling the things for the farm and fishing, food for fish, exporting to Laos and Vietnam”. The Tribunal enquired how many employees were in the business, to which she said “five staff, but we have casuals also, this does not include my mum and dad and sister”. The Tribunal enquired as to the income from the business, to which she said “the busiest would be 100,000 Thai baht”. She estimated this to be approximately AU$5,000.
The applicant said that she is not currently working in Australia but that she had been working “part-time in a restaurant”. When asked how long she had been employed in that capacity she said “years”. She did not elaborate. She went on to say that “with the first visa I had work rights”. She estimated her income from that employment to be approximately AU$200 each week.
The applicant’s immediate family in Thailand comprise her father, mother and sister. The applicant’s brother resides in Australia.
The Tribunal enquired whether she could undertake the advanced diploma of leadership and management in Thailand to which she said “not sure, another reason why I want to study in Australia is because it is a top city in the world”. The Tribunal enquired whether the applicant had any assets in Thailand to which she said “everything is in dad and mum name”.
The applicant applied for the student visa in issue on 24 January 2018.
The applicant said that when she arrived in Australia on 20 September 2014, her then student visa was valid for “around three years”. She said that it expired in “March 2017 or 2018, I’m not sure”. With the assistance of the applicant’s migration agent it appears that the visa had a “no further stay condition” and that the applicant applied for a further visa. Apparently the applicant was not aware of the condition of the visa requiring “no further stay”. This was lodged after the applicant had completed the advanced diploma in information technology. Then the applicant returned to Thailand. She returned to Australia as the holder of the tourist visa in order to graduate from that course. This, apparently, was in November 2017. In answer to a question from the Tribunal the applicant said that the purpose of the visit was “graduation day”. Apparently graduation day was “around November”. The Tribunal enquired how long the applicant intended to stay at that time, which she said “I did intend to return with my parents, I intended to stay for two weeks, then my parents decided they wanted me to undertake further study here”. The applicant said that she applied for courses in Australia at that time. She applied for a further student visa on 24 January 2018. Tribunal enquired as to when she had applied for further courses of study, to which she said “after the graduation day, so sure, could have been January 2018”. In answer to a question from the Tribunal she said that she applied for a “certificate IV in leadership and management and a diploma of leadership and management”.
The applicant said, in answer to a question from the Tribunal, that she had not returned to Thailand since entering Australia as the holder of the tourist visa. Apparently she then completed the advanced diploma of systems analysis in September 2017 and the general English course in October 2018. The Tribunal enquired what the applicant had done between September 2017 and October 2018. She said “my father was ill, but I did not return”. The Tribunal repeated the question and then she said “I travelled around, but I thought of going back”. The Tribunal observed that she must have decided to study quite early on in that period because she had applied for a student visa on 24 January 2018. The applicant agreed. She did not elaborate. The Tribunal enquired what the applicant had done between 24 January 2018 and October 2018, to which she said “study”. In answer to a further question as to what type of study she had undertaken she said “certificate IV”. The Tribunal observed that the certificate IV course in leadership and management did not commence until January 2019. The applicant said “I travelled around Australia”. She did not elaborate.
The applicant was invited to add anything further to her application for review. She said “I like to confirm my family has a business and I like to return to run and help the business and help my sister, once I complete the advanced diploma I will return”.
The applicant’s migration agent said that the applicant had a period of absence of study, the visa had been refused and that the applicant’s father had become ill. He said that the applicant had a return ticket to Thailand, but she was persuaded by her parents to stay in Australia and study and did not return. The Tribunal observed that a six-page submission which appeared to have been provided by the applicant’s migration agent had been received. It is undated and not on letterhead. The applicant’s migration agent confirmed that he had provided such a document. It is generally consistent with the applicant’s evidence and has been taken into account.
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 she has satisfied the genuine temporary entrant criterion.
The Tribunal has considered the applicant’s circumstances in her home country. The applicant is unmarried and is from Thailand. The applicant has provided evidence of social, direct family and financial ties to her home country or other economic incentives to return. When considering the applicant’s circumstances in her home country, the Tribunal therefore finds that she has been able to demonstrate ties to act as an incentive to return to her home country at the completion of the proposed study. The Tribunal accepts that the applicant may have family ties to Thailand, however, given the time the applicant has spent in Australia and the intended period of future to stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to Thailand.
The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 20 September 2014 as a holder of a “student” visa. The proposed study would extend the applicant’s stay until at least 27 June 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 her stay in Australia by utilising the student visa programme.
The Tribunal does not place weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. The applicant gave vague evidence in that regard, however, the Tribunal notes that the applicant has extensive qualifications obtained both in Thailand, Canada and Australia in hospitality, business, information technology, systems analysis and leadership and management. The need to embark on further qualifications in leadership and management and the relevance of those further qualifications to a family business selling farming and fishing supplies is not apparent.
The Tribunal has considered the applicant’s study history since arrival and notes that she commenced study in Australia in 2014. Since that time she has completed vocational qualifications in information technology, systems analysis, English and leadership and management. She had already completed a bachelor’s degree in hospitality industry and a diploma in business prior to arriving in Australia. This is not the conduct of a genuine temporary entrant.
The Tribunal notes that this course plan is inconsistent with the applicant’s plans when she initially entered Australia. She intended to study “information technology. Indeed she had completed extensive vocational qualifications in information technology and systems analysis. The applicant now wishes to pursue two vocational courses in leadership and management, having already completed a vocational qualification in leadership and management in Australia. The future advanced leadership and management course is asserted to have relevance to very vague future plans.
The applicant has provided a submission from her migration agent in which she attempts to address the genuine temporary entry criterion. It is broadly consistent with the applicant’s evidence and has been given appropriate weight.
The Tribunal is not satisfied that the applicant has established that study will provide her with significant benefits in her proposed career plan, considering the cost of the study and the fact that the applicant already has extensive qualifications in hospitality, business, information technology, systems analysis and leadership and management. 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 her future beyond the qualifications she already holds.
The Tribunal has given regard as to whether there is any other relevant matter. 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 the applicant’s home country relative to the applicant’s potential circumstances in Australia. Given the disparity in economic circumstances between Thailand and Australia the Tribunal cannot be satisfied that the applicant has significant incentive to return to Thailand. The applicant has been unable to demonstrate substantial ties or personal assets in the applicant’s home country which diminishes the applicant’s incentive to return to Thailand.
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 the applicant’s 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 the applicant’s proposed course to the applicant’s future.
The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 20 September 2014 the applicant has spent in excess of five years in Australia and approximately seven weeks outside of Australia, which indicates that the applicant does not appear to have strong personal ties to Thailand. Based on this evidence the Tribunal assesses the applicant’s incentive to return to Thailand to be minimal.
On balance, the Tribunal is not satisfied that the applicant is a genuine temporary entrant for a further stay as full-time student. Whilst the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant was previously granted a visa specifically to enable the applicant to achieve that goal. The applicant was granted a student visa which would have facilitated the applicant’s study in the applicant’s desired field. Indeed the applicant completed three vocational courses in information and technology or related fields. The applicant has then embarked on a change in direction of study into the field of leadership and management and wants to continue in this study until at least June 2021. It therefore 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 given regard as to whether there is any other relevant matter, and finds there to be no other matter relevant 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 the applicant’s application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in the applicant’s home country, potential circumstances in Australia, the value of the proposed course to the applicant’s future, the applicant’s 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 other evidence before the Tribunal regarding the following factors indicated by Direction No.69: economic circumstances of the applicant; any potential military service in Thailand; political or civil unrest circumstances in Thailand; remuneration the applicant could expect to receive in Thailand or a third country compared with Australia; circumstances in Thailand relative to Australia or any other country; and the applicant’s circumstances in Thailand 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 2088

2 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction