Mootoosamy (Migration)

Mootoosamy (Migration) [2019] AATA 1799 (16 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Saraspadee Mootoosamy
CASE NUMBER:  1723765
HOME AFFAIRS REFERENCE(S):           BCC2017/1572893
MEMBER:Douglas Shirrefs
DATE:16 April 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 16 April 2019 at 10:46am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not genuine temporary entrant – multiple previous visas – in Australia for more than 9 years – completed 7 courses – returned home once for 42 days – using temporary visa to maintain residence in Australia – economic ties to Australia – strong incentives to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 499
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

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 Immigration and Border Protection on 20 September 2017 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 2 May 2017. 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 delegate was not satisfied that the applicant intends genuinely to stay in Australia temporarily.
The Tribunal sent the applicant an invitation to provide information (the s. 359(2) request) pursuant to s.359(2) of the Act on 21 February 2019. The applicant provided a response to the s. 359(2) request on 6 March 2019 (the s. 359(2) response) and attached a copy of an unofficial unit progress summary in the Diploma of Leadership and Management between 10 May 2017 and 31 March 2018.
The applicant appeared before the Tribunal on 1 April 2019 to give evidence and present arguments. At the hearing she provided the Tribunal with a typed letter dated 29 March 2019 addressing the “Genuine Temporary Entrant Criterion” (the GTE Submission).
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 intends genuinely to stay in Australia temporarily.
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 considered each of the factors specified in the Direction 69 in coming to its decision.
Background and applicant’s immigration history
The Tribunal has considered clause 13 and 14 of Direction 69 with respect to the applicant’s immigration and travel history.
The applicant first arrived in Australia on 2 February 2010 on a Student (Class TU subclass 500) visa in the 572 (vocational education and training) stream, after having been granted that visa offshore on 13 January 2010. The applicant has held a further two student visas, a graduate work stream visa and associated bridging visas. The s.359(2) response from the applicant accords with this as did her evidence at the hearing.
The applicant gave evidence that she had no other current applications for an Australian visa under consideration. The applicant’s s.359(2) response stated that the applicant has never been refused a visa to any country or held a visa that has been cancelled or considered for cancellation. The evidence of the applicant’s past history of visas is accepted.
The applicant’s s.359(2) response indicated that she had travelled back to Mauritius on a single occasion during June 2013 for about 1.5 months. In her oral evidence the applicant was not sure of the year of this travel but confirmed she had left Australia only once during her residence here. The Tribunal accepts this evidence as to the applicant’s travel during his period of stay in Australia.
The applicant gave evidence that her parents have visited her a couple of times since her arrival in Australia but not after 2017. She said she has had no other visitors. This evidence is accepted.
In the application under review the applicant applied for a Student (subclass 500) visa on 2 May 2017. A decision to refuse that visa was made on 20 September 2017.
At the time of the department’s decision, (AAT Folio 6) the delegate noted that the applicant has been enrolled in 11 courses since arriving in Australia. The courses cover four areas:
a.Diploma level study in community welfare and community services;
b.Certificate III and Certificate IV commercial cookery;
c.Diploma and advanced Diploma in hospitality; and
d.Diploma of Leadership and Management and Advanced Diploma of Leadership and Management.
The applicant’s s.359(2) response disclosed 5 courses:
a.Diploma of community welfare work completed May 2012;
b.Certificate III in commercial cookery completed October 2015;
c.Certificate IV in commercial cookery completed March 2016;
d.Diploma in hospitality completed September 2016; and
e.Advanced diploma in hospitality completed in March 2017.
The applicant gave evidence at the hearing that she was currently enrolled in an Advanced Diploma of Leadership and Management, having completed Diploma of Leadership and Management in 2018.
The applicant has now been in Australia for more than 9 years. The Tribunal finds that the applicant’s background of studies in Australia is no less than the 7 courses outlined in her s.359(2) response and her evidence at the hearing. The Tribunal notes the change in pathway the applicant made from community welfare to hospitality and allowance is made for that change. After changing pathways, the applicant has completed certificate III in commercial cookery, certificate IV in commercial cookery, diploma in hospitality, advanced diploma in hospitality, advanced diploma in hospitality and a diploma of leadership and management. She is currently enrolled in the advanced diploma of leadership and management. She gave evidence she did not intend to study further`.
The Tribunal considers that the applicant has had an opportunity to complete a substantive number of courses in related and complementary subjects at the vocational level. She has progressed from cookery to hospitality to leadership and management. These courses provide a relevant body of education to support her career aspiration of working in hospitality, which see described as to become a hospitality leader or hotel manager. The tribunal finds that her background and immigration history do not support her claim to be a genuine temporary entrant.
The Tribunal is also concerned that the applicant’s travel history is more consistent with an intention to use the temporary visa as a means for maintaining ongoing residence. The applicant has now been in Australia for more than 9 years, or 3285 days. During that period she has returned home once for about 42 days. She told the Tribunal she has not travelled anywhere other than in Australia since arriving here. The tribunal finds that the applicant’s length of stay in Australia and her absence of departures is not supportive of a desire to return to her home country.
The applicant’s s.359(2) response indicated that she had no plans to travel in the next three months from the date of 6 March 2019, when she signed the document. In her evidence at the hearing the applicant said that after her current course she is thinking about going home, but that she had “no plans yet” and will be making them soon.
On balance, and after regarding the matters in clause 13 and 14 of Direction 69 carefully, the Tribunal concludes that the applicant’s immigration and travel history support a finding that the applicant is using the student visa program to circumvent the intentions of the migration programme, not as a genuine temporary entrant. The significant period of time she has been in Australia and the lack of regular departure also support a finding that her incentives to stay in Australia outweigh any incentives she has to depart.
The applicant’s circumstances in their home country
The Tribunal has considered the factors in clause 9 and 10 of Direction 69 with respect to the applicant.
The applicant came to Australia from Mauritius after completing her high school certificate and studying a secretarial course. She told the Tribunal she was then employed in a secretarial role for approximately 4 years, which approximately concords with her s.359(2) response (AAT Folio 25). She further told the Tribunal she had earned about $6,000.00 AUD annually in that role.
The applicant stated her preference for studying in Australia in her s.359(2) response (AAT Folio 20) as being due to the reputation and quality of the training available. She did not go into evidence as to why she did not undertake the study in Mauritius. The Tribunal has given this regard and her preference for studying in Australia is not weighed against her.
The applicant said she has a father and mother and brother in Mauritius, who are retired. Her father was government employee and receives a pension. Her brother works in the government sector as a leader. She said she speaks to them 3 or 4 times a week. She also claimed to have friends in Mauritius she stays in touch with. She said she has no family in Australia and has some friends in Australia she catches up with every 2 weeks or so. This evidence is accepted. The Tribunal gives no weight to this adverse to the applicant.
The Tribunal notes that the applicant has now been in Australia for more than 9 years, or 3285 days. During that period she has returned home once for about 42 days. She told the Tribunal she has not travelled anywhere other than in Australia since arriving here. Although the applicant asserts a close relationship with her family, the tribunal finds that the amount of time the applicant has spent in Australia is difficult to reconcile with that proposition and her claim to be a genuine temporary entrant. Further, while her family visiting her in Australia is evidence of the closeness of the family, it is not evidence of an incentive to return to her home country for the purpose of maintaining family relationships. On balance, and having regard to the evidence, the Tribunal considers that the significant period of time she has been in Australia and the lack of regular departure suggests her personal family ties to her home country are not strong. The Tribunal is not satisfied the applicant’s personal ties to her home country serve as a significant incentive to return.
The applicant described her career prospects in Mauritius favourably, stating in the GTE Submission that her future career back home in Mauritius offered “lots of job prospects”. The GTE Submission further stated that “having a diploma in leadership and management provides a repertoire of tools, skills and knowledge that facilitates advancement in my career to a managerial position and on top of that it will benefit me a very good salary”.
The applicant gave evidence that she expects to earn about $30,000.00 annually if she returns to Mauritius and works in hospitality management. She gave no evidence as to the likely expenses she would incur living in Mauritius.
The applicant’s studies in Australia have well prepared her for the very career she says she aspires to. Yet, when she completed her Advanced Diploma in Hospitality in March 2017, she remained in Australia. The Tribunal considers that, objectively, the applicant had more than sufficient skills, knowledge and qualifications, to embark on her career at that time. Her decision to remain in Australia beyond that time is contrary to an intention to return home to pursue her stated career objectives.
Having carefully considered all the evidence in relation to the applicant’s economic circumstances the Tribunal finds it difficult to reconcile the opportunity she would have to progress her career if she returned to Mauritius with the length of her period of residence in Australia. Indeed, accepting her evidence, it seems her economic circumstances in Mauritius would compare favourably to those in Australia.
The Tribunal has carefully considered the applicant’s evidence and the matters in clause 9 and 10 of Direction 69. Weighing the evidence and considering her personal circumstances objectively, the Tribunal finds that the applicant’s personal ties to her home country do not serve as a significant incentive to return to Mauritius.
There is no relevant evidence regarding the applicant’s circumstances in their home country relative to others in that country and the Tribunal makes no finding in that regard.
The applicant’s potential circumstances in Australia
The Tribunal has considered the factors in clause 11 of Direction 69 with respect to the applicant.
The applicant has been employed on an ongoing basis as a guest services agent at Rendezvous Hotel for 4 years. She said she works 20 hours per week and earns between $700.00 and $800.00 per fortnight. The applicant gave evidence at the hearing that her father sends her about $600.00 every two months per Western Union. Assuming the midpoint of her estimated salary and adding it to the money sent by her father, the applicant has annual income of about $23,000.00 while living in Australia.
In her s.359(2) response (AAT Folio 19) the applicant states her annual salary to be $15,300.00 and her living expenses in Australia to be $16,020.00. This evidence of income is inconsistent with the evidence she gave at the hearing. Further, the s.359(2) response states the applicant’s rent as being $700.00 per month. Her evidence at the hearing was that she pays $500.00 per month. The applicant seemed unsure at the hearing whether her s.359(2) response was completed by herself or by someone else. Given the uncertainty about how the s.359(2) response was created, the Tribunal prefers the oral evidence of the applicant as to her income and expenses.
The Tribunal accepts the oral evidence of the applicant that she does not send money back to Mauritius.
The applicant gave evidence that her desired area of study had evolved over the time she had been in Australia. The Tribunal finds that the applicant has spent time researching different areas of study and accepts that the applicant’s career objectives have evolved over time. The applicant was familiar with, and had a favourable view of the Imperial College where she is currently studying. The Tribunal has made allowance for the applicant’s change in career pathway and it is not weighed against her.
Although her evidence suggest that the applicant could earn more in Mauritius than she currently does, the Tribunal finds that proposition to be difficult to reconcile with the length of stay of the applicant in Australia and her failure to act to advance her career at times when she clearly could have. The applicant’s evidence discloses that she is currently earning about $23,000.00 in Australia, which is almost 4 times greater than the salary she earned previously in Mauritius - about $6,000.00 AUD annually in a secretarial role (see paragraph 26 hereof). The Tribunal is concerned that the applicant’s economic ties to Australia would present as a strong incentive to remain in Australia.
On balance, and having regard to all the circumstances of this case, the Tribunal is of the view that the student visa programme is being used by the applicant to circumvent the intentions of the migration programme and that the student visa is being used to maintain ongoing residence in Australia.
Value of the course to the applicant’s future
The Tribunal has considered the factors in clause 12 of Direction 69 with respect to the applicant.
The applicant described her career prospects in Mauritius favourably, stating in the GTE Submission that her future career back home in Mauritius offered “lots of job prospects”. The GTE Submission further stated that “having a diploma in leadership and management provides a repertoire of tools, skills and knowledge that facilitates advancement in my career to a managerial position and on top of that it will benefit me a very good salary”.
The applicant gave evidence that she expects to earn about $30,000.00 annually if she returns to Mauritius and works in hospitality management. She gave no evidence as to the likely expenses she would incur living in Mauritius.
Allowing for a complete change in her career pathway from community work to hospitality, the applicant has been qualified in commercial cookery since March 2016 and in hospitality since March 2017. She has completed a diploma in leadership and management and is in the final stages of completing her advanced diploma of leadership and management. She has been working in the hotel industry since March 2015 and remains in that role.
The applicant’s studies in Australia have well prepared her for the very career she says she aspires to.

The Tribunal has considered the applicant’s evidence, including the GTE Submission. It is not satisfied that the applicant’s reason for wanting to remain in Australia is that her current course of study would improve her prospects on return to Mauritius. Having weighed the evidence of the applicant and the whole circumstances of the case, the Tribunal finds that the applicant is using the current course of study primarily to maintain residence in Australia.
The applicant confirmed to the Tribunal at the hearing that she has no military service commitments or concerns about political or civil unrest in her home country of Mauritius and in the GTE Submission she stated that “it doesn’t hinder me to resettle back in my country again after long years”.
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.
Douglas Shirrefs
Member

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

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

[2019] AATA 1799

16 April 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Intention

Jurisdiction

Statutory Construction