Rani (Migration)

Rani (Migration) [2023] AATA 389 (2 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Reena Rani
Mr Naresh Kumar
REPRESENTATIVE:  Mr Prabhjot Singh Sandhu (MARN: 0963599)
CASE NUMBER:  2120258
HOME AFFAIRS REFERENCE(S):          BCC2020/410279
MEMBER:Warren Stooke AM
DATE:2 March 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 2 March 2023 at 11:53am

CATCHWORDS
MIGRATION – Student (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – value of proposed course and changed intentions after arriving on visitor visa – left job before travelling – applied for student visa the day before visitor visa expired – claimed living expenses despite not working – vague evidence of future business plans – decision under review affirmed
LEGISLATION
Migration Act 1959 (Cth), ss 65, 359(2)

Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

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 21 December 2021 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 12 February 2020. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied the applicant has demonstrated the value of the proposed courses to their future and the applicant changed intentions to stay in Australia after arriving on a temporary visitor visa.
The applicants appeared before the Tribunal on 3 February 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicants were assisted in relation to the review. The representative attended the Tribunal hearing.
The applicant confirmed to the Tribunal that she had received a copy of the delegate’s decision and had read the decision, which was provided to the Tribunal with the applicant’s application for review. In this regard, the applicant stated that she understood that the reason for the refusal to grant the visa was because it was mentioned that she came to Australia and would not go back.
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 applicant for entry and stay as a student.
The Tribunal asked the applicant if she understood that to be granted a Temporary Student Visa, it is a requirement that the applicant satisfy the Minister that the applicant is a genuine temporary entrant and the applicant responded: “Yes”.
The applicant is a 37 year old from India, who provided evidence that she arrived in Australia on 14 November 2019 on a Visitor 600 Visa.
The Tribunal asked the applicant if she left her job before travelling to Australia and she responded: “Yes”.
The applicant was granted a Bridging Visa A on 12 February 2020 that has condition 8101 – no work and the Bridging visa A commenced on 13 February 2020 upon the expiry of her Visitor 600 Visa.
The applicant was subsequently granted a Bridging Visa B on 20 May 2022 and must not arrive after 20 May 2023 that permits multiple entries and has condition 8101 – no work.
The applicant provided evidence of health insurance with CBHS that commenced on 13 February 2020 and is valid until 31 October 2023.
The applicant provided evidence that she married on 22 January 2017 and is a graduate of the Punjab University with a Bachelor of Arts that was awarded on 3 September 2011.
The applicant stated at hearing: “I like Australia”. The applicant stated that her father and father-in-law were running the family business.
The applicant provided evidence of the following course enrolments:
a.General English Course at the Australian Institute of Business and Technology from 03/2020 to 05/2020;
b.Certificate IV in Commercial Cookery and Advanced Diploma of Hospitality Management Australian Institute of Business and Technology from 09/2020 to 09/2022 that was completed on 15 November 2022;
c.Graduate Diploma of Management (Learning) at the Australian Institute of Business and Technology from 10/2022 to 09/2023.
The applicant stated that she is currently enrolled part-time.
The applicant provided the Tribunal with a response to a s359(2) request for information that the purposes of the courses of study are as follows:
“What is the value of this course for your future? When I came to Australia on a visitor visa I was very impressed with the study environment and way of delivering the
course. While in India I wanted to do study but there is not a very good way to teach so I did not get admission in India. When I came here then after spending some time on a visitor visa. I visited a lot and saw so many places and then I came to see the colleges and their way of teaching was amazing. I conducted a deep search about the study and
expense. I came on the result from the Australian Institute of Business and technology. There some other factor was included in my searches like easy transportation and accommodation. This college is near to the train station near the college. I am living at Harris park where heaps of accommodation are available. Moreover, there are so many students from my home country and from my state. This will make my study easy because they are very helpful. The college staff is very supportive. We check all the other colleges some were expensive, and some have other problems.
I have chosen the Advanced Diploma of Hospitality Management and Graduate Diploma of management. These courses are the backbone of any business. A combination of this course package will teach me better skills in hospitality and management. I have the dream to open my own restaurant and do the job at a higher rank in India.
Nowadays, our state is the main hub of international companies the most of the big food chains are coming to Punjab.
They are seeking a candidate with international study. To get a job in the food industry this course is perfect for me and fulfills the demand of my career goals. My family is very supportive and helps me. they are providing all financial support to me. I have to achieve my life target to be a successful woman. I will move back as soon as my study will finish and will start to work for achieving my dream.
There are some colleges which are providing a degree or master’s degree. I did not get admission to those colleges because the study is very lengthy and theoretical. I want practical knowledge as well. In Indian colleges, they are long queues for admission, and sometimes you cannot get admission in one go it takes sometimes years because they have limited seats. In India, there are so many food chains investing in the business and they all prefer to get candidates with overseas education and skills. The international food industries have international clients so they want the manager and other top-line staff with international study. When I check the colleges here then I came to know that there is a good opportunity for me to study.
After a long search on the internet and advice from friends, I took admitted to the Australian Institute of business and technology, Blacktown. This course is the key to my future.”
The applicant provided evidence that she returned to India for 3 months from 6 August 2022 for treatment of Haemophagocytic Lymphohistiocytosis for health condition and to see her family.
The applicant claimed that she lives in a big city and wants to start her own business in India and that she has a business plan relating to the improvement of food.
The applicant stated that she lives in Harris Park, Sydney and that her husband and brother live in Australia.
The applicant provided evidence that her husband is not doing anything whilst in Australia.
The applicant was asked if she was working whilst in Australia and she responded: “No”.
The applicant provided the Tribunal with a response to a s359(2) request for information that she has the following family in India:
a.Shindo - Mother India and last visited 09/2022
b.Thirtho Rani - Sister and last visited India 09/2022
The applicant provided the Tribunal with a response to a s359(2) request for information that her living expenses were $21,600 per annum.
The applicant provided the Tribunal with a response to a s359(2) request for information regarding ties in India and the applicant responded:
“My all family is living in India. we have our all assets and inherited property in India. My husband is a well-settled businessman in India and my father-in-law also owns a business furniture manufacturer in Jalandhar city. My husband is with me to support me.
My In-law family is very well known in our area and we all have a dream to open another business. I am here and doing the study in the direction of my AIM. My and my partner's parents are getting old day by day and my husband is responsible for the family so we are just waiting to finish our studies. we will return back as soon as my study will finish.
I will join my family and will move forwards to achieve the dreams to be an independent lady.
My brother-in-law VINOD KUMAR is here in Australia and he sponsors us for a tourist visa. We came here on a visitor visa. When I see the study opportunity in this country then I applied for a visa because I am eager to study. I am a
regular student and doing well in my study.”
The applicant claimed in the s359(2) response to the Tribunal that the following assets are retained:
a.House - $18,000 India
b.Other property - $65,000 India
c.Funds in bank - $30,000 India
The applicant claimed that she intends to establish a restaurant business in India and foreign food supply.
The applicant provided the Tribunal with a response to a s359(2) request for information provided the following business intentions:
“I have the dream to be success full person in my life so I took this study after a long research on the internet and by visiting the college personally.
This study is a combination of theory and practice and also gives exposure to International culture. I want to get a job in the food industry in India. nowadays big food chains like SUBWAY, MacDonalds, cream, burger king, and Starbuck are investing in the Indian market and they are seeking candidates with international study.
There are so many fast food manufacturing units coming and producing the products for the globe. This study will get the job on the top-line management rank. These causes are full of information and deep knowledge about the industry and strategy, financial decision, and recruiting process, and loaded with so many important subjects which are very important in this line.
my family is a business family so we all have the combined dream to open a restaurant business in JALANDHAR which will be themed as AUSTRALIAN restaurants. I can get a job in a multinational company and side by side can open my business. As I have the dream to get a job in top-line management as well as start my business after finishing my study. this will be very beneficial for me. There will be two sources of income for me.
as approximated I can say that the revenue in the initial stage can be given below:-
MONTHLY SALARY $ 2000
INCOME FROM RESTAURANT $3000
This is a very significant amount to survive and enjoy life with all facilities. As I said that this is the identical amount so this will grow with the time and growth of the business. India is the land of opportunity. This is the GOLDEN ERA of the food industry. My future is very bright in India after completing my study.
I have a perfect plan to execute in my life to touch the heights of success.”
The Tribunal asked the applicant if she expected any difficulty in assimilating back into Indian society and she responded: “No”.
The Tribunal asked the applicant if there was any reason that would preclude the applicant from returning to India and she responded: “No”.
The Tribunal asked the applicant if it was her motivation to remain in Australia permanently and she responded: “No”.
The Tribunal asked the applicant, if she wanted to make any other comment and she responded: “No”.
The Tribunal asked the applicant if she had undertaken an English language test and the applicant responded: “No”.
The applicant stated that she intended to return to India when she finished her studies.
The applicant provided the Tribunal with a GTE statement prior to hearing, which included the following extracted content:
“Moreover, while studying in my home country I cannot get the benefits which can be gained while studying abroad such as the international exposure which would add an extra weightage to my resume to get good jobs in future. Secondly, by studying in an English-speaking country I can improve my communication skills. Last but not the least, the value and recognition of an international degree due to the latest business techniques and understanding of the advanced economy are always higher than a local degree especially in one of the most emerging markets like India today. Hence internationally qualified candidates are always preferred comparatively. Due to all these merits of overseas education, I have decided to have an international degree rather a domestic one.
When you gain a qualification and work experience in such a reputable hospitality industry, your employment prospects are magnified. You can use an Australian hospitality qualification not only in your home country but in other countries around the world as well.
After finishing my Studies in India, and once again arriving over here I realise that to receive one more degree I can live my life in betterment. I want to explore overseas education for my higher qualification. This qualification reflects the role of commercial cooks who have a supervisory or team leading role in the kitchen. They operate independently or with limited guidance from others and use discretion to solve non-routine problems.
Today, cooking is more than an activity confined to traditional kitchen. It is a high-flying career option. The skills of a chef today have become very modern and now combine passion, creativity and hard work for the art of cooking. A trained chef has many employment avenues which are varied and interesting. Hotels/restaurants, air catering, food processing companies, catering in confectioneries, cruise liner and corporate catering all require chefs.
I wish to invest in myself and my family’s financial resources in courses and training to increase my professional qualifications - considered by them a priority. My intentions are to take this course of leadership and management in Australia and gather enough qualifications to return to India.
I am sure that upon my return to India, I will be able to make my home country and family proud to be a skilful person.”
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 Tribunal has considered the evidence, provided by the applicant, in the context of Direction 69 and finds that the applicant is not a genuine temporary entrant for the following reasons:
a.The applicant stated that she arrived in Australia on 14 November 2019 on a Visitor 600 visa and stated at hearing the she had intended to undertake study in Australia prior to departing India, which was contradicted in the responses to the s359(2) request for information by the Tribunal. In this regard, the applicant purported that she made the decision to study after arriving in Australia. The Tribunal has serious concerns that the applicant has left a family business in India to be run by family and remained in Australia ostensibly to undertake study in the VET sector, initially in Commercial Cookery and Hospitality Management and then Management Learning, at considerable expense and without access to work based income for an expressed future in the restaurant and food business. In this regard, the applicant provided evidence that living expenses were $21,600 per annum and her husband has remained onshore without work or income for more than three years. As such, the Tribunal finds that the applicant is using the Student Visa stream as a means to facilitate an alternative undeclared motive and not genuinely for the purposes of establishing a restaurant business in India. The Tribunal notes that the applicant applied for a Study Visa one day before the expiry of her Visitor 600 visa. In this regard the applicant has not provided a detailed business plan, including property, costings, specific food services, and expected staffing that supports the alleged business intention.
b.The Tribunal finds that the courses in Commercial Cookery and Hospitality Management that were completed in November 2022 are adequate to meet the purported business objective to open a restaurant business, particularly as the applicant is a university graduate and has prior business experience with her husband, who has been non-working in Australian employment for more than three years. In this regard, the Tribunal is not satisfied that the study of a Graduate Diploma of Management (Learning) will materially advance the applicant’s skill development for the stated future business purpose having completed studies in Commercial Cookery and Hospitality Management;
c.Whilst the applicant has made progress in her courses of study, the Tribunal is not satisfied that a university graduate from her home country will materially advance her career prospects by undertaking study in the VET sector and in a vocation pathway that has not been substantively supported by the making of an application for a Student visa whilst resident offshore and prior to entering Australia on a Visitor 600 visa. The Tribunal is not satisfied that an impromptu decision to remain in Australia for more than three years is likely to have been made without prior consideration and planning before to departing India on a Visitor 600 visa, particularly having left an operating business in the management of her family;
d.The Tribunal is satisfied that the applicant has immediate family in Australia, which has provided a strong tie to remain onshore relative to returning to join their family in India, where evidence of assets and a business operation has been provided to the Tribunal. As such, the Tribunal is satisfied that the applicant has stronger ties with the lifestyle; residency and a potentially undeclared motivation to remain in Australia than with her home country, despite the significant personal cost of education fees, living expenses and the lack of access to work based income. The Tribunal is not satisfied that the applicant is a genuine temporary entrant for the purposes of entry and stay as a student.

The Tribunal is satisfied that there is no evidence before the Tribunal that would suggest that the applicant has any reason not to return to India, with immediate family residing in India, and that the applicant has developed a desire to remain in Australia for the purposes of residency and the lifestyle, where she the applicant has Australian resident immediate family.
Based on what is evidenced of the applicant’s circumstances overall, in the absence of any other relevant information, including the applicant’s immigration and study history, the circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for temporary entry and stay as a student. As such, the Tribunal is not satisfied that after a period of more than three years in Australia on temporary visas that the applicant intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.
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.
Warren Stooke AM
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;
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 389

2 March 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction