NIROULA (Migration)

NIROULA (Migration) [2020] AATA 2721 (1 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Riju NIROULA
Mr Jiwan Shrestha
CASE NUMBER:  1816808
HOME AFFAIRS REFERENCE(S):          BCC2018/1778230
MEMBER:Elizabeth Tueno
DATE:1 June 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 01 June 2020 at 2:18pm
CATCHWORDS
MIGRATION - Student (Temporary) (Class TU) – Subclass 500 – not a genuine temporary entrant – fifth student visa application – enrolment in various courses – did not obtain temporary work visa – using the student visa program to maintain ongoing residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 500.212(a)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 June 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 23 April 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas 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). The delegate was not satisfied that the information provided by the applicant about their circumstances in their home country, their potential circumstances in Australia, the value of the course of study, immigration history and other matters demonstrated that they were a genuine temporary entrant in Australia.
The applicants appeared before the Tribunal on 28 April 2020 by telephone to give evidence and present arguments. The applicants were assisted in relation to the review by their registered migration agent, although the agent did not attend the hearing.
For the following reasons, the Tribunal has concluded that the matter 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 had regard to the applicant’s oral evidence at the hearing, the Department’s file as well documents provided to the Tribunal by the applicant including:
·     Various academic documents in relation to past studies in Australia;
·     Relationship verification in relation to the applicant and her parents;
·     A letter dated 6 July 2018 to the applicant’s previous migration agent regarding their failure to apply for a subclass 485 visa as per instructions;
·     Complaint made by the applicant against the previous migration agent to the Office of the Migration Agents Registration Authority;
·     Text messages between the applicant and the previous migration agent;
·     Written submissions dated 27 November 2019 from the applicant;
·     Offer of employment dated 11 November 2019; and
·     Confirmation of enrolment for past and current courses.
The applicant is a 30-year-old married woman from Nepal. She arrived in Australia on 7 July 2009 on a student visa. She has resided in Australia on temporary student visas since then. This is her fifth application for a student visa. During her time in Australia, the applicant has been enrolled in a number of courses including:
·     A GCA course – withdrawn;
·     Certificate II in Business – completed on 25 November 2011;
·     Certificate III in Business – completed on 16 March 2012;
·     Certificate IV in Small Business Management – completed on 31 August 2012;
·     Diploma of Management – completed on 15 March 2013;
·     Advanced Diploma of Management – completed on 30 August 2013;
·     Bachelor of Business – completed on 13 March 2015;
·     Master of Professional Accounting – completed on 12 April 2019;
·     Certificate IV in Technology – did not complete and was released from this course; and
·     Diploma of Leadership and Management – completed on 7 July 2019.
The applicant is currently enrolled and studying an Advanced Diploma of Leadership and Management, which commenced on 7 October 2019 and will end on 4 October 2020.
CIRCUMSTANCES IN THE APPLICANT’S HOME COUNTRY
The applicant stated in her written submissions that she decided to study the Diploma and Advanced Diploma of Leadership and Management in Australia because of the education quality and teaching methods in Australia. She noted that Australia is famous for its good quality education and she wants to study here as it will provide her with an opportunity to “have an international degree in a most renowned country”. She said studying here helps her learn different cultures as she is around people from different backgrounds, which will “indirectly help me in future as an effective leader”.
At the hearing, she stated that she is not studying the Advanced Diploma course in Nepal because the education system is better in Australia and it would take longer in Nepal. She said there are political issues with many strikes and shutdowns and college fees go up and down, which means obtaining an education in Nepal is harder. She said that she does not know how long the political issues in Nepal will continue.
The Tribunal accepts the applicant has sound reasons for not undertaking the proposed course in her home country due to the difficulties in her home country with strikes and shutdowns. The Tribunal accepts that this would make obtaining an education in Nepal more difficult.
However, the Tribunal also considers that these strikes and shutdowns mean that there is political and civil unrest in Nepal, which may be inducing the applicant and her husband to apply for this further student visa in order to obtain entry into Australia to remain indefinitely, given the significant period of time they have been residing here. The applicant stated that she has no concerns about military service commitments in Nepal and the Tribunal accepts this evidence.
In relation to the applicant’s personal ties to her home country, she said that she has a sister and her parents in Nepal. Her husband’s father, mother and brother are also in Nepal. She said at the hearing that she talks to her parents every day, sometimes twice a day. She said that they have lived their entire lives in Nepal prior to coming to Australia. However, since arriving in Australia in July 2009 (nearly 11 years ago), she has only returned to her home country 3 times, each visit between 30 to 40 days long. She said in her written submissions that during those visits, “I spent entire time in Nepal with our family and friends. I understand, it is less than regular travel since my arrival in Australia, however it is hard to manage frequent travels when I am enrolled for full time studies and there are no direct flights between Nepal and Australia…I and my husband have significant social and economic ties which will compel us to return to Nepal after the completion of my current study”.
In support of the above statement, the applicant provided a certificate of relationship for her family and her husband’s. The Tribunal accepts that she does have some personal ties to Nepal. However, the Tribunal does not accept that full time study has prevented her from returning home. This is there are breaks semesters in courses of study and there are breaks between going from one course to the other. Looking at when the applicant finished a number of courses and when she commenced the next course, there are gaps of several months. The fact that there are no direct flights does not prevent the applicant from returning home more often.
The applicant also provided a letter dated 11 November 2019, from a company in Nepal called Menchhiyam Hydropower Pvt Ltd. This letter is purportedly a job offer for the position of management accountant commencing on 1 February 2021. The Tribunal does not consider this job offer to be a significant incentive to return to Nepal. It is difficult to accept that a business would know their hiring needs so far in advance.
The Tribunal considers that while the applicant has some personal ties with her family and friends in Nepal and potential employment, these matters are not a significant incentive to return home, which is demonstrated by the few times she has actually returned to Nepal in the last nearly 11 years.
In relation to the applicant’s economic circumstances, she stated at the hearing that her parents own land in Nepal. In her submissions, she stated, “My dad has a family home and block of land on his name. My husband’s mother also got a plot of land and a Building on her name. Both me and my husband are entitled to inheritance rights to ancestral property by birth…I and my husband have significant social and economic ties which will compel us to return to Nepal after the completion of my current study. The applicant provided property valuations for her father’s properties and her mother-in-law’s property.
The Tribunal also takes into account that the applicant works in Australia in catering, earning approximately $600 per fortnight. Her husband does not current work due to not having any work rights on the bridging visa. Previously, he was working as a housekeeping supervisor at a hotel in Sydney. He was earning approximately $45,000 per annum. The applicant’s job offer of the position of management accountant in Nepal commencing in February 2021 would provide a salary of NRS 100,000 per month (the equivalent of approximately AUS $1,225 per month).
Taking the abovementioned matters into account, the Tribunal does not consider the applicant’s economic circumstances are a significant incentive not to return to her home country.
POTENTIAL CIRCUMSTANCES IN AUSTRALIA
The applicant lives in Australia with her husband, who is the second named applicant. They met each other here in Australia and they also got married in Australia. They do no presently have children. Two of the applicant’s brothers are also in Australia, both on student visas. One brother is studying a Master of Accounting course, the other is a secondary applicant to his wife’s student visa. She stated at the hearing that she has friends and relatives here in Australia. She socialises with her friends, helps out with Nepalese elders living in Australia, and reads a lot. She works in catering and earns $600 per month. Her husband was previously working as a housekeeping supervisor at a hotel in Sydney but is not currently working. He also has his own friends in Australia, plays cricket and also assists with Nepalese elders living in Australia.
The Tribunal has considered these matters carefully and finds that the applicant has developed ties with Australia over the last 11 years and that she and her husband have strong incentive to remain living in Australia. The applicant and her husband have been in Australia for a significant period of time. She has close family in Australia with her and she has, over the years, built a support network here including family and friends.
The Tribunal also takes into account that it was originally the applicant’s intention to obtain a subclass 485 temporary graduate visa rather than a further student visa. This is discussed further below. However, it is a relevant consideration when looking at the applicant’s potential circumstances in Australia. It demonstrates that after completing a significant amount of study at a high level, namely the Master of Professional Accounting, that she did not want to leave Australia. She instead wanted to gain work experience. This applicant was never submitted by a previous migration agent, who instead enrolled her in the Certificate IV in Technology and applied for a student visa. A complaint was lodged against this migration agent.
Rather than leave Australia after she lost the opportunity to secure a temporary work visa, the applicant proceeded with the student visa application. After her application was refused by the delegate, she enrolled in a further course, namely the Diploma of Leadership and Management, which she completed in July 2019, and the Advanced Diploma of Leadership and Management. She claimed at the hearing that even if she had of secured a subclass 485 visa, she still wanted to the leadership and management studies. The Tribunal does not accept this assertion. The application had already completed similar courses, namely the Diploma and Advanced Diploma of Management, and there would be a significant amount of overlap in the two courses after having reviewed the applicant’s academic transcripts provided to the Tribunal.
The Tribunal considers that the applicant is using the student visa program to maintain ongoing residence in Australia and that they are attempting to circumvent the intentions of the migration program in doing so. While the applicant has successfully completed the Diploma of Leadership and Management course and is currently studying the Advanced Diploma, the Tribunal considers that she in doing so in order to remain in Australia after she lost the opportunity to secure a subclass 485 temporary graduate visa.
VALUE OF THE COURSE
The applicant holds a Bachelor degree in Business and a Master of Professional Accounting. She also has studied a Diploma and Advanced Diploma of Management. To now be studying a further Advanced Diploma of Leadership and Management is simply not consistent with the qualifications the applicant already holds the same level and higher in the field of management, business and accounting. It is a regression in studies rather than progression.
The applicant said that she wants to study the Advanced Diploma of Leadership and Management course because, “I believe it will help me to develop critical thinking in making strategies and making the right calls. Another reason I have opted for a leadership and management course is to become a more effective leader in workplace which will give me better chances of getting career opportunities”. However, the applicant has already received a job offer for a management accountant role in Nepal. Despite the applicant’s assertion at the hearing that she has accepted this offer and it is dependent on her completed the proposed course, there is nothing in the letter of offer for this position that states the offer is subject to the applicant completing the Advanced Diploma course in Leadership and Management. Given that the applicant has already received a job offer for which her previous studies have prepared her for, the Tribunal does not consider that the proposed course will assist her in obtaining employment or improving her job prosects in her home country. It follows that the Tribunal does not consider that the proposed course of study will increase her remuneration the applicant can expect to receive in her home country or in a third country.
The Tribunal has considered the explanation provided by the applicant in her written submissions about how the proposed course will assist her. However, the Tribunal is concerned that the value of the applicant’s current leadership and management studies to her future is marginal. The Tribunal considers that he Diploma and Advanced Diploma of Management, Bachelor of Business and Master of Professional Accounting which the applicant has already achieved should provide her with the knowledge base that may be deployed to solve business challenges, including critical thinking, effective leadership and management of others. Having already achieved this knowledge base, the Tribunal does not consider the proposed course to be relevant to her past or future employment in her home country or third country.
IMMIGRATION HISTORY
There is information before the Tribunal to suggest that the applicant or her husband has ever had a visa cancelled or refused by another country and the Tribunal takes this into account.
However, it also takes into account that the applicant has resided in Australia for 3983 days and during that time has only spent approximately 90 to 120 days in her home country. As discussed above, this suggests that the applicant does not have an incentive to return to her home country.
The applicant instructed a previous migration agent to submit an application for a subclass 485 temporary graduate visa so that she could gain experience working as an accountant in Australia. Without the applicants’ consent, that migration agent did not lodge this application and instead lodged an application for a student visa, enrolling her in a Certificate IV in Information Technology. This indicates that the applicant wanted to spend further time in Australia working rather than studying. As a result of the migration agent making applications without instructions, the applicant lost the opportunity to secure a temporary graduate work visa. Instead of returning to her home country at this point, the applicant decided to proceed with the student visa. She was released from the Certificate IV course and instead enrolled in the Diploma and Advanced Diploma of Leadership and Management, despite having already completed a Diploma and Advanced Diploma of Management.

The Tribunal is sympathetic towards the applicant with respect to her missing out on the opportunity to secure the subclass 485 visa through no fault of her own. However, this demonstrates that the applicant had effectively completed her studies after the Master of Accounting course and wanted to use her qualifications in the workforce. She did not want a student visa lodged; she wanted a temporary graduate work visa. Despite this, she decided to proceed with a student visa application. The Tribunal considers this demonstrates an intention use the student visa program to maintain ongoing residence in Australia rather than return to the applicant’s home country.
OTHER MATTERS
There were no other matters raised by the applicant for consideration.
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).
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.
It follows that the delegate’s decision in relation to the second applicant, Mr Jiwan Shrestha, is also affirmed.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Elizabeth Tueno
Member

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

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

[2020] AATA 2721

1 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction