Sun (Migration)

Sun (Migration) [2020] AATA 4331 (18 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Yang Sun
Mr Bo Pang
CASE NUMBER:  1825576
HOME AFFAIRS REFERENCE(S):          BCC2018/2998268
MEMBER:Frank Russo
DATE:18 August 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.212 of Schedule 2 to the Regulations.

The second named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.311 of Schedule 2 to the Regulations.

Statement made on 18 August 2020 at 8:05pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – enrolment in a registered course – previous studies in Music teaching – plans to start a music teaching business – family and property ties to China – studies delayed by childbirth – decision under review remitted
LEGISLATION
Migration Act 1958, s 65; Direction No 69
Migration Regulations 1994, Schedule 2 cls 500.212, 500.311
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 17 August 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 9 August 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.
The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.500.212(a) 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 is a 30-year-old Chinese national. The second-named applicant is the applicant’s husband, a 28-year-old Chinese national. The Student visa application was in respect of the applicant’s enrolments in a Certificate IV, Diploma and Advanced Diploma of Marketing and Communication. At the time of the hearing the applicant had completed the Certificate IV and had commenced the Diploma, which she was due to complete on 4 July 2021. She was approved to study the Advanced Diploma from 5 July 2021 to 11 December 2022.
The applicants appeared before the Tribunal on 22 July 2020 to give evidence and present arguments, although the second-named applicant did not provide evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicants were assisted in relation to the review by their 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 the application form and copy of the delegate’s reasons for decision, the applicant provided the Tribunal with the following other documents:
a.Copies of the applicants’ Chinese passports, as well as the passport and birth certificate of the applicant’s daughter, who is not included in the visa application;
b.A s.359(2) response, and GTE statements dated 28 July 2018 and 31 March 2020;
c.Submissions from the applicant’s representative;
d.Confirmations of Enrolment (CoE) for the Certificate IV, Diploma and Advanced Diploma of Marketing and Communication;
e.Statement of Attainment for the Certificate IV in Marketing and Communication;
f.Award of the Bachelor of Arts (Major in Musicology), issued by the Wuhan Conservatory of Music in 2012;
g.Bridging visa information for the applicants;
h.Overseas student health cover policy information; and
i.Bank account information and property ownership information of the secondary applicant.
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.
The applicant gave evidence at the hearing that she first arrived in Australia holding a Visitor visa, on around Christmas 2015. She stated that at the time her husband was studying in Australia and she arrived in Australia with the purpose of accompanying him. She stated that she married her husband in March 2016. She stated that she then applied for a Student visa as a dependant of her husband. She commenced studying in July 2018 with her enrolment in a Certificate IV in Marketing and Communication, which she has completed. She stated that she commenced the Diploma of Marketing and Communication the week before the hearing, and is approved to study the Advanced Diploma of Marketing and Communication.
The applicant gave evidence that she had some delay in completing the Certificate IV in Marketing and Communication because in 2019 she gave birth to her daughter. She requested a few weeks of leave to give birth to the child, after which she returned to her studies, but she found that looking after her child and studying full-time was an overload, so she applied for an extension to her CoE and sent her child to live with her parents in China, so she could complete her studies. The applicant confirmed that she plans to complete the Advanced Diploma in Marketing and Communications in December 2022.
The Tribunal notes that it has on file a copy of the applicant’s enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal does not however rely on the information contained within the document as it is consistent with the evidence the applicant provided at the hearing.
The applicant completed a Bachelor of Arts with a Major in Musicology in China, which she described as having been obtained from a prestigious academy. After graduating in 2013 she taught vocal expression and music theory in a ‘musical training organisation’, and in 2015 resigned her work as a teacher and worked in her father’s company briefly, which is a chemical company.
The applicant told the Tribunal that she has enrolled in her current courses of study because she wishes to run her own musical training organisation. She stated that she has experience teaching in a musical training organisation and has the skills of a music professional, however she does not have any experience in company operations. She stated that she discussed her plan to open such a business with her parents, and decided to study a course that would provide her with ‘business knowledge’. She stated that she believes that marketing is the core to running a successful business, which is why she has chosen her current courses.
When questioned further as to how qualifications in Marketing and Communication would assist her with her business plans, the applicant stated that she has just completed the Certificate IV and understands that the knowledge she has gained will assist her with her proposed business. She stated that she studied risk management and promotion, and she gained insights into developing a business plan. She stated that the course gave her some insights in how to run the business successfully, such as giving her the idea of having students in summer and winter classes. She stated that the course will assist her with business opportunities and improve her performance.
As to why she chose to study Marketing and Communication, rather than Business or another course, given her business plans, the applicant stated that she needs to be able to gain students in order to have a successful business, and to do this she needs to know about promotion and advertising and how to promote her business performance. She stated that marketing is the core of such a business.
As to whether she has any plans in for the development of the business, the applicant stated that she has spoken to previous classmates about organising a team of professionals to work in the organisation. She stated that her parents would provide the financial support for the project. When questioned further about the value of the course to her future, the applicant indicated that the development of a good faculty team is important to the success of the music institute, but the most important aspect will be the recruitment of students, as this is what will determine business performance. She stated that she is confident regarding her musical abilities, but lacks experience in business operations, which is why she wishes to study Marketing. She also stated that she believes that obtaining the qualifications will earn respect from her future employees.
As to the income she could earn as a result of obtaining the qualifications from her proposed studies, the applicant stated that she believes the opportunities for the development of a musical organisation in China are very promising, given China’s population, and stated that if she is able to recruit 100 students she could earn 1 Million RMB per year.
As to why she wishes to study the proposed courses in Australia rather than her home country, the applicant stated that when she decided to study Marketing, she planned to find a school in China, but found that no school could offer her the course that she wanted. She stated that she asked a friend of hers to help find a school for her in China, but decided to study in Australia because of the quality of the teaching and because she believes she will gain a better understanding of business operation.
The Tribunal considers the applicant has provided some evidence of the value of her courses of study to her future. The Tribunal accepts that her proposed study of the Diploma and Advanced Diploma of Marketing and Communication are relevant to her proposed plan to open a music institute in her home country, in particular its relevance to the marketing and student recruitment which would be required to develop a successful school. The Tribunal considers the applicant has provided a reasonable explanation as to how her proposed studies will allow her to utilise her existing qualifications and experience in music to create her own training organisation. The Tribunal therefore finds the courses of study are relevant to both the applicant’s previous employment and her proposed employment plans.
The applicant has maintained a consistent plan, the details of which were provided in a GTE statement provided to the Department in July 2018. While the qualifications which the applicant is seeking to obtain are at the vocational level and are below the bachelor-level qualification which she has from her home country, the Tribunal notes that the applicant is obtaining the qualification in a field unrelated to her previous studies. The Tribunal therefore does not find that the qualifications which the applicant proposed to obtain are inconsistent with her current level of education.
The Tribunal considers the applicant has provided a reasonable explanation for her proposal to study in Australia rather than her home country. The Tribunal notes the applicant has completed the Certificate IV in Marketing and Communication and demonstrated an awareness of the course content, and therefore makes no adverse findings regarding her knowledge of the course of study or her education provider.
The applicant’s parents and her young daughter live in China, and the Tribunal is satisfied that the applicant has personal ties to her home country which operate as an incentive for her to return to China following the completion of her proposed studies. The applicant confirmed at the hearing that she has no family present in Australia, other than her husband, who is a dependant to her Student visa application. While her husband’s presence in Australia may act as some incentive to remain in Australia following the completion of his studies, the Tribunal notes that his presence in Australia is currently dependant on the applicant’s presence.
The applicant gave evidence that both she and her husband own separate properties in China. The applicant provided documentary information regarding her husband’s property as well as his bank account information. The Tribunal notes that the property information was provided in Mandarin and has been self-translated by the applicant. The Tribunal therefore gives this document little weight, though is prepared to accept that the applicants have assets in China which may act as an incentive to return to their home country. The Tribunal also notes the applicant’s evidence that her parents own a business, which she worked in briefly in 2015.
The applicant gave evidence that she currently works part-time as a clerk in a florist shop, and that her husband works as a marketing assistant for the same company, which he has done for two to three years. The applicant provided evidence that the work she does is part-time and only provides her with ‘pocket money’, and that she is financially supported by her family.
As to her incentives to return to her home country, the applicant stated that these include her plans to return to China to establish the music institute, her family connections, which include her young daughter, and her husband’s family connections. She stated that her husband is the only child in his family and has a duty to care for his parents. She also stated that her property and cash assets are in China, and her husband’s intention is to return to China to run his family’s business.
The Tribunal notes that the applicant has provided little documentary evidence regarding her own financial situation. There is however no evidence that the applicant has been building a career in Australia. Accordingly the Tribunal makes no adverse findings regarding the applicant’s economic circumstances.
The applicant confirmed at the hearing that there are no civil or political issues that would act as an incentive for her to remain in Australia. There is no evidence of any military service requirements. There is nothing to suggest that the applicant has entered into a relationship of concern. There is insufficient evidence before the Tribunal regarding the applicant's circumstances in China, relative to others in that country, and the Tribunal makes no adverse findings in relation to these factors.
The applicant’s immigration history refers to both her travel and visa history. The applicant first arrived in Australia on 24 December 2015 holding a Visitor visa. The applicant was subsequently granted a further two Visitor visas, on 31 March 2016 and 9 August 2016. She was then granted a Student visa on 17 November 2016 as a dependant. That visa was due to cease on 1 November 2018. On 9 August 2018 the applicant applied for the Student visa under review, with her husband as a dependant applicant. The applicant has also held associated Bridging visas. The applicant is proposing to complete a Diploma and Advanced Diploma of Marketing and Communication, which would extend her stay in Australia until at least December 2022. This would bring the applicant’s total time in Australia on temporary Visitor and Student visas, and associated Bridging visas, to approximately 7 years.
The Tribunal raised a potential concern that the applicant’s husband was previously studying in Australia, and now he and the applicant have effectively ‘swapped’ the role of the primary visa applicant, which may suggest that she has enrolled in the course of study to extend her stay (and that of her husband) in Australia, rather than because of a genuine interest in completing the course of study or advancing academically. In response the applicant stated that she and her husband’s plans for study were separate and she has finished her courses to date and her performance has been good. The applicant stated that her employment in Australia is part-time and does not earn her much, although it is giving her some experience. The applicant also stated that when she first arrived in Australia she had no specific plans to study, but after she had her child and established her own family, she felt that she had responsibilities to do something, and therefore developed her plan to open a music training institute, which is why she decided to study.
The applicant’s agent gave oral submissions that both applicants had complied with all visa conditions and the applicant has returned to her home country on six occasions since her first arrival in Australia, stating that she has returned to China at least once every year to celebrate the Lunar New Year. She also submitted the applicant has strong ties to her home country, that the course will be of value to the applicant and her family, and the applicant has spent quite a lot on the courses.
There is no evidence that the applicant has breached conditions of her current or previous visas. The Tribunal is satisfied the applicant’s proposed courses of study will provide some value to her future. The Tribunal finds the applicant has provided a reasonable explanation for why she has now enrolled in a course of study. The Tribunal also gives weight to the applicant’s commencement of her course of study on 9 July 2018, close to 4 months prior to the expiry of the Student visa which she held as a dependant. The Tribunal also notes that the applicant has maintained a consistent study pathway, continuing to progress with her studies despite the visa refusal decision, in a manner consistent with that of a genuine student. She has now completed the Certificate IV in Marketing and Communication and has progressed to the Diploma.

While the applicant has experienced some delays in completing the Certificate IV, the applicant explained that this was the result of the birth of her child and the consequent challenges in balancing her study commitments with caring for the child. The Tribunal finds the applicant has provided a reasonable explanation for the delay in completing her the Certificate IV, which was extended by approximately one year. The Tribunal is satisfied that the applicant is on track with her studies for the Diploma and will then progress to the Advanced Diploma. The applicant’s claims regarding her return travel to China are supported by her movement record, which indicate that she has departed Australia on approximately a yearly basis since her initial arrival in Australia. The Tribunal accepts that she has travelled regularly to her home country. Overall, the applicant’s immigration history does not raise concerns for the Tribunal.
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 the application.
Overall the Tribunal is satisfied that the applicant’s proposed courses of study will be of value to her future, and in light of her continued progress with her studies and the other findings regarding the factors set out above, considers the applicant should be given the opportunity to complete her proposed courses of study.
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 her 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. 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)).
There is no evidence before the Tribunal of any other relevant matter that gives rise to a concern by the Tribunal that the applicant is not a genuine applicant for entry and stay as a student.
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.
The Tribunal is satisfied the second named visa applicant is a member of the family unit of the primary applicant and satisfies cl.500.311 in Schedule 2 of the Migration Regulations.
DECISION
The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.212 of Schedule 2 to the Regulations.
The second named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.311 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.

[2020] AATA 4331

18 August 2020

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

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