Talukdar (Migration)

Talukdar (Migration) [2021] AATA 4837 (1 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Mohammad Jewel Talukdar
Mrs Najia Afrin NIPA
CASE NUMBER:  1933848
HOME AFFAIRS REFERENCE(S):          BCC2017/1971014
MEMBER:Noelle Hossen
DATE:1 December 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 01 December 2021 at 2:09pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – financial capacity – community involvement in home country – lengthy stay in Australia – applicant inherited family business – applicant completed high level courses – value of courses to future career – maintaining ongoing residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 499; Direction No 69
Migration Regulations 1994, Schedule 2 cls 500.212, 500.214
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 15 November 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 3 June 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
On the 24 July 2017 the delegate refused the grant of the visa on the basis that the first named applicant did not satisfy the requirements of Clause 500.214 of schedule 2 of the Migration Regulations 1994(the Regulations) because the first named applicant did not provide evidence of his financial capacity when applying for the visa.
The applicants applied for a Review of the Delegate’s Decision.
On the 25 October 2019 the Tribunal remitted the applications for a student visa for reconsideration with the direction that the first named applicant met the criteria for a Subclass 500 Student Visa namely Clause 500.214 of Schedule 2 of the Regulations.
On the 15 November 2019 the Delegate refused to grant the visa and it was stated in their decision as follows:” I am not satisfied that the information by the applicant regarding their circumstances in their home country, potential circumstances in Australia, the value of their proposed courses to their future, their immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant. I hold significant concerns the applicant has applied for a student visa for the primary purpose of securing an extension of their stay in Australia, rather than a genuine interest in their proposed study and academic progression.”
On the 5 March 2021 the Tribunal invited the applicants to provide further information pursuant to Section 359(2).
The applicants responded on the 1 April 2021 as they sought an extension of time to respond on the 23 March 2021 and it was granted by the Tribunal.
The applicants provided various documents to the Tribunal including transcript of results, Confirmation of Enrolment, letter of completion Certificate and trade license.
The applicants appeared before the Tribunal on the 3 August 2021 to give evidence and present arguments.
After the hearing, on the 3 August 2021 the Tribunal wrote to the applicants enclosing a copy of the first applicant’s PRISMS record pursuant to Section 359 A providing the applicants with 14 days to respond regarding the contents of the PRISMS record.
The applicants responded on the 18 August 2021 and provided the Tribunal with the documents as listed including but not limited to the following:
Mail with Holmes Director
Graduate Certificate August 2014
Statement
Business Ownership
Explanation of study gaps submissions.
The applicants were assisted in relation to the review by their legal representative.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.
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 first named applicant was born on the 1 January 1981 in Bangladesh. His wife was born on the 27 September 1990.
The first named applicant arrived in Australia on the 20 August 2009.The applicants were married in November 2016 in Bangladesh.
The first named applicant had provided information to the Tribunal in writing that he had completed his secondary schooling and then completed a Bachelor of Arts in Persian literature with Honours at Dhaka University from November 1999 and July 2005. He was employed at Beximco in marketing from January 2006 to July 2009.He stated that his annual salary was AUD $4500.The first named applicant has provided evidence to the Tribunal that he works for up to 20 hours a week presently in Australia and earns $450 per week which equates to $23,400 per year.
The Tribunal has considered the evidence and has considered the first named applicant’s economic circumstances in his home country relative to his potential circumstances in Australia. Given the disparity in economic circumstances between Bangladesh and Australia the Tribunal cannot be satisfied that the applicant has a significant incentive to return to Bangladesh based on evidence as set out below.
He stated that he had returned to his home country on 4 occasions since his arrival in Australia. He returned in 2013 due to the death of his father. He went back in 2015 for 53 days as his mother was ill. He returned in 2016 to get married and in 2019 due to the death of his mother.
He said that he has a brother and sister who reside in Bangladesh. His brother is looking after the family assets after the death of his parents. He said his brother is close to 50 years of age and that he was only 38 years of age at the time of the hearing. He said that his father-in-law is looking after their family business which is in transport and logistics.
He said that his wife came to Australia in 2016. She is presently working 15 hours a week in customer service at Caltex. He said that his wife does not like living in Australia, but the Tribunal was unable to confirm those details as his wife did not give evidence.
He said that he works from 8 to 20 hours each week and that he earns $450 per week whilst his wife earns $350 per week.
He said that he does not have any savings and that the only money that he has is from his brother who has given him $50,000 to study in Australia.
He said that his brother is running the company and making a lot of money but he does not have any senior managers in the company so he has agreed to help him to study, so he can return to the family business with the right qualifications and knowledge.
In response to the details as to why he had chosen his education provider the first named applicant stated as follows in writing:” Whilst studying my previous course, I had planned on studying a course about logistics and management as both of my father’s businesses were handed down to me and my older brother. There was a lot of opportunity left to expand in the logistics department, which is why I had planned to study a suitable course which would help in the growth of our family business. The logistics course would allow me to educate myself solely on that specific department which is mandatory as I would manage and expand the family business. (Galaxy World Logistics Ltd) The management course would help teach me how to lead and manage a business efficiently. Since I have already decided upon the courses, I wanted to study I had begun researching about and contacting various Institute to find the most suitable education provider for me. I chose AIBT because I was able to see that they were offering the courses I wanted to study, I had begun researching about and contacting The institute looked very well-established and I got to see how professional the teaching standards are after I paid a short visit to the campus. I was very impressed with the Institute and decided to enrol into both courses which was successfully done.”
The answer provided in the preceding paragraph by the first named applicant is vague and generalised. It is surprising that he mentions that it was after inheriting the half share of the family business, that he decided to study Logistics and management as the evidence is that his father died in 2013 and he has had ample time to study the course.
He said that he does not have any friends in Australia. He said that he does have his wife, but he is not close to anyone save that he is close to some of his classmates in Australia. The first named applicant has lived in Australia for nearly 12 years, and it would be surprising if he has not formed relationships in the community. The Tribunal does not have sufficient evidence regarding his community ties in Australia to make a finding in that regard.
He provided evidence in the form of a written statement that he was involved in the following in his home country: Blood Donation, Cultural Work and Social work. However, the Tribunal notes that he has not lived in his home country since 2009 and therefore these ties have no doubt diminished over time. In any event the information supplied is vague.
In the decision of the delegate dated the 15 November 2019 the delegate stated as follows: “I have considered the applicant’s circumstances in their home country. The applicant has declared that they have parents and siblings in Bangladesh. The applicant claims that the family has a business in their home country which everyone expects them to take over as director. While I acknowledge the applicant has a personal tie to their home country in the form of their parents and siblings, I do not consider these ties will serve as a significant incentive for the applicant to return when considered against the fact the applicant has not provided any evidence of the family’s business and has a job in Australia. On balance I am not satisfied the applicant has demonstrated they have significant incentive to return to their home country upon completion of their proposed courses in Australia.”
The first named applicant provided evidence that he travelled to his home country because his father died in November 2013 and his mother in June 2019.The delegate’s Decision was dated the 15 November 2019. The application for the Visa was made in 2017 and the facts had not been obviously updated, as at the date of the Delegate’s Decision, the applicant’s parents had both died.
The first named applicant provided evidence to the Tribunal, being his father’s will (translated in English) whereupon it is stated that the applicant and his older brother shall inherit the businesses equally. The first named applicant did provide a copy of the trade licence for the businesses. The licence for the business known as Galaxy World Logistic Limited appears to show that the owner as Feroz Talukdar, who is the applicant’s brother.
The Trade Licence for Elonga TVS motors was issued on the 14 June 2017 and appears to still be in his parents’ name. It is surprising that the applicant has remained living in Australia to study and work, in excess of 8 years following the death of his father.
The evidence is that he travelled on 4 occasions to his home country, at the time of both of his parent’s death, his marriage and when his mother was ill..
The Tribunal does give weight to the evidence that since the first named applicant’s arrival in Australia in 2009, he has spent approximately 12 years in Australia, and returned to Bangladesh on 4 occasions which indicates that he does not appear to have strong personal ties to Bangladesh. Based on this evidence the Tribunal assesses the applicant’s incentive to return to Bangladesh to be minimal.
In response to his future plans upon the completion of his studies he stated:” I plan on returning back to Bangladesh after the completion of my studies in order to advance towards my future career. Both of my father’s business handed down to me and my elder brother. One of them is a transport and logistics support business in the capital city of our country in the name of Galaxy world Logistics Ltd. We have several types of services in this business including airfreight, sea freight, warehousing and quality control, distribution, consolidation trucking and door-to-door services. In addition, we provide our services to other logistics companies as part of subcontract work. Since my brother cannot single-handedly look after both businesses, I plan on educating myself in logistics so I can take over this business and drive it toward success. I want to expand this business and my current course directly relates to the main operations of the business and the management course will allow me to understand how to lead and manage a company efficiently and successfully.”
The applicant has stated that the business is already profitable. He has already completed a Master of Commerce, Master of Business Administration and Finance, Master of Business Administration (Human Resource Management) Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management. The applicant has not provided specific details to the Tribunal that shows the difference between the courses and the specifics of this course that would lead him to be better informed about leading and managing a company.
At the time of the Delegate’s Decision the applicant had informed the Department as quoted in the delegate’s Decision:” The applicant wrote in their genuine temporary entrant statement that most of their previous courses are based on management and their brother has advised them to complete a leadership and management course. The applicant has not explained how the proposed course would benefit their intended future career further than the qualifications and work experience they already possess which involve management and leading a team. In addition, there is regression in the level of study as it is an advanced diploma after attaining two masters degrees. As such I hold significant concerns the applicant has applied for a further student Visa for the primary purpose of securing an extension of their stay in Australia rather than due to a genuine interest in the subject matter of their studies and academic progression.”
The Tribunal is concerned that the first named applicant’s intention to live in Australia may be motivated by factors other than study. The first named applicant has not demonstrated any clear and substantial improvements arising from his proposed study which will outweigh the significant time and monetary commitment this course will require. Therefore, the Tribunal is not satisfied that the applicant has demonstrated the value of his proposed course to his future.
The Tribunal finds that the first named applicant has his wife living in Australia and therefore has his strongest family tie living in Australia. He has stated that he was employed since March 2012 by a logistic and transport company. He stated that he worked for 1 year during his professional course whilst on the Subclass 485 visa as a manager for Carbridge Pty Ltd which is a company, who is a business partner of the current company that he works for known as Swissport International. He stated that during that year the managerial role was a “good opportunity to use his educational knowledge in a practical work environment.” The Tribunal finds that the applicant has a significant tie to Australia in the form of his employment whilst he has lived in Australia, and that this provides a significant incentive for him to remain in Australia. The Tribunal places a lot of weight on those factors against the applicant’s case.
At the time of the Delegate’s Decision the applicant was proposing to study an Advanced Diploma in Leadership and Management.
The Tribunal accepts that the applicant progressed satisfactorily and completed the Advanced Diploma of Leadership and Management and provided proof of completion dated the 19 March 2021.He had initially enrolled at RGIT College from the 17 July 2017 but had to change to Australian Capital College which he completed on the 4 May 2019.
In the Delegate’s Decision the Delegate stated as follows:” I have considered the value of the courses to the applicant’s future. The applicant is proposing to study advanced diploma of leadership and management due to be completed by 21 September 2020. The applicant has already completed in Australia because from 24 August 2009 to 30 October 2009 Master of commerce from 16 November 2009 to 9 March 2012 Master of business administration from 12 November 2012 to 26 June 2015. The applicant was then granted a graduate skilled Visa subclass 485 in November 2015 and completed 10 months of a professional course including work experience in an Australian accounting for your firm.”
The Tribunal accepts the evidence that the first named applicant has progressed satisfactorily in the registered courses whilst living in Australia and the recipient of a student visa and weighs those facts in favour of the applicant’s case.

The first named applicant is now proposing to study a graduate Diploma of Management (Learning) which will end in March 2023 and an Advanced Diploma of Deployment Logistics which will end in March 2022.
On balance the Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. Whilst the applicant clearly wishes to stay and continue to study in Australia it is noted that the applicant was previously granted a visa specifically to enable him to achieve that goal. The first named applicant was granted a student visa which would have facilitated the applicant studying his desired field. It appears to the Tribunal that the first named applicant has commenced studying for the purposes of the Visa application only in order to secure a further stay in Australia rather than due to a genuine interest in this area of study.
The Tribunal has also had regard to whether there is any other relevant matter and finds there to be no other relevant matter to the assessment of the applicant’s intentions to stay in Australia temporarily. The Tribunal has considered all information provided by the applicant in support of his application. On balance the Tribunal is not satisfied that the information the applicant has provided regarding the applicant circumstances in his home country, potential the value of the proposed courses to his future, his immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.
On the contrary the factors indicate the applicant appears to have enrolled in the present course for the purposes of securing a further student visa rather than due to a genuine interest in study and overall academic progress. The first named applicant appears to be using the student Visa program as a means of maintaining ongoing residence in Australia and does not have a genuine intention to stay in Australia temporarily.
The first named applicant indicated that there is no political or civil unrest in Bangladesh, and he does not have any potential military service in Bangladesh.
There is no evidence before the Tribunal regarding the following factors indicated by Direction Number 69: economic circumstances of the applicant, circumstances in Bangladesh relative to Australia or any other country, the first named applicant’s circumstances in Bangladesh relative to others in that country.
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 recognising the possibility that this may change over time to utilise lawful means to remain in Australia. Given the amount of time the applicant has now spent in Australia the Tribunal is concerned the student Visa may be used primarily to maintain ongoing residence.
The second named applicant has applied for a visa as a member of the first named family and therefore her application is dependent on the result of the first named applicant’s case.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Noelle Hossen
Member

Attachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton

Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
d.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

[2021] AATA 4837

1 December 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Intention