Hussain (Migration)

Hussain (Migration) [2021] AATA 427 (16 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad Hussain
CASE NUMBER:  1910286
HOME AFFAIRS REFERENCE(S):          BCC2018/5979601
MEMBER:Elizabeth Tueno
DATE:16 February 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 16 February 2021 at 1:58pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment in lower-level courses after completing two master’s degrees and temporary graduate visa – availability of similar courses in home country – personal and economic ties – job offer from uncle contrived to support application – 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 5 April 2019 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 5 January 2019. 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 met the genuine temporary entrant requirement for the grant of a student visa.
The applicant appeared before the Tribunal on 28 October 2020 by telephone due to the Covid-19 restrictions to give evidence and present arguments. The applicant was assisted in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant 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.
The Tribunal has had regard to the oral evidence of the applicant and his migration agent’s submissions at the hearing, the documents submitted by the applicant to the Tribunal as well as to the contents of the Department’s file.
The applicant is a 34 year old man from Pakistan. He arrived in Australia on 28 February 2014 on a student visa. Since then, he has held a second student visa and a temporary graduate visa, which allowed him the gain work experience in Australia after completing his studies. This is his third application for a student visa. During his time in Australia, the applicant has completed:
·     A Master of Professional Accounting;
·     A Master of Business Administration; and
·     A Diploma of Business.
The applicant is currently enrolled in an Advanced Diploma of Leadership and Management, which commenced on 19 October 2020 and will end on 17 October 2021 (“the proposed course”).
The applicant advised in his s.359(2) response that there are business management courses available in his home country of Pakistan but that he wanted to stay in Australia after completing his Masters degrees to gain international exposure and international recognition. He said that he realised to be more competitive, he needs a “unique selling point” he can rely on to be firm and confident that he “possesses unique skills”. He further stated that Australian education standards are in high demand which is the reason why he has opted to study further in Australia rather than in Pakistan.
In his statement dated 27 October 2020 to the Tribunal, he said that the Pakistani courses focus on “business” education and the quality of has “decreased” and does not cater to “every folk”. He became “smitten” with the quality of education taught in Australia in leadership and management. He also said that Pakistani diploma courses are not globally recognised and worthless as employers do not give value to such courses. He referred to the quality of education and lifestyle here in Australia. He also referred to a Forbes article published on the internet that discussed how MBA programs do not produce leaders.
The Tribunal has had regard to the statements made by the applicant as to why he has chosen to study further here in Australia rather than in Pakistan. As the Tribunal understands his evidence, the reasons for not studying in Pakistan are as follows:
·     He wants to gain international exposure and international recognition;
·     He needs a unique selling point;
·     Australian education is in high demand;
·     Pakistani courses focus on business and the quality is not as high as in Australia;
·     He likes the quality of education in Australia;
·     Pakistani diplomas are not globally recognised and are worthless to employers; and
·     MBA courses do not produce leaders.
The Tribunal considers that the applicant has already had the opportunity to gain “international exposure and international recognition” having completed two Masters degrees in Australia and subsequent work experience here. It also considers that having gained those qualifications and experience he already possesses a “unique” selling point. The fact that Australian education is in demand is arguably a moot point given that he already possesses three Australian qualifications, two of which are a higher tertiary degrees than the proposed course.
In relation to his assertion contained in the applicant’s written statement about Pakistani courses focussing on ‘business’, the Tribunal considers that this contradicts the applicant’s evidence in his s.359(2) response that there are business management courses available in Pakistan, thus it would appear that the courses would cover ‘management’ rather than simply ‘business’. As to his claim that the courses are not as high quality compared to Australia, the Tribunal takes into account that the applicant has already completed a Bachelor of Commerce at the University of Karachi and considers that if the quality was as low as he claim then there would have been no reason for him to study and complete that Bachelor degree in his home country. As to his claim that Pakistani degrees are not globally recognised, the Tribunal takes into account that the applicant claims his future plans are to return his home country to find employment. The Tribunal considers it unlikely that Pakistani employers would not recognise Pakistani qualification. Lastly, his claim and reference to the Forbes article that MBA courses do not produce leaders is not accepted. It is a selling feature of many an Australian university that their MBA courses produce world class leaders.
For all of the above reasons, the Tribunal does not consider that the applicant has sound reasons for not study the proposed course in his home country, particularly when considering the availability of similar courses and his having already completed two Masters degrees in Australia.
As to his personal ties to his home country, the Applicant’s uncle, father and four sisters all reside in Pakistan. He said that he talks with his family almost every second day by telephone and video calls. He also said that he has a “sound financial background in Pakistan with a reasonable social circle and good reputation in the community”. He also provided an affidavit from his Uncle which states that since his mother passed, his uncle has become the applicant’s guardian. The Tribunal accepts that the applicant has personal ties to Pakistan in that his family and friends reside there. This is further supported by the fact that he has returned to Pakistan on three occasions – twice in 2016 for a total of 55 days and a further visit in 2018 to family. However, he has not returned to his home country since August 2018, which is around two and a half years ago. Taking this into account, together with the fact that the applicant has been residing in Australia for approximately seven years, the Tribunal considers that the applicant has been able to maintain his relationships with his family and friends in Pakistan during that time and that accordingly, his personal ties are not sufficient incentive to return to his home country.
In relation to his economic circumstances, the applicant claims that he has a sound financial background in Pakistan. The basis for this claim appears to be his father’s will and evidence of his uncle’s financial position. As to the applicant’s personal ownership of assets or property, he stated that he owns a $5000 car here in Australia. When asked about his father at the hearing, he said that his father is currently 65 years old and that he executed the will (which is dated 18 September 2020) because of the applicant’s application for this student visa as he wanted to be able to show what he will inherit from his father. The will does not state the value of the two residential plots of land owned by his father. The cash saving he currently has is the equivalent of around AUS $12,000. There is no indication of when the applicant will inherit his father’s property, or that the applicant needs to reside on Pakistan in order to inherit the items listed in the will. In relation to his uncle’s financial circumstances, there is not evidence that the applicant will inherit any property or assets from him.
The applicant stated at the hearing that he had worked as an accounting administration officer for one year and in sale for a bank for a further year in Pakistan before coming to Australia. Since arriving in Australia, he has held several jobs. The applicant provided a letter from the company where his uncle is employed as the executive director, which contains a conditional offer of employment. The Tribunal has concerns about the genuineness of this job offer. First, it is not an actual job offer. It is contingent upon the applicant possessing the appropriate management skills and qualifications. Further, it is contingent upon the applicant being interviewed face to face. Lastly, the job offer was made by the applicant’s own uncle and was made on 20 October 2020, around a week before the hearing, and was made following a verbal discussion between the applicant and his uncle prior to the letter being sent. This job offer was sent to the Tribunal two days after the hearing. The Tribunal is concerned that the applicant has simply asked his uncle to provide him with a fabricated job offer that is contingent upon him completing the proposed course.
Taking these matters into consideration, the Tribunal is not persuaded that the applicant’s economic circumstances are a significant incentive for him to return to Pakistan. He has a car and employment in Australia whereas he has never worked in Pakistan and the only evidence provided of his economic circumstances in Pakistan were from his uncle and his father.
There is no evidence to suggest that the applicant is using the student visa to avoid military service commitments or because of any political or civil unrest in his home country.
The Tribunal has taken into consideration the applicant’s potential circumstances in Australia. He has worked in the hospitality industry, including as a manager, for chemist warehouse in their receiving warehouse and also as an uber driver. He most recently has been earning around $35,000 per annum as an uber driver, from which he generates sufficient income to more than cover his living expenses (which are around $1,850 per month). He is an active member of the community in Australia and in particular is a member of Pakistani associations in Australia that keep him connected to his community. He also owns a car in Australia, which means he has the freedom to move around and go where he needs to go with ease. The Tribunal considers that having employment, a means of private transport and involvement with community organisations means that the applicant has ties to Australia that could be an incentive to remain here.
Having completed his Master degrees in 2016, which is what the applicant came to Australia to do, he then had the opportunity to work for here on a temporary graduate visa. It was only after the end of this two year visa that he decided to apply in order to commence further study. At the time the applicant applied for this visa, he was enrolled in the Advanced Diploma of Leadership and Management course, which commenced in February 2019 and was to end in February 2020. He did not complete this course. Instead, he went onto enrol and complete a completely different course, the Diploma of Business, from 12 August 2019 to 9 August 2020. This had the effect of delaying his commencement of the course he told the Department he wanted and needed to complete (ie. the proposed course) and in turn has extended the amount of time the applicant needs to remain in Australia.
Taking the above matters into account, including his ties to Australia and his study history, the Tribunal suspects that the applicant is using the student visa to maintain ongoing residence in Australia and that in doing so, is attempting to circumvent the intentions of the migration program.
The applicant’s migration agent submitted at the hearing that the applicant had completed a number qualifications in Australia, that he has paid the fees for the proposed course and that he is a genuine student. The Tribunal does not agree that the matters submitted by the migration agent show that the applicant is a genuine student for the reasons discussed above about the applicant’s time in Australia.
The Tribunal has taken into account the value of the proposed course to the applicant’s future. Having already completed a Bachelor of Commerce in his home country and a Master of Professional Accounting and a Master of Business Administration in Australia, the applicant is now studying at a lower level, namely an Advanced Diploma. The application has studied for years at a tertiary level and now wants to study at a lower vocational level, which the Tribunal does not consider is consistent with his current level of education.
The applicant said in his s.359(2) response that his future plan is as follows:
With the complete skills and knowledge that I will be getting from here, I want to go back to my country and start working where I believe that I have strength to take my future plan to the optimum level and I want to attain this by using my skills and knowledge that I gain from here.
I have noticed that foreign qualified people are given more importance when apply jobs [sic] in third world countries like my own. The dual degree program and the current qualifications will prepare me enough to enter the workforce with full of calibre and potential to standout and be different from others.
I aim to work with any Multinational Company in Karachi who offers better salary package and respect you so I hope [sic] and believe that my time and money invested here would not be wasted and will give me an extra edge to be selected for any position that I dream for myself.
The Tribunal considers that the above statement is a very generalised and vague plan for the future. It does not describe what sort of job or role the applicant intends on applying for other than to state that it will be with a ‘multinational company’. He provided more useful references to jobs in his written statement to the Tribunal in which he referred to jobs he found advertised in Dubai such as financial analyst, business development lead, accounts receivable manager and relationship manager. The Tribunal has reviewed these advertisements and notes that they require a success applicant to hold an MBA and sometimes refer to the need for a certain number of years work experience in management. The advertisements do not require qualifications in leadership and management. The Tribunal considers that it is not qualifications in management and leadership that the applicant is lacking in but rather a lack of work experience at a management level. For this reason, the Tribunal does not consider that the proposed course will assist the applicant in obtaining employment or improve his employment prospects in his home country or a third country.
At the hearing, the applicant stated that he wants to work in the accounting field. But he also referred to a job offer he had received “a month ago” to work as a business manager for an insurance company in Karachi, Pakistan. He agreed to provide the job offer documents to the Tribunal after the hearing. The Tribunal received these documents two days after the hearing. As discussed above, the written job offer was dated 20 October 2020 (1 week prior to the hearing) and made by the applicant’s uncle, who is the executive director of the company. As noted above, the Tribunal does not consider this to be a genuine job offer as it was made by a family member after discussions with the applicant and appears to have been tailored to the course that the applicant is studying. The job offer appears to have come about for the purpose of the hearing.

The Tribunal considers that the proposed course has no relevance to the applicant’s previous work experience in Australia or in Pakistan. Whilst the proposed course in theory has relevance to working at a managerial level, equally important is relevant work experience, which the applicant currently does not have. The Tribunal does not consider it realistic for the applicant to expect to walk in management role with no relevant work experience. He was asked about this at the hearing and he said that if he went into the workforce now with his current qualifications then he would have to start at a lower level for a few months before being promoted to a business or accounts manager. The Tribunal considers that it would take less time to work his way into a managerial role than it would for him to complete the proposed course, which would have the same result.
It follows from the above that the Tribunal does not accept that a qualification from the proposed course would increase the remuneration the application can expect to earn in his home country or third country compared to what he would be earning based on his current qualifications.
Lastly, in relation to the applicant’s immigration history, there is not evidence to suggest that the applicant has ever been refused a visa or had a visa cancelled by another country. Nor is there evidence to suggest that the applicant has not complied with the conditions of his Australian visas. However, he has been residing in Australia for 2546 days and during that time has only spent a total of 75 days offshore. He came to Australia in order to complete two Masters degrees, which he did. He then went into the workforce whilst on a graduate temporary visa, which allowed him to remain in Australia for a further two years. He then applied for a visa in order to complete a course at a level lower than the two Masters degree, which was of shorter duration and much less expensive. Taking into account all of these matters, the Tribunal considers the applicant’s immigration history suggestive of him using this third student visa in order to maintain ongoing residence in Australia.
There were no other relevant matters raised by the applicant or his migration agent for consideration.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily and therefore the applicant does not meet cl.500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Elizabeth Tueno
Member

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

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

[2021] AATA 427

16 February 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction