Saha (Migration)

Saha (Migration) [2021] AATA 237 (29 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Shohag Saha
CASE NUMBER:  1919052
HOME AFFAIRS REFERENCE(S):          BCC2019/1423464
MEMBER:Frank Russo
DATE:29 January 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 29 January 2021 at 4:42pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa and study history – non-completion of courses and changes of subject areas – completion of course for which visa was applied for and enrolment at higher level – family ties and research of job market in home country – continuing part-time work and full-time prospects in Australia – decision under review remitted
LEGISLATION
Migration Act 1958 (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 5 July 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 20 March 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500,212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.
The applicant appeared before the Tribunal by telephone on 28 January 2021 to give evidence and present arguments.
The applicant was assisted in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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 applicant for entry and stay as a student.
In addition to his application form, the applicant provided the Tribunal with a copy of the delegate’s decision, as well as a s.359(2) response which included five documents, and a further submission provided on 18 January 2021, which included 21 attachments, including copies of his qualifications, Confirmations of Enrolment (CoE), taxation records and payslips, and evidence of assets and ties to his home country.
The Tribunal has had regard to these documents. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file.
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.
Background
The applicant is a 27-year-old national of Bangladesh. The applicant first arrived in Australia on 13 January 2011, holding a Student visa. The applicant was granted a further three Student visas and associated Bridging visas. The visa application under review was in respect of the applicant’s enrolment in a Graduate Diploma of Management (Learning).
Applicant’s evidence at the hearing
At the time of the hearing, the applicant had completed the Graduate Diploma of Management (Learning) and he was enrolled in a Master of Professional Accounting which commenced on 11 January 2021 and is scheduled to end on 11 January 2023. The Tribunal therefore considers the applicant’s circumstances have altered considerably since the date of the delegate’s decision, and in addition the Tribunal has the benefit of a number of additional documents provided by the applicant.
The applicant gave evidence that he arrived in Australia in January 2011 for the purpose of completing an Advanced Diploma of Accounting at Zenith Business Academy, which he completed in November 2012. He planned to undertake a Bachelor of Accounting at the University of Southern Queensland, but only completed 18 months of this course. In March 2014 he enrolled in a Diploma of Management at Austech Business Institute, but was unable to complete it because the course was discontinued by the education provider due to insufficient student numbers. The applicant then commenced a Bachelor of Professional Accounting at Holmes Institute in March 2015. He stated that he studied there for two semesters, but he was dissatisfied with this course because he was not granted any exemptions for his previous studies. He stated that he then transferred to the Bachelor of Accounting at Group Colleges Australia in August 2017, which he completed in March 2019.
The applicant gave evidence that following this he enrolled in the Graduate Diploma of Management (Learning) at Gateway Business College, which was the subject of his visa application. He commenced this course in May 2019 and completed it in September 2020, which was one month later than the scheduled completion date of 2 August 2020. The applicant gave evidence that following this he enrolled in a brief English course to improve his English language skills to assist him with his intended Masters-level studies.
The applicant gave evidence that he commenced the Master of Professional Accounting at the Institute of International Study on 11 January 2021 and that he was in his third week of classes. He gave evidence that after he completed the Masters course he plans to return to Bangladesh to find work as an accountant. He stated that his plan before enrolling in the Graduate Diploma of Management (Learning) was to enrol in the Master of Professional Accounting, as through his research he believes that a Masters-level qualification is needed in order to obtain what he considers to be a decent job in Bangladesh as an accountant. He gave evidence that his father is an accountant with 35 years experience, and has discussed with him the opportunities that are available in Bangladesh. He stated that he is interested in roles as a unit manager, accountant, senior accountant or a roles in the banking sector, for which a Masters degree is a requirement, in addition to a Bachelor level qualification.
The Tribunal questioned why the applicant took the step of enrolling in the Graduate Diploma of Management (Learning), rather than going straight into the Masters after completing his Bachelor degree. The applicant stated this was because of the relevance of management to accounting practice. He stated that the Graduate Diploma of Management has helped him to understand the practicalities surrounding the implementation of accounting decisions within companies. He stated that the qualification will also open further doors for him in the management field.
As to the value of the Master of Professional Accounting to his future, the applicant gave evidence that his future career will be in accounting, and the Masters will assist him to develop further skills and expertise in this field. He stated that the course curriculum includes a lot of research and practical skills development, including an internship and training about the use of software, which will increase his practical awareness of current accounting practice. He stated he will be able to use this knowledge when he returns to Bangladesh. He stated that he has commenced studying Principles of Accounting, which will give him practical skills and he has found his studies involve practical elements and real-life examples through case studies.
The applicant gave evidence that with the Master of Professional Accounting he could earn the equivalent of $62,000 to $70,000 AUD per annum in Bangladesh, with his salary then increasing with experience. He stated he has researched jobs in accounting in Bangladesh and 95% of them required postgraduate qualifications. He stated he could find very few jobs which required only a Bachelor-level qualification and that the market is now so competitive that employers are looking for people with Masters-level qualifications.
The applicant gave evidence that following the visa refusal decision, he found it difficult to obtain an enrolment for a Masters course in Accounting. He stated that due to his visa status, most education providers were unwilling to provide him with an offer of enrolment. He has however now obtained a CoE for the Institute of International Studies, and gave evidence of research that he conducted into this college.
The applicant gave evidence that his ties to his home country include his parents and a sister, who married in 2018. He stated that since arriving in Australia, he returned to Bangladesh in 2014 for 6 weeks to see his parents, and again in 2018 for his sister’s wedding. When questioned why he had not returned to Bangladesh more regularly, he indicated that he was waiting for his sister’s wedding, however the engagement ended up being a longer one than he expected, and he was unable to return to Bangladesh for a longer period on that occasion because of his study commitments. He gave evidence that he calls his family every day or sometimes twice a day and provided a phone bill with call details to Bangladesh as evidence. He gave evidence that his family’s assets include a house and land, however his main incentive to return to Bangladesh is his parents. He stated that his sister has now married, so his parents are alone, and he intends to return to one day support them.
The applicant gave evidence that he has only one cousin in Australia, who is married and whom he does not see often. He shares accommodation with a friend and is not in a relationship. He confirmed that there are no political or civil issues which would prevent his return to Bangladesh.
The applicant currently works as a team leader at Compass Group, which provides services for Newington College, where his role is to look after functions such as pricing and other services. He stated that it is not an accounting-related role, although he uses some of his skills as an accountant, such as using MYOB. Prior to that he worked part-time as a barista at a café at UTS. Prior to that he worked as an assistant store manager at a KFC from 2012 to 2016. The Tribunal noted the applicant had provided taxation records and details of his salary since 2012, and raised that he appeared to earn over $40,000 per year, more in certain years, which may be regarded as an attractive salary for part-time work and may indicate that he has economic incentives to remain in Australia. The applicant explained that he had worked no more than 40 hours per fortnight during semesters, though he had worked additional hours during breaks. He stated that he believes he will earn more as an accountant in Bangladesh than what he is currently earning.
The applicant gave evidence that he had previously had one visa application refused. He stated that in 2013, when he was working for KFC, his employer offered to sponsor him for a Temporary Work Skilled (subclass 457) visa, however the nomination was refused.
Findings
The Tribunal turns to considering the evidence and the matters set out in Ministerial Direction No. 69.
The Tribunal notes that the applicant’s circumstances have changed substantially since the delegate’s decision, in that he has completed the Graduate Diploma of Management (Learning), which was the subject of his visa application, and is now enrolled in a Master of Professional Accounting.
The Tribunal notes that in the delegate’s reasons for decision, the delegate considered that the applicant had completed a Bachelor of Accounting, and that he was proposing to regress to the vocational education sector by undertaking a Graduate Diploma, instead of progressing to the Masters level. The Tribunal notes that the Graduate Diploma of Management (Learning) is a postgraduate course and at a higher Australian Qualifications Framework (AQF) level (AQF 8) than that of a Bachelor degree (AQF 7). A Graduate Diploma may also be a pathway to a Masters degree. The Tribunal therefore makes no adverse findings regarding the applicant’s enrolment in the Graduate Diploma of Management (Learning), and considers he has provided a reasonable explanation for why he enrolled in that course and why he believes it will benefit his future career.
The Tribunal is satisfied that the applicant’s current proposed studies for the Master of Professional Accounting will be of value to his future. The applicant is now proposing to progress to studies at the Masters level, which is consistent with the behaviour to be expected of a student who completed a Bachelor degree in 2019 and then progressed to a postgraduate qualification at the Graduate Diploma level. The Tribunal is satisfied that the applicant intends to develop a career as an accountant, and the Masters of Professional Accounting will provide him with further skills and experience in this regard. While the Tribunal has some doubts regarding the applicant’s claims that 95% of jobs in the accounting field in Bangladesh now require qualifications at the Masters level, it accepts that having a Masters degree will make the applicant more competitive within his chosen field, improve his employment prospects, including roles at a more senior level, and potentially also enable him to attract a higher salary.
The Tribunal accepts the applicant’s reasons as to why he sees Australia as a better environment in which to obtain well-regarded qualifications and improve his career and remuneration prospects in his home country. It also accepts that he has sufficient knowledge of his intended course of study and education provider.
Insofar as the applicant’s circumstances in his home country are concerned, the Tribunal accepts that the applicant has family and financial ties to his home country which operate as an incentive to return to Bangladesh at the conclusion of the proposed study.
The applicant confirmed at the hearing that there are no civil or political issues that would act as an incentive for him to remain in Australia. There is no evidence of any military service requirements. There is insufficient evidence before the Tribunal regarding the applicant's circumstances in Bangladesh, relative to others in that country, and the Tribunal makes no adverse findings in relation to these factors.
As to the applicant’s potential circumstances in Australia, the Tribunal notes the applicant arrived in Australia in January 2011 and has now been in Australia for approximately 10 years, which may indicate that he has established ties to Australia. He is now proposing further studies at the Masters level until January 2023, which will bring his stay in Australia to approximately 12 years. While the length that the applicant has remained in Australia on temporary visas may be of some concern, the Tribunal is satisfied that he is proposing to study a course which is chosen career and he is progressing academically. The Tribunal is satisfied that there is insufficient evidence that the applicant has applied for the Stunt visa primarily to maintain ongoing residence in Australia. The Tribunal notes that the applicant had indicated in his visa application an intention to proceed to a Masters degree before returning to Bangladesh, and he has established why the course will be of value to his future.
There is also no evidence of strong family or personal ties to Australia which would act as an incentive to remain in Australia. There is nothing to suggest that the applicant has entered into a relationship of concern.
The Tribunal notes the applicant has had regular employment in Australia since 2012 and has since then earned what may be considered an attractive salary for part-time work. The applicant has however provided examples of senior accounting roles in Bangladesh which he is interested in applying for, and the Tribunal is satisfied the applicant could earn a comparative salary as an accountant in Bangladesh, and the lower cost of living in Bangladesh would also make this a more attractive proposition. The Tribunal notes that the applicant has not worked as an accountant in Australia, and there is nothing to suggest that he is developing a career through his current work, although he is finding ways to utilise the skills and knowledge he has gained through his Accounting studies. Accordingly, the Tribunal makes no adverse findings regarding the applicant’s economic circumstances.
There is no evidence that the applicant has not complied with previous visas. He gave evidence that he has previously had a 457 visa application refused (in February 2014), however he has provided a reasonable explanation for this and it is clear that his direction has changed since then, with the completion of a Bachelor of Accounting and his current intention to obtain a Masters-level qualification. The Tribunal makes no adverse findings on the basis of the previous visa refusal. As noted, the applicant has previously been granted four Student visas to complete his studies in Australia, and while the length of time that the applicant has now remained in Australia on temporary Student visas and associated Bridging visas is of potential concern, the Tribunal is satisfied that the applicant is making academic progress consistent with that of a genuine student.

The applicant has remained enrolled in courses throughout his stay in Australia as a student. In March 2019 he completed a Bachelor degree qualification (AQF level 7). He proceeded to complete the Graduate Diploma of Management (Learning)(AQF level 8) despite the visa refusal decision. He is now proposing to study a course at the Masters level (AQF level 9). The Tribunal has also considered the course fees for the Masters course, which are over $34,000. There is no evidence that the applicant is now enrolling in an inexpensive short course to circumvent the intentions of the migration program or primary to maintain ongoing residence. The Tribunal therefore finds that overall, the immigration history of the applicant does not raise concerns.
The Tribunal has also given regard to whether there are any other relevant matters and finds there are no other relevant matters to the assessment of the applicant's intentions to stay in Australia temporarily in addition to the matters covered above. The Tribunal has considered all the information provided by the applicant in support of his application.
On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).
Does the applicant intend to comply with visa conditions?
For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed in some cases (cl.500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).
The applicant has provided with his visa application an undertaking to comply with any conditions the subject of which the visa is granted. There is no evidence to demonstrate that this would not be the case, and based on the applicant’s stay in Australia to date, his evidence of compliance with current visa conditions, and his progress with his studies, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).
On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).
Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?
For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).
Accordingly, the Tribunal is 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 appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
DECISION
The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.212 of Schedule 2 to the Regulations.
Frank Russo
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.

[2021] AATA 237

29 January 2021

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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