Tashkinov (Migration)

Tashkinov (Migration) [2021] AATA 4880 (16 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Aleksandr Tashkinov
CASE NUMBER:  1932547
HOME AFFAIRS REFERENCE(S):          BCC2019/4526538
MEMBER:Noelle Hossen
DATE:16 December 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 16 December 2021 at 12:22pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – incentives to return or remain – visa, residence, study and work history – application made one day before previous visa expired – gaps in study and discontinuation of current course – vague evidence about availability of similar courses in home country – intention to return to previous job – no close family ties – previous compliant travel to other countries – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 October 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 10 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 delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
On the 23 March 2021 the Tribunal invited the applicant to provide further information to the Tribunal prior to the hearing pursuant to section 359(2).
The respondent responded on the 6 April 2021 and provided the Tribunal with a completed Form referred to as his GTE. The tribunal had already received various documents from the applicant at the time that he filed his Review Application. He had provided a statement from his representative, Current Confirmation of Enrolment, Passport, Draft Business plan, Job Offer letter, Fiduciary Management Letter and internet banking transaction.
The Tribunal has read all of the information supplied by the applicant and taken the information into consideration in the Decision.
The applicant appeared before the Tribunal on the 17 August 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.
The applicant was assisted in relation to the review by their registered migration agent.
The Tribunal sent a letter pursuant to section 369A on the 17 August 2021 with a copy of the Provider Registration and International student Management System (PRISMS) records giving the applicant 14 days to respond.
The applicant provided various documents to the Tribunal explaining the situation to the Tribunal in response to the Section 359A invitation on the 8 September and the 20 September 2021.
The documents provided in response to the Section 359A are as follows:
Letter from Aus Legal Pty Ltd dated the 27 August 2021.
Payment information records indicated fees for Term 4 September 2019 to December 2019 paid on the 30 September 2019, Term1 January to March 2020 paid 26 December 2019, Term 2 April to June 2020 paid on the 26 March 2020.
Confirmation Letter of Enrolment in College of Sports and Fitness on 30 September 2019.
Proof of Academic progress for Term 4 (September to December 2019)
Proof of Academic Progress for Term 1 (January to March 2020)
Communication with college by student account from 8 September 2019 to 24 April 2020.
Communication with college by emails from the 21 November 2019 to 13 March 2020 about academic progress.
Employment ceased notification Notice.
Certificate of Service
Employment letter
Letter of Employment ceased.
Centrelink support payment report
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 applicant was born on the 27 July 1965 in the Russian Federation.
The applicant arrived in Australia on the 14 August 2013. Since his arrival in Australia the applicant has not returned to his home country. When the Tribunal asked him for the reasons why, he stated that he was studying and did not have enough time to do so. He said that he did have enough money to return to his home country.
He said that his parents are still alive and that he does contact them 3 to 4 times a week. He said that his mother worked until she was 80 years of age. He said that his parents live together and that his son who is 31 years of age lives close to his parents.
The applicant is divorced and does not have any dependants in his home country. The Tribunal finds that the applicant has not returned to his home country since 2013 and that suggests that the applicant does not have close family ties that will serve as a significant incentive to return to his home country. The Tribunal places a lot of weighs those facts against the applicant’s case.
The applicant does have economic ties to his home country as he has stated that he has 2 apartments and a share in a company. The Tribunal does accept his evidence and finds that the applicant does have significant economic ties that is an incentive for him to return to his home country. The Tribunal weighs those facts in favour of the applicant’s case.
In considering the applicant’s circumstances in Australia the Tribunal notes that the applicant has already lived in Australia for 8 years at the time of the hearing. Since his arrival he has not departed. The delegate stated in the Decision as follows:” Furthermore the course of the applicant is seeking to undertake require them to remain in Australia until at least 17 September 2021. This would take the applicant’s total amount of time in Australia on a student visa to 8 years. I find it difficult to reconcile the applicant’s extensive proposed stay onshore, without departures, with their claim they are a genuine temporary resident. The significant period of time the applicant has spent in Australia on temporary visas since their initial arrival suggests the applicant’s potential circumstances in Australia may outweigh any incentive they have to depart.
On balance, I find that the applicant’s potential circumstances in Australia may act as an incentive for the applicant to remain in Australia. I place weight on the applicant’s potential circumstances in Australia.”
The Tribunal finds that the applicant’s stay onshore without departing since August 2013 is of concern, as it appears that the applicant’s circumstances in Australia may be an incentive for the applicant to remain in Australia. The Tribunal places weight on those facts against the applicant’s case.
In considering the applicant’s immigration history the Delegate stated as follows:” I have considered the applicant’s immigration history. The applicant was initially granted a student (TU 570) visa on 7 August 2013 which ceased on 5 November 2014. The applicant was then granted a second student (TU 570) visa on 15 November 2014, which ceased on 20 August 2015. The applicant was then granted a student vocational education (TU 572) visa on 10 March 2017 which ceased on 19 June 2018. The applicant was granted a fourth Student (TU 500) visa on 20 August 2018, which ceased on 11 September 2019. The applicant has now applied for a student vocational education (TU 500) Visa on 10 September 2019 one day prior to the expiry of the previous student Visa. The coinciding date suggests the applicant may be using the student Visa program as a means to prolong their stay in Australia rather than for true academic purposes and overall academic progress.”
The applicant stated in his GTE form that he had never been refused a visa to any other country other than the current student visa. The applicant indicated that he had travelled to Finland and Bulgaria previously. The evidence before the Tribunal suggest that the applicant has always complied with the migration laws of other countries. The Tribunal places weight those facts in favour of the applicant’s case
At the time of the Delegate’s Decision the applicant had indicated that he was studying an Advanced Diploma of Leadership and Management. The course start date was on the 28 September 2020 and he was to finish the Course on the 17 September 2021.
The Tribunal did a search of the applicant’s PRISMS record and the records indicated that the applicant did not start Term 2 of 2020 of the Advanced Diploma of Leadership and Management. He was asked by the Tribunal why he had cancelled the course? He stated in his oral evidence that there were various reasons being the start of the pandemic, the loss of his job and the fact that he had been unsuccessful in his application for a visa.
The applicant did respond to the query regarding why there were gaps in his studies from the 11 July 2019 to 16 August 2021.He provided evidence that he had paid for the course of Advanced Diploma of Leadership and Management as he did attend the Course for Term 1 but the records confirm that he cancelled the course on the 27 April 2020.He lost his employment with North Sydney Council because of the pandemic. He was then employed by Blue Fit Lane Cove Aquatic Leisure Centre but that was closed on 26 June 2020. He was then granted a flexible support payment from Centrelink to study from 12 August 2020. The Tribunal is of the view that the applicant should not have cancelled the course as he should have made provision for the payment of the entire course before starting the course. He said in submissions received after the hearing that “fell to financial instability which lead to emotional and mental pressure with depression and anxiety attacks.”
The applicant did not provide any evidence of any mental illness that he might have suffered from a qualified medical professional. The applicant did not return to his studies until August 2021 at about the time of the Tribunal hearing. The Tribunal accepts that he completed the first term but the fact that he cancelled the Course is of concern to the Tribunal.
In his written evidence lodged at the Tribunal prior to the hearing when he was explaining why he chose the education provider he stated as follows:” After researching educational institutions providing education in the field of sports management and offering advanced courses that will provide me with more in-depth knowledge in the field of interest to me, I chose CSF (College of Sports and Fitness.) After the interview, I was offered two courses: Diploma of Sport Development and Advanced Diploma of leadership and management. I reviewed the course grades, and I was interested in the subjects “use advanced features of computer applications” develop workplace policy and procedures for sustainability,” “provide drugs in sport information”, “provide nutrition information to athletes” “manage resources”, “support athletes to adopt principles of sport psychology,” “Develop and implement strategic plans,” and “Provide leadership across the organisation.” Considering my previous degrees, I believe it will add to my Curriculum Vitae since it is a course that is going to complement my previous studies. In addition, these courses do not only expand my knowledge but also deepen it, since they belong to a more advanced field of study.”
The Tribunal accepts that the applicant has a relatively reasonable knowledge of the contents of his course and weighs those facts in favour of the applicant’s case.
In response to whether there are similar courses available in the applicant’s home country his written answer was hard to follow. He stated as follows:” the concept of sports management was not even there. Consequently, businessmen used to be completely cut off from athletes. Only now are the corresponding departments being created in educational institutions, but the industry has not yet accumulated enough experience in this direction. Today leading roles in the field of the sports industry are occupied by people who do not have special education in this profile which affects the quality of Russian sports in general. Thus, the local knowledge gained here in Australia where I have a wealth of experience in doing business in teaching these aspects will provide me with an undeniable competitive advantage in the Russian labour market both in terms of getting a managerial job in the sports industry or starting my own sports business. Among other things while studying in Australia I feel comfortable as no one looks at me as an overage student and I don’t feel any ridicule in my direction which is impossible in Russia.”
The evidence supplied is vague and generalised. It does not indicate that the applicant has researched any courses available in his home country. He has not been a resident of his home country for 8 years, so it is difficult to accept that he has a thorough knowledge of the courses available in his home country. The explanation given does not sufficiently explain the question. The Tribunal weighs those facts against the applicant’s case.
The applicant stated in his written evidence that he had worked in various roles in Australia as follows:
Tempest Solutions Pty Ltd   Construction worker casual   08/2014 to 11/2014
Installar Pty Ltd Installer casual     03/2014 to the 5 /2015
Colourful Life Planning and Deco    Painter    5/2015 to 08/2015
Baltic Interiors Pty Ltd    installer Casual     10/2015 to 07/2017
North Sydney Olympic Pool    Pool Lifeguard Casual     07/2017 to 02/2021
Andrew Roy Charlton Pool     Pool Lifeguard Casual    02/2021-
The applicant did not provide any evidence of his earnings whilst living in Australia. He stated that he shares accommodation with a friend that he met in Australia who is an Australian citizen. His flatmate works installing workstations in Australia. The Tribunal does not have sufficient evidence to compare the circumstances of persons living in Australia relative to others in his home country.
The applicant provided the following information in response to the question regarding is employment plans when he returns to his home country:” After arriving in Russia I will receive as a job as a school manager in the State Specialised Olympic Reserve Junior Water Sports school “Ekran,” the place I used to work for prior to my departure (I have an attractive job proposal from them). Olympic reserve junior Water sports school” Ekran” (teaching competitive swimming, synchronised swimming and water polo) is a state- owned Educational Institution and not a commercial company. The school has about 1500 students of all ages. Initial training in swimming and further sports performance- enhancing coaching are free. There is a limited number of places in that school. Students are enrolled at the age of 7 they have to meet the annual transitional benchmarks, (competitions and tests) at the end of the school year. As a result, 50 to 60% of children are re-enrolled for the next year. Those competitions take place annually. Any outside student can get into the school by successfully meeting these benchmarks. Every subsequent year (stage of training) the quota is reduced. By the time our students turn 15 to 17 years old the higher sports mastery groups usually consists of 15 to 20 people. By law “Ekran” and cannot run additional classes because it has no right to engage in commercial activities. Also, I want to open my own swing school. By opening a private swimming schoolwork and co-students would like to enrol the next year. I might be able to create a successful partnership with “Ekran” at the initial stage bringing in additional clients.”
The fact that the applicant intends to return to his old job and that he has an offer of employment in Russia is of concern to the Tribunal. He mentions as an after thought that he wants to open his own swimming school but provides no plans of why, how, and when, he plans to do so.
The Tribunal is not satisfied with his explanation about opening his own business as he has had sufficient time to devise a plan. It is likely that he will return to his old job with perhaps some benefits as he says he expects to receive $70,000 as an annual salary. He has already completed the following qualifications that would assist him in his work in a state-owned centre namely:
Certificate III in fitness completed in 2015
Certificate IV in fitness completed in 2016
Diploma of sport and recreation Management completed in 2019.
Although the applicant has successfully completed the following courses, he has not completed any other courses in its entirety since the Diploma of Sport and Recreation Management.
Having carefully considered the applicant’s oral testimony regarding his career aspirations the applicant’s evidence appeared to be tailored to fit with his current course selection in Australia. That is not as it should be. If the applicant has career aspirations that are claimed to lead out of Australia the courses selected should seek to serve that purpose and not not the other way around. The Tribunal considers that if the applicant did have a plan to pursue a career outside of Australia then he could have already left Australia to implement that plan.

The applicant has stated that he does not have to undertake military service when he returns to his home country and there is no political or civil unrest in his home country.
There is no evidence before the Tribunal regarding the following factors indicated by Direction 69: circumstances in Russia relative to Australia or any other country in the applicant circumstances in Russia relative to others in that country.
Having regard to the applicant circumstances including where he’s at in his career the Tribunal is not satisfied that the study proposal assists him to obtain employment or improve his employment prospects. The Tribunal considers the vocational courses proposed to be of marginal value to someone with his many years of experience.
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. Given the amount of time the applicant has now spent in Australia and associated bridging visas the Tribunal’s concern that a further student Visa may be used primarily for maintaining ongoing residence.
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 decision not to grant the applicant a Student (Temporary) (Class TU) visa.
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 4880

16 December 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Intention

Judicial Review

Procedural Fairness

Statutory Construction