Hussain (Migration)

Hussain (Migration) [2021] AATA 4328 (6 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sajid Hussain
CASE NUMBER:  1935431
HOME AFFAIRS REFERENCE(S):          BCC2019/5051425
MEMBER:Elizabeth Tueno
DATE:6 September 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 06 September 2021 at 5:25pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No.69 – no response to the hearing invitation – reasons for not studying the proposed courses in home country – personal ties to home country – economic circumstances – ongoing business in Australia – value of the proposed courses – immigration history – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B, 379A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 November 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 9 October 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 was assisted in relation to the review by their registered migration agent.
[If the applicant did not attend a hearing and was sent a s.359(2) letter, right click to insert additional optional paragraphs from ‘Optional standard paragraphs – Student visa refusal – s.359(2) Invitations. Otherwise, delete this paragraph.]
On 24 June 2021, the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 12 July 2021. On 5 July 2021, the applicant requested an adjournment of the hearing as he was needed to return to Pakistan to care for his sick father. The adjournment was granted.
On 19 August 201, the Tribunal wrote to the review applicant inviting him to attend a hearing on 6 September 2021. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The invitation was sent to the applicant’s migration agent. The Tribunal also sent the applicant SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.
No response to the hearing invitation was received and the review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5) of the Act, the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing]. On the day of the hearing, the Tribunal also attempted to telephone the applicant several times. The applicant did not answer. The Tribunal also enquired with the applicant’s migration agent by telephone on the morning of the hearing. The Tribunal was advised that the applicant had travelled to Pakistan and they had not been able to contact him. The agent asked the Tribunal to proceed with making a determination in the applicant’s absence. In these circumstances, and pursuant to s 362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
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 documents submitted to it by the applicant and also to the contents of the Department’s file.
The applicant is a 26 year old man from Pakistan. He arrived in Australia on 27 June 2014 on a student visa and completed a Bachelor of Information Technology (networking and systems) in August 2017. He then applied for a temporary graduate subclass 485 visa, which was granted and remained valid until around October 2019. In addition to the Bachelor degree, the applicant has been enrolled in a Professional Year for computing. He applied for this current student visa in order to study a Certificate III in Carpentry, commencing in February 2020. The applicant did not complete either of these two courses. Instead, he has now obtained enrolment in the following two courses (“the proposed courses”) at Victorian Academy of Commerce and Technology Startups:
· Diploma of Business commencing 10 March 2021 and ending on 9 January 2022; and
· Advanced Diploma of Business commencing 7 February 2022 and ending on 5 February 2023.
In his s.359(2) written response, the applicant wrote:
Since applicant has studied in Australia for quite some time it is unlikely he will adapt to study methods used there rather he is more comfortable acquiring the skill and qualification that this course aims to provide. This is solely the reason why applicant came to study in Australia in the first place as he was never satisfied with the conventional way of imparting education in his native country. Moreover his primary purpose of undertaking course here is to learn methods and ways how international business is conducted and mode of delivery is in English in Australia whereas if he was to study similar course in his native country he will have to study in his native language and he is concerned about the accreditation of the course as diploma level courses that are available in his country are not recognised and there is question mark on their credibility.
As the Tribunal understands the applicant’s evidence, his reasons for not studying the proposed courses in his country are as follows:
·     He has studied before in Australia and has become comfortable studying here;
·     He was not satisfied with teaching methods in his home country;
·     He wants to learn how international business is conducted;
·     The proposed courses are taught in English rather than his native language; and
·     He is concerned that courses in Pakistan would not be recognised or credible.
It does not follow that simply because the applicant has studied in Australia before and is comfortable learning that he should be entitled to study further in Australia. He also successfully studied in his home country, which would suggest he is also comfortable in that learning environment. As to not being satisfied with the “conventional ways of imparting education” in Pakistan it is unclear what the applicant takes issue with regarding the Pakistani education system. Business courses are taught around the world and are very common. The applicant has not said that there is no similar course available in his home country. But it is unclear if he has even made any enquiries with Pakistani education providers to see how the courses are taught and whether there is a focus on “international business” models. Since the applicant says he intends on returning to Pakistan to start his business there, it is unclear why the applicant needs to study in English rather than his native language. The applicant has been living in Australia for the last seven years, so he has had a significant time to improve his English language skills. And lastly, there is no evidence beyond an assertion by the applicant that local Pakistani courses would not be recognised or are not credible. For these reasons, the Tribunal is of the view that the applicant does not have sound reasons for not studying the proposed courses (or similar courses) in his home country.
The Tribunal has also taken into account the applicant’s personal ties to his home country. It notes that his entire family lives in Pakistan and includes his parents, brother, sister-in-law and two nieces. He said that he calls his family by telephone every day and has video calls with them a few times per week. He said that in addition to family, there are his friends living in Pakistan. The Tribunal accepts that having family and friends means that the applicant does have ties to his home country. Furthermore, the Tribunal notes that the applicant has returned on several occasions to visit family. In January 2016 he returned for one month, January 2017 he returned for one month for his brother’s wedding, and in December 2018 he returned for three weeks to help look after his father. Furthermore, the applicant is currently in Pakistan, having returned there on 10 July 2021 to care for his father. In addition to providing evidence of his flight to Pakistan, the applicant provided a medical certificate that confirmed his father suffers from back pain and was admitted to hospital on 1 August 2021 in relation to a disc prolapse. The applicant said that he has continued studying the proposed courses online whilst in Pakistan.
The above shows that the applicant does have strong personal ties to his home country and that these ties would be a significant incentive for him to return.
The Tribunal has considered the applicant’s economic circumstances. Prior to coming to Australia, the applicant had not undertaken any work in Pakistan. On the other hand, since coming to Australia he has had a number of jobs, including as a pizza shop manager, taxi driver, subcontractor for NBN and most recently running his own furniture sales business. He stated in his s.359(2) response that he owns 20 acres of agricultural land, two factories and 2 acres of industrial land, all in Pakistan. However, no supporting evidence was provided to the Tribunal or to the Department which could confirm the applicant’s ownership. The fact that the applicant already operates his own business in Australia together with the lack of verified ownership of assets or property means that the Tribunal cannot be satisfied that his economic circumstances would be an incentive for him to return to Pakistan upon the completion of his studies in Australia.
There is no evidence 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 had regard to the applicant’s potential circumstances in Australia. There is no evidence that the applicant has any family living in Australia. But as noted above, the applicant has had a range of employment since arriving in Australia. But what the Tribunal is particularly concerned about is the applicant running his own business in Australia. He provided example of customer invoices which shows he is in the business of selling and delivering furniture. The applicant did not provide any evidence about how much income this business generates, although he stated in his 3.59(2) response that he earned $30,000 during the last financial year. But he did provide a certificate of registration, which confirms he started FJ Engineering Services, the company through which he runs his business, on 13 February 2019. The Tribunal considers that running his own ongoing business in Australia means that the applicant does have ties to Australia that could be a reason for him to want to remain here.
The applicant came to Australia on a student visa to undertake a Bachelor degree in Information Technology. He then successfully applied and was granted a temporary graduate work visa. The purpose of such a visa is for the visa holder to gain valuable work experience before returning to their home country. Instead of returning to his home country when his subclass 485 was due to expire, he instead enrolled in a Certificate III in Carpentry, a course which absolutely no relevance to his previous study, qualifications or work experience. The applicant said in his letter to the Tribunal that he “realised how differently the trade work is performed in Australia as compared to Pakistan”. It was through his work as an NBN subcontractor that he had this realisation. His Uncle operates a construction company in Pakistan, and he said that it was this Uncle who helped him realise that he should “learn modern ways of carpentry work in construction”.
However, he did not complete the Certificate III in Carpentry. He said that two weeks into commencing the course, the college shut down because of the Covid-19 pandemic. There was a period of six months when he was not enrolled in a course of study after this occurred. He said that he tried to enrol again in the same course later but was unsuccessful. No evidence of these attempts to re-enrol was provided to the Tribunal. He also said that his mental health suffered during this period of time, but no medical evidence was submitted.
He said that he then decided to enrol in the proposed courses because he has always had “this entrepreneurship personality in me I know how to look for new opportunities and market gaps”. He went on to say that after lockdown eased, he set up his business buying and selling furniture on Facebook marketplace. He wanted to study the proposed courses so he can “learn how to run complicated business models”.
Since 2019, the applicant appears to have been motivated by his work in Australia. The courses he has enrolled since then appear to have been heavily influenced by this work in Australia. But there is limited relevance to his previous study and interest in information technology. This lead causes the Tribunal concern that the applicant is motivated by a desire to continue residing in Australia rather than a genuine motivation to study. In doing so, the applicant seems to be attempting to circumvent the intentions of the migration program in Australia.
The Tribunal has also had regard to the value of the proposed courses to the applicant’s future. The highest level at which the applicant has studied previously, is the Bachelor degree he completed in 2017. He said that he has the technical skills from this course but is lacking in business management skills. In the total duration of the two proposed courses, being two years, the applicant would be able to complete a course such as a Master of Business Administration, a course which would be consistent with his current level of education. Instead, he has enrolled in two year long courses at the vocational level. The Tribunal does not consider this to be consistent with his current level of education.
As to his plans for the future, the applicant said that after discussions with his father and brother, he realised that Pakistan is going through a period of advancement in the field of information technology. He said:
[m]any start-ups involving new technologies and online based systems are getting successful. For instance, many online food deliveries and e-commerce business have started and become successful in a short period of time.
Keeping that in mind, I started to share some business models which are running successful [sic] in Australia but there is still a gap in Pakistan’s market. From a list of business ideas, we finalised one and I have started working on it. A briefly explained presentation is attached for reference.
In this regard, the Tribunal has assumed that the applicant was referring to the “business start-up presentation” document that he submitted to the Tribunal, which the Tribunal has taken into account. It is not a particularly detailed document, but it is sufficient for the Tribunal to understand the nature of the business proposed by the applicant. The difficulty that the Tribunal has is that it questions whether or not the proposed courses are necessary in order for the applicant to start the business and run it. Whilst in theory, of course a business course is relevant to the operating of a business. But the applicant already has experience running his own business. He also said that he has always had an entrepreneurial interest. Surely these two matters are sufficient for the applicant to start his business. It is well known that the world’s largest tech companies were started by people he dropped out of university and did not possess any business qualifications. They had an idea and ran with it. The applicant seems to have an idea for his business. The Tribunal does not consider that the proposed courses are essential for putting his plan into action. Furthermore, there is no evidence as to how much income the applicant expects to generate through this business, and how qualifications from the proposed courses will have an effect on the amount he can expect to earn. Based on the evidence before it, the Tribunal is not satisfied that the proposed courses have significant value to the applicant’s future.

Lastly, the Tribunal has considered the applicant’s immigration history. There is no evidence that the applicant has breached any condition of his Australian visas. Nor is there evidence that he has previously been refused a visa or had a visa cancelled by Australia or by any other country. However, he has now been living and working in Australia for a long time, over seven years. The proposed courses mean that he would have to stay in Australia for another year and a half, bringing the total amount of time the applicant will have been in Australia on temporary visas to around nine years. This suggests to the Tribunal that the applicant is using the student visa in order to maintain ongoing residence in Australia. The Tribunal makes this finding despite the return visits he has made to his home country and despite him possibly being in Pakistan at present. Were he to be granted a student visa, no doubt the applicant would return to Australia.
There were no other relevant matters raised by the applicant for consideration.
On the basis of the above, despite the applicant’s personal ties to his home country the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. 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 4328

6 September 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction