Jahollari (Migration)

[2023] AATA 1684

Jahollari (Migration) [2023] AATA 1684 (4 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Igli Jahollari

REPRESENTATIVE:  Mr Riccardo Ippoliti (MARN: 1386990)

CASE NUMBER:  2203403

HOME AFFAIRS REFERENCE(S):          BCC2020/1207693

MEMBER:T. Quinn

DATE:4 June 2023

PLACE OF DECISION:  Melbourne

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

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

Statement made on 04 June 2023 at 8:10pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – reasonable academic progress – course benefit to career development – impact of the COVID19 pandemic – property ownership in home country – decision under review remitted       

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 338, 347, 359, 499; Direction No 69
Migration Regulations 1994, Schedule 2 cls 500.211, 500.212; r 1.03

CASES

Baker v Minister for Immigration and Citizenship [2012] FCAFC 145
Chen v Minister for Immigration and Border Protection [2017] FCA 46
Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345
FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555
Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482
Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372
Khan v Minister for Immigration & Another [2019] FCCA 565
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Tshering v Minister for Home Affairs [2019] FCCA 2667
Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 18 March 2020, the applicant applied for a Student visa (the visa) to undertake study in Australia (‘the application’).[1]

   [1]Specifically, a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).  At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The applicant applied for the former and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

2. On 21 February 2022, a delegate of the Minister for Home Affairs (‘the delegate’) refused to grant the application on the basis that the applicant did not satisfy the genuine temporary entrant requirements in relation to student visas.[2]

   [2]See clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) which requires that student visa applicants be genuine applicants for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application

3. On 10 March 2022, the applicant applied to this Tribunal for a review of the delegate’s decision.[3]

   [3] Pursuant to sections 338(2) and 347 of the Act.

4. The applicant was assisted in relation to the review.

5. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed since making their application. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information for the purposes of determining the outcome of their application for review. To this end, on 14 March 2023, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’). The s359(2) letter requests that a questionnaire (‘the questionnaire’) be completed by the applicant.

6. The applicant responded to the s359(2) letter, including filing the completed questionnaire on 27 March 2023, which was within the prescribed timeframe.

7. The applicant was listed to appear before the Tribunal to present evidence and arguments at a telephone hearing on 24 May 2023.  However, upon considering the material before me, I have determined that the matter ought to be remitted for reconsideration.  My reasons follow.

   STATUTORY FRAMEWORK

8. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant. Information in relation to Clauses 500.211 and 500.212 is attached to this decision.

   Does the applicant intend genuinely to stay in Australia temporarily?

9. In considering whether the applicant satisfies clause 500.212(a), I must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (‘the Direction’), made under section 499 of the Act. The Direction is attached in full to this decision but, broadly, it requires Tribunal Members 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.

10. 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.

11. The Direction is a lawful direction of the Minister.[4]  I am therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[5]  Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before me.  However, I recognise that the Tribunal is an independent statutory body.  I must therefore reach my own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate.  In this regard, I note well established case authority as to the proper approach by decision makers to guidelines such as the Direction[6] and McNab J’s view that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.[7] 

    [4] In accordance with section 499 of the Act.

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

    [6]Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]), Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) and Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]).

    [7]Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47] per McNab J).

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The applicant is a 32-year-old male Italian citizen who first arrived in Australia on 17 May 2019 on a visitor visa.[8]  He returned to Italy for five months in August 2019 before re-entering on a visitor visa on 19 December 2019.[9] 

    [8]See delegate’s decision and the questionnaire.

    [9]See delegate’s decision and the questionnaire.

13. Prior to his arrival onshore, the applicant: completed Year twelve equivalent in 2011; completed a Surveyor’s National Registration qualification in 2013; worked as a surveyor from October 2011-November 2013 earning AUD12,000 equivalent per annum; and worked as a 3D designer from September 2012-November 2019 earning AUD42,000 equivalent in Italy.[10] 

    [10]See the questionnaire.

14. The applicant’s application which is the subject of this review was to undertake a Certificate III and Diploma in Business.[11]  Due to delays in this matter coming before me, the applicant has now completed five units in his Certificate III course but faced some challenges due to the COVID19 Pandemic.[12]  The applicant has also completed his Certificate IV in Business and has provided a corroborating certificate dated 20 December 2022.[13] He has provided a letter from his course provider indicating he commenced his Diploma of business in February 2023 and is due for completion of same in April 2024.[14]  I commend the applicant on his overall academic progress and consider he has made adequate academic progress since making his application which is the subject of this review.  This is to his credit and is evidence that he is a genuine student.  I have placed weight in his favour accordingly.  It is noteworthy that the applicant’s academic progress has been while residing onshore on a bridging visa, while also managing the uncertainty of the outcome of this application.  This has also been a factor weighing in his favour.

    [11]See delegate’s decision.

    [12]See the questionnaire and submissions of 22 May 2023.

    [13]See certificate filed 19 May 2023.

    [14]See submissions of 19 May 2023.

15. The applicant plans to complete his study, return to Italy and continue work as a 3D Designer but in bigger projects for international clients not just local, Italian clients.[15]  He anticipates earning AUD60-80,000 equivalent per annum using the qualifications gained.[16]  I allow for reasonable changes to study and career pathways and accept that these courses are relevant to and likely to assist and improve the applicant’s proposed future career.  I also accept that they are relatively consistent with the applicants’ current level of education.

    [15]See the questionnaire and submissions of 22 May 2023.  

    [16]See the questionnaire.  

16. The applicant states that (inter alia): Australian business industries are more advanced and healthier than those in Italy; studying in Australia offers advanced international business theoretical and practical skills and knowledge; learning business in English in an English speaking country will improve his English and job prospects; he is learning in a multicultural environment which offers him a unique experience; and Australia’s vocational education system has a ‘great reputation’.[17]  The applicant has provided reasonable reasons for not undertaking the study in his home country or region.

    [17]See the questionnaire.  

17. The applicant has been working in a skydiving business onshore since March 2023 until present earning AUD30,000 per annum.[18]  The applicant has expenses onshore of AUD37,180 per month.[19]  He owns assets (house, car and motorbikes) worth AUD840,000 equivalent in Italy and a car and furniture worth AUD11,000 in Australia.[20]  The evidence does not support a finding that the applicant’s economic circumstances onshore are acting as a significant incentive for him to remain at this time.  This factor will need to be reconsidered if the applicant makes a further temporary visa application after April 2024, having made submissions to the contrary in connection with this application.

    [18]See the questionnaire.  

    [19]See the questionnaire.  

    [20]See the questionnaire.  

18. The applicant is living with his partner onshore who is also an Italian citizen in Australia on a temporary visa.[21]  He is heavily involved in the skydiving community in Australia and also attends weekly dance classes and monthly dance parties with his partner in Australia.[22]  The applicant has also recently become involved in scuba diving in Australia.[23]  The applicant has now been onshore for over three years and is seeking to extend that stay.  On balance, I do not consider the evidence supports a conclusion that the applicant has ties to the Australian community acting as a strong incentive for him to remain onshore at this time.  This factor will need to be reconsidered if the applicant seeks to remain onshore upon completion of his Diploma course, having made submissions to the contrary in connection with this application.

    [21]See the questionnaire and submissions of 22 May 2023.  

    [22]See the questionnaire.  

    [23]See the questionnaire.  

19. The applicant has not travelled to Italy since his re-entry in December 2019.[24]  The COVID19 Pandemic and associated travel restrictions meant international travel was not possible from early 2020-early 2022 and I place no weight against him in this regard.  The applicant’s parents, brother and nephew live in Italy and he communicates with them between two and four times per week.[25]  The applicant volunteered in Australia for a medical association and was attending the ambulance as a first responder.[26]  The applicant played professional handball and taught juniors in school in the sport in Italy.[27]  The applicant was also involved in the skydiving community in Italy.[28]  I accept the applicant has community ties in his home country acting as an incentive for him to return but do not consider I have sufficient information before me to form any firm conclusions as to whether those ties are acting as a significant incentive for him to return. 

    [24]          See the questionnaire.

    [25]See the questionnaire.

    [26]See the questionnaire.

    [27]See the questionnaire.

    [28]See the questionnaire.

20. The applicant has undertaken considerable travel for handball tournaments from 2013-2019 including to: Spain, Germany, Greece, Croatia and Albania - for between nine and twenty-nine days.[29]  There is no evidence before me that the applicant has had any travel, visa or immigration issues in the past.[30]  The applicant does not have any potential military service obligations or political or civil unrest concerns in Italy.[31]

    [29]See the questionnaire.

    [30]See the questionnaire.

    [31]See the questionnaire.

21. I am concerned by the way in which the applicant arrived onshore (being on a tourist visa and only then, once onshore, applying for a student visa).  It is difficult to accept that the applicant, in such a short space of time after their arrival onshore as a tourist, could have then promptly researched all study and living options and decided to remain onshore for such an extensive period.  I accept it is possible that an applicant may seek a change in plans or to further their skills for employment reasons and remuneration opportunities but find it puzzling when an applicant arrives on a visitor visa and then makes sudden changes to their plans within a short period of time after arriving.  It seems unlikely that a person travelling as a tourist would make such a significant change from their initial intentions to visit.  Such a significant change would necessarily include a greater level of planning and preparation before arriving in Australia considering the length of time that the applicant proposed to spend in Australia.

22. Ultimately, I consider it appropriate to remit this case, most particularly given the applicant’s overall academic progress and his submissions that he will return to Italy upon completion of his study in April 2024.[32]  Should the applicant make a further temporary visa application upon completion of his study in 2024, the evidence and submissions he made to the contrary in connection with this case will be relevant to any assessment of his credibility and genuine intentions in relation to his residence in Australia.

    [32]See the questionnaire and submissions of 22 May 2023.  

23. Having had regard to the applicant’s circumstances, his immigration history and all other relevant matters, I am satisfied that the applicant is a genuine applicant for entry and stay as a student temporarily as required by clause 500.212. Accordingly, the applicant meets clause 500.212(a) of Schedule 2 to the Regulations and the applicant’s application for the visa is remitted to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

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

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

    T. Quinn

    Member

    Attachment – Clauses 500.211 and 500.212 of Schedule 2 of the Regulations

    Enrolment (clause 500.211)

    ·Clause 500.211 requires that, at the time of decision, the student visa application in question be founded on evidence that the applicant is enrolled in a course of study.[33]

    [33]Clause 500.211(a) of Schedule 2 to the Regulations.

    ·‘Course of study’ is defined as a ‘full-time registered course’ and a ‘registered course’ is a course provided by an institution which has been registered under the Education Services for Overseas Students Act2000 (Cth) (‘the ESOS Act’) to provide that course to overseas students.[34]

    [34]Regulation 1.03 of the Regulations.

    ·All registered courses and course providers are listed in the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’), an online register kept in accordance with the requirements of the ESOS Act.[35]  Details of courses listed in CRICOS are integrated into the Provider Registration and International Student Management System (‘PRISMS’), a database maintained by the Australian government.[36] The PRISMS database is the principal means by which registered course providers comply with legislative requirements relating to the monitoring of international students studying in Australia. Upon enrolling an international student into a registered course of study, the course provider enters the details of that enrolment into the PRISMS database. The database then records a Confirmation of Enrolment (‘COE’) for the student. The COE functions as a record of the student’s enrolment status in the course and as proof of enrolment for the purposes of clause 500.211 of Schedule 2 of the Regulations.

    [35]Section 10 of the ESOS Act.

    [36]See generally, Department of Education and Training, Provider Registration International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018).

    Genuine Temporary Entrant

    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.

    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;

    d.whether 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.