Abu Bakar (Migration)

Abu Bakar (Migration) [2019] AATA 1329 (15 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Badrushah Bin Abu Bakar
CASE NUMBER:  1729818
HOME AFFAIRS REFERENCE(S):           BCC2017/3658659
MEMBER:E. Tueno
DATE:15 April 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 15 April 2019 at 1:42pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study history – value of course to applicant’s future – business plan – opening and running a restaurant – disparity in earning capacity – personal ties to home country – time already spent in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 10 November 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 10 November 2017. 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 (the Regulations) because she was not satisfied that the applicant intended genuinely to stay temporarily in Australia.
The applicant appeared before the Tribunal on 11 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Trung Hieu Tran and Mr Tyler Lam. The Tribunal hearing was conducted with the assistance of an interpreter in the Bahasan and English languages.
The applicant was assisted in relation to the review by their registered migration agent.
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. The issue in the present case is whether the applicant genuinely intends to stay in Australia temporarily.
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 Tribunal has had regard to the Department’s file as well as documentation provided by the applicant including a completed questionnaire form provided to the applicant by the Tribunal, a letter to the Tribunal dated 10 March 2019, confirmation of enrolment, letter of offer from Barkly International College for a Diploma and Advanced Diploma of Marketing and Communication, certificates of completion and academic transcripts. At the hearing, he provided further certificates of completion and academic transcripts.
The applicant is a 44 year old Malaysian national. He arrived in Australia on 29 March 2012 on a Tourist visa, having stated on his incoming passenger card that was intending on staying in Australia for 16 days for the purpose of visiting friends and relatives. At the hearing, the applicant stated that he came to Australia because he was interested in the food and culture here and that the friends and family he was visiting have since returned to Malaysia. He said that he wants to open a restaurant and improve his English language and business skills. He wants to be bilingual so as to communicate with everyone.
The applicant confirmed that he applied for his first student visa whilst onshore in Australia on 18 July 2012 and that between arriving on the tourist visa and making this visa application he had not left Australia. He was subsequently granted a further two student visas until his most recent application made on 6 October 2017 was refused.
The applicant has an extensive history of enrolment in courses of study in Australia. Some he completed, others he did not. This includes the following:
·English for General Purposes (Beginner - Advanced] 16/07/2012 - 18/01/2013 Finished
·English for General Purposes (Beginner – Advanced)21/01/2013 - 05/04/2013 Finished
·Certificate IV in Hospitality (Commercial Cookery) 28/01/2013 - 05/07/2014 Cancelled
·English for General Purposes (Beginner – Advanced)15/04/2013 - 19/07/2013 Finished
·Certificate IV in Hospitality (Commercial Cookery) 29/04/2013 - 28/09/2014 Cancelled
·Certificate IV in Hospitality (Commercial Cookery) 15/07/2013 19/12/2014 Cancelled
·Certificate III in Hospitality (Commercial Cookery) 15/07/2013 04/07/2014 Finished
·Certificate IV in Hospitality (Commercial Cookery) 15/07/2013 19/12/2014 Cancelled
·Certificate IV in Commercial Cookery 21/07/2014 19/12/2014 Cancelled
·Certificate IV in Commercial Cookery 21/07/2014 19/12/2014 Finished
·Diploma of Hospitality 21/07/2014 20/12/2014 Cancelled
·Diploma of Hospitality 13/10/2014 12/04/2015 Cancelled
·Diploma of Hospitality 02/02/2015 03/07/2015 Cancelled
·Diploma of Hospitality 02/02/2015 03/07/2015 Cancelled
·Diploma of Hospitality 02/02/2015 03/07/2015 Finished
·Diploma of Management 17/08/2015 12/08/2016 Finished
·Advanced Diploma of Leadership and Management 15/08/2016 11/08/2017 Finished
·Advanced Diploma of Management 15/08/2016 11/08/2017 Cancelled
·Diploma of Accounting 16/10/2017 12/10/2018 Finish
In his letter to the Tribunal, the applicant stated,
…I can see on file there has been a lot of cancellations of the course and I am completely unaware of this and do not know how to explain this as it was all done through my agent TWGG, however having a closer look into that reveals the dates where they would cancel it and then issue it again, its clear to me that when they issued COE’s for other courses, I was currently undertaking a different course during that time and was unable to undertake that particular course until I completed my current, the college also issued coe’s for a course where I had to complete the certificate III before entering into certificate IV hence the reason for those cancellations which overlapped my current undertaking of studies during that time. I am not aware of why they would do this however I do have completion certificates which I attach to this letter for all the courses I have undertaken. Also an acceptance letter to complete my Diploma in Accounting which I was not able to due to the closure of that college and also the refusal of my student visa application.
To summarise, in the seven years since arriving in Australia the application has completed the following courses:
·Three English language courses ranging in length from three to six months
·Certificate III in Hospitality (Commercial Cookery) - one year in duration
·Certificate IV in Hospitality (Commercial Cookery) - five months duration
·Diploma of Hospitality - five months duration
·Diploma of Management – one year in duration
·Advanced Diploma of Leadership and Management – one year in duration
·Diploma of Accounting – one year in duration
The applicant is now seeking to remain in Australia for a further three years to complete a further two courses. The Diploma of Marketing and Communication commenced in March 2019 and is expected to complete it in March 2020. The application is also enrolled in an Advanced Diploma of Marketing and Communication which will commence on 4 May 2020 and will end on 28 June 2021. This will mean a total of approximately 9 years in Australia studying.
VALUE OF THE COURSES
The applicant stated that his plan is to open a restaurant business in his home country of Malaysia. He also said that he wants to improve his English language skills before opening the business as well as completing his studies. He said after the completion of the Advanced Diploma of Marketing and Communication, he has no intention of studying further.
When asked by the Tribunal whether he has a business plan developed for the opening of restaurant, the application said yes. When asked if he had a copy of the plan to show the Tribunal, he said that the plan was not written down but rather was in his head. He said that he wants to cook ‘restaurant food’ and to bring Australian food to Malaysia. He intends on opening the restaurant with his family and his parents and siblings will fund the start up. It will be in his home town in Malaysia and he will open it as soon as he returns to Malaysia. He further said the restaurant will seat 150 guests and will also do outside catering. His sister operates a food truck and they can join together and start an even bigger restaurant together. Lastly, he stated that he expects to running costs of the restaurant to be around 300,000 Malaysian Ringgits per month. He said he arrived at this figure through his own knowledge. The Tribunal notes that there this figure equates to approximately AUD $101,689 and that there was no breakdown of how this figure was reached and what was included in it. He said if he was running a restaurant in Malaysia, he would expect to earn around 1,000 Ringgits per months, which is approximately AUD $300 per month. He said he could expect to earn more if he learns how to market the business.
When the Tribunal queried the relevance of the current and future studies and in response to the suggestion by the Tribunal that the applicant has enough skills to running of the kitchen and front of house services of a restaurant, the applicant agreed. However, he said that he needed more skills for marketing and communications. He did not provide any further explanation as to how he would use these further skills in connection to a restaurant.
The applicant also gave evidence about his work history in Australia. He said he currently works at a fish and chip shop in Erroll Street in North Melbourne. He works part time, 20 hours earning $500 per week. In his letter to the Tribunal, he said that he was employed by the Town Hall Hotel located at 33 Erroll Street but has been assigned to work at the fish and chip shop. There have been times when he has been assigned to work at the Town Hall.
The Tribunal considers that objectively the applicant has more than sufficient skills, knowledge and qualifications to have confidence to embark upon the opening and running of a restaurant in Malaysia or elsewhere. His diplomas in Hospitality, Management and Accounting as well as his Advanced Diploma in Leadership and Management added to management skills. On top of this, he had already completed a Certificate III and IV in Commercial Cookery as well as having worked in kitchens in Australia for a number of years. The Tribunal is concerned that the value of the applicant’s current vocational marketing studies will be marginal. Having already obtained the abovementioned Diplomas, these qualifications should provide the applicant with a knowledge base that may be deployed to solve disparate business challenges, including in relation to marketing and communication.
As such, the Tribunal does not consider the courses proposed will greatly assist the applicant in opening and running a restaurant in Malaysia.
CIRCUMSTANCES IN THE APPLICANT’S HOME COUNTRY
In his letter to the Tribunal, the applicant stated that there are some courses that he could take in Malaysia, but they would only provide him with “general knowledge and basic understanding towards the business field”. He said Malaysia was not internationally recognised and that he wants to study in Australia so that he has a competitive edge. As noted above, the applicant already has knowledge and an understanding of Hospitality and Management, as well as marketing and communications, through the courses already completed in Australia.
In relation to his personal ties to his home country, the applicant’s parents and six siblings continue to live in Malaysia. He has no children but in 2017 he became engaged. His fiancé has never visited him in Australia, nor has any other family member. In his completed questionnaire, he stated that since arriving in Australia in 2012, he has not returned to Malaysia. However, he also states that he last saw his parents and a brother in January of 2017. In evidence at the hearing, he stated the first occasion was in 2015 for 14 days. The second was in 2017 for 45 days when he became engaged. He has not returned since then. This means in the 2574 days he has been in Australia, he has spent only 59 days offshore. The Tribunal accepts that the applicant has demonstrated family ties to Malaysia, however since arriving in Australia in 2012 he has returned home to visit family twice.
Given the lengthy period he has remained onshore, the Tribunal is not satisfied that such ties represent a significant incentive for him to return to Malaysia. Having considered the applicant’s circumstances, the Tribunal is not satisfied the applicant has established that he has significant ties to Malaysia such that they represent a significant incentive for him to return thereupon completion of his proposed studies.
Furthermore, as noted above at paragraphs 19 and 20, there is a significant difference in the amount the applicant currently earns in Australia per month compared to what he expects to earn running a restaurant in Malaysia. The Tribunal takes into account the economic circumstances in the applicant’s home country relative to the economic conditions in Australia and finds that the disparity between the two offers a further incentive for him to seek to use the student visa program to maintain ongoing residence in Australia.
The applicant stated that there was no military service requirement in Malaysia nor any political or civil unrest. This was supported by the evidence of Mr Lam. The Tribunal accepts this to be the case.
CIRCUMSTANCES IN AUSTRALIA
Since arriving in Australia, the applicant has made friends through work and through other friends. Two of these friends gave evidence, Mr Tyler Lam and Mr Trung Hieu Tran. He was also supported by a third friend during the hearing who did not give evidence.
Mr Lam said that he owns and operates Ty Life, an international tennis academy located at Melbourne Park and at Tally Ho in Mount Waverley. Mr Lam said that he met the applicant in October 2018 when he was referred by another academy participate. The applicant attended for tennis coaching and for professional coaching, including, in relation to the strategic aspects of the game, the thinking of and how to play the game of tennis. Since October 2018, the applicant has attended twice weekly for sessions plus an additional two voluntary sessions per week. Mr Lam said that they have become friends and the applicant told him about his student visa issues. He has spoken to the applicant’s fiancé a few times and that the applicant has told him that he wants marketing and communication skills to open his restaurant. Lastly, Mr Lam said that he is from Singapore and knows that there is no national service requirement in Malaysia, nor is there political or uncivil unrest, although he noted that approximately 30 years ago there were some troubles.
Mr Tran stated in his evidence that he met the applicant in around 2013 when they were both completing a commercial cookery course. He sees the applicant around three times per week. The applicant mentioned to him his business idea around two years ago and that he looks around Melbourne to see how food is served and what type of foods locals in Malaysia might like. Mr Tran said that he would like to invest money in the applicant’s restaurant.
The Tribunal accepts that the applicant has spoken to Mr Lam and Mr Tran about his plan to open a restaurant. However, the evidence they gave at the hearing did not go any further than the applicant’s own evidence about this. To do this end, the evidence from these witnesses did not assist.
Their evidence did, however, demonstrate that the applicant has strong friendships in Australia. The Tribunal is of the view the applicant has established a well-ordered and well-structured life for himself in Australia. That life involves home and accommodation, friendships and continuing work that generates an adequate income.
The Tribunal is of the view the applicant’s ties to Australia are extensive and varied. They have built over time. They extend to work study and community. They give order, structure and purpose to the applicant’s life. The Tribunal takes this into account and consider his ties to Australia to be a further incentive for him to seek to use the student visa program to maintain ongoing residence in Australia.
OTHER MATTERS
The applicant gave evidence that has not previously applied for visas to any other country.
The applicant did not raise any other relevant matters to be considered.
Having considered the applicant’s circumstances as a whole, including the criterion in Direction No. 69, the Tribunal is not satisfied genuinely intends to stay temporarily in Australia. Therefore 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.
E. Tueno
Member

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

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

[2019] AATA 1329

15 April 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction