Lai (Migration)

Lai (Migration) [2020] AATA 3150 (22 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Weng Hong Lai
CASE NUMBER:  1823160
HOME AFFAIRS REFERENCE(S):          BCC2018/3811210
MEMBER:Darren Renton
DATE:22 June 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 22 June 2020 at 9:41am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – applicant’s arrival for on visitor visa – limited incentive to return – no evidence of academic progress – relevance of studies to employment prospects – maintaining ongoing residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 363; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212
CASES
Hasran v MIAC [2010] FCAFC 40
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 24 July 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 18 June 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). 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 applicant was not a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal by the applicant.
The Tribunal wrote to the applicant on 2 March 2020 pursuant to s.359(2) of the Act, inviting him to provide information to satisfy it that he met his visa requirements regarding enrolment in a registered course of study and being a genuine applicant for entry and stay as a student and to give, in writing, all relevant information about the course(s) of study he was undertaking and his entry and stay in Australia as a student. The invitation was sent to the email address of the applicant as set out in the applicant’s review application form lodged with the Tribunal and advised that, if the information was not provided in writing by the prescribed period, being 16 March 2020, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. There was no evidence that the email was not received.
The applicant did not provide the information within the prescribed period and no extension of time was requested. 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: Hasran v MIAC [2010] FCAFC 40.
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. The Tribunal has also had regard to the decision in Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 and the principles emerging from that decision in its application to the Tribunal’s consideration of Direction No. 69.
As noted in the delegate’s decision, the applicant arrived in Australia from Malaysia in March 2018 on an Electronic Travel Authority (ETA) (subclass 601) visa. Two days before the expiration of that visa, the applicant lodged an application for a student visa indicating he was enrolled in numerous English courses and a Diploma of Leadership and Management. The timing of that application raises concerns for the Tribunal in terms of the applicant’s stated claim of wanting to study, particularly as the applicant had not indicated any prior intention to study. The absence of evidence of academic progress heightens those concerns.
Attached to that application was a statement of purpose addressing the genuine temporary entrant criteria. As the applicant failed to provide any additional information in response to the Tribunal’s request to do so, the Tribunal does not have before it, any updated information concerning the applicant’s activities in Australia.
A review of the applicant’s statement of purpose indicates that he finished high school in Malaysia in 2009 and thereafter worked in numerous part time or casual roles. In 2015 he found a sales position with a company selling frozen food, working there for three years before deciding to come to Australia for a break.
The applicant did not claim that he came to Australia to study. Rather, after arriving here he claimed to love the environment and social circumstances, finding the people to be very friendly and happy to help and encourage him.
According to the applicant, through communicating with people he met in Australia he decided he had to improve his English, and on that basis, decided to extend his stay in Australia as a student. The applicant claimed that he spoke with his parents about his decision to study and that they were supportive, with his father telling him that as Malaysia depended on multinational companies, having international qualifications would help his career.
The applicant also claimed that he had a genuine interest in management from his work in Malaysia. He claimed that the acquisition of higher-level management skills would take him to the next level of his employment, resulting in a significantly higher salary.
As noted at [13] above, the applicant most recently worked in a sales role in Malaysia prior to coming to Australia. There was no evidence put before the Tribunal of the nature of that role, nor how his work gave him a genuine interest in management as he claimed.
The only evidence provided by the applicant to demonstrate reasonable reasons for not undertaking the study in his home country comes from his statement of purpose. The applicant claimed that he could complete a course faster in Australia than Malaysia. Against that claim, the applicant presented no evidence of what a similar course in Malaysia would involve in terms of cost, duration, content etc. There is no objective evidence against which to assess the applicant’s claim that the course in Australia could be finished “faster” and to the extent that that is advanced as a basis for reasonable reasons not to study in the applicant’s home country, the Tribunal is not persuaded.
The Tribunal is similarly unpersuaded that the convenience of studying in Australia while the applicant was already here, of itself, gives rise to a reasonable reason for not studying at home. While the Tribunal accepts that studying English in Australia is likely to be beneficial to the applicant, it does not follow that studying a management course here will provide the applicant with any advantages. The applicant’s claim, based on his account of what his father told him (as noted at [15] above), that international qualifications would assist him, is again, unsupported by objective, persuasive evidence. The applicant presented no evidence to indicate that prospective employers in Malaysia would look more favourably on the applicant for having the Australia qualifications he hoped to achieve.
For the foregoing reasons, the Tribunal is not satisfied that the applicant has demonstrated reasonable reasons for not studying in his home country. This weighs against the applicant.
The applicant stated in his student visa application that he has both parents living in Malaysia. In his statement of purpose, the applicant indicated that he did not want to live far from his parents and neither did they want him to. The Tribunal interprets this as a claim that the applicant wants to return to Malaysia to be near to his parents.
Against this familial tie, the applicant presented no evidence of any community of employment ties to Malaysia that would serve as a significant incentive to return home. The applicant gave no evidence that he owned any property at home; had any bank accounts at home; had any community attachments or had any employment to return to.
While accepting that family ties can be an incentive to return home, when balanced against the lack of community and employment ties that the applicant has to Malaysia, the Tribunal is not persuaded that the extent of his personal ties to Malaysia and the circumstances attaching to them, would serve as a significant incentive for him to return home. This also weighs against the applicant.
Likewise, the applicant presented very limited evidence concerning his economic circumstances, either in Malaysia or Australia. In his student visa application, the applicant stated that he was unemployed since 1 March 2018 and was planning for the future of his career. The applicant had no job offer on completion of his proposed course and stated that after completing his course he would go back to Malaysia “and find a job related to management”.
The applicant presented no evidence that he had engaged in any form of paid employment while in Australia. In his statement of purpose, the applicant claimed that his family would meet his expenses while in Australia.
Given the economic uncertainty facing the applicant upon his return to Malaysia, coupled with the absence of evidence of the applicant having any practical experience in management, the Tribunal finds that his economic circumstances would present as a significant incentive for him not to return home. This is a further matter that weighs against the applicant.
There was no evidence before the Tribunal that the applicant held any concerns regarding military service commitments or in relation to any political/civil unrest in Malaysia. These matters weigh in favour of the applicant.
The applicant did not present any evidence regarding his ties with Australia. He alluded to friendly people in Australia who cared about him and gave him recommendations about his trip; however, the Tribunal does not consider this evidence to establish a tie with Australia. In the absence of evidence, the Tribunal gives this consideration no weight either favourably to, or adversely against the applicant.
There was no direct evidence indicating that the applicant was using the student visa program to circumvent the intentions of the migration program; however, the applicant did state in his statement of purpose that he decided to continue his stay in Australia as a student rather than a traveller.
In assessing the weight of that claim, the Tribunal notes its earlier remarks concerning the applicant’s lack of reasonable reasons for not undertaking studies in his home country and his lack of personal ties to Malaysia, together with his uncertain economic circumstances. There is also a lack of evidence supporting the applicant’s claim of a genuine interest in management. When these matters are considered, the Tribunal has concerns about the applicant’s intentions and whether he is a genuine student. The decision to study in Australia seems serendipitous, and otherwise lacking the level of planning that the Tribunal would expect someone contemplating international studies for the first time to have done. To this can be added that the applicant has not presented the Tribunal with any evidence to indicate any academic progress in his courses of study since arriving in Australia. Given that the applicant was due to complete his Diploma course by 5 July 2020, it is of significant concern that the applicant has not submitted any evidence of academic progress.
The inference arising from the preceding paragraphs leads the Tribunal to conclude that the applicant is using the student visa program to circumvent the intentions of the migration program and to maintain ongoing residence. These matters weigh against the applicant.
There is no evidence of any detailed research conducted by the applicant into living in Australia. He came on an ETA visa and during his stay, as noted previously, formed the view that Australia would be a nice place to study. It is to be inferred from the applicant’s statement of purpose that the “friendly people” he engaged with during his time as a tourist, gave him ideas of what to do while in Australia and what to see. This does not; however, provide any persuasive basis to conclude that the applicant has a realistic level of knowledge of living in Australia.
As for the applicant’s knowledge of his intended course and course provider, he claimed in his statement of purpose that:
“I choose the Australasia International School is its high teaching quality at a reasonable and affordable price. Also, the diploma of leadership and management course is fully suitable for my personal needs. After completing those studies in Australia, I will be able to become an adequate bilingual candidate in the labor market in Malaysia. After accumulating enough experience, I would expect myself to become a manager in my interested area.”
The applicant did not present evidence to support these claims. On their face, the claims are vague and lacking in detail. The applicant provided no foundation for how he determined that his education provider had high quality teaching nor any research to indicate how he had acquired that view. Similarly, his claim about the suitability of the course provides no evidence of the applicant’s research into the course nor any indication of an awareness of the contents of that course.
Accordingly, the Tribunal is of the view that the applicant has not demonstrated a realistic level of knowledge that an applicant would be expected to have in relation to living in Australia, his intended course of study or the associated education provider. These matters also weigh against the applicant.
The applicant had not engaged in any studies since completing high school. He appears to have commenced work shortly thereafter in a variety of roles before ending up in a sales role prior to coming to Australia. A diploma level course is consistent with someone in the applicant’s circumstances who had completed high school. Consequently, the Tribunal accepts that the applicant is seeking to undertake a course that is consistent with his current level of education and gives that weight in his favour.
The Tribunal is not; however, persuaded that the proposed course will assist the applicant to obtain employment or improve his employment prospects in Malaysia. As noted at [33] above, the applicant hoped to become an adequate bilingual candidate in the Malaysian job market and having obtain enough experience, to become a manager in his interested area. The applicant did not outline what that area was or how being bilingual would benefit him. The Tribunal repeats it earlier remarks that the applicant has presented no evidence of any academic progress in any of his studies, either in English or management.
While the Tribunal accepts that formal qualifications will assist a person to pursue a particular career pathway, the applicant has not demonstrated how he would do that or how having qualifications from Australia will assist him to obtain employment or improve his employment prospects. In all the circumstances, the Tribunal is not satisfied that the proposed course will assist the applicant’s employment prospects or to obtain employment and consequently, gives these matters weight against the applicant.
Similarly, the Tribunal is not satisfied on the evidence before it, that the proposed course is relevant to the applicant’s past or future employment in Malaysia or elsewhere other than to a marginal degree. Broadly, the Tribunal accepts that obtaining qualifications in management is relevant for someone planning a career in management; however, in the context of the applicant, the evidence supporting his future plans and efforts to acquire his qualifications provide a less than compelling foundation upon which to assess the likelihood of the applicant’s future plans eventuating. Accordingly, the Tribunal only gives this consideration limited weight in favour of the applicant.
The applicant presented no evidence of his expected remuneration upon completion of his proposed course. No evidence was provided of the applicant’s previous remuneration from his sales role or previous part time employment in Malaysia. As noted previously, there was no evidence that the applicant has engaged in any paid employment in Australia, and as such, there is no basis to compare the applicant’s anticipated remuneration with any previous remuneration.
In such circumstances, the Tribunal gives this consideration no weight either in favour of, or adverse to, the applicant.
There is no evidence before the Tribunal to indicate any adverse findings in relation to the applicant’s immigration history, whether through his previous visa applications or travel to Australia or elsewhere. Accordingly, the Tribunal gives these considerations some weight in favour of the applicant.

There is also no evidence of any other relevant matters either beneficial or unfavourable to the applicant, before the Tribunal. The Tribunal notes that the current COVID-19 pandemic has caused considerable disruption worldwide and has resulted in travel bans and restrictions, social isolation and numerous other impacts on society aside from the obvious health ramifications.
No evidence was put before the Tribunal that the COVID-19 pandemic has any special application to the applicant. The applicant failed to provide additional information to the Tribunal about his genuine temporary entrant circumstances and so the Tribunal is again limited to the information before it. Consequently, the Tribunal gives no weight to this matter either in favour of or adverse to, the applicant.
Based on the above, and taking all matters into account, both in favour of and adverse to the applicant, on balance, 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.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Darren Renton
Member

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

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

[2020] AATA 3150

22 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice