Ajit Singh (Migration)

Ajit Singh (Migration) [2019] AATA 4409 (9 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ajit Singh
CASE NUMBER:  1818176
HOME AFFAIRS REFERENCE(S):          BCC2018/1226751
MEMBER:Dominic Triaca
DATE:9 October 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 09 October 2019 at 1:40pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – written response to Tribunal’s s 359 request and consent to Tribunal deciding review without hearing – genuine intention to stay in Australia temporarily – multiple enrolments and changes of enrolment – unexplained changes in study and career objectives – applicant’s circumstances in India and Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
CASE
Hasran v MIAC [2010] FCAFC 40
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 31 May 2018 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 14 March 2018. 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 visas on the basis that the applicant did not satisfy the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).
REQUEST FOR STUDENT VISA INFORMATION
The Tribunal formally wrote to the applicant pursuant to section 359(2) of the Act inviting the applicants to provide further information to the Tribunal on 13 September 2019. The invitation advised that, if the information was not provided in writing by the prescribed period, being 14 days from the receipt of the request, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The Tribunal is satisfied that the applicant was properly sent an invitation to provide further information under section 359(2) of the Act. The invitation was sent to the applicants’ nominated address, being the address provided by the review applicants in connection with this application for review.
On 30 September 2019 the applicant responded in writing to the Tribunal’s request (359 Response) and consented to the Tribunal deciding the review without a hearing. Notwithstanding the applicant’s 359 Response was received out of time, the Tribunal has read and had regard to the document and further documentation submitted by the applicant on 30 September 2019.
In these circumstances, the applicant is not entitled to appear before the Tribunal: Section 360(3). Crucially, the effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.
It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicants to satisfy the Tribunal that the requirements of the Act have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
In these circumstances, the Tribunal has proceeded to make a decision having regard to all the information before it, including the information previously provided by the applicant to the Department as well as information that may be discerned from the delegate’s decision itself. A copy of the delegate’s decision was provided to the Tribunal with the review application.
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 is a 23 year old citizen of India. He arrived in Australia on 13 December 2014, having been granted a Student Visa on 17 November 2014 to study a Certificate IV in Accounting, a Diploma of Accounting and Bachelor of Accounting in Australia. His Student Visa expired on 15 March 2018. In March 2018 the applicant applied for a further student visa. On 31 May 2018 a delegate of the department refused the application (delegate’s decision). On 21 June 2018 the applicant applied to the Tribunal to review the delegate decision and provided the Tribunal with a copy of that decision.
The Tribunal has read and had regard to documentation provided by the applicant to the Department and the Tribunal including the Application for a Student Visa 15 March 2018 (df146-160); Identification document (df144-145); Statement of Purpose (df140-143); HDFC Bank Statement (df138-139); IELTS Test Report 7 March 2018 (df 137); Form 956 Advice by a migration agent (df 134-136); HDFC Bank Balance Confirmation (df133); Academic Transcript and Certificate III in Bricklaying Australian Industrial Systems Institute 14 April 2017 (df 131-132); Certificate of Health Cover (df 130); Curriculum Vitae (df 128-129); Email Evidence of Study (df 121-127); Identification Evidence (df 119-120); Email to case officer re s 56 Request for More Information 29 May 2018 (df 117-118);Further email 24 May 2018 (df 115-116); Department Requests (df91-114); Bridging Visa (df88-90); Form 1193 (df87); Statement of Employer (df86); Chisholm Remittance Schedule (df 85); Confirmation of Enrolment Documents (CoEs) Certificate IV in Building and Construction at UIT 20 November 2017 to 18 November 2017; Diploma of Building and Construction 2 January 2019 to 29 December 2019; Certificate IV in Accounting Chisholm Institute and Diploma of Accounting & Bachelor of Accounting at Chisholm (df 75-79); Statement of Attainment Front Cooking School 28 May 2018 (df 74); Statement of Enrolment Universal Institute of Technology (df 73); Certificate III in Commercial Cookery and Statement of Results Pax Institute of Education (df 72-70); Academic Transcript Australian Industrial Systems Certificate III in Bricklaying (df 69); Form 80 Personal particulars for assessment including character assessment 23 May 2018 (df 47-64); Decision Record (df16-24).
The Tribunal has also read and had regard to documents provided by the applicant on 30 September 2019 including the applicant’s 359 Response, Academic Transcript from the Punjab School Education Board 2014; Confirmation of Enrolment in Certificate IV in Building and Construction (Building) commencing 28 October 2019 and ending 25 October 2020; Letter of ANGAD 17 March 2019; Certificate IV Business ANGAD; Statement of Enrolment in Certificate IV Building and Construction at UIT 28 May 2018; Certificate III in Bricklaying 14 April 2017; Certificate III in Commercial Cookery PAX 5 December 2017; Statement of Attainment Front Cooking School 28 May 2018.
The applicant holds a current CoE in a Certificate IV in Building and Construction (Building) from Accredited Education and Training Australia due to commence on 28 October 2019 and completion on 25 October 2020. He is seeking to extend his stay in Australia to enable him to complete this course (proposed course of study).
The applicant’s academic history is well set out in his 359 Response and also the delegate’s decision. It reveals numerous enrolments and changes of enrolment over the applicant’s time in Australia. He arrived in Australia and enrolled in Accounting courses at Chisholm in 2015. He did not complete these courses. In 2016 he enrolled in and completed a Certificate III in Commercial Cookery at Pax Institute in May 2017. In 2017 he enrolled in but did not complete a Certificate IV in Building and Construction at Universal Institute of Technology. He instead enrolled in and completed a Certificate of Bricklaying/Blocking at Australian Industrial Systems Institute in April 2017. In 2018 he enrolled in a Certificate IV in Business at ANGAD and completed that course in March 2019. He does not appear to have studied since that time and is proposing to commence the Certificate IV in Building and Construction in October 2019.
Ministerial Direction 69 contemplates reasonable changes in career path or study for students and changes in study pathway made by the applicant are not necessarily adverse to the application. However, the Tribunal is concerned that the applicant appears to have made a number of changes in proposed career objectives seemingly without any connection between them and this casts doubt on the value of all of the courses and associated career plans claimed by the applicant.
On the material before the Tribunal, it is difficult to see the value of the proposed study to the applicant. The applicant‘s Statement of Purpose sets out the benefits of completing qualifications in Building and Construction at UIT. He states that he will go back to his home country and will work in a construction company in India in his application made 15 March 2018. However, since that time, the applicant appears to have failed to complete the Certificate IV in Building and Construction at UIT and instead, enrolled in and completed a Certificate IV in Business at ANGAD which he completed in March 2019. It appears he has not undertaken any further study since that time. He is now, in October 2019 proposing to commence a Certificate IV in Building and Construction at Accredited Education Training Australia. The Tribunal considers the applicant displayed a reasonable knowledge of living in Australia and the proposed further study, however he did not explain why he chose not to progress this study despite being enrolled in the very course in early 2018. In these circumstances, the Tribunal considers that the applicant may be seeking further enrolment as a means of extending his stay in Australia rather than the educational benefits that the proposed further courses provide.
The Tribunal considers that a genuine student would be able to provide a sensible explanation for the multiple changes of course over the previous 5 years. Whilst reasonable changes to study plans are to be accommodated, the Tribunal expects a genuine student would be in a position to explain a change from Accounting to Commercial Cookery to Bricklaying to Building to Business before returning to Building. The applicant‘s states he found the initial accounting courses difficult, and then found that he was unable to secure employment in the hospitality industry. He obtained employment in construction and sought a study path that complemented this employment. It appears that in 2018 the applicant was well placed to study a Certificate IV in Building and Construction. Instead he chose not to and studied an unrelated business course at ANGAD. He then chose not to study at all for a period of 6 months. There is no explanation provided for his move to study business or his subsequent break from studies. This weighs against the application. The Tribunal considers that if the applicant genuinely wished to study Building and Construction, he has had ample opportunity to do so since 2014.
Further, leaving aside the applicant’s changes of study program, the applicant’s academic progress during his time in Australia has been slow and is concerning to the Tribunal. He has only completed three courses since 2014, all at relatively low levels. This indicates that studying may not be the applicant’s priority whilst in Australia.
He has worked in the construction industry in Australia as a bricklayer since 2017. Accordingly, there is some relevance to his employment in Australia and the Tribunal accepts a Certificate IV in Building and Construction may assist the applicant in obtaining employment in the construction industry in India. The question is, however, to what extent a Certificate IV will assist him in improving his employment prospects and remuneration noting that it would appear on the face of it that he is presently able to find work in that industry as a bricklayer.
On the evidence, it is not clear how a further Certificate IV in Building and Construction will assist the applicant to obtain employment or improve his employment prospects in his home country. The Tribunal considers the value of the proposed course of study is marginal. The applicant’s Statement of Purpose asserts that there are a number of career opportunities open to him upon completion of a Diploma of Building and Construction rather than a Certificate IV. His statements regarding his future employment prospects are vague and generalised assertions. Importantly, he does not address whether completion of a Certificate IV in Building and Construction will assist his employment prospects. In his 359 Response he simply states that he intends to depart Australia upon completion of my studies and gaining work experience but does not elaborate on how the proposed study will assist him in achieving his goals.
In his statement of purpose he stated the average monthly income of a Building and construction worker ranges between Rs 2500 and Rs 5000 per month. He says, “therefore, after completing this program, I would be able to join multinational construction companies back to my home country.” He does not explain how he arrived at these estimates and, again, appears to be referring to the completion of a Diploma rather than a Certificate IV so it is not clear how this potential remuneration relates to the proposed course of study.
The proposed course of study may be consistent with the applicant’s previous certificate III in Bricklaying. However, it is clearly not consistent with other studies he has undertaken such as commercial cookery, Business and accounting.
The applicant does not disclose reasonable reasons for not undertaking further study in India. He says that Australia’s education is well recognised due to 7 of the world’s top 100 universities being located here. He states that Australia’s education system is more practical than India’s which he describes as theoretical and he says he will obtain more practical knowledge in Australia. In his 359 Response he simply states he was given “an opportunity to study in a multicultural environment, so I am paying high costs of fees for studies in comparison with my own country of birth.” The Tribunal does not consider the applicant has advanced reasonable reasons for being unable to study in India.
The applicant lists his parents as his family resident in India. He says last saw them in December 2014. He has not returned to India since arriving in Australia. He says that he keeps in touch with his family via telephone, the internet and whatsapp. He also stays in touch with his friends in India. Having regard to the fact that the applicant has resided in Australia since 2014, seems to be managing his relationships via telephone and is seeking to further extend his stay in Australia, the Tribunal does not consider the applicant’s personal and familial ties to his home country are of such a nature that they operate as a significant incentive for him to return home.
The applicant states he is involved in the Sikh community in Australia. There is no further evidence of any ties he may have to Australia and as such, the Tribunal does not consider there is any evidence to suggest his ties to Australia operate as a strong incentive for him to remain.
There is no evidence before the Tribunal in relation to the applicant’s circumstances in his home country relative to the circumstances of others there. The applicant states and the Tribunal accepts that he has no concerns in relation to potential military service in his home country or political or civil unrest in India that may operate to induce him to remain in Australia indefinitely.
The applicant’s economic circumstances set out in his 359 Response are that he works as a bricklayer at Bhatti Brick Laying. He provided the Department with a letter from his employer dated 13 May 2018 that confirms his position is ongoing. In his 359 Response he says he earns $24,000 per annum.
The Tribunal has regard to the economic disparity between Australia and India[1] and notes that the applicant appears to have secured employment in Australia as a bricklayer for a single employer over a long period of time. The Tribunal considers the applicant’s ability to earn income through employment in Australia operates as a significant incentive not to return home.
[1] World Bank “World Development Indicators”, data.worldbank.org/products/WDI, November 2018
The Tribunal notes the applicant states he owns a property in India being a residential house valued at $50,000 AUD. The Tribunal does not consider owning property overseas is an economic tie that is likely to operate as an incentive to return home. Property may be readily sold or alternatively retained and utilised to earn income in the form of rent. Accordingly the ownership of this property in India does not assist the application.

Considering the evidence as a whole, the Tribunal is concerned that the applicant is using the student visa program as a means to extend his stay in Australia and in doing so is attempting to utilise the student visa program to circumvent the intentions of the migration program.
The applicant disclosed no concerning travel history and the Tribunal does not consider the applicant’s travel history to be adverse to the application.
There are no further matters relevant to the assessment of the application.
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.
D. Triaca
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 4409

9 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction