Mulyani (Migration)

[2020] AATA 1983

Mulyani (Migration) [2020] AATA 1983 (12 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Febrina Cahya Mulyani

CASE NUMBER:  1837616

HOME AFFAIRS REFERENCE(S):          BCC2018/4568576

MEMBER:Genevieve Cleary

DATE:12 June 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 12 June 2020 at 5:16pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – family ties in home country – lack of ties to the community in Australia – career goals – studying at level well below current qualifications – value of course – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 December 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 18 October 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.

3. 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 they were not satisfied that the applicant intends genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 7 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

5. Prior to the hearing the applicant sent to the Tribunal:

   ·The Decision Record of the delegate;

   ·A letter to the Tribunal 9 December 2018 from the applicant;

   ·A second letter to the Tribunal dated 18 September 2019;

   ·Documents from the Australian Institute of Language and Further Education;

   ·The applicant’s resume;

   ·Confirmations of Enrolment;

   ·Assessment results from YES Australia Education;

   ·Certificates from courses in Indonesia, including a Bachelor of Laws;

   ·The response to the Request for Student Visa Information form;

6. The Tribunal has also had regard to the Department file.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student.

   Genuine applicant for entry and stay as a student (cl.500.212)

9. 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?

10. 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.

11. 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 applicant’s circumstances in her home country

1. Prior to coming to Australia the applicant completed a Bachelor of Laws in 2014 and a ‘Training International Language’ course in 2016.  She had also been employed from 2012 to 2016, her last position being a ‘sales and marketing internship’ at a bank for 2 months in 2016.  She has also been a clerk, a cashier, a volunteer religious teacher and worked in sales and marketing.

2. The applicant’s family is large and she does not have any family in Australia. She has retained friends in Indonesia, whom she met whilst working and studying before she came to Australia. Her ties to her family and friends in Indonesia and her lack of ties to the community in Australia suggest that she has some incentive to return to Indonesia and this is to be given a little weight in her favour.

3. The applicant is not subject to national service and there is no political or civil unrest or economic reasons that would be cause for the applicant not to return to Indonesia, or provide an incentive for her not to return, and the Tribunal gives these factors some weight in her favour.

The applicant’s reasons for coming to Australia, the course of her education in Australia and the value of that education to her future

1. When the applicant finishes her studies here, she will return to Indonesia and work in administration, she wants to become a manger of a company, such as a mining company.  She envisaged that she would gain employment managing in human resources.  She is studying in Australia because education is well-regarded in Australia, and a qualification from Australia garners higher respect than a qualification gained in Indonesia. The Tribunal accepts that wanting to gain a further qualification in Australia, in English is a reasonable reason to travel to and study in Australia, rather than studying in her home country and the Tribunal gives this a little weight in her favour.

2. At the time of the hearing the applicant was studying a Certificate IV in Business. She came here originally to study English, and then business, the latter of which she wanted to do because she felt she was business-minded, hoping to one day have her own business.  She also wanted to study “about people” in business. When she was studying in Indonesia, she had her own business selling accessories and clothing online.  She sold to the public in Indonesia, which included her friends from school.  The business had approximately 100 customers, although she was not sure exactly how many. The business ran for over a year while she was studying at university.  She did not have a website – she had joined with another company, meaning she joined a multi-level group like Amway or Tupperware.  Effectively, she was a sales person for that umbrella company. 

3. While she was at high school she also had a small business – she assisted people who had cooked, and she brought the food to school, and others bought the food from her. 

4. While the applicant did not say what business she wanted to start, she nevertheless appears to have thought about her future, a factor which is addressed below in these reasons. 

5. The applicant originally entered Australia in October 2016 on a working holiday visa.  She came here to be an au pair, renewing her visa in August 2017, however she did not continue as an au pair- she worked at a farm, pruning grapes.  That visa expired in October 2018.  It was then that she decided to apply for a different type of visa.  It was her plan, before she came to Australia, to study, however, her uncle suggested she work first, before studying, because it would help her to understand whether she could live in Australia – otherwise, she might apply for a Student visa and find she did not like being in Australia, and she would have wasted her money.

6. She did not work as lawyer in Indonesia after graduation.  She said that she did not want to be a lawyer, and never intended to be.  She merely wanted to complete a law degree, but concentrating on business. She was asked if the Bachelors degree she had entitled her to practice, and she told the Tribunal that it did not.  The applicant was asked what she would have to do to practice, and she told the Tribunal that she would have to study for a further year or 2 to be a lawyer. That extra study would be a continuation of law, however she was not sure what that would entail because she was never interested in completing that part of her law degree.

7. The applicant told the Tribunal that in Indonesia, to be a manager in human resources, she had to have a law degree.

8. She is also enrolled in a Diploma of Leadership and Management, and the Advanced Diploma of Business.  She decided to enrol in the Certificate IV in Business in 2018, after she arrived in Australia.  Before she came to Australia she wanted to study ‘business of law’ so that she could understand the regulations and legal subjects that she would need to set up a business. She clarified that that meant that subjects that she studied would be both legal subjects, and subjects that would assist her in running a legal business or office.  In her response to the Request for Student Visa Information form the applicant said that upon return to Indonesia she would like to work as a coordinator, team leader and manager after she has the required work experience. She felt that with her understanding of the law and with business and management knowledge and skills she would have high chances of landing a ‘great job.’ She felt that English would assist as well.  In the form she does not designate where she intended to look for such a job, however, she said that while her last job in Indonesia earnt her $400 per month, with the Australian qualifications she would start a job on $700 per month, reaching $900 per month if she eventually moved to a managerial position. She obtained this information from a job search website.

9. I asked her why she said that she wanted to work in a multi-national mining company, if she came to study so she could learn about running her own business, which sounded like a legal business.  In her two letters sent to the Tribunal prior to the hearing, the applicant has also said that she would like to work in “a law firm and multinational company” as a coordinator or team leader.  She said in her letter of 9 December 2018 that to be a coordinator and team leader meant that she would need to learn, as well as English, how to lead and manage effective workplace relationships, manage meetings, lead and manage team effectiveness, and so on.

10. There was a lack of detail and some inconsistencies in the applicant’s evidence, even allowing for the fact that she was speaking through an interpreter, about what the applicant intends to do when she returns to Indonesia.  In summary, it appears that while she has some ideas that she wishes to work in human resources and management, possibly either returning to a firm at which she previously worked or another type of company,  or a law firm, it seems that she simply intends to obtain the qualification and then go back to Indonesia to see if she can become employed there.

11. I also asked her why she is now focused on human resources, and whether she intended to actually study a dedicated human resources qualification.  She said that some of the subjects, and two units in particular, in the Certificate IV focused on human resources.  Documents the applicant provided from the college at which she is studying the diploma course show that she has completed some subjects which appear to have human resource – type content.  She said that she was not sure whether the other courses she was enrolled in had any focus on human resources.  The last course she intends to complete is the Advanced Diploma in Business.  She confirmed that she had no intention of completing further legal studies, or any human resources specific courses.  She has looked into a human resources diploma, however, having spoken to her agency, she understands that the subjects she was now completing would also be covered in that human resources course.

12. The applicant said she has family in Jakarta, and they will assist her to find employment.  In addition, before she came to Australia she worked in a mining company, and her boss told her that when she returned to Indonesia she could be re-employed.  She agreed that she had not provided any documentation about that.  Her resume said that at that company she was a ‘general staff member,’ which meant that her boss would ask her to organise the payments, and assist with payments for purchasing.  She agreed she was an office clerk.  This was not while she was studying.

13. The applicant does not have family in Australia, and is not in a relationship.  There is no evidence that the applicant has entered into a relationship of concern, and there is no evidence that she is in a relationship at all in Australia, and the Tribunal gives this limited weight in her favour. 

14. In Australia, the applicant has had employment since October 2016 as an au pair and grape pruner, as she told the Tribunal, until 2017. In October 2017 she was employed as a room attendant at a city hotel and then approximately six months later she became a room attendant at another hotel. She then became an au pair again in February 2019, finishing that position in August 2019. The applicant has been constantly employed, both on her working visa and on her Student visa since arriving in Australia.

15. While it may be that the applicant came to Australia on a working holiday prior to enrolling in any courses, this Student visa application, the refusal of which is the subject of the current review, is the first Student visa application the applicant has made. Despite it being refused in December 2018, she has continued to study.  This can be given a little weight in her favour.

16. While on some occasions the fact that a person is studying courses at a level well below their current qualifications may mean that they are using the student Visa regime to maintain ongoing residence in Australia, I accept that in the case of this applicant, she is wishing to add value to her law degree. To become a manager or team leader it is not necessary for her to achieve a qualification at the same level as her law degree in business or leadership and management, particularly given she already has a law degree. She has had no changes in course direction since her initial enrolments, albeit she completed English courses prior to commencing the business course.

17. Although as has been expressed above, her plans regarding her future employment are somewhat vague, they at least show a natural progression from her law degree to a business and management focus of employment. This also appears to be supported by her previous employment, albeit that it was at the intern and clerkship level.

18. While the applicant does not, either economically or in relation to personal ties, appear to have a significant incentive to return to Indonesia, neither can the Tribunal find, on the evidence, that she has a strong incentive to remain in Australia, or that there is any evidence that her wanting to study in Australia is her using the Student visa programme to circumvent the intentions of the migration programme, and this must be given some weight in her favour.

19. Weighing all of these factors together, the Tribunal accepts that the applicant does have a genuine intention to return to Indonesia to pursue a career that is supported by both what she has learnt in her law degree and further business and leadership skills. Although it may be, even on her evidence in relation to likely salaries, that to remain in Australia as a hotel worker, is an attractive proposition, the applicant has studied and achieved a qualification in law and, having heard her evidence, and heard her speak about her intentions for her future, it does not appear that working in a hotel is what she would be satisfied with. All of these factors weigh in favour of her continuing her studies and being granted a Student visa to do so. They therefore weigh against the Student visa been refused.

The applicant’s travel and visa history

1. The applicant returned to Indonesia for a visit in 2017 and 2018 and had planned to return for a visit after the Tribunal hearing. She travelled to Singapore for work in 2015, and has otherwise travelled there and to Malaysia and Thailand to visit relatives or for holidays.  There is no indication that she has breached any entry or visa conditions in those countries, and this can be given minimal weight in her favour.

2. There are no other outstanding visa applications yet to be finally determined.  There is no evidence that any of the applicant’s family have an immigration or visa history of concern.  The applicant has not had a visa refused elsewhere or considered for cancelation anywhere. The Tribunal gives the applicant some weight in her favour for those factors.

Any other relevant matters

1. The Tribunal is satisfied that there are no other relevant matters for consideration in relation to this applicant.

Whether the applicant is a minor

1. The applicant is not a minor and therefore the intentions of a parent, legal guardian or spouse of the applicant are not a relevant factor.

2. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

   Does the applicant intend to comply with visa conditions?

3. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

4. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed in some cases (cl.500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).

1. The applicant has travelled relatively extensively through Asia and there is no indication that she has breached travel or visa conditions in any other country.  She confirms that she is willing to abide by conditions imposed, should she receive her Student visa.  There is no indication that she has breached any conditions of any of her visas in Australia, and combined, these factors weigh in her favour.

2. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

   Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

3. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

4. Having considered all that the applicant has told the Tribunal and Department, orally and in writing, the Tribunal is satisfied that there are no other relevant matters to consider in addition to those already considered in cl500.212(a) and 500.212(b).

5. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

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

   DECISION

7. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

   ·cl.500.212 of Schedule 2 to the Regulations.

   Genevieve Cleary
   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.