SUN (Migration)

SUN (Migration) [2021] AATA 3127 (11 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Jing SUN
CASE NUMBER:  1933628
HOME AFFAIRS REFERENCE(S):          BCC2019/4708812
MEMBER:Gabrielle Cullen
DATE:11 August 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(a) of Schedule 2 to the Regulations.

Statement made on 11 August 2021 at 10:36am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine student – genuine temporary entrant – continuous enrolment in a registered course – value of studies to her future career – career plans in early childhood education – decision under review remitted
LEGISLATION
Migration Act 1958, s 65; Direction No. 69
Migration Regulations 1994, Schedule 2 cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 November 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 19 September 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 applicant arrived in Australia on 27 October 2017 as the holder of a subclass 472 Working Holiday visa valid to 27 October 2019. The applicant applied for the visa to which this decision relates on 19 September 2019. She has departed Australia during this period from 19 December 2019 to 16 January 2019 and 27 February 2019 to 19 March 2019.
A Certificates of Enrolment attached to her application referred to the applicant studying an English language course Beginner to Advance from 2 December 2019 to 9 October 2019. The evidence indicates she did not finish this course but finished General English (Beginner to Upper Intermediate) to 13 December 2019, then completed the Cambridge B2 First Preparation Course from 16 December 2019 to 6 March 2020. Enrolment in the General English course was then suspended for compassionate reasons on 27 March 2020 and she then studied a further English course, Cambridge C1 Advanced Preparation Course from 29 June 2020 to 18 September 2020. She then enrolled in a Diploma of Early Childhood Studies from 5 October 2020 to 30 September 2022. The evidence indicates she is currently enrolled and studying this course.
In her application she indicated she is single and her parents and 2 siblings reside in China. She provided the following evidence
·Letter from BUPA dated 12 September 2019 confirming she has Overseas Student Health Cover for the period starting 10 November 2019 to 9 December 2020.
·Translated Certificate of Bachelorship dated 20 June 2013 from Yangzhou University confirming she has fulfilled the requirements for a Bachelor of Management.
·Graduation Certificate dated 20 June 2013 from Yangzhou University confirming the applicant majored in Marketing from September 2009 to June 2013.
·Notarial Certificate dated 29 September 2018 certifying that Sun Jing has used the name Sun Lei.
The applicant also provided a statement to the Department addressing the genuine temporary entrant criteria.
·Prior to coming to Australia, she was employed as a Sales Assistant at Joyong Co, a famous household electrical company in China.
·She quit her job and heard of the working holiday visa which is popular among young people as it offers opportunities to explore Australia.
·During her stay she was aware her English skills were insufficient for daily use, so she did some research on how to improve her skills and found the course at Greenwich English College and she outlined the benefits of studying at this College and in Australia.
·She notes completing the General English course in Australia will help her find a decent job in an international company in large cities in China, such as Beijing and Shanghai. She notes that with living and studying experience in Australia, plus a bachelor’s degree from China she will be competitive in the market.
·She outlined the financial support she will have from her parents to study the course.
The delegate decided to refuse to grant the visa on 7 November 2019. The delegate decided to refuse to grant the visa because the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations on the basis that she is not a genuine applicant for entry and stay as a student. The delegate was concerned that the applicant had not sufficiently demonstrated how the proposed English course would be of greater benefit and value to her claimed future by assisting her to find a better job in Shanghai or Beijing.
On 26 November 2019 the applicant lodged an appeal to the Tribunal and attached the decision of the Department.
With her application for review he provided a statement dated 25 November 2019 addressing the Department’s refusal
First, I would like to state my personal circumstance. I graduated from YangZhou university with Marketing degree at 2013.Then I started work at Luolai home textile company as a sales assistant. At 20I5 I jumped on another company named Joyoung, which produces and sells small home appliances. I have applied for US‐462 working holiday visa in March 2017 and travelled to Australia in Oct 2017. After that, my second US‐462 visa was granted in Oct 2018, which expired on 29 Oct 2019. I applied for my student visa to study General English course in Greenwich English college but was refused.
Second, I would like to say the reason why I think my English needs improvement after being in Australia for two years and why I choose to receive professional English learning. During the two years, I have also tried different types of works, such as fruits pickers, housekeeper, kitchen hands and so on, which I will never have the chance to try in China. Even though I have handful working experience in Australia, I still have the feeling that my English needs to be improved. I have to say that I have practiced everyday English while working, but it is too limited. For most of my work, I worked in services / farm industries and; I have kept practising the same sentences day by day and no one will correct me if I am wrong. For example, I have been worked in pizza hut as pizza deliverer, during the work, all the English required is “Hello! Your pizzas, thanks!” . During my work, I found that it is hard for me to have a good conversation with native English speakers. I found that when my colleagues throw a joke to me, sometimes, I did not know. I cannot get it due the language difference; sometimes, I understand what they mean but I cannot reply them
She also provided numerous photographs from 2017 onwards of her throughout Australia and screenshots of her accommodation.
On 23 September 2020 the applicant submitted the following documents:
·A letter dated 22 September 2020 from Greenwich English College certifying that the applicant was enrolled and studying full time the following courses
oIELTS Preparation Evening course from 21 September 2020 to 16 October 2020.
oCambridge CAE Evening course from 29 June 2020 to 18 September 2020.
oGeneral English Evening course from 25 May 2020 to 26 June 2020.
oGeneral English Evening course from 9 March 2020 to 8 May 2020.
oCambridge FCE Evening course from 16 December 2019 to 6 March 2020.
oGeneral English Evening course from 2 December 2019 to 13 December 2019.
·Certificate of Attainment & Attendance dated 4 March 2020 from Greenwich English College to certify that the applicant attended an 11-week Cambridge B2 First Preparation Course (FCE).
·Certificate of Attainment & Attendance dated 7 May 2020 from Greenwich English College to certify that the applicant attended a 7-week General English course.
·Certificate of Attainment & Attendance dated 24 June 2020 from Greenwich English College to certify that the applicant attended a 5-week General English course.
·Certificate of Attainment & Attendance dated 9 September 2020 from Greenwich English College to certify that the applicant attended a 12-week Cambridge Certificate in Advanced English (CAE) Preparation course.
On 19 July 2021 the Tribunal wrote to the applicant and invited her to attend a hearing on 9 August 2021.
The letter, among other matters, requested the applicant provide a current COE and documents that show his past studies in Australia. It noted the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by clause 500.212 and asked him to provide a written statement addressing this issue by referring to Direction 69, which was attached.
Prior to the hearing the applicant provided the following documents
·Letter dated 28 July 2021 confirming the applicant is enrolled and studying the Diploma of Early Childhood Education and Care.
·Letter from Territory Child Care Group dated 26 July 2021 confirming the applicant has been on a placement at the Murraya Childrens every Monday since 19 March 2021. The letter notes she has shown dedication, commitment and is punctual with attendance each week.
·Letter of support dated 14 October 2020 from Larissa Ferreira Fernandes da Silva for the applicant’s application for a scholarship to study in the Northern Territory.
She provided a further statement in support of the genuine temporary entrant criteria, additional information provided as follows:
·She fell in love with Australia while travelling from 2017.
·She realised her English was not solid and her journey would have been much more engaging if she had better English so she had the idea of studying English when her work and holiday visa expired.
·She explained why she chose to study English in Australia rather than in China.
·She achieved above 80% attendance rate in the English courses studied except from 9 March 2020 to 8 May 2020 , when Covid was breaking out and she had to stay home when sick even though her symptoms were mild.
·Before coming to Australia all her experience working in China was related to marketing but it is not something she is passionate about.
·She noticed while studying that one of her classmates was working in a childcare service and when studying the Cambridge B2 First preparation Course she developed an interest in early childhood education.
·As the eldest child in her family with 2 young siblings she has always loved children.
·Her friend told her early childhood education was in the spotlight in Cinna because the birth rate had declined and parents are paying more attention to childhood education including their children being bilingual.
·She also explained why she chose her current education provider. She said she chose a Diploma course and not a Master course as she wishes more practical knowledge and her Diploma course includes work placement and she outlined the course subjects.
·She explained that an Australian qualification is highly renowned in China and she will return and be able to find a decent job in early childhood education and care. She notes that’s some of the international centres require teachers to be bilingual; and the salary is good, especially in cities such as Shanghai and Guangzhou. She notes the salary of an early childhood educator who is able to learn English is 10,000 to 15000 RMB per month, well above the average wage in China.
She also provided evidence of overseas health insurance with BUPA to 9 December 2022, and evidence to meet the financial capacity requirement including evidence of financial support from her aunt and her parents to study in Australia as well as evidence of their financial capacity.
The applicant appeared before the Tribunal on 9 August 2021 by telephone to give evidence and present arguments. The applicant was assisted with an interpreter in the Mandarin and English languages, although the applicant elected for the hearing to be conducted in English. The Tribunal advised the applicant that at any time she did not understand to use the interpreter.
The applicant’s representative also attended the hearing.
The Tribunal noted that the issue before it is whether she meets the genuine temporary entrant criteria as per cl.500.212. It outlined these requirements and Direction 69.
The applicant provided detailed evidence as to why she came to Australia, why she then chose to study English and is now studying a Diploma of Early Childhood Education. Below is a summary of her evidence,
She said during her travel all over Australia after arriving in October 2017 on a working holiday visa she realised her English was not good enough and that she needed to improve her English. She referred to the great value in China of being able to speak and write English and that with this skill there is a good chance of finding a well-paid job on return.
As to her work in China she said after she completed a Bachelor of Marketing she worked in China as a sales assistant in two companies, one selling bank loans and one selling small appliances. She said she had worked in Sydney in a marketing firm and then in October 2020 she moved to the Northern Territory. Prior to that she worked in hospitality and in farming while travelling throughout Australia on her working holiday visa.
As to why she is studying early childhood education, she said she began talking to a friend who was also studying the course in 2020. She said China was encouraging people to have more children and the childhood education is a good career in China. She said she knows she studied marketing but she does not like it. She said she has experience working with children as her two siblings are 18 and 22 years younger and she has always enjoyed working with children. She was most concerned as to whether she could find a job in the area and then she found out about studying childhood education and that she will be able to find a job. She said she is currently working in a placement and has found it to be an enjoyable job. When asked why she enjoys working in this area and why she has changed her career, she talked in detail about enjoying working with children, the relaxing environment and that it makes her happy.
The Tribunal questioned why she would change to childhood education noting it was poorly paid Australia. She responded while that is the case in Australia she said that in China childhood education is well-paid especially for those who also speak English as many people want their children to study English while at day-care. She said it is a growing market.
The Tribunal questioned whether she was a temporary entrant as she had been in Australia for 4 years and wants to stay for 5. She said for the first two years she was in Australia on a working holiday visa and she travelled all over. She said she realised that her English needed improving and that she had a language barrier and she said while studying English she realised she wanted to go into early childhood education and talked about the benefits of studying childhood education in Australia.
The Tribunal asked why she could not study in this area in China and she said that the course in Australia is better and has a different way of teaching children. She said in China they focus on tests whereas in Australia they focus on all skills including physical, emotional, educational and cultural skills.
The Tribunal questioned whether she will depart in October 2022 when her course finishes, she said this will depend as after graduation she may need work experience in a local childcare centre as such experience would be helpful to finding a job on return to China.
She said she was not in a relationship in Australia, she had no family in Australia and that her parents and 2 siblings live in China. She said she also had many auntie’s who she is close to in China and one of her auntie’s is quite wealthy and is supporting her study.
She said there were no civil or political reasons which would act as a disincentive to return. She said she had no military commitments in China.
The Tribunal noted that she had a number of witnesses and asked what they will say and who they are. She said they are her roommate and her roommate’s husband with whom she lived in Sydney and they will talk of her time in Sydney in 2020 when she was studying English and why she moved to the Northern Territory to study early childhood education.
The Tribunal asked why she was not currently in paid childcare work in Australia and said she is not experienced enough yet, she is on a work placement in the toddler group.
The applicant’s representative indicated that she cannot do a similar cause back in China as she has previously completed a course in marketing in China. The applicant said she was 18 years old when she chose marketing and in retrospect it was not a clever decision and she now has a passion for childcare.
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 meets cl.500.212(a).
Clause 500.212(a) 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
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 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.
As to the applicant’s circumstances in her home country, no evidence has been presented that the applicant’s economic circumstances would present as a significant incentive for the applicant not to return to China. There is no evidence before the Tribunal that political and civil unrest would result in the applicant choosing to remain in Australia indefinitely. There is no evidence before the Tribunal of military commitments that would present as a significant motive not to return. It accepts the evidence that the course she is undertaking in Australia is regarded as of a higher quality than in China and accepts her reasons for studying the early childhood education course in China. It accepts that studying English in Australia is more beneficial than studying it in China. The Tribunal accepts that she has no family in Australia and that her parents, siblings and aunts with whom she is close live in China. The Tribunal considers that these factors are indicative of a person who is only a temporary entrant and wishes to return to their country.

The evidence indicates that the applicant has been continuously enrolled successfully completing courses while applying for a student visa. Since the application for the visa she has successfully completed English courses and is now enrolled in and studying a Diploma of Early Childhood Education to finish in October 2022. The Tribunal accepts that she has been continuously enrolled and successfully completing courses and this is indicative of a genuine student.
While of concern she has been in Australia for 4 years and wishes to stay for 5 years and possibly more to obtain some work experience in the area, and that she is studying at a lower level to that achieved in China; the Tribunal accepts her evidence as to why she is studying early childhood education and the value of the course to her future. It found her evidence to be detailed and convincing as to her passion to work in the area and to change her career. It accepts her evidence that this is a growing area in China and that she will be able to find a good job on return in this area and as she will have good English. The Tribunal accepts her reasons for studying the early childhood education course in Australia even though it is in a very different area to that studied by her previously in China.
The applicant has indicated that she will return to China either on completion of her study or after some work experience. The Tribunal accepts her reasons why she wishes to return home. The Tribunal notes no evidence has been presented that she will need to stay further in Australia to study for her future career aim following completion of her current course in October 2022. Should she choose to do so and present a further application for a student visa or enrolment this would be of concern.
While the Tribunal has concerns that she arrived on a work and holiday visa and changed her plans to study, it is persuaded she is a genuine student and genuine temporary entrant.
On the basis of the above and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).
The Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212(a).
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(a) of Schedule 2 to the Regulations.
Gabrielle Cullen
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 3127

11 August 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies