Kishi (Migration)

[2021] AATA 2678

Kishi (Migration) [2021] AATA 2678 (11 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Emi Kishi

CASE NUMBER:  1931734

HOME AFFAIRS REFERENCE(S):          BCC2019/4568107

MEMBER:T. Quinn

DATE:11 June 2021

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 11 June 2021 at 2:49pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine applicant for entry and stay as a student temporarily – proximity to completion of course – benefit of the doubt – study progress – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 338, 347, 359, 499
Migration Regulations 1994, Schedule 2, cl 500,212

CASES
Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372
Khan v Minister for Immigration & Another [2019] FCCA 565
Tshering v Minister for Home Affairs [2019] FCCA 2667

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 29 October 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicant applied for the visa on 12 September 2019 (‘the application’).   At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The applicant applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. On 29 October 2019, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that the applicant was not considered to be a genuine applicant 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.

4. On 7 November 2019, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.

5. More than 18 months have elapsed since the making of the delegate’s decision and the applicant’s application for review with the Tribunal. 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 during that time. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information to the Tribunal for the purposes of determining the outcome of their application for review. To this end, on 19 February 2021, 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 applicant responded to the s359(2) letter on 5 March 2021 which was within the prescribed timeframe.

6. The applicant appeared before the Tribunal via telephone hearing on 2 June 2021 to give evidence and present arguments.  

7. The applicant was assisted in relation to the review by their registered migration agent.

8. The Tribunal has proceeded to a decision having regard to all the information before it, including the Department file and all material and evidence provided by the applicant to the Tribunal.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   STATUTORY FRAMEWORK

10. 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.

11. 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?

12. In considering whether the applicant satisfies clause 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’ (‘the Direction’), made under section 499 of the Act. The Direction 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.

13. 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.

14. The Direction is a lawful direction of the Minister made in accordance with section 499 of the Act. The Tribunal is therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[1]  Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before the Tribunal.  The Tribunal, however, recognises that it is an independent statutory body.  It must therefore reach its 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, the Tribunal also notes the decision of Judge McNab in Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]), wherein his Honour referred to the decisions of Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]) and Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) in relation to the proper approach to the consideration of guidelines such as the Direction. Most pertinently, his Honour endorses the view espoused in those cases, 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.

    [1]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].

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The applicant in this case is a 38-year-old female Japanese citizen who first arrived in Australia on 4 August 2012 as a dependant on her then partner’s student visa.[2]  She studied IELTS from December 2014-January 2015 and a Certificate III in Early Childhood Education and Care from February 2015-June 2015.[3]  She gave evidence that initially she did not think about her future when she arrived in Australia and was focused, instead, on having a family and supporting her husband.  After her marriage with the primary visa holder broke down, she undertook the aforementioned study after re-partnering with an Australian citizen.  She gave evidence that she was not enjoying working in hospitality at that time and enjoyed looking after children while working in restaurants and planned to have a family with her new partner and so thought she would look at a career in childcare.  They also made a partner visa application whereby her partner, who was an Australian citizen, sought to sponsor her permanent residence.  However, this relationship broke down and the application was withdrawn.

    [2] See delegate’s decision and applicant’s response to the s359(2) letter.

    [3] See delegate’s decision and applicant’s response to the s359(2) letter.

16. The applicant gave evidence at hearing that although she completed her Certificate III in Early Childhood Education and Care (which she has since provided a corroborating certificate for), she did not enjoy the work or her placements and realised that although she likes children she could not see herself working in that field.  Her evidence appeared forthright and honest.  She explained at hearing that she continued to work in hotels and was promoted as a team leader, began managing a team and was promoted to supervisor.  She said she enjoyed that progression and decided to stay working in the hospitality industry.

17. The applicant’s application which is the subject of this review was to undertake a Diploma and Advanced Diploma of Business with a proposed completion date of May 2022.[4]  However, she has now enrolled in a Diploma of Hospitality Management with a proposed completion date in March 2022.[5]  The Tribunal notes that the commencement date for the applicant’s previous Diploma of Business was November 2019 and that the Diploma of Hospitality Management she is now studying commenced on July 2020.[6]  The Tribunal was concerned about how the applicant spent her time from November 2019 to July 2020.  At hearing, she gave evidence that she did apply herself to her study in the Diploma of Business but that the COVID19 Pandemic resulted in her previous course provider closing in May 2019 and that upon seeking advice to re-enrol, it was suggested to her that a course in hospitality would be more relevant to her future career plans.  The applicant has since provided corroborating documents from her course provider indicating that she completed a total of four units towards her Diploma of Business.[7]  She has also provided corroborating from her course provider indicating she has now completed fifteen units towards her Diploma of Hospitality Management and has only eight units remaining which she is due to complete in early 2022.  She has also provided a letter dated 3 June 2021 from her course provider confirming her completion date in March 2020 and 100% attendance rate.[8]  The Tribunal commends the applicant on her study history, particularly given the majority of this was undertaken during a global pandemic, whilst living onshore on a bridging visa managing the uncertainty of the outcome of this application.

    [4]           See delegate’s decision.

    [5] See applicant’s response to the s359(2) letter.

    [6] See applicant’s response to the s359(2) letter.

    [7]           See submissions of 3 June 2021.

    [8]           See submissions of 3 June 2021.

18. The Tribunal is severely troubled by the sheer length of the applicant’s time onshore. A period approaching nine years is difficult to reconcile with the meaning of ‘temporary’ as required by the Act and Regulations. However, when taking the specific circumstances of this applicant’s situation into consideration, the Tribunal considers her history is unique. Much of her time onshore has been on the basis of relationships where her own academic and professional aspirations were not a factor. When she has engaged with study, she has applied herself and her permanent visa application has been withdrawn. The Tribunal finds the factors in relation to ‘genuine temporary entrant’ very finely balanced in this case.

19. Prior to coming to Australia, the applicant completed High School in 2001 in Japan.[9]  She then worked as a watch repairer from September 2002-March 2005 earning AUD24,502 equivalent per annum and as a store supervisor from March 2020-July 2012 earning AUD24,012 equivalent per annum in Japan.[10]

    [9] See applicant’s response to the s359(2) letter.

    [10] See applicant’s response to the s359(2) letter and evidence at hearing.

20. The Tribunal allows for reasonable changes to study and career pathways and accepts that the applicant’s study is consistent with her current education level.  The applicant submits she wishes to obtain work as a Director of food and beverages in a five start international hotel in Japan upon completion of her study.[11]  She expects to receive a 30% higher salary than a hospitality worker with a Japanese training certificate, using the qualification.[12]  The Tribunal accepts that the applicant’s course is relevant to and likely to assist and improve the applicant’s future career.

    [11] See applicant’s response to the s359(2) letter and evidence at hearing.

    [12] See applicant’s response to the s359(2) letter.

21. The applicant states that she would have had to travel 90 minutes to undertake school in Japan and that there is a culture of judgment of mature age students in her own country.[13]  She also states that she will obtain an education which merges Eastern and Western perspectives of business and management in Australia and that the multicultural environment also offers a significant advantage.[14]  The Tribunal considers the applicant has provided reasonable reasons for undertaking study in Australia as opposed to her home country.

    [13] See applicant’s response to the s359(2) letter.

    [14] See applicant’s response to the s359(2) letter.

22. The applicant states ‘nil’ in relation to her community ties to Australia in her questionnaire filed in response to the s359(2) letter. The Tribunal does not accept this. The applicant has been living in Australia for nearly nine years now which has included considerable time working and studying in the Australian community. The length of the applicant’s stay in Australia, now approaching nine years, suggests that the applicant has a preference to remain onshore. It is reasonable to conclude that after nearly nine years onshore, the applicant has cultivated a satisfactory life and established strong ties to the Australian community that are likely to be serving as a strong incentive for her to remain onshore. As each day passes, those ties strengthen.

23. The applicant has returned to Japan twice since her arrival: for twenty four days in 2013 to see her family and friends and for 59 days in 2014 to renew her passport and finalise her divorce.[15]  She has her parents, sister and brother still living in Japan.[16]  She was forthright in her evidence at hearing about her relationship with her father which became estranged after her parents’ divorce over ten years ago but said they had recently reconnected.  She gave evidence at hearing that she speaks to her mother and sister via a group chat very regularly and her brother once every two weeks.  She has otherwise listed minimal ties to the Japanese community in her submissions.  The Tribunal accepts that the applicant has personal ties to Japan serving as an incentive for her to return but is concerned that after nearly nine years they are not serving as a significant incentive for her to return. 

    [15] See applicant’s response to the s359(2) letter.

    [16] See applicant’s response to the s359(2) letter.

24. The applicant has been working onshore: as a Waitress from September 2013-February 2014 earning AUD26,000 per annum; as a Food and Beverage Attendant from May 2014-November 2014 earning AUD37,544-39,520 per annum; as a Food and Beverage Supervisor from January 2015-April 2019 earning AUD58,000 per annum; and as a Restaurant Assistant Manager from April 2019-present earning AUD62,000 per annum.[17] The applicant did not include income amounts in her response to the s359(2) letter and this raised concerns for the Tribunal about whether she was being selective in the information she was supplying. However, given her general demeanour and the forthright manner in which she gave evidence, including situation where it was not to her advantage, the Tribunal accepts the applicant’s evidence that she simply forgot to list this information. The applicant has expenses of AUD30,688 per annum onshore.[18]  The Tribunal notes that the applicant has been earning thousands of Australian Dollars in excess of her expenses onshore for some time now and considers that the applicant’s economic circumstances onshore are acting as a significant incentive for her to remain.

    [17] See applicant’s response to the s359(2) letter and evidence at hearing.

    [18] See applicant’s response to the s359(2) letter.

25. Outside of her travel to Japan as outlined above, the applicant has otherwise had no travel, visa or immigration issues in the past.[19]  The applicant does not have any potential military service obligations or political or civil unrest concerns in Japan.[20]

    [19] See applicant’s response to the s359(2) letter.

    [20] See applicant’s response to the s359(2) letter.

26. The Tribunal is very troubled by the length of the applicant’s time onshore and the economic incentives she has to remain onshore.  However, the applicant has applied herself to her studies assured the Tribunal she would complete her course on time and return to Japan.  The Tribunal has relied heavily on the fact that the applicant is only eight months from completion of her course in coming to its conclusions.  The Tribunal considers the factors for and against the applicant being a genuine temporary entrant for study in Australia are very closely balanced in this case.  Primarily because of her study progress in the Diploma and the proximity to completion of same (eight months), the Tribunal deems it appropriate to give the benefit of the doubt to the applicant.  The applicant has submitted that upon completion of his course in March next year, she will return to Japan to pursue her career goals.  Should the applicant make a further student visa application on the basis of an intention to undertake further study after this, her submissions and evidence to the contrary in connection with this case will clearly be relevant to any assessment her intention to stay in Australia temporarily only to study.

27. Having had regard to the applicant’s circumstances, her immigration history and all other relevant matters, the Tribunal is 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.

28. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

1. 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.

   Member

   T. Quinn

   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.