Mothukapally (Migration)

Mothukapally (Migration) [2019] AATA 4728 (13 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Raja Rahul Mothukapally
CASE NUMBER:  1725033
HOME AFFAIRS REFERENCE(S):           BCC2017/2954060
MEMBER:T. Quinn
DATE:13 July 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 13 July 2019 at 10:31am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) –genuine intention to stay in Australian temporarily – no response to Tribunal’s communication – circumstances in home country and Australia – unexplained failures to continue studies and complete courses – unexplained changes of course and career pathways – incentives to return or stay – visa sought primarily to maintain residence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359C(1), 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

CASE
Baker v Minister for Immigration and Citizenship [2012] FCAFC 145
Chen v Minister for Immigration and Border Protection [2017] FCA 46
Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345
FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555
Hasran v MIAC [2010] FCAFC 40
Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112
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 (‘the delegate’) on 25 September 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).
The applicant applied for the visa on 17 August 2017 (‘the application’). At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
On 25 September 2017, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that the applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.
On 14 October 2017, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.
The applicant was assisted in relation to the review by their registered migration agent.
More than 20 months have elapsed since the making of the delegate’s decision and the applicant’s application for review with the Tribunal. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed during that time. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information to the Tribunal for the purposes of determining the outcome of their application for review. To this end, on 12 April 2019, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’). The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by the prescribed date, being 26 April 2019, 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. The Tribunal is satisfied that the applicant was properly sent an invitation to provide further information under section 359(2) of the Act.
The review applicant did not provide the information within the prescribed period or otherwise and no extension of time was requested. Where a review applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action.[1]
[1] Pursuant to section 359C(1) of the Act.
The Tribunal finds that the review applicant did not provide further information as requested. In these circumstances, section 359C of the Act applies and pursuant to section 360(3) of the Act the review applicant is not entitled to appear before the Tribunal. 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 him or her to appear.[2]
[2] Hasran v MIAC [2010] FCAFC 40.
The Tribunal, therefore, has no additional information relating to the applicant’s visa application beyond that which was before the delegate on 25 September 2017 and is otherwise discernible from the delegate’s decision and Department file.
It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.
The Tribunal has proceeded to a decision having had regard to all the information before it, including the information previously provided by the applicant to the Department but without taking further steps to obtain the additional information sought by this Tribunal under section 359(2) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
STATUTORY FRAMEWORK
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant.
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 clause 500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (‘the Direction’), made under section 499 of the Act. The Direction requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
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 Direction is a lawful direction of the Minister made in accordance with section 499 of the Act. The Tribunal is therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[3] Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before the Tribunal. The Tribunal, however, recognises that it is an independent statutory body. It must therefore reach its own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate.
[3]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a 29 year old male Indian citizen who first arrived in Australia on 12 August 2015 on a TU-573 Higher Education Sector Student visa.[4] On 17 August 2017, the applicant lodged the present application for a Vocational Education Sector Student visa which is the subject of this review.[5] The applicant’s first visa was under the Streamlined Visa Processing arrangement based on the applicant’s enrolment in a Master of Information Technology in the Higher Education Sector.[6] His present application is for the purposes of studying a Diploma and Advanced Diploma of Hospitality Management with the Diploma to be completed in October 2018 and the Advanced Diploma to be completed in November 2020.[7] So far as the Tribunal can ascertain from the material before it, it appears that the applicant has not departed Australia since his arrival in 2015, a period of nearly four years now.[8]
[4]See delegate’s decision.
[5]See delegate’s decision.
[6] See delegate’s decision.
[7]See delegate’s decision.
[8]See delegate’s decision and applicant’s application at page 7 of the Department file which states the applicant has not undertaken any international travel in the 10 years preceding his application to the Department.
Prior to coming to Australia, the applicant completed secondary school in India followed by a Bachelor of Information Technology degree in November 2012 in India.[9] There is no material before the Tribunal about how the applicant spent his time between completing the latter of these studies in late 2012 and his arrival in Australia in August 2015. In his application to the Department, the applicant lists his employment situation as ‘student’.[10]
[9]See pages 9 and 24 of the Department File.
[10] See delegate’s decision and page 8 of the Department File.
The delegate’s decision outlines the applicant’s study and visa history since his arrival in 2015. The applicant commenced and completed English for Academic Purposes 2 from 10 August 2015 to 16 October 2015 and then commenced his Master of Information Technology in November 2015 but ceased this study after only five months studying, his enrolment for this course being cancelled on 21 April 2016 due to failure to re-enrol and continue studies. The applicant then enrolled in a Diploma of Leadership and Management which commenced in May of 2016 but which was also cancelled.[11] The applicant has not been enrolled in a Higher Education Sector course since 21 April 2016, which is a breach of the condition of his Higher Education Sector visa. The applicant has also failed to make adequate academic progress which is a condition of all student visas. So far as the Tribunal can ascertain from the material before it, it appears that the only course the applicant has completed in a period of nearly four years onshore is an English course. This is not the academic progress one would expect of an individual who has been onshore for a number of years on the basis of a student visa, particularly a Higher Education Sector visa through a streamlined arrangement. The applicant has not proffered any explanation for these breaches of his visa conditions. The Tribunal is concerned by the applicant’s conduct and considers it demonstrates a lack of intention to adhere to and abide by the conditions of any visa granted.
[11] See delegate’s decision.
In his genuine temporary entrant statement in his application to the Department (‘the GTE’)[12], the applicant provides only one sentence in support his application. This states he wishes to ‘gain a qualification to present it in India for better job and business opportunities in hospitality industry which is growing at very rapid rate’. The applicant does not provide any detail in relation to the sort of hospitality employment he would seek and/or what sort of role he would hold in such a position, what sort of responsibilities he would have, what sort of remuneration he could expect to receive using the qualifications gained and how, specifically, the proposed qualification would assist him in that role. The Tribunal does not consider the applicant has demonstrated how the proposed study is relevant to and would assist and improve his employment prospects.
[12] See delegate’s decision and page 9 of the Department File.
The Tribunal also notes that the proposed study is not consistent with his current tertiary level of education obtained in India. Whilst the Tribunal allows for reasonable changes to career and study pathways, the applicant has not provided any explanation for his change from the field of information technology which includes study at the tertiary level, to a vocational sector level study in the field of hospitality. The Tribunal is puzzled by this change and lack of explanation and holds concerns it may reflect a motivation in the applicant that involves factors other than study. The applicant’s claims in the GTE are so brief and general in relation to his future career goal and the application of his studies in Australia to that goal that the Tribunal cannot form any firm conclusions in his favour. Further, it is not clear whether the applicant is actually engaging in the proposed studies or what progress he has made over the last nearly two years. This is aggravated by his failure to respond to the s359(2) letter where he had an opportunity to provide such information. The Tribunal is particularly concerned about the applicant’s academic progress as the material before the Tribunal appears to indicate that the only study the applicant has completed in his nearly four year period onshore is an English course, he has a history of breaching his student visa conditions and, importantly, the applicant would have completed his Diploma in October of last year if he had been engaging with it as proposed at the time of his application to the Department. Due to delays in his matter coming before the Tribunal, the applicant should have now completed the proposed Diploma and be nearly half way through the Advanced Diploma but there is no evidence before the Tribunal that the applicant has made such (or any) progress in the proposed course. Given the applicant’s previous study and noncompliance history, the Tribunal holds real concerns the applicant is not engaging with his studies and using the student visa programme to circumvent the intentions of the migration programme.
The applicant provides no detail in relation to his personal ties in Australia. Given his residence onshore for nearly four years, lack of any travel outside Australia in that time and limited academic progress made, the Tribunal considers the applicant has a preference to remain onshore. It is reasonable to conclude that, after nearly four years, the applicant has cultivated a satisfactory life and has established strong ties to the Australian community. As each day passes, those ties strengthen.
The applicant has indicated he has his parents’ financial support in relation to his expenses in Australia and has obtained a student loan to the value of approximately $33,000AUD.[13] The applicant has provided very little information in relation to his economic circumstances in India or Australia outside of this. The delegate’s decision indicates the applicant may not have been forthright in his employment circumstances onshore in stating his employment situation is ‘student’, however, the Tribunal has no evidence from the applicant in relation to his economic and employment circumstances onshore. The Tribunal notes that the United Nations Human Development Index ranks India as 130^th in the world as compared to Australia’s ranking of 3^rd in the world.[14] Taken as a whole, the Tribunal considers that the evidence before it indicates that the applicant’s economic circumstances in Australia may be acting as a significant incentive for him to not return to his home country.
[13] See pages 9 and 20-23 of the Department File.
[14]See Table 1 of United Nations’ Human Development Indices and Indicators 2018 Statistical Update <>
The Tribunal notes that the applicant has both parents, and one sister in India and one sister in the United States of America.[15] There is no evidence that the applicant has returned to his home country in the nearly four years he has been onshore or that he has particular personal ties that would serve as a significant incentive for him to return to India. Despite references to an intention to return to India in the GTE, it appears to the Tribunal that if there is any such incentive, it is not a significant incentive and is outweighed by the applicant’s desires and incentives to remain onshore.
[15] See pages 10-11 of the Department File being the applicant’s application form.
The applicant has not proffered reasonable reasons for not undertaking the study in his home country. This is of concern for the Tribunal as it is fair to assume similar courses would have been available to the applicant in India without the expense of living in Australia.
There is no evidence before the Tribunal that the applicant has had any travel, visa or immigration issues in the past outside of those listed above. However, the breaches of his visa conditions since his arrival onshore are of concern to the Tribunal.
The Tribunal has not been provided with information regarding the following factors indicated by Direction 69: any potential military service in India, political or civil unrest circumstances in India or the remuneration the applicant could expect to receive in India or a third country compared with Australia. Accordingly, these factors have no bearing, either favourable or unfavourable, in the present application for review.

There is not sufficient evidence before the Tribunal, to satisfy the Tribunal that the applicant genuinely intends to stay in Australia temporarily. In making this comment, the Tribunal places weight on: the length of time the applicant has been onshore for, being nearly four years; the lack of travel home undertaken by the applicant in that time; the lack of academic progress the applicant has made in his time onshore; the applicant’s breaches of the conditions of his student visa; and the lack of information or detail provided by the applicant in relation to his future goal and how his qualifications will specifically assist in that goal. Taken as a whole, the information (and lack thereof) provided by the applicant in relation to his application raises questions for the Tribunal about the applicant’s true intentions in his residence in Australia. The Tribunal considers that the visa is being sought primarily to maintain residence in Australia.
Having had regard to the applicant’s circumstances, his immigration history and all other relevant matters, the Tribunal cannot be satisfied that the applicant is a genuine applicant for entry and stay as a student temporarily as required by clause 500.212. Accordingly, the applicant does not meet clause 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. Therefore, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
T. Quinn
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 4728

13 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction