Yap (Migration)

Yap (Migration) [2023] AATA 1080 (25 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Jing Min Yap
Mr Kein Fei Thai
CASE NUMBER:  2003987
HOME AFFAIRS REFERENCE(S):          BCC2019/5635748
MEMBER:David Thompson
DATE:25 April 2023
PLACE OF DECISION:  Perth
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.

Statement made on 25 April 2023 at 2:27pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – applied for visa after arriving on tourist visa – incentives to remain or return – work history, vehicles, real estate and savings in home country – reasons for studying in Australia, informed choice of provider and course, and academic progress – no evidence about intentions of second applicant member of family unit – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
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 11 February 2020 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 8 November 2019. 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) because she was not satisfied that the applicant intends genuinely to stay temporarily in Australia.
On 21 September 2021, the applicant was sent a request for information pursuant to s 359(2) of the Act. The applicant responded to that request on 5 October 2021, by returning a completed ‘Request for Student Visa Information’ form (M17). In that form, the applicant stated that she and the second named applicant consented to the Tribunal deciding this review application without holding a hearing. The Tribunal has therefore considered the applicant’s review application and made its decision on the papers.
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 meets the requirements of cl 500.212.
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.
Evidence
The applicant has provided the following items of documentary evidence:
a.the delegate’s decision record and notification letter, both dated 11 February 2020;
b.the completed ‘Request for Student Visa Information’ form referred to in paragraph 4 above;
c.Confirmation of Enrolment (CoE) B0764F99, in respect of the applicant’s enrolment in a Diploma of Business scheduled to run from 20 January 2020 to 14 March 2021;
d.CoE F0765F57, in respect of the applicant’s enrolment in an Advanced Diploma of Business scheduled to run from 23 March 2021 to 11 December 2022;
e.a personal statement prepared by the applicant, undated;
f.a savings account statement issued by Hong Leong Bank on 30 September 2012, showing a balance standing in the applicant’s name;
g.three untranslated documents, on their face having to do with vehicle and land ownership;
h.a marriage register extract, giving details of the applicants’ marriage on 17 April 2011; and
i.CoE CA2B0327, in respect of the applicant’s enrolment in an Advanced Diploma of Business scheduled to run from 7 February 2022 to 19 November 2023.
The Tribunal has obtained and considered the Departmental file in relation to the applicant’s visa application. That file contains the following relevant documents provided by the applicant to the Department and not already listed above:
a.identification page from the second-named applicant’s Malaysian passport;
b.the applicant’s visa application, lodged on 8 November 2019;
c.Identification page from the applicant’s Malaysian passport;
d.a personal statement prepared by the second-named applicant, undated;
e.a statement of account issued by Public Bank on 30 September 2019, showing a balance in favour of the applicants jointly; and
f.a savings account statement issued by Hong Leong Bank on 30 September 2012, showing a balance standing in the second-named applicant’s favour.
I have considered all of these documents standing in reaching my conclusion. Where I have found it necessary or desirable to refer to one of those documents, I have done so by reference to its paragraph number above. Thus, the document mentioned in paragraph 10(a) is referred to simply as ‘document 10(a)’, and so on for the other documents.
Prior to preparing these reasons, I obtained a copy of the applicant’s record from the Provider Registration and International Student Management System (PRISMS). That record contained nothing that would have formed a reason or part of a reason to affirm the delegate’s decision, and it was unnecessary to put it to the applicant pursuant to s 359A of the Act. I have relied on information from that record in reaching my decision.
Consideration
The applicant’s circumstances in her home country
The applicants are Malaysian citizens. The applicant has stated in document 10(b) that both her parents live in Malaysia. She has not identified any other family members aside from the second-named applicant, who is her husband and to whom I will return below. Although in document 10(e) she mentions younger siblings, she has provided no evidence as to their whereabouts, or any other aspect of her relationship with them. She states that she contacts her parents using WeChat, usually 3 times per week, but sometimes daily. She stated that she has no community ties in her home country. I am prepared to accept that the applicant has personal ties to Malaysia that would give her some incentive to return to that country on the completion of her studies in Australia, but the evidence before me is insufficiently detailed to allow me to form any conclusion on the strength of that incentive.
The highest level of education reached by the applicant in Malaysia was completion of her secondary schooling. She has some record of employment in her home country, having worked as an administrative officer for a business known as Maxci Enterprise from January 2009 to July 2019. In document 10(b), she states that she earned the equivalent of A$18,000 per annum in that employment, and in documents 10(e) and 11(d) (which are relevantly identical) she explains that Maxci Enterprise is a wholesaler dealing in a range of “common household products such as slippers, décor, stationeries, kitchenware, etc”.
The applicant also states that she owns assets in Malaysia, in the form of 2 vehicles, which she has valued at A$10,000 and A$20,000 respectively. She has also stated that she owns land in Malaysia, which she values at A$150,000. The applicant has provided copies of untranslated documents in support of these claims (documents 10(g)). It is clear that two of those documents do concern motor vehicles, and that one of them names the applicant and the other the second-named applicant, but as no translations have been provided I decline to make any finding that the applicant owns such assets. The remaining document may well refer to land, as it appears to mention a location and a lot number, but it does not appear to name either of the applicants. Again, as no translation of this document has been provided, I decline to make any finding that the applicant has any interest in real estate in Malaysia. The applicant’s statements in document 10(b) on these matters stand as evidence by themselves, but they are unparticularised and are uncorroborated. I decline to make any such findings on the basis of those statements alone.
The applicant has also stated that she has funds amounting to the equivalent of A$44,000 in a bank. Document 10(f) provides some corroboration for this statement, and I am prepared to accept it. I note that document 11(e) is evidence that the applicants had a joint account containing the equivalent (at current exchange rates) of approximately A$56,000 at about the date they came to Australia. The applicant has not expressly mentioned that deposit in document 10(b) or elsewhere, and it is unclear what has become of it, or what relation it bears to the deposit the subject of document 10(f). The evidence before me is insufficient to allow me to find that this deposit is currently an asset of the applicant, and I decline to do so.
On the evidence before me I am unable to find that the applicant has any strong economic motivation to return to Malaysia on the completion of her studies in Australia. However, there is nothing in the evidence before me to suggest that the applicant has any economic incentive to avoid returning to Malaysia.
The applicant has stated that she has no military service obligations to perform on her return to her home country, and no concerns regarding civil or political unrest in that country. There is no evidence before me to contradict those statements, and I accept the applicant’s evidence on these points. I find that these matters do not give the applicant any incentive to avoid returning to Malaysia.
The applicant has given evidence on her reasons for choosing to study in Australia rather than in Malaysia. In document 10(b) she has stated that courses were available in Malaysia, but that they were longer and more expensive than equivalent courses in Australia, and did not carry the same cachet as an international qualification. In document 10(e) she expanded on these points, describing her research into courses on offer in Malaysia, and adding that in most cases she would have to move to Kuala Lumpur to attend college and that the experience of studying overseas would both improve her English and her self-confidence at work. She also stated that the curriculum taught in Australian business courses is superior to that taught in the Malaysian courses accessible to her. I find that these are good reasons for choosing to study in Australia.
Taking these matters together, I find that the applicant’s circumstances in her home country give some limited support to her claim to intend genuinely to remain in Australia only temporarily.
The applicant’s potential circumstances in Australia
There is no evidence before me that the applicant has any family in Australia. Her husband is the second-named applicant for this review, but there is no current evidence before me as to his whereabouts. I note, however, that the Departmental file shows that he was issued a Bridging Visa A at the time the applicants made their visa application, indicating that he was present in Australia at that time, and it is clear from the evidence before me that the applicant at least intends that her husband should remain with her while she studies in Australia. The applicant has stated that she has no community ties in Australia. The possible presence of the second-named applicant in Australia would give the applicant some personal tie to this country that would give her an incentive to remain here after she has finished her studies, but it is impossible on the evidence before me to come to any conclusion regarding the strength of that particular tie. Otherwise, I find that the applicant has no personal ties to Australia that would motivate her to remain in this country once she has finished studying.
The applicant has not declared that she has any assets in Australia, and there is no evidence before to suggest that she has. Nor has she declared any history of employment in this country. I note in that respect that she has from the date of her visa application remained in Australia under a bridging visa, and that her bridging visa does not permit her to work in this country. I find that she has not been employed in Australia. I find that the applicant’s economic circumstances in Australia do not give her any incentive to remain in this country once she has finished her studies.
There is no evidence before me to suggest that the applicant has entered into any relationship of concern whilst in Australia, in the sense of a relationship contracted or contrived in order to obtain a better visa application outcome than would other wise be available to her. Indeed, the evidence before me is that she is married to the second-named applicant band has been so married since 2011, to a Malaysian national. There is no direct evidence before me that the applicant is attempting to use a student visa to maintain residence in Australia, nor any evidence that she is attempting to circumvent the intentions of the Australian migration programme in any other way.
There is no evidence before me regarding any preparations the applicant may have made for life, study or work in Australia before arriving this country. Nor is it clear on the evidence when the applicant decided to attempt to study in Australia. I note that the applicant has declared in document 10(b) that she has held a student visa since November 2019, but I do not accept that evidence, as 8 November 2019 was the date of the visa application refusal of which (on 11 February 2020) gave rise to this review. The applicant also stated in document 10(b) that she held a tourist visa from August 2019 to August 2020. I conclude that she has never actually held a student visa. Whether she decided to attempt to study in Australia before or after arriving in this country is unclear. The fact that she arrived here on a tourist visa suggests that the decision was made after arrival, but in view of the lack of positive and direct evidence before me I make no finding on that point. In the absence of evidence on point, I cannot make any finding about the applicant’s preparations, and therefore cannot make any finding regarding what her preparations indicate about her intentions as to her length of stay.
The applicant has, however, given some evidence regarding the manner in which she chose her course provider. She stated that her provider was recommended by her education agent, and that having received that recommendation she visited her provider’s campus, inspected the facilities, and spoke with staff members. There is nothing before me that contradicts that account. These were reasonable steps to take in selecting a course provider. They are sufficient, although barely so, to indicate that the applicant’s selection was motivated by a genuine intention to study.
I find that the applicant’s potential (and actual) circumstances in Australia give some support to her claim to be a genuine temporary entrant, although not as strong support as might have been the case if the applicant had provided more evidence on these matters.
The value of the applicant courses for her future
The highest level of education the applicant completed in her home country was the completion of her secondary schooling. She is now studying at advanced diploma level. She could not, therefore, be said to have regressed in her level of study.
On the applicant’s evidence, she worked before coming to Australia for a wholesaling company in an administrative role, and had some exposure to the workings of a business. She has, whilst in Australia, studied a package of courses in the area of business studies. Her courses are therefore consistent with and relevant to her work experience to date. She has stated in her evidence that she intends to return to Malaysia at the conclusion of her studies, and intends to apply for business development executive positions in Kuala Lumpur on her return. She also stated that a Diploma in Business is a minimum requirement for the kind of employment she intends to seek. The applicant’s course of study is directly relevant to this plan.
The applicant has not provided any evidence as to her earnings in Malaysia before she came to Australia. Nor has she provided any evidence as to the salary she could expect to command in her home country once she has finished her Australian qualifications, except to state that those qualifications will allow her to get a better job and a higher salary.
I find that the applicant’s courses will have some value for her once she returns to Malaysia. On the evidence before me I am not able to say precisely how much value they will have or the extent to which they will increase her earning capacity. Nonetheless, this lends some support to the applicant’s claim to intend genuinely to leave Australia once she has finished her studies.
The applicant’s immigration history
On the applicant’s evidence, she first arrived in Australia in August 2019,and has not returned to her home country since then. The applicant has stated that she has never previously been refused a visa to enter any country, and has never had a visa issued to her cancelled. I note her evidence that she made two short visits to Thailand before coming to Australia. The applicant has also stated that she has no other Australian visa application on foot at present. There is nothing before me to contradict any of these statements, and I accept them. Nor is there any evidence before me to suggest that the applicant has breached the immigration laws of Australia or any other country.

As was stated above, the applicant’s evidence is that she arrived in Australia in August 2019, and that she held a tourist visa at that time. In document 10(b) the applicant stated that she had enrolled in a package of courses at Alice Springs College, consisting of a Diploma of Business scheduled to run from January 2020 to March 2021 and an Advanced Diploma of Business scheduled to run from March 2021 to December 2022. Her PRISMS record indicates that she has completed her Diploma of Business, she has not yet completed her Advanced Diploma. However, it also indicates that the college was unable to deliver the Advanced Diploma, but that the applicant has re-enrolled in it and is due to complete it on 19 November 2023. There is nothing in the evidence before me to suggest that she will not do so.
The fact that the applicant arrived in Australia on a tourist visa and only then applied for a student visa raises some doubts as to whether she genuinely intends to remain in Australia. The fact that she has not returned to her home country since her arrival could likewise raise doubts, but I note that for a large segment of her stay in Australia international travel was rendered practically impossible by the COVID-19 pandemic. However, there is nothing else in her immigration history that indicates any intention to stay in Australia other than temporarily.
Conclusion on cl 500.212(a)
On the basis of the above, I am satisfied (if only barely) 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 undertook (at least implicitly) in applying for her student visa to observe any conditions placed on any such visa issued to her. There is nothing in the evidence before me to suggest that she has ever failed to do so.
On the basis of the above, I am 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)). It is apposite at this point to consider the requirement found in the chapeau to cl 500.212 that the applicant must, as well as intending genuinely to remain in Australia temporarily, intend genuinely to remain in Australia as a student. The applicant in this case has undertaken and persisted in a course of studies despite having been refused a student visa, and has worked her way through her courses to date without any interruption resulting from her own actions or omissions. This is strong evidence that she genuinely intends to remain in Australia as a student. I find that she does so intend, and that she meets this requirement of cl 500.212.
There is no other relevant matter arising on the evidence before me.
Accordingly, I am satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212. That being so, the grounds upon which the second-named applicant’s visa application was refused fall away
Given the above findings, the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
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.
David Thompson
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.

[2023] AATA 1080

25 April 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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