Chung (Migration)

[2021] AATA 3787

Chung (Migration) [2021] AATA 3787 (15 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss I-ni Chung

CASE NUMBER:  1935907

HOME AFFAIRS REFERENCE(S):          BCC2019/4706895

MEMBER:T. Quinn

DATE: 15September 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·Clause 500.212 (a) of Schedule 2 to the Regulations.

Statement made on 15 September 2021 at 9:46am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– proximity to completion of her last course  – excellent course progress – applicant has studied in approved courses – benefit of the doubt –genuine temporary entrant for study – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 338, 347, 499

Migration Regulations 1994, Schedule 2, cl 500.212

CASES
Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372
Khan v Minister for Immigration & Another [2019] FCCA 565
Tshering v Minister for Home Affairs [2019] FCCA 2667

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 6 December 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicant applied for the visa on 19 September 2019 (‘the application’).   At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The applicant applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. On 6 December 2019, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that the applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

4. On 19 December 2019, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.

5. More than 20 months have elapsed since the making of the delegate’s decision and the applicant’s application for review with the Tribunal. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed during that time. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information to the Tribunal for the purposes of determining the outcome of their application for review. To this end, on 2 August 2021, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’). The applicant responded to the s359(2) letter on 16 August 2021 which was within the prescribed timeframe.

6. The applicant was listed to appear before the Tribunal via telephone hearing on 15 September 2021 to give evidence and present arguments.  However, upon considering the material filed by the applicant, the Tribunal determined that it could make a decision without the need for a hearing.  

7. The applicant was assisted in relation to the review by their registered migration agent

8. The Tribunal has proceeded to a decision having regard to all the information before it, including the Department file and all material and evidence provided by the applicant to the Tribunal.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   STATUTORY FRAMEWORK

10. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant.

11. 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?

12. In considering whether the applicant satisfies clause 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’ (‘the Direction’), made under section 499 of the Act. The Direction 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.

13. 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.

14. The Direction is a lawful direction of the Minister made in accordance with section 499 of the Act. The Tribunal is therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[1]  Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before the Tribunal.  The Tribunal, however, recognises that it is an independent statutory body.  It must therefore reach its own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate.  In this regard, the Tribunal also notes the decision of Judge McNab in Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]), wherein his Honour referred to the decisions of Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]) and Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) in relation to the proper approach to the consideration of guidelines such as the Direction. Most pertinently, his Honour endorses the view espoused in those cases, that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.

    [1]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The applicant in this case is a 37-year-old female Taiwanese citizen who first arrived in Australia on 8 November 2012 on a visitor visa but she returned to Taiwan for seventeen months following that visit.[2]  She then re-entered Australia on a working holiday visa in early 2014 before returning to Taiwan for two months in April 2015 to prepare to study in Australia.[3]  The applicant first entered Australia on a student visa in mid-2015.[4]  Since that time, she has remained onshore on the basis of two further student visas, a visitor visa and an electronic travel authority.[5] 

    [2] See delegate’s decision and applicant’s response to the s359(2) letter.

    [3] See delegate’s decision and applicant’s response to the s359(2) letter.

    [4] See delegate’s decision and applicant’s response to the s359(2) letter.

    [5] See delegate’s decision and applicant’s response to the s359(2) letter.

16. The applicant has filed many detailed submissions in relation to her academic, professional, and personal history and her future plans.  The Tribunal does not propose to set these out in detail in this decision but has read and considered them in coming to its conclusions.

17. Prior to arriving in Australia, the applicant completed a Bachelor of Arts in Mass Communication in Taiwan in 2006 and worked as a Group Planner from May 2007-January 2012 earning AUD23,491 equivalent per annum and in Sales at a travel company from January 2012-March 2014 earning AUD 26,427 equivalent per annum in Taiwan.[6]

    [6] See applicant’s response to the s359(2) letter.

18. The applicant has completed the following courses in Australia prior to her application in September 2019, including:

    a.IELTS Preparation;

    b.Certificates III and IV in Patisserie; and

    c.Diploma and Advanced Diploma of Hospitality Management.[7]

    [7] See applicant’s response to the s359(2) letter.

19. Although this study history is to her credit academically, the Tribunal is troubled by the length of time the applicant has spent onshore cumulatively and whether further study is genuinely likely to benefit her future career.  However, The Tribunal allows for reasonable changes to study and career pathways and notes the extensive written submissions and extensive evidence filed by the applicant.  This evidence sets out the fact that the applicant plans to own her own Patisserie business in Taiwan and that her boyfriend’s sister has made her an offer to run a Patisserie store in Italy.  She has provided a detailed job offer dated 30 June 2021 and submits that they plan to expand the business from Italy to Taiwan.

20. The applicant has filed a detailed, thorough submissions and many photos, certificates, and letters of recommendation in relation to her passion for and skills in baking.  It is clear from all the material provided and the evidence at hearing that the applicant has found a career she is very passionate about and accomplished out – having even been involved in an international cake show.  The Tribunal accepts that the applicant’s stated future intentions to work in this field are genuine.

21. The applicant’s application which is the subject of this review was to undertake a Diploma and Advanced Diploma of Leadership and Management.[8]  Due to delays in this matter coming before the Tribunal, the applicant has now completed her Diploma and six units towards her Advanced Diploma which she is due to complete in December 2021.[9]  The Tribunal considers the applicant’s academic progress is to her credit and commends her in this regard, particularly given she has been onshore on the basis of a bridging visa managing the uncertainty of outcome of this application and has been living through the global COVID19 Pandemic, which considerably changed the educational landscape for most students in Australia, for the bulk of that period.  This has been a strong factor in the Tribunal coming to its decision in this case.

    [8] See delegate’s decision applicant’s response to the s359(2) letter.

    [9]See applicant’s response to the s359(2) letter.

22. However, the Tribunal is troubled by the fact that the applicant is clearly already very accomplished, and it is likely she could run her patisserie business without these qualifications.  The Tribunal has reservations about whether the additional studies in Leadership and Management offer anything more than marginal benefit to the applicant given her education and professional history.  The courses represent a downgrade from her existing Bachelor level qualification.  However, the applicant has made detailed, persuasive submissions that she did not feel confident running a business without having obtained knowledge about how to do this.  Those submissions extended to the specific leadership skills the applicant will need in running her proposed business.  The Tribunal accepts that the courses are relevant to and likely to assist and improve the applicant’s future career. 

23. The applicant submits that Taiwan offers similar courses but due to a different educational system, she cannot enrol in a Bachelor degree in Taiwan as she has already completed one and that her study in Australia involves more practical skills and applied knowledge.[10]  The Tribunal considers the applicant has provided reasonable reasons for undertaking her courses in Australia as opposed to her home country.

    [10] See applicant’s response to the s359(2) letter.

24. The applicant volunteered for the international cake show in May 2021.[11] The applicant has otherwise provided minimal information in relation to her community ties to Australia in her questionnaire filed in response to the s359(2) letter. The applicant has been living, working, and studying onshore now for seven years cumulatively. The length of the applicant’s stay in Australia, seven years altogether, indicates that the applicant may have a preference to remain onshore. It is reasonable to conclude that after seven years onshore, the applicant has cultivated a satisfactory life and established strong ties to the Australian community that are likely to be serving as a strong incentive for her to remain onshore. As each day passes, those ties strengthen.

    [11] See applicant’s response to the s359(2) letter.

25. The Tribunal is concerned by the sheer length of time the applicant has been onshore for – a period of seven years is difficult to reconcile with the meaning of ‘temporary’ as required by the Act and Regulations.

26. The applicant has returned to  Taiwan three times since her first arrival in 2012: in 2012 for seventeen months working for Lion Travel; in 2015 for two months to prepare to study in Australia; and in 2019 for two months to look fora suitable business opportunity to open her pastry shop in Taiwan.[12]  Her parents, brother and sister live in  Taiwan.[13]  She describes a very close relationship with her family and in particular her sister.[14]  She speaks to her father and sister every day and her brother once a week.[15]  The applicant intends to move to Italy to be with her boyfriend and take up work as Pastry Chef Assistant and Junior Shop Manager at her boyfriend’s sister’s pastry shop.[16]  The applicant joined a big famous bakery group in Taiwan to do online classes to update and learn new pastry recipes.[17]  The Tribunal accepts that the applicant has personal ties to  Taiwan serving as an incentive for her to return but is concerned that those ties are not serving as a significant incentive for her to return.

    [12] See applicant’s response to the s359(2) letter.

    [13]See applicant’s response to the s359(2) letter and clarification in relation to her sister in email of 14 September 2021.

    [14] See applicant’s response to the s359(2) letter and email of 14 September 2021.

    [15] See applicant’s response to the s359(2) letter.

    [16] See applicant’s response to the s359(2) letter and email of 14 September 2021.

    [17] See applicant’s response to the s359(2) letter.

27. The applicant has worked for six employers  between June 2014-June 2019 earning AUD3,000-28,800 per annum.[18]  She has expenses of AUD18,960 per annum onshore and owns savings in Australia of AUD30,200 and savings in Taiwan of AUD100,000 equivalent.[19]  The Applicant has the potential to earn thousands of dollars in excess of her expenses onshore in Australian dollars but she is not currently working in Australia and is being supported by her family so she can focus on her studies.[20]  On balance, the Tribunal considers the evidence does  not support a conclusion that the applicant’s economic circumstances onshore are acting as a significant incentive for her to remain onshore.

    [18]See applicant’s response to the s359(2) letter.

    [19] See applicant’s response to the s359(2) letter.

    [20] See applicant’s response to the s359(2) letter and email of 14 September 2021.

28. The applicant has undertaken considerable international travel for ‘travel’ for between three and seven days from 2011-2013 (when she was working for the travel company) to: Hong Kong (twice), China, Macau, Japan (twice) and Cambodia.[21]  The applicant claims to have had no travel, visa or immigration issues in the past.[22]  The applicant does not have any potential military service obligations or political or civil unrest concerns in Taiwan.[23]

    [21] See applicant’s response to the s359(2) letter.

    [22] See applicant’s response to the s359(2) letter.

    [23] See applicant’s response to the s359(2) letter.

29. The Tribunal is particularly troubled by the length of time the applicant has been onshore for and her existing expertise.  However, the applicant has submitted that upon completion of her Advanced Diploma she will travel to Italy where her boyfriend is waiting for her.[24]

    [24] See applicant’s response to the s359(2) letter and email of 14 September 2021.

30. The Tribunal considers the factors for and against the applicant being a genuine temporary entrant for study in Australia are very closely balanced in this case.  Primarily because of her excellent course progress and the proximity to completion of her last course (three months), the Tribunal deems it appropriate to give the benefit of the doubt to the applicant.  Should the applicant make a further visa application on the basis of an intention to remain onshore after December 2021, the submissions and evidence she gave to the contrary in connection with this case will clearly be relevant to any assessment of her credibility and her intention to stay in Australia only temporarily.

31. Having had regard to the applicant’s circumstances, her immigration history and all other relevant matters, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student temporarily as required by clause 500.212. Accordingly, the applicant meets clause 500.212(a) of Schedule 2 to the Regulations.

32. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

33. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·Clause 500.212(a) of Schedule 2 to the Regulations.

    Member

    T. Quinn

    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.