Khanom (Migration)

Khanom (Migration) [2019] AATA 5861 (12 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Fauzia Khanom
Miss Nisa Wasfiyah
Mr Md Neaz Ahmed Chowdury
CASE NUMBER:  1814614
HOME AFFAIRS REFERENCE(S):          BCC2018/1149648
MEMBER:Roger Maguire
DATE:12 September 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 12 September 2019 at 4:34pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine temporary stay – genuine student – huge demand for IT courses in Bangladesh – limited details of employment or career plan – applicant’s capacity to pay for proposed study – length of husband’s temporary entry – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65, Direction No 69
Migration Regulations 1994, Schedule 2 cls 500.212, 500.311
CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
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 1 May 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 10 March 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 applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the applicant did not intend to stay temporarily in Australia.
On 7 August 2019 the Tribunal wrote to the review applicant pursuant to s.359 of the Act, inviting the review applicant to provide information about the course(s) of study being undertaken, and entry and stay in Australia as a student in writing.
The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by the date specified the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The review applicant has not provided information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear:[1]
[1] Hasran v MIAC [2010] FCAFC 40
The Tribunal has considered whether, in the circumstances of this case, information that the review applicant meets the requirements of the Act and Regulations is likely to be forthcoming and whether the review applicant has had a fair opportunity to provide relevant information already.
The Tribunal notes that the review applicant provided information to the Tribunal outside the prescribed period. In considering this review, the Tribunal has had regard for this and all other information provided by the applicant.
The Tribunal has given consideration to whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal has had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs[2] and Manna v Minister for Immigration and Citizenship[3] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to Minister for Immigration and Citizenship v Li[4] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[5] which considered analogous issues, as well as the recent decision of Kaur v Minister for Immigration and Border Protection.[6]
[2] [2002] FCA 617
[3] [2012] FMCA 28
[4] [2013] HCA 18 (8 May 2013)
[5] [2014] FCAFC 1 (4 February 2014)
[6] [2014] FCA 915 (28 August 2014)
In these circumstances, for the reasons set out in this decision record above, the Tribunal considers that the review applicant has had a fair opportunity to provide relevant information.
Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the review applicant more time. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information it has before it, including the information previously provided by the review applicant to the Department.
Ultimately, a decision maker is not required to make the review applicant’s case. It is for the review 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 review 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 applicant for entry and stay 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.
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.
Applicant’s circumstances in home country.
The applicant is a 26 year old married woman with one child, a daughter, born on 21 October 2016 in Victoria. The applicant’s husband and daughter are dependent applicant’s in this application, and are currently in Australia.
The applicant has listed her parents, brother and sister as well as her parents in law, two brothers-in-law, and two sisters-in-law, all as family continuing to reside in her home country of Bangladesh, and says that she maintains contact via Internet applications regularly, almost every day.
The applicant has disclosed no assets in her own name in her home country or elsewhere, but has disclosed a fixed deposit in the sum of $11,000 in her mother’s name in her home country, and a fixed deposit of $40,000 in her mother-in-law’s name also in her home country, and a house and investment in the name of her mother-in-law worth $113,000.
The applicant has stated that she has no concerns about military service commitments, or political or civil unrest in her home country.
The applicant has stated that she completed her Higher Secondary Certificate in July 2012 studied a Bachelor of Honours Psyc degree between January 2012 and January 2013, but has not provided documentary support for this last proposition, and having regard to the fact that the applicant only studied for a period of 12 months, it is unclear whether she completed this course.
The applicant has disclosed no work experience prior to coming to Australia.
The applicant has stated that her parents, all relatives, and friends live in her home country but has not specifically identified any other community or economic ties to her home country.
The applicant is currently enrolled in a Bachelor of Information Systems degree, for which she obtained Confirmation of Enrolment No 97EA5516 on 27 February 2018. The course was due to commence on 12 March 2018, and conclude on 31 December 2020.
The applicant has stated that there is huge demand in the IT sector in Bangladesh, and that most of the jobs require or give preference to students from Bangladesh University of Engineering and Technology, Khulna University of Engineering and Technology, Chittagong University of Engineering and Technology, Shahjalal University of all Science and Technology or any overseas university. The applicant also mentioned the University of Dhaka in this context. It is clear from what the applicant has stated, that comparable courses in the Information Technology sector are readily available in the applicant’s home country. The applicant has stated that it is necessary to sit entrance exams in order to gain entry into Bachelor of Computer Science courses in Bangladesh. The applicant does not claim to have applied for entry into any comparable course in her home country. The applicant has stated that she tried to obtain entry into a science course but was only accepted in Natural Science – Psychology. The applicant does not appear to have attempted to gain entry to a computer science course as such.
The applicant has stated that there is huge demand for students with overseas degrees, but because course content in almost all private and public universities in her home country hasn’t changed in decades, this is leaving students with irrelevant degrees struggling to keep pace with the world around them. The Tribunal finds it difficult to reconcile this assertion with what appears to be highly competitive entry requirements.
Based on what the applicant has said as to the availability of comparable courses in her home country, the Tribunal is not satisfied that the applicant has attempted to gain entry into any comparable courses, and neither is the Tribunal satisfied that the applicant has demonstrated why the comparable courses are not sufficient for her purposes. The Tribunal is not satisfied that the applicant has demonstrated reasonable reasons as to why it is necessary for her to undertake her proposed study in Australia rather than her home country.
In the applicant’s future career plans appear uncertain, and vague. The applicant has stated that she plans to work “in the IT sector in Bangladesh” and “I also have an opportunity to join my husband’s family business.” The applicant has provided no details as to the nature of the husband’s family business and what role she might take with it. The Tribunal is not satisfied that the applicant has any clear career plan for the future.
The Tribunal notes that the applicant has only returned to her home country once, for a period of 38 days during a period of more than four years during which she has resided in Australia. The infrequency of the applicant’s return to her home country suggests the Tribunal that overall, notwithstanding that she has family in Bangladesh, she has no significant incentive to return there.
Applicant’s potential circumstances in Australia.
The applicant arrived in Australia on 16 August 2015, and has only returned to her home country once since that time, in February 2019 for a period of 38 days.
The Tribunal notes that the applicant is accompanied in Australia by her husband, and daughter both of whom are dependent applicant’s in this application. The Tribunal finds that the presence of the applicant’s immediate family members in Australia reduces her incentive to return to her home country.
The applicant has disclosed no employment in Australia, although she has annual living expenses of $20,400. The only asset in Australia disclosed by the applicant is a bank account with the sum of $8000 in it. The Tribunal has doubts as to the applicant’s capacity to maintain herself for the duration of her proposed study.
The Tribunal notes that the applicant’s confirmation of enrolment was obtained on 27 February 2018, a mere 17 days prior to the expiration of the visa she was on at the time. The Tribunal considers this to be more than a coincidence, and finds that the applicant obtained a confirmation of enrolment for the purposes of maintaining residence in Australia.
Overall, this criterion weighs against the applicant.
Value of course to the applicant’s future.
The applicant’s future career plans appear uncertain, even though she contends that she can earn more than $40,000 annually as a starting salary with her proposed qualifications. The Tribunal accepts that this course may be of some benefit to the applicant’s future employment prospects. Having regard to the circumstances in which the applicant obtained her confirmation of enrolment, the Tribunal has doubts as to her sincerity in pursuing this objective, as she lived in Australia for nearly 2 ½ years before deciding to enrol in this course. In all of the circumstances of this review, the Tribunal gives this criterion little weight.
Applicant’s immigration history.
Prior to coming to Australia, the applicant was previously refused a tourist visa to enable her to visit her husband.
The applicant was granted a Temporary Graduate (subclass 485) visa as an associated holder on 30 July 2015 valid until 26 November 2016. The applicant subsequently arrived onshore on 16 August 2015, and lodged a further Student (subclass 500) visa as an associated visa holder on 26 November 2016, the same day her Temporary Graduate visa expired. The Tribunal has already made observations regarding the circumstances in which the applicant obtained her confirmation of enrolment, and made the current visa application. The Tribunal finds that this criterion weighs against the applicant.
Parental intentions for minor applicant.
The applicant has not provided the Tribunal with information as to her and her husband’s intentions for the infant daughter. Having regard for the age of the child, the Tribunal considers it highly unlikely that the applicant would wish to be separated from her child for any significant period of time.
Any other relevant information.
The Tribunal considers that there is other relevant information in this review. The applicant’s husband, who is a dependent applicant in this review arrived in Australia on 8 March 2010. As at the date of the decision under review, (1 May 2018) the applicant’s husband had spent 53 days outside Australia during the intervening period. Were the applicant to be successful in obtaining a visa with her husband as a dependent for the period she proposes, this would extend the applicant’s husband’s total time in Australia to approximately 11 years, which is an unacceptably long period for a person to be resident in Australia as a “temporary” entrant. It appears to the Tribunal that the applicant and her husband have decided to adopt a “role reversal” for the purposes of maintaining residence in Australia, and the Tribunal finds that this is an abuse of the student research program, which weighs heavily against the applicant.
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).
Conclusion on cl.500.212
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.
Miss Nisa Wasfiyah
In order to grant the above named applicant a Student visa, the Tribunal must be satisfied that clause 500.311 in Schedule 2 of the Migration Regulations is satisfied. This clause provides that:
500.311
The applicant is a member of the 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 application under sub regulation 2.07 AF (3); or
(ii)information provided in relation to the primary person’s application under sub regulation 2.07 AF (4); or
(b) the applicant became a 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.
As the primary person failed to satisfy the primary requirements for the grant of this student visa, the above-named applicant fails to satisfy clause 500.311.
As clause 500.311 is not met by the primary applicant, the criteria for the grant of a student visa are not met by the above-named applicant.
Mr Md Neaz Ahmed Chowdury
In order to grant the above named applicant a Student visa, the Tribunal must be satisfied that clause 500.311 in Schedule 2 of the Migration Regulations is satisfied. This clause provides that:
500.311
The applicant is a member of the family unit of a person (the primary person) who holds a student visa, having satisfied the primary criteria for that visa, and either:
(c) 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:
(iii)the primary person’s application under sub regulation 2.07 AF (3); or
(iv)information provided in relation to the primary person’s application under sub regulation 2.07 AF (4); or
(d) the applicant became a member of the family unit of the primary person:
(iii)after the grant of the student visa to the primary person; and
(iv)before the application was made.

As the primary person failed to satisfy the primary requirements for the grant of this student visa, the above-named applicant fails to satisfy clause 500.311.
As clause 500.311 is not met by the primary applicant, the criteria for the grant of a student visa are not met by the above-named applicant.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Roger Maguire
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.

[2019] AATA 5861

12 September 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction