Kaur (Migration) - [2021] AATA 5425

Kaur (Migration) [2021] AATA 5425 (20 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Gurleen Kaur
Mr Himmat Kumar
CASE NUMBER:  2005501
HOME AFFAIRS REFERENCE(S):          BCC2019/6665308
MEMBER:D Triaca
DATE:20 December 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 20 December 2021 at 2:29pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa––applicant was not a genuine applicant for entry and stay as a student – economic circumstances in Australia – applicant’s immediate family are all residing in Australia – applicant has not demonstrated the value of the proposed courses to futures– no strong incentive to return to her home country –– decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 500.212
CASES
Kumar v Minister for Immigration and Border Protection (2020) FCAFC 16
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 17 March 2020 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 14 December 2019. 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 visas on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The applicants appeared before the Tribunal on 17 December 2021 to give evidence and present arguments.
The applicants were assisted in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.
Genuine applicant for entry and stay as a student (cl 500.212)
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.
This is made plain from the following statement of Logan J in Kumar v Minister for Immigration and Border Protection (2020) FCAFC 16 at [4], ‘Of course the Minister’s directions were a relevant consideration. How could it be otherwise in light of s 499 of the Act? But they were guidelines. Reading them as a whole, the Minister did not purport to elevate them beyond that, only to offer guidance to the end of consistency in public administration. Moreover, as Derrington and Thawley JJ explain, the Minister explicitly counselled against a mechanical, “checklist” approach. He recognised that factors might not be all one way; hence his reference to, “on balance”. All this was done in respect of a visa eligibility for which has as a criterion a subject which inherently involves, “a matter of opinion or policy or taste” in terms of satisfaction as to whether an applicant is a genuine student.’
Whilst not defined in the Regulations, the word genuine may be taken to mean ‘authentic, real or true’ in accordance with its ordinary and natural meaning. The Regulations specify two constituent elements of a genuine student visa applicant. First, a genuine applicant is one who intends genuinely to stay in Australia temporarily. The applicant must demonstrate an intention to stay in Australia for a limited time only, not permanently. That intention must be unqualified. This requirement reflects the temporary nature of being a student.[1] Secondly, a ‘genuine applicant’ is a person who intends to comply with any conditions to which the visa may be subject.[2]
[1] See Singh [2019] (Migration) AATA 2993 at [13]
[2] See the discussion of the meaning of ‘genuine applicant’ in Vu Vu (Migration) [2019] AATA 5740 (18 December 2019) [22] – [25] upheld on appeal in Vu Vu & Ors v Minister for Immigration and anor [2020] FCCA 2292
The tribunal has regard to all the evidence before it. In this decision record, the tribunal does not slavishly refer to each individual piece of evidence submitted by the applicant, preferring instead to adopt a thematic approach. In this regard, the tribunal notes the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [45]: “…there is ample authority to support the proposition that, merely because the tribunal did not specifically mention a fact or an issue, the Court should not necessarily infer that the tribunal did not consider that fact or issue.”
The issues in this case arose in the following circumstances, the main applicant is a 29 year old citizen of India (applicant). She first arrived in Australia in March 2016. There are two Secondary Applicants, her Husband, also a citizen of India and her five month old son who was born in Australia. She has resided here since that time on temporary and associated bridging visas. On 14 December 2019 the applicant applied for a student visa, the subject of this application. On 17 March 2020 a delegate of the Department refused her application (delegate’s decision). She subsequently applied to the tribunal for a review of the delegate’s decision and she provided the tribunal with a copy of that decision.
The tribunal has concluded that the decision to refuse the applicant a student visa ought to be affirmed in this case, for the reasons which are set out below. In reaching its decision, the tribunal has had regard to:
(a)The delegate’s decision record;
(b)The applicant’s original written visa application;
(c)The oral evidence and arguments of the applicant presented at the hearing;
(d)All written material filed by or on behalf of the applicant in relation to this case;
(e)Other relevant documents on the Tribunal and Department files;
(f)Applicant’s written response to the tribunal’s invitation to provide further information pursuant to s.359(2) of the Act (359 Response);
(g)Confirmation of Enrolment Documents;
(h)Job offer from India (from applicant’s sister in law, Dr. Shilpa Bhatia;
(i)Bank statements (Commonwealth Bank and Punjab National Bank;
(j)Affidavit of financial support;
(k)PTE English Scores;
(l)Receipts and Payments of Fees;
(m)Evidence of assessment from Torrens University;
(n)Health Insurance;
(o)Marriage certificate;
(p)Medical Evidence Dr. Kim Marshall.
The applicant is presently enrolled in a Diploma of Nursing. She is due to complete it in May 2022. The original date of completion was December 2021, however, she was granted a deferral on account of her pregnancy and was accordingly given an extension of time. She is intending to follow the Diploma of Nursing with a Bachelor of Nursing. Although the timeframe for a Bachelor of Nursing is approximately 3 years, it was submitted on behalf of the applicant that she will be entitled to some credits on account of the Diploma and as such she is likely to complete the course in approximately September 2024 (meaning her course Bachelor course will take approximately 2 years and 3 months to complete) rather than mid-2025 as would otherwise be the case. I accept that this is the case and have assessed the application on the basis that the applicant will complete her studies on the earlier date as submitted, and that by this application she is seeking to remain in Australia until that time. This will take her stay in Australia to approximately 8 and a half years.
The applicant is very well educated. Prior to arriving in Australia, she completed a Bachelor of Technology (Computer Science) at Punjab Technical University (2015) and a Diploma of Computer Science at RIMT Polytechnic College (2012). In Australia she completed a Master of Information Technology in October 2017.
She was granted a 485 Graduate Visa in December 2017 which ceased in December 2019. She worked as an intern for part of that time as a Network Assistant at Australian Computer Society between July and October 2018. She otherwise continued her work as a Barista which she undertook at various cafes prior to the birth of her son.
At the completion of that visa, she enrolled in a Diploma of Project Management in December 2019 and applied for the student visa, the subject of this application. She did not complete it. She also enrolled in an Advanced Diploma of Project Management which it appears she did not commence. She says that at the time of enrolling in these courses, she intended to utilise those courses to gain a role at a multi-national company in India upon her return.
The applicant says that the COVID-19 pandemic, and its impact in India, led her to a change of heart. She decided she wanted to become a Nurse and enrolled in the Diploma of Nursing which she commenced in June 2020. She says that the pandemic has inspired her to change the direction of her life and she now wishes to work in the healthcare industry and assist her community. She says that her Husband’s father and sister are medical Doctors, and she will work for them upon her return. She provided a letter from her sister-in-law, a psychiatrist, confirming the offer of employment to work for her.
On any objective view, the applicant is well placed to return home and secure suitable employment on the strength of her qualifications. She does not require the successful completion of the current or proposed future study to forge a career in her home country. The real question for the tribunal is to assess the applicant’s change of career path and its value to her future.
The tribunal is not convinced there is any real value to the applicant in pursuing further nursing studies in Australia. She concedes that she would be able to undertake nursing studies at home. Her concern is that the equivalent study would take her two years longer to complete and that the Australian courses offer a more practical based approach. This may be the case. She provided no objective evidence to support the proposition that a nursing qualification will take her longer to achieve in India. However, taking this evidence at its highest, I do not consider that a delay (said to be 1-2 years) in expected completion date justifies the applicant remaining in Australia for a further extended period and incurring the costs and inconvenience of living away from home for that time. It seems to the tribunal that the applicant can complete her nursing studies in India if she wishes. As such, she has not advanced reasonable reasons for not undertaking equivalent study in her home country.
I have also considered Direction 69, which contemplates that reasonable changes in career and study pathway ought to be accommodated. In this case, I consider that the applicant’s change of study pathway goes beyond reasonable. The applicant already holds a Bachelor and Master qualification. She is readily employable in her home country on the strength of those qualifications. Upon completing her Master’s Degree she did not seek further study in Australia. Instead, she spent her time working in cafes, save for a short unpaid internship. I do not consider there is any she could not have started studying nursing during this time had she wanted. I have considered that the applicant was injured during 2018 with a shoulder injury and I have regard to her medical evidence. Whilst I accept that the applicant was injured and this would have caused her some discomfort, the evidence falls short of establishing that she was unable to study in Australia for any extended period. The evidence is that the applicant chose to remain in Australia and work on her 485 visa and it was not until the completion date of her 485 visa drew close that she considered returning to study. Whilst she was not required to study during the period when she was on a 485 visa, the timing of her proposed return to study, coupled with the fact she has sought to study at lower levels, and is now seeking to study an entirely unrelated course to her Masters and Bachelor’s degrees, suggests the purpose of her application for a further student visa was to assist her in maintaining an ongoing residence in Australia, rather than any academic benefit. This weighs against the applicant.
I do not consider that the applicant’s current and proposed study are relevant to her previous study in Australia or at home. They are not apparently relevant to her work in Australia in cafes.
Further, when she did contemplate a return to study, nursing was not her first choice. She enrolled in, and failed to complete, Diploma of Project Management and Advanced Diploma of Management. Consequently, it was not until mid-2020 that she commenced the nursing study. Whilst I accept her evidence that she was motivated to study nursing due to COVID-19, having an understandable reason for a change of direction does not necessarily mean it is a reasonable change.
It also weighs against the applicant that she is studying at, and intends to study at, levels that are below her highest level of qualification which is a Master’s degree, completed in 2017. It follows that I do not accept that her current or further proposed study constitutes academic progress.
I consider that the applicant can complete her nursing studies at home if she wishes to make a career in nursing. She has provided evidence to the effect that she has job opportunities in a medical business operated by her husband’s family in India. There is nothing to suggest that the applicant’s employment in this business is conditional on her completing a Bachelor of Nursing in Australia.
In circumstances in which I consider the applicant is well placed to secure suitable employment at home already, I do not consider the successful completion of these courses is likely to improve her employment prospects at home or in a third country. Her employment prospects are presently excellent. There is nothing to suggest that having another qualification will improve those prospects. I do not consider there is any real likelihood that her remuneration will increase as a result of her nursing qualifications. There is no evidence to suggest that the applicant can earn more money as a nurse than in the IT industry.
In the circumstances, I do not accept that the applicant’s Nursing studies offer any real value to her future.
There is no specific evidence in relation to the applicant’s circumstances in her home country relative to others there. The applicant states, and the tribunal accepts, that she has no concerns in relation to military service commitments at home. She states, and I accept that she is not concerned about political or civil unrest at home. She has a good understanding of living in Australia, which is not surprising given the length of time she has resided here. She has a reasonable understanding of her current course and course provider, which is to be expected given the progress she has made in her studies.
The applicant’s family in India are her parents and siblings. Her in laws also reside there and I accept she is close to her family. She travelled to India for one month in December 2018. She says that she speaks to her family regularly via telephone and social media. I consider that the applicant is managing her family relationships from Australia by interaction on telephone and social media. In circumstances in which she is seeking to extend her stay until at least 2024, which will be a stay of approximately 8 years, I do not consider her personal or family ties operate as a significant incentive for her to return home.
The applicant’s brother resides in Australia as do her Husband and child. I do not consider the mere presence of her brother, who lives in a different city, is likely to operate as any incentive to remain here. I consider that the family unit of the applicant’s Husband and child will return to India if the applicant’s visa is refused. In these circumstances I do not consider their presence here is a strong incentive for her to remain here. I do not consider that either her Husband or child would remain in Australia in her absence.
The applicant has worked in Australia in cafes prior to the birth of her child. Her Husband works in Australia as a truck driver and supports the family. There is nothing to suggest that the family’s income is anything beyond sufficient to cover their day to day living expenses. It follows that I do not consider that economic circumstances operate as a significant incentive to remain. This is in her favour.
Notwithstanding that I do not consider her economic circumstances act as a significant incentive to remain here, I have regard to the following. The applicant appears well settled in Australia. She has resided here since 2016 and is seeking to extend her stay. She chose to have her child in Australia. She is supported by her Husband. Whilst there is no evidence that her financial position is significantly improved by living here, her Husband seems to have stable and secure employment which enables him to financially support the family. These matters suggest that returning home after over 5 years is likely to involve some upheaval for the applicant and her family which she may wish to avoid or delay. These matters, whilst not definitive, weigh somewhat against granting the application.

The applicant has travelled between Australia and India without any issues. She appears to have complied with the requirements of her visas since arriving here. She declared that she has had visa applications refused by the USA and Canada in the past. However, I do not weigh these matters against her as the refusals occurred some time ago and there is no evidence of any concerning conduct on her part. In the circumstances I make no adverse findings in relation to her travel or immigration history.
There do not appear to be any other matters relevant to the application.
The tribunal has considered all the evidence before it. It does not accept the applicant is a genuine applicant. She has a very good education and I find that she is well placed to secure employment in her home country. I do not accept that her change of direction, brought about by COVID-19 is a direction that can only be achieved by undertaking further study in Australia. It is also difficult to reconcile a proposed stay of over 8 years with the meaning of temporary.
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.
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.
Secondary Applicants.
In circumstances in which the applicant does not meet the requirements of the student visa, the Secondary applicants also fail to meet those requirements.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Dominic Triaca
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;
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.