Chen (Migration)

Chen (Migration) [2020] AATA 3216 (3 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Xiaofan Chen
CASE NUMBER:  1825603
HOME AFFAIRS REFERENCE(S):          BCC2018/2861589
MEMBER:Adrienne Millbank
DATE:3 August 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 03 August 2020 at 10:51am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa, travel and study history – application made shortly before working holiday visa expired – enrolment below highest level of education – non-commencement of three courses – credibility – vague and unconvincing evidence – level of English incompatible with claimed employment goals – decision under review affirmed
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 15 August 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 was born in China in 1995 and is 25 years old at the time of decision. She first arrived in Australia on a Working Holiday (Subclass 462) visa on 5 August 2017. Since her arrival, she has departed Australia once, from 10 March 2018 to 20 March 2018, for the stated purpose of visiting her parents and attending the funeral of her grandmother in China.
The applicant’s Working Holiday visa ceased on 5 August 2018. She applied for this visa on 31 July 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 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). The delegate was not satisfied that the applicant was a genuine temporary entrant.
At the time of application, the applicant was enrolled in two General English courses, a Diploma of Business and an Advanced Diploma of Business. The first of her English courses had a commencement date of 3 September 2018 and her final course, the Advanced Diploma of Business, had an end date of 20 February 2021.
The delegate noted in the decision record that the applicant held a bachelor’s degree in English, from Zhaozhuang University in China, granted in June 2017; had never been in employment in China; and was unmarried with no dependents. No evidence had been provided that the applicant had strong employment or economic circumstances in her home country. The delegate did not consider the applicant’s parents in China a sufficient incentive for her to return, and was not satisfied that the applicant’s English and business courses would have any benefit to her future, including her remuneration and career prospects in China. The delegate noted that the application was lodged six days prior to the applicant’s Working Holiday visa expiring, and considered she had enrolled in courses of study in order to remain long-term in Australia.
The applicant appeared before the Tribunal on 23 July 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The hearing was held during the COVID-19 pandemic, and the Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold the hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. No concerns were raised by the applicant in relation to holding a telephone hearing and the Tribunal is satisfied that she was given a fair opportunity to give evidence and present arguments.
The applicant was assisted in relation to the review by her 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 intends genuinely 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.
On 18 March 2020 the Tribunal wrote to the applicant inviting her to provide information showing she met the criteria for a Student visa of being enrolled in a registered course, and of being a genuine applicant for entry and stay as a student, that is, a genuine temporary entrant. The applicant was also asked if she needed an interpreter, should a hearing be required. The applicant provided the following information in response:
·She required a Mandarin interpreter at hearing;
·She never started any of the General English, Diploma of Business or Advanced Diploma of Business courses she was enrolled in at the time of application;
·She completed a Diploma of Leadership and Management in September 2019, and was now studying an Advanced Diploma of Leadership and Management, which she was due to complete in September 2020, at Times Academy.
Regarding her claim at the time of decision to be a genuine applicant for entry and stay as a student, the applicant stated that the courses in leadership and management she has enrolled in were ‘an ideal point for my future career’, chosen because they would allow her ‘to go onto my future position smoothly’. She stated that after finishing her Advanced Diploma of Leadership and Management, she hoped to do ‘an internship’ in Australia for two or three months, after which she would return to her hometown to find a job in an international company. She stated:
With my proficient English skill, leadership and management knowledge and degree, I will be able to find a job in management role after I return to China, such as administrative supervisor and manager assistant.
The applicant further stated that with her ‘business’ and English skills she could expect remuneration, in such a position, of RMB10,000 (AUD2,006.00) per month. She stated that while there would be people in the company who could read and write English, ‘most of them cannot listen and speak it well’, and with her English skills she would ‘have advantages to get a higher salary’. She stated that she chose Australia because it is an English-speaking country where she could practise her English; because it has a ‘well-established business system’; and because it is ‘not very far from China’. She stated that she has never worked in a position of paid employment here, and that her parents have supported her financially.
In an attached written statement, the applicant described how she reconsidered her study plan after her visa application was rejected. She stated that ‘the study plan arranged by the agent was not quite suitable for me’; that she decided that leadership and management courses were ‘better suited for the requirements of my future career’; and that she ‘didn’t need to waste half a year in language courses’, because she could ‘practice English in the living environment’. Lengthy passages of the statement comprised material describing course content and objectives that appeared to have been copied from the website information or brochure of the applicant’s Diploma of Leadership and Advanced Diploma of Leadership course provider, Times Academy Pty Ltd. The applicant stated that she chose Times Academy because it ‘provides accredited courses that are delivered by specialist teachers who are passionate and committed to providing quality courses that allow me to be successful and achieve my goals’.
At hearing the Tribunal referred the applicant to her ‘Personal Statement’ provided to the Department at the time of application. In this she stated that she was ‘pursuing her dream’ to have a better career, and that after researching with friends and ‘various education agents’, she was overwhelmed with delight to find she was ‘totally qualified’ to enrol in a Diploma of Business and an Advanced Diploma of Business. In this written statement she stated that like other international students, she needed to study English before embarking on her business studies, so she enrolled in General English courses at Sunshine Coast International College. She stated that after further careful research, she enrolled in a Diploma of Business and an Advanced Diploma of Business at Australian Vocational Training Institute. She stated that these business qualifications, along with two General English courses, would equip her to obtain a position in an international company, and that ‘these kinds of study under western culture would not be available in my home country’.
At hearing, the Tribunal asked the applicant, in light of these statements, to more fully explain why she had not pursued her business and English courses. The applicant responded that diploma-level business courses were too hard for her because of her poor English skills. The Tribunal referred the applicant to her statements about her ‘careful research’, and being ‘totally qualified’ for the courses. The applicant then stated that she did not write her statement provided at the time of application. She stated that it was written by a former agent, who chose business and English courses for her that were not suitable. When asked if she herself wrote her written statement of intentions she provided to the Tribunal, she said that she did. The Tribunal notes that there are identical passages and similarities in expression in both statements, and that in both statements the applicant refers to her enrolled courses as ‘business’ studies. The Tribunal did not find the applicant a credible witness.
The Tribunal put to the applicant at hearing that if, as she claimed, she had left the choice of courses in which to enrol up to her former migration agent, and played no part in writing her genuine temporary entrant statement, this indicated she was not a genuine student and had enrolled in courses for the purpose of extending her stay in Australia. Therefore, she did not meet the criterion of being a genuine applicant for entry and stay as a student. The applicant responded that she had ‘no experience about applying for the visa’, and for this reason had to put her trust in her former agent. She then stated that she was now genuinely studying.
The Tribunal asked the applicant why she dropped out of her General English courses. The Tribunal noted that while the applicant said a few words in English at hearing, and appeared to understand some questions before they were interpreted for her, she relied on a Mandarin interpreter throughout the hearing in order to participate. The Tribunal put to the applicant that the competitive edge she had claimed she would hold in applying for management positions in international companies in China, was that she would have superior English listening and speaking skills. However, the fact that she was unable to cope with coursework in English for a Diploma of Business, or to participate in English in a Tribunal hearing, demonstrated that she did not have superior English, including speaking and listening, skills. The applicant responded that she decided after her Student visa application was refused that she could acquire superior listening and speaking skills by living and studying in an English-speaking environment. Therefore, she did not need to study English.
The Tribunal asked the applicant why she could not attend a course in leadership and management in China. The Tribunal put to the applicant that such a course would be more geared to the legal and cultural environment of Chinese companies in China. The applicant responded that studying in English in an English-speaking country would provide her with a competitive edge when applying for a managerial position in an international company. In light of her study history and her demonstrably poor oral English, the Tribunal found the applicant’s claims regarding the relevance her courses and of studying in an English-speaking company to her career prospects in China, vague and unconvincing.
The Tribunal accepts that the applicant has obtained a Diploma of Leadership and Management and at the time of decision was studying an Advanced Diploma of Leadership and Management. The Tribunal notes however that the applicant has enrolled in courses in the VET sector below her level of education. The Tribunal considers the courses the applicant has enrolled in insufficient, of themselves, to qualify her for a managerial position in an international company in China. The Tribunal notes that the courses the applicant has chosen are relatively inexpensive and lacking in academic rigour. For the further reasons discussed below, the Tribunal considers that the applicant has enrolled in them to extend her stay in Australia, rather than for academic progression or in genuine and realistic pursuit of a career in China.
No evidence was provided by the applicant to support her claim that, on the back of a Diploma and an Advanced Diploma of Leadership and Management from Times Academy Pty Ltd, she could expect to obtain a management position in an international company in China where she would receive AUD2,006.00 a month. The Tribunal notes that the applicant has no work experience in China. While she is obtaining some knowledge and skills in the field of leadership and management, the Tribunal does not accept that this knowledge and these skills will equip her to obtain a management position in an international company. The Tribunal in any event notes that the monthly income the applicant claims she would earn in such a role in China is significantly less than the average monthly income in Australia, of AUD7,570 per month. The Tribunal notes also that the applicant advised the Tribunal that she owns no property or any other sort of asset in China. The Tribunal finds that the applicant does not have strong economic or employment incentives to return to China.
The Tribunal asked the applicant about her stated objective of seeking an internship with an Australian company after completing her studies. The Tribunal asked the applicant how she intended to pursue this objective, and whether she knew of students who had obtained such internships after completing diplomas in leadership and management. The applicant stated that she didn’t know whether such placements were possible, or how she would go about seeking one, because she had not yet discussed her internship objective with her course providers. She stated that work experience in a management position in an Australian company would be useful to her future career.
The Tribunal put to the applicant that her course was due to end within two months, and asked if she had applied for, or expressed an interest in, any positions of employment. The applicant asked the Tribunal whether it was asking about employment in Australia, or China. The Tribunal said it meant China. The applicant stated that she had looked at positions in her hometown but had not applied for anything. When asked why she had not, in her circumstances, made at least some enquiries about, or lodged expressions of interest in, positions in China, she stated that she ‘had to wait for the AAT’, and that she had to stay in Australia to ‘receive her certificate’.
The applicant’s claim that she has or could develop in the time that would remain on a Student visa based on her current enrolments, superior English speaking and listening skills such as to equip her for a managerial position in an international company in China, was demonstrably false and implausible. As noted, the Tribunal did not find the applicant a credible witness, and considers that she has enrolled in courses in leadership and management for the purpose of extending her stay in Australia, rather than establishing a career in China.
The applicant has parents in China but the Tribunal notes that the applicant has returned to China only once, for a stay of a little over a week, since arriving in Australia three years ago. The applicant stated that she has no relatives in Australia. She advised that she had friends in China who will organise a party on her return. The Tribunal notes however that the applicant also advised that she has friends in Australia whom she consulted regarding her study intentions. The Tribunal does not find that, after living in Australia for three years, the applicant’s parents and other personal ties in China are a strong incentive for her to return.
The Tribunal finds that the applicant has a poor but instrumental understanding of courses of study and course providers in Australia. As noted, the applicant claimed that she had nothing to do with her enrolment at the time of application in two courses of General English, a Diploma of Business and an Advanced Diploma of Business. She claimed that a former agent whom she had to trust because she knew nothing about the Student visa program, enrolled her in these courses, and they were all unsuitable for her. No evidence was provided by the applicant that she researched different courses or course providers before enrolling in leadership and management courses. As discussed above, the Tribunal does not find credible the applicant’s claim that she enrolled in these courses because they would equip her for a career in management in an international company in China. No evidence was provided that the applicant had obtained information or undertaken research that would substantiate such a belief.

The applicant advised in her response to the Tribunal’s s.359(2) letter that she has no military service commitments in China that would present as a significant incentive for her not to return. She advised also that she has no concerns about political and civil unrest in her home country.
There is no information or evidence before the Tribunal that the applicant has not complied with the conditions of previous visas, or that she has previously held a visa that was cancelled or considered for cancellation. The applicant advised the Tribunal that she has not travelled to any country other than Australia.
Having considered the applicant’s circumstances, and the evidence, the Tribunal finds that the applicant’s incentives to stay outweigh her incentives to return to China.
Having found that the applicant has enrolled in courses of study for the purpose of maintaining residence in Australia, and that her incentives to stay outweigh her incentives to return to her home country, 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.
Adrienne Millbank
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.

[2020] AATA 3216

3 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction