Ichinkhorloo (Migration)

Ichinkhorloo (Migration) [2020] AATA 2733 (29 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Miss Bazarsad Ichinkhorloo
Mr Gansukh Sanjaa
CASE NUMBER:  1829152
HOME AFFAIRS REFERENCE(S):          BCC2018/3170944
MEMBER:Vanessa Plain
DATE:29 May 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 29 May 2020 at 4:45pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not a genuine temporary entrant – no response to tribunal request for information – changing from higher level course to lower level – length of time in Australia – husband in Australia – no incentive to return home – using student visa program to prolong stay – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 359(2), 360(3), 363A
Migration Regulations 1994, Schedule 2, cl 500.212(a)
CASES
Hasran v MIAC [2010] FCAFC 40
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 September 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 22 August 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 primary review applicant (the applicant) did not satisfy the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).
On 10 March 2020, the Tribunal formally wrote to the review applicant pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal, including information in relation to enrolment.
The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under section 359(2) of the Act. The invitation was sent to the review applicant at their nominated email address provided by the review applicant in connection with this application for review.
On 23 March 2020, the applicant requested for time to provide information to the Tribunal. On 23 March 2020, the Tribunal granted that request and extended the time for the applicant to provide information to 7 April 2020.
Where an applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action: section 359C(1).
The Tribunal finds that the review applicant did not provide further information by 7 April 2020 as requested. The applicant provided the information on 8 April 2020. In these circumstances, the review applicant is not entitled to appear before the Tribunal: section 360(3). Crucially, the effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.
It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
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 is a genuine temporary entrant for entry and stay in Australia as a student.
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.
Clause 500.311 requires as follows:
The applicant is a member of a family unit of a person (the primary person) who holds a student visa, having satisfied the primary criteria for that visa, and either:
(a)the applicant became a member of the family unit of the primary person before the grant of the student visa to the primary person and was included in:
(i)the primary person’s applications under subregulation 2.07AF(3); or
(ii)information provided in relation to the primary person’s application under subregulation 2.07AF(4); or
(b)the applicant became a family member of the family unit of the primary person:
(i)after the grant of the student visa to the primary person; and
(ii)before the application was made.
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.
Entry and Visa History
The applicant is a Mongolian woman who was granted an initial TU-573 Higher Education Sector Student visa on 24 July 2015. The applicant arrived in Australia for the first time on 31 July 2015. The applicant was granted a further TU 500 Higher Education Sector Student visa on 22 February 2018. The applicant successfully completed a Master of Professional Accounting on 6 July 2018.
On 22 August 2018, same day of the expiry of the applicant’s TU 500 Higher Education Sector visa, the applicant lodged their current application for a TU-500 Vocational Education Sector Student visa, proposing to extend their stay in Australia until at least 18 January 2019 to study a proposed English Language Programs for International Students (Beginner to Advanced).
Time Onshore
The applicant is currently enrolled in a Master of Business Administration at Holmes Institute. She completed her English course referred to above. Her current course is scheduled to conclude on 31 July 2020, thereby extending the applicant’s time in Australia to approximately 5 years.
Since arriving in Australia in 2015, the applicant has not departed the country.
The applicant has included her husband as the dependant applicant on her student visa application.
Study History
Since arriving in Australia, the applicant has successfully completed a Masters in Professional Accounting and the English language course as set out above. She provided the Tribunal with evidence of the qualifications she obtained in her home country.
Evidence in support of application
The applicant provided a GTE statement to the department, although that document raised matters as to why she wanted to study English. The applicant has provided various academic documents, a title for a two bedroom apartment, financial documents, letter of reference from a fellow student and an appreciation letter in support of her review application. The Tribunal has considered these documents, together with the Delegate’s decision record.
Applicant’s circumstances in their home country
The Tribunal has had regard to the applicant’s circumstances in Mongolia, as follows:
Personal ties to home country
- The applicant is married and the applicant’s spouse is currently residing in Australia with the applicant and is the dependant applicant herein. The applicant’s mother and sister reside in Mongolia.
·The applicant owns a two bedroom apartment in Mongolia.
·The applicant has never returned home to visit her family since arriving onshore in 2015.
Economic circumstances in Australia as incentive not to return home
·The applicant did not provide any evidence.
Military service or civil/political unrest concerns in home country
·The applicant did not provide any evidence.
The Tribunal finds that the applicant does not have significant incentives to return to Mongolia, demonstrated by the fact that her husband is living in Australia with her, she has been in Australia for approximately 5 years without leaving and her financial tie to her home country in the form of an apartment does not, in and of itself, provide as an incentive to return to Mongolia, when considered against her potential circumstances in Australia.
The Tribunal further finds that the length of time the applicant has been onshore without leaving (noting that she has never left the country since 2015) is indicative of an intention to remain in Australia on a more permanent basis.
The Tribunal is unable to make a finding as to whether the applicant has a strong economic incentive to remain in Australia as there is no evidence before the Tribunal on the subject.
The Tribunal places significant weight on the fact that the applicant has been in Australia since mid 2015 and has undertaken a Master of Professional Accounting, then regressed to a vocational English course, then reverted back to a Masters of Business Administration, as being behaviour that is inconsistent with that of a genuine student, where it has not been objectively established by the applicant how her current course will add value to her future beyond the qualifications she already holds.
While the Tribunal accepts that individuals may choose different areas of study on the basis of a change of decision as to career course, the Tribunal cannot be satisfied that the current course in which the applicant is enrolled will further assist her career development or earning potential in view of the qualification in the Masters of Professional Accounting that she already holds.
Applicant’s potential circumstances in Australia
The Tribunal has had regard to the applicant’s potential circumstances in Australia:
Applicant’s ties with Australia
·The applicant’s spouse is included in the applicant’s visa application as a dependant person.
Evidence visa program being used to circumvent migration program
·The timing of the applicant’s student visa applications and the regression in course levels undertaken by the applicant is of concern to the Tribunal. It is curious that an individual whose English is proficient enough to complete a Masters in Professional Accounting would then need to undertake a vocational course in English and this is what the applicant has done.
Primary and secondary applicants relationship of concern
·The applicant’s spouse is included in the applicant’s visa application as a dependant person.
Due to the timing of the applicant’s student visa applications and the regression in her course studies as set out above and the length of time she has been in the country, the Tribunal is of the view that the applicant is enrolling in her latest course with the primary intention of attempting to circumvent the intention of the student migration program and remain in Australia on a more permanent basis.
The Tribunal gives significant weight to the fact that the applicant’s husband is in Australia with her, as a factor which serves as a significant incentive not to return to Mongolia. This leads to the conclusion that the applicant’s desire to study in Australia is secondary to her intention to remain in Australia on a more permanent basis.
Further, while it is not uncommon for an applicant to re-educate themselves or make a change in study plans or work pathways, the Tribunal finds that it is not consistent with the behaviour of a genuine student to seek to regress academically to the extent that the applicant has by undertaking a vocational English course after completing an academically rigorous Masters degree, where it is not objectively demonstrated how that pathway change will be beneficial to the applicant in the future, to an extent that would outweigh the financial commitment involved in doing further study.
Further, the Tribunal cannot be satisfied that doing a further Masters Degree, in Business Administration, will add any further value to the applicant’s future in view of the impressive academic qualifications she already holds as set out above.
Value of the course to the applicant’s future
The Tribunal has had regard to the value of the courses of study to the applicant’s future, as follows:
Is the course consistent with the applicant’s current level of education?
·The applicant already holds a Masters in Professional Accounting.
Will the course assist applicant to obtain employment or improve employment prospects?
- The Tribunal acknowledges the applicant’s GTE letter where she states “I am very excited to say that I completed 96 credit points of Master of Professional Accounting at the CQ University in Melbourne last month. After graduating with this Master’s degree, I have decided to study for an IELTS Mastery Program in Australia. I have two main reasons for making this decision.”
- The applicant contends the course will assist her grow her father’s accounting business after completion of her course. She said, “Firstly, the job market in Mongolia has become very competitive in which job seekers tend to need to show high English language scores in addition to their Diplomas. Therefore, a high IELTS score will increase my chance for getting a better position with a higher salary.
- The applicant stated further, “In regard to my career goals, I intend to work at my previous employer, the Trade and Development Bank of Mongolia, where I worked for 9 years. Due to my previous work experience and updated knowledge and education in Australia, I expect to have a successful career at this organisation as well as in the banking sector of Mongolia. Secondly, based on my study experience, I realised that I should improve my English language further. I believe that an IELTS Mastery program will give me an opportunity to focus and improve my four skills. In such a program, I expect to learn many things within a short period of time. Therefore, based on the above reasons, I see that a high IELTS score is fundamental to my future career and success and it will open a variety of opportunities to myself. Accordingly, I have chosen the IELTS Mastery at the ILSC Melbourne, which has over a decade of experience and in-depth knowledge of the field.”
Relevance of course to past study?
·The applicant holds a Masters of Professional Accounting. Her current course is a Masters of Business Administration.
The Tribunal is not satisfied that the applicant has demonstrated the value of the proposed course to her future. The Tribunal is unable to accept the applicant’s assertions as to the value of the course to her future as she has not provided any objective evidence as to how the completion of her current course will add value to her earning capacity given the degree she already holds.
Further, given the extent of the applicant’s study history, the applicant has not objectively demonstrated that the completion of the nominated course of study will improve her remuneration prospects in her home country to an extent that is outweighed by the current cost of completing the course. She holds a Masters of Professional Accounting already, as such, the Tribunal is of the view that the applicant has demonstrated that she is more than qualified to return home and work for her father or obtain employment with her former employer in accordance with her stated objective.
The Tribunal is concerned by the fact that the applicant did not indicate to the Department that she intended to pursue a Masters of Business Administration after her English course and this causes the Tribunal to question whether the applicant genuinely intends to stay in Australia temporarily.
Further, the Tribunal acknowledges that the applicant has demonstrated the type of employment roles that will be available to her upon completion of her proposed study in Australia. However, I note the applicant has failed to articulate why their existing qualifications at Masters level in Australia are insufficient to allow them to achieve their career goals in Mongolia.
The Tribunal finds the applicant is sufficiently skilled to achieve their career goals and therefore the Tribunal hold significant concerns the applicant has applied for a Student visa for the primary purpose of securing an extension of their stay in Australia rather than due to a genuine interest in the subject matter of their studies and academic progression.
Immigration history
The Tribunal has had regard to the applicant’s immigration history. There is no evidence of other visa refusal or cancellations. However, as previously mentioned the applicant initially arrived in Australia on 31 July 2015 and since this date the applicant has never departed from Australia. The applicant is now proposing to extend their stay until at least 31 July 2020 to study a course without establishing how it will add significant value to their future.
The Tribunal is therefore concerned the applicant is attempting to utilise the Student visa program as a means for maintaining ongoing residence in Australia and is not a genuine temporary entrant. The length of time spent in Australia, coupled with their regressive study history, brings into question their intention to return to their home country to apply their knowledge and skills there.
The applicant’s visa history and study history demonstrate that the applicant has spent approximately 5 years in Australia. The Tribunal does not find this behaviour to be consistent with that of a genuine student who intends to remain in Australia temporarily. Rather, the Tribunal finds that this behaviour demonstrates an intention to use the student migration program to maintain ongoing residence in Australia.
Any other relevant matters

There is no evidence before the Tribunal regarding the following factors indicated by Direction 69:
·Any other relevant information provided by the applicant that may be either beneficial or unfavourable to the applicant.
The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia.
Although the applicant provided information to the Tribunal demonstrating that she has successfully completed studies undertaken to date, considering all the circumstances and all the evidence before the Tribunal, the Tribunal does not accept the applicant’s claims to be those of a genuine temporary entrant.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
As the primary applicant is found not to meet clause 500.212(a), the dependant applicant does not satisfy cl 500.311. Accordingly, no further enquiry is required with regards to the dependant applicant.
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 decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Vanessa Plain
Member

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

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

[2020] AATA 2733

29 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Intention

Jurisdiction