Shan (Migration)

[2020] AATA 5774

Shan (Migration) [2020] AATA 5774 (2 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms. Tong Shan
Mr. Mingyang Zhang

CASE NUMBER:  1900678

HOME AFFAIRS REFERENCE(S):          BCC2018/3482361

MEMBER:P. Adami

DATE:02 October 2020

PLACE OF DECISION:  Melbourne, Victoria

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 02 October 2020 at 4:29pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– in Australia for a long period time – genuine temporary entrant criterion not met–use the student migration program to maintain ongoing residence – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 499

Migration Regulations 1994, Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 December 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 13 September 2018. 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.

3. 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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations), because the delegate was not satisfied that the primary applicant intends genuinely to stay in Australia temporarily as a full time student.

4. On 3 April 2020, the Tribunal formally wrote to the review applicants pursuant to section 359(2) of the Act, inviting the applicants to provide further information to the Tribunal, including information as to the primary applicant’s enrolment and being a genuine applicant for entry and stay as a student. The invitation was sent to the review applicants’ registered migration agent Ms. Tian Li of The New Continent Pty. Ltd., being the contact details provided by the primary applicant in her 10 January 2019 ‘Application for review’.

5. On 17 April 2020, the primary applicant filed with the Tribunal a completed ‘Request for Student Visa Information under s.359(2) of the Migration Act 1958’.

6. On 15 June 2020, the primary applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 primary applicant intends genuinely to stay in Australia temporarily as a full-time student.

2. 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?

3. In considering whether the primary 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.

4. 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 primary applicant’s circumstances as a whole, in reaching a finding about whether the primary applicant satisfies the genuine temporary entrant criterion.

5. The primary applicant is a 35 year old Chinese female who travelled to Australia on 11 March 2010, on a Student (Class TU subclass 572) visa. The secondary applicant is the primary applicant’s husband. Since arriving in Australia, the primary applicant has held a Student visa, Graduate Work (subclass 485) visa or a Tourist (subclass 600) visa. On 13 September 2018 the primary applicant applied for a Student (Temporary) (Class TU) (subclass 500) visa, which was refused, as per the delegate’s Decision Record dated 21 December 2018. It is this refusal which gives rise to this review application before the Tribunal.

6. The Tribunal has read and had regard to the documents provided by the applicants to the Department. These in part include; the primary applicant’s completed ‘Application for a Student Visa’ dated 13 September 2018; 12 September 2018 Study Plan; 26 November 2018 Genuine Temporary Entrant (GTE) Statement;  Statement of Academic Completion issued to the primary applicant for the Master of Commerce (Professional Accounting); April 2009 Marriage Certificate issued to the applicants.

7. The Tribunal has read and had regard to the documents provided by the applicants to the Tribunal. These in part  include; a copy of the delegate’s Decision Record dated 21 December 2018; a COE issued to the primary applicant for Advanced Diploma of Leadership and Management with a course start date of 6 April 2020 and a course end date of 4 April 2021 at the National Institute of Education and Technology; Westpac Banking Corporation Group Summary Report created 23 June 2020.

8. The primary applicant in the completed Request for Student Visa Information lists that she completed a Bachelor of Graphic Design in July 2009 in China. Since arriving in Australia in March 2010, the applicant lists an extensive academic history in Australia, not all of which has been successful. This extensive history is also set out in the delegate’s December 2018 Decision Record and they largely accord. From most recent to oldest these enrolments include:-

   Currently enrolled in an Advanced Diploma of Leadership and Management (course start date April 2020 and expected course end date April 2021)

   Advanced Diploma of Leadership and Management at NIET (enrolled October 2018 but did not complete)

   Diploma of Leadership and Management at TasTAFE (completed)

   Diploma of Leadership and Management at RGIT

   Diploma of Business

   Diploma of Interpreting

   Advanced Diploma of Translating (completed)

   Master of Commerce (Professional Accounting) (completed at Federation University)

   Diploma of Printing and Graphic Arts (Digital Production)

   Certificate III in Printing and Graphic Arts (Graphic Pre-press)

   ELICOS - General English - non AQF award (completed)

9. The primary applicant does list any employment in China prior to arriving in Australia, and the Tribunal does not consider that the primary applicant has any employment ties which serve as a significant incentive to return home.

10. The applicant states in her 12 September 2018 Study Plan that, “Competent accounting professionals with bilingual language abilities will be highly sought after. I will seize this great career opportunity, and go back to China after sharpening competitive edge by taking the advanced diploma program. After graduation, my husband and I will go back to get reunion with our parents as soon as possible. They have been supporting my study and our life in Australia. To pay back their unconditional love and devotion, we will go back to China and settle down by their side, accompanying and taking good care of them in their twilight years.” The primary applicant told the Tribunal at the hearing that after she has completed her studies, she would open a small business in Hobart like a bottle shop, bread store or milk bar, something like that, but that she had not decided yet on which shop.

11. In the completed Request for Student Visa Information, the applicant states, “Thus, after finishing Master of Commerce (Professional Accounting), I took TAFE courses to expand my practical skills. After the Diploma of Leadership and Management was finished, I thought I prepared well for career. However, through communication with friends who work as accountants in foreign companies, I realized that the demand of those companies for employers' practical abilities is higher than I thought. Then I searched online to know about the recruitment ads and they proved the opinion. Therefore, the new course is important for achieving my career goal.” [original]

12. Notwithstanding the contradiction between the applicant’s Study Plan and statements to the Tribunal about her future plans, the Tribunal considers that the primary applicant is already well qualified to return home and to carry into effect her plan to work “as a professional accountant in a foreign company in China”. The primary applicant holds a master’s degree from Federation University, and an Advanced Diploma of Translating and Diploma of Leadership and Management. The Tribunal considers that objectively, she is well placed to return home and find suitable employment. Whilst no job has been secured, the Tribunal considers that the primary applicant is already well qualified to find work a job as a professional accountant. The Tribunal does not consider that completing an Advanced Diploma of Leadership and Management will meaningfully add to the prospects of the primary application finding employment. The Tribunal considers that there is no apparent value in the proposed course. As a result, the Tribunal does not consider the Advanced Diploma is likely to increase the primary applicant's remuneration in her home country.

13. The Tribunal does not consider the primary applicant's current study is consistent with her successfully completed levels of education. The Advanced Diploma of Leadership is at a level below her master’s degree on the Australian Qualifications Framework (AQF) (on a scale of 1-10, a master’s degree is at level 9 and Advanced Diploma is at level 6). The primary applicant's decision to continue studying at a lower level since completed her master’s degree in November 2013, rather than returning home or progressing higher academically is concerning to the Tribunal as it suggests that the primary applicant is motivated by reasons other than study. The Tribunal is mindful that should the applicant complete the Advanced Diploma in April 2021, she and her husband will have stayed in Australia over 11 years and since November 2013 only completed study in the VET sector. The Tribunal considers the primary applicant is seeking to use the Advanced Diploma as a means for maintaining an ongoing residence in Australia and a mechanism to maintain ongoing residence in Australia.

14. The primary applicant states in her completed Request for Student Visa Information that she is studying in Australia rather than China or the surrounding region because it is convenient to receive information and suggestions about Australia courses from friends and mates in Australia; Australia TAFE courses are intensive; Australia courses are more practical; and that she is familiar with the Australian mode of education. The applicant also states, “Instead, searching and knowing about Chinese courses and colleges cost much more time and energy.” The applicant told the Tribunal that she was not sure about whether Chinese universities offer the same course. The Tribunal does not accept that the primary applicant cannot undertake similar study in her home country. The Tribunal does not consider that she has meaningfully considered in doing so.

15. There is no evidence regarding the primary applicant’s circumstances in her home country relative to others in that country and the Tribunal makes no findings concerning the primary applicant in that respect.

16. In her completed Request for Student Visa Information, the primary applicant lists that her husband lives with her in Australia, and that her parents who are divorced, live in China. In her completed Request for Student Visa Information the primary applicant states that she usually contacts her parents and other relatives using phone technology twice or more every week. The applicant told the Tribunal that she is close to her father, but not close to her mother, speaking to her mother approximately one or twice a month. Given the length of time studying in Australia, the Tribunal considers that the applicant’s family in China does not act as a significant incentive for her to return to China, and the Tribunal considers that the presence of the primary applicant’s husband in Australia acts as a strong incentive to remain.

17. The primary applicant lists in her completed Request for Student Visa Information that she and her husband have deposits in Australia of approximately $260,000 (this is evidenced in the 23 June 2020 Westpac Group Summary Report showing a total of approximately $250,000), an apartment in China valued approximately $150-200,000, and a car in Australia worth $30,000. The Tribunal does not consider ownership of property in China operates as an incentive to return there. Property may be readily sold or retained and utilised to produce income. Neither scenario requires the applicants to return home and the applicants did not suggest that they were required to return to China due to the ownership of property. The primary applicant told the Tribunal that her husband works as a cleaner in Australia and that they do cleaning jobs together. The primary applicant said that they were small traders. The primary applicant's lists her expenses in Australia at approximately $44,880 per annum. Given the applicants’ economic circumstances in Australia, the Tribunal considers this acts as a significant incentive not to return home. The Tribunal considers the applicants are living as though they are permanent residents in this regard.

18. In the Request for Student Visa Information, in the question about community ties in her home country and in Australia, the primary applicant does not state any strong community ties. The Tribunal does not consider this factor weighs either for or against concluding the applicant is a genuine temporary entrant.

19. In the completed Request for Student Visa Information, the primary applicant lists that she travelled home to China on 3 occasions-  in December 2011 for more than a month to family visit; in November 2012 for almost 4 months to visit family; and in November 2014 for almost 2 months to visit family. The applicant does not list travel to any other country in the last 10 years other than between China and Australia. The Tribunal considers that the primary applicant’s little travel since arriving in Australia in March 2010 demonstrates that she is using the student visa program to maintain residence in Australia. The Tribunal considers this factor weighs heavily against concluding the primary applicant is a genuine temporary entrant for study in Australia.

20. The primary applicant states in her completed Request for Student Visa Information that there are no military service commitments that would present as a significant incentive for her not to return to her home country, and there is no political or civil unrest in her home country that may induce her to apply for a student visa as a means of remaining in Australia indefinitely.

21. The primary applicant has disclosed no concerning travel history. There is no evidence that the primary applicant has been denied a travel visa to another country, or that he has breached an Australian visa. The applicant discloses that her application for a Student visa was rejected in 2009, however of course, the primary applicant was granted a Student visa (in February 2010). The Tribunal places no weight on the initial refusal in determining if the primary applicant is a genuine temporary entrant.

22. Having considered all the information before it, on balance the Tribunal is not satisfied that the primary applicant intends genuinely to stay in Australia temporarily. It is difficult to reconcile a proposed 11 year stay in Australia with the meaning of temporary. 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. The applicant has not demonstrated that there is any real value in continuing with the Advanced Diploma, given she already holds a bachelor’s and master’s level degree from university studies. The Tribunal is concerned that the primary applicant is using the student visa program primarily in order to maintain ongoing residence in Australia. Accordingly, the primary applicant does not meet cl.500.212(a).

23. On the basis of the above, the Tribunal is not satisfied that the primary applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

24. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The primary applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

25. As the Tribunal has found that the primary applicant does not meet the criterion for the grant of a Student visa, it must affirm the decision under review that the secondary applicant does not meet cl.500.311, as he is not a member of the family unit of a person who satisfies the primary criteria in cl.500.211. The secondary applicant does not make any claims or provide evidence that they satisfy the primary criteria.

DECISION

1. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

   P. Adami

   
   

   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.