Mohammed (Migration)

Mohammed (Migration) [2020] AATA 2974 (11 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Saddam Hussain Ali Mohammed
CASE NUMBER:  1903242
HOME AFFAIRS REFERENCE(S):          BCC2018/3167494
MEMBER:D Triaca
DATE:11 May 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 11 May 2020 at 11:02am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – enrolment in a registered course – limited academic progress – applicant changed to English and Vocational courses – gap in studies – financial hardship – relevance of studies to future employment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 363; Direction No 69
Migration Regulations 1994, Schedule 2 cls 500.212
CASES
Hasran v MIAC [2010] FCAFC 40
Saini v Minister of Immigration and Border Protection [2015] FCCA 2379
Saini v Minister of Immigration [2016] FCA 858
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 30 January 2019 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 22 August 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 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 applicants review application.
The Tribunal formally wrote to the applicant pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal on 17 April 2020. The invitation advised that, if the information was not provided in writing by the prescribed period, 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 applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The Tribunal is satisfied that the applicant was properly sent an invitation to provide further information under section 359(2) of the Act. The invitation was sent to the applicant‘s nominated address, being the address provided by the review applicants in connection with this application for review.
On 1 May 2020 the applicant responded to the Tribunal’s request in writing (359 Response) and provided the Tribunal with further documentation in support of the application.
In these circumstances, the applicant is not entitled to appear before the Tribunal: Section 360(3). Crucially, the effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.
It is appropriate to highlight that a decision maker is not required to make the applicant‘s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act 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 applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
In these circumstances, the Tribunal has proceeded to make a decision having regard to all the information before it, including the information previously provided by the applicant to the Department as well as information that may be discerned from the delegate’s decision itself. A copy of the delegate’s decision was provided to the Tribunal with the review application.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.
Genuine applicant for entry and stay as a student (cl.500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The critical issue is whether the applicant satisfies the primary criteria contained in cl 500.212 set out above. That clause states that for a student visa application to be successful the applicant must be a ‘genuine applicant for entry and stay as a student‘, in Australia.
The meaning of “genuine applicant” is well considered in Vu Vu (Migration) [2019] AATA 5740[1]. While not defined in the Regulations, the word ‘genuine’ may be taken to mean ‘authentic’, ‘real’ or ‘true’ according to its ordinary and natural meaning. In order to be regarded as genuine, the applicant must demonstrate an intention to stay in Australia for a limited time only – not permanently. That intention must be unqualified.[2]
[1] [21] – [35]
[2] See Saini v Minister of Immigration and Border Protection [2015] FCCA 2379, [23], upheld on appeal in Saini v Minister of Immigration [2016] FCA 858
The applicant is a 28 year old citizen of India. He arrived on 10 July 2016 on a student visa. On 22 August 2018 he applied for a further student visa. On 30 January 2019 a delegate of the Department refused his application (delegate’s decision). On 12 February 2019 he applied to the Tribunal for a review of the delegate‘s decision and provided the Tribunal with a review of the delegate’s decision.
The Tribunal has read and had regard to documentation provided by the applicant to the Department and the Tribunal including the delegate’s decision; 359 Response; Application for a student visa 22 August 2018; Confirmation of Enrolment (CoE) for Master of Business Administration (MBA) at Universal Business School, Sydney; CoE General English UK English College; Certificate of Completion Queen Anne English 8 Marcy 2019 and Academic Transcript CQ University Master of Management for Engineers; Offer from Group Colleges Australia; Passport; Identification Card; Certificate of Overseas Student Health Cover; GTE Statement of Purpose; Change of Circumstances Statement; Application for a Student Visa 22 August 2018; Genuine Temporary Entrant Statement; Statement of Purpose; Request for further information; PTE Academic Test Results; Financial Sponsorship Declaration Applicant’s father.
Prior to arriving in Australia, the applicant completed a Bachelor of Mechanical Engineering at Moghal College of Engineering in India.
The applicant arrived in Australia intending to study a Masters of Engineering Management at Central Queensland University. He provided the Tribunal with a copy of his academic transcript from CQ University recording his studies from 2016 and 2017 revealing mixed results. He passed three out of four subjects in first trimester. He passed one subject in second trimester. He passed one further subject in the third trimester.[3] He did not complete this course. He instead enrolled in an English course at Queen Anne English College in October 2018 and completed this course in March 2019. He enrolled in a further English course at UK English College in June 2019 and he completed this course in September 2019. He enrolled in a Masters of Business Administration at UBSS College in January 2020 and he is due to complete this course in December 2021. He states in his 359 Response that he has commenced the MBA and has recently completed first term and is waiting for his results.
[3] Summary of academic progress set out in the Statement of Purpose
This is a difficult application to assess. On the one hand, the applicant has potential and demonstrated ability to complete a Bachelor’s Degree. It is reasonable to expect that he attempt to follow this Degree with a Master’s Degree. However, his results are poor and it seems that he has not made any progress at a high level since 2017. He has resided in Australia for a period approaching 4 years and has accomplished relatively little. He did complete two English courses in 2018 and 2019. This is in his favour. However, the Tribunal regards these courses as being at a relatively low level when compared to the purpose of the applicant’s initial intentions. At the time of the delegate’s decision, the delegate expressed concern that the applicant had a 9 month gap in his studies between 11 November 2017 and 22 August 2018. In the time since August 2018, the applicant has completed only 2 general English courses. A review of the 359 Response appears to show further gaps in April – May 2019 and October – December 2019. The Tribunal considers his situation has not improved since the time of the delegate’s decision. Since November 2017 he has at least 14 months of not studying at all and a further 6 months studying at a relatively low level.
The applicant has set out in his statement of purpose reasons for his academic struggles. He says that he was beset by family issues and concerns for the health of his mother and grandparents. There was also a financial issue that led to him encountering difficulties at CQ University.
The applicant has set out in his statement of purpose reasons for his academic struggles. He says that he was beset by family issues and concerns for the health of his mother and grandparents. He says this “ruined and changed my study and working life”. He says further that his “health was not good” and his grandparents passed away during his course leading to depression, stress and homesickness.
He states that he was treated for stress and depression by a GP, although there is no evidence of any formal diagnosis of any mental health conditions or medical report that would allow the Tribunal to make any findings in relation to the extent of any mental health issues the applicant was suffering.
He states that he was late in enrolling his course leading to the cancellation of his enrolment. He has also provided evidence that he was unable to pay his fees due to a delay in receiving payments from his father in India due to a delay in International currency transactions and this led to a problem with his enrolment.
The Tribunal accepts that the applicant suffered difficulties due to concern for his family members. It is often difficult for international students, separated from their families, to deal with family issues in their home country and it is not far-fetched for the applicant to suggest that his studies were impacted by the family issues he was dealing with throughout his time in Australia. It also accepts his evidence that he had been unable to pay his fees for a short period due to an issue with an international transfer of funds referred to in the applicant’s Genuine Temporary Entrant statement. It accepts the applicant’s evidence in relation to the health of his mother and grandparents.
However, the evidence does not support the contention that the applicant’s studies in Australia were so adversely affected by these matters that the applicant’s studies in Australia were compromised to such an extent that he has been unable to complete more than a few subjects in his chosen course and two low level English language courses. The Tribunal considers that the applicant ought to have made greater academic progress in the time provided.
It also weighs against the application that he has provided no explanation, medical or otherwise, in relation to how he is now, in 2020, able to return to study at an MBA level in circumstances in which he had previously been unable to study effectively over a period of years. The Tribunal would expect that the applicant would be in a position to explain how he had been able to move past his issues and return to study at this level. This weighs against the application.
It weighs against the application that the applicant is now proposing to study an MBA rather than the Master of Management for Engineers that the applicant has partially completed. Whilst Direction 69 contemplates a change of career and study path for international students may be acceptable, the Tribunal considers that applicant’s earlier course is related to and follows naturally from the applicant’s studies in his home country. In these circumstances, the Tribunal would expect some explanation as to why the applicant was no longer pursuing an engineering pathway. He says that he hopes to “get some good job back in my home country“, so it is not as though his plans for the future are well advanced.
The applicant’s academic record weighs against the application. The Tribunal considers he has had sufficient time in Australia to complete the study of a Master’s Degree. He has not done so. Whilst the Tribunal is prepared to accept that there is some slowing of his progress due to his family issues their effect on him, the Tribunal does not consider that the evidence in relation to those issues sufficiently explains his lack of progress over a considerable period of time.
The Tribunal accepts that there is some value to the applicant in completing an MBA. However, due to the matters set out above, it is not convinced the applicant is likely to succeed in completing this MBA in light of his academic record.
The Tribunal does not consider that the evidence demonstrates that the applicant’s employment prospects and remuneration are likely to be improved by the successful completion of the proposed MBA course. The only evidence of the benefits of the proposed course is the applicant’s subjective views set out in his 359 Response. These views were provided without the context of any realistic assessment of applicant’s current circumstances. Whilst the Tribunal accepts there is an inherent value in completing an MBA, the applicant has not provided evidence to indicate the strength of his current employment prospects if he undertook no further study. The applicant holds a Bachelor of Mechanical Engineering and on any objective view is well qualified to find suitable employment with this qualification. The Tribunal does not accept his assertion that with his current skills he can “aim at a small scale with no room for advancement as I don’t have knowledge of business management,”[4] or that he feels no room for advancement with his current skills.[5]The Tribunal does not consider he has demonstrated that the completion of the Master’s course is likely to improve his employment prospects or his remuneration in his home country or a third country.
[4] 359 Response to how the applicant chose his education provider.
[5] 359 Response
The Tribunal does not consider the applicant has provided any reasonable reasons for not undertaking the MBA course in India. He does not appear to have considered whether an equivalent course available to him in his home country.
The applicant’s family is stated to be his parents, brother and sister residing in India. He has not seen his family since June 2017 when he returned home for 21 days. He says he speaks to his family daily through telephone and the internet. He says he has deep family roots in India. He is not married but plans to return home to marry an Indian girl after he completes his studies. The Tribunal considers that in circumstances in which the applicant has resided in Australia since 2016, is seeking to further extend his time here and seems to be managing his family relationships by telephone and internet, his personal ties to India do not operate as a significant incentive for him to return home.
There is no evidence the applicant has any specific ties to Australia that operate as a strong incentive to remain here.
There is no evidence in relation to the applicant’s circumstances in his home country relative to others there. He appears to have a reasonable understanding of his course and education provider. However, he does not seem to have realistic understanding of his current position insofar as the benefits that holding a Bachelor of Mechanical Engineering may provide him in his home country.
The applicant states, and the Tribunal accepts, that he has no concerns in relation to military service commitments in his home country.
The applicant states, and the Tribunal accepts, that he has no concerns in relation to political or civil unrest in his home country.
The evidence in relation to the applicant’s economic circumstances is as follows. He owns or will inherit a house in Hyderabad valued at $110,000 AUD. He says that his father did financially support him with a bank loan and has not sold the applicant’s house and will use the funds from the sale to support him financially in Australia. He works as a store-person for Murphy Produce and has done so since June 2018. He earns approximately $16,000 AUD. He says his annual expenses are approximately $22,800 per annum.
The Tribunal does not consider that ownership of overseas property operates as an incentive to return home. Property may be readily sold for cash or retained and utilised to produce income. It is difficult to glean from the evidence whether the applicant owns property, is benefit from the sale of property, or is likely to inherit property. In any event, the holding of such property is no effective incentive to return home.

Whilst the applicant’s ability to earn Australian Dollars through the course of ordinary employment may be an incentive to remain in Australia, considering his evidence is that his expenses outweigh his earnings, the Tribunal does not consider that his economic circumstances act as a significant incentive not to return home. Rather, the applicant’s economic circumstances appear to be a neutral factor on the application.
The applicant has travelled home once since first arriving in Australia. There is no evidence of any other travel and the Tribunal makes no adverse findings against him in relation to his travel or immigration history.
There do not appear to be any further issues relevant to the application.
Having regard to all the evidence before the Tribunal, the Tribunal does not accept the applicant is a genuine applicant. He has had a considerable opportunity to study in Australia and has not grasped that opportunity. Whilst there may be reasons that contributed to his poor performance, the Tribunal does not consider that the evidence presented demonstrated he was facing insurmountable hurdles and he ought to have made far greater progress in the time provided. It has no confidence that he is likely to commit himself to studying if given further chances. This, combined with the fact that he does not appear to have a significant incentive to return home leads the Tribunal to refuse the application.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
D Triaca
Member

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

Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
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 2974

11 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Intention