Rathi (Migration)

Rathi (Migration) [2019] AATA 3200 (9 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mandeep Rathi
CASE NUMBER:  1725320
HOME AFFAIRS REFERENCE(S):          BCC2017/3051577
MEMBER:T. Quinn
DATE:9 April 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 09 April 2019 at 8:30pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant – multiple cancelled enrolments – breach of visa condition – lack of academic progress – study history inconsistent with stated employment goals – financial incentive to not return to home country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 347, 359, 499
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
CASES
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
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 12 October 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 24 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 12 October 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 17 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.
More than 17 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 his application for review. To this end, on 2 February 2019, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting him to provide information in writing about the course(s) of study the applicant was undertaking and his entry and stay in Australia as a student (‘the s359(2) letter’). The applicant responded to this invitation on 5 March 2019.
The applicant appeared before the Tribunal on 1 April 2019 to give evidence and present arguments.
The applicant was assisted in relation to the review by their registered migration agent.
The Tribunal hearing was arranged with an interpreter in the Hindi and English languages. On the day of the hearing, the applicant indicated he wished to speak in English. The Tribunal made it clear to the applicant that if at any time he did not understand or would like to use the services of the interpreter, he must indicate that to the Tribunal immediately.
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 had regard to all the information before it, including the Department File, all information and evidence provided by the applicant to the Tribunal prior to and including the day of hearing.
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.[1] 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 applicant, independently of any conclusions reached by the delegate.
[1]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 26 year old male Indian citizen who, according to the delegate’s decision, first arrived in Australia on 10 July 2014 on a TU573 Higher Education Sector visa. This visa was granted on the basis that the applicant was to complete a Bachelor of Information Technology.
Prior to coming to Australia, the applicant completed secondary school in 2011 and then completed a Computer Lab Coordinator course in 2014 prior to arriving in Australia.[2] The applicant indicated at hearing that he undertook the latter course to obtain computer skills but he is not interested in that now.
[2] See applicant’s response to the s359(2) letter dated 5 March 2019.
In the applicant’s submissions and evidence at hearing, the applicant indicated that he found the Bachelor of Information Technology too difficult. He ceased this course at the end of 2014.
In the s359(2) letter there is a section asking about the applicant’s previous enrolments, this is copied below:
In the applicant’s response to the s359(2) letter dated 5 March 2019, the applicant responded to this section as follows:
The delegate’s decision refers to 11 cancelled enrolments. The Tribunal asked the applicant at hearing why he did not list these cancelled enrolments on his response to the s359(2) letter and the applicant said he thought it would look better to the Tribunal. The Tribunal is concerned about this approach to the s359(2) letter.
The delegate’s decision also refers to two Certificates III in Commercial Cookery having been undertaken by the applicant. The Tribunal enquired with the applicant about this and he said that he did not complete some of the units the first time he undertook this certificate, he thought it was about two units but could not remember the names of the particular units. He explained that this meant the certificate took approximately three more months than if he had completed those units the first time. The Tribunal accepts the applicant’s evidence of what is occurred but is concerned by the applicant’s failure to complete units and lack of knowledge of his course history (in terms of how many and which subjects he did not complete).
The Tribunal asked the applicant about his study in 2015. The applicant repeatedly answered about his enrolments, saying he was enrolled in 2015 but eventually the Tribunal made clear that it was enquiring about the actual study undertaken in the year of 2015 by the applicant. The applicant gave evidence that he was not studying at all during that time. The Tribunal asked the applicant how he had been spending his time and he said he talked to his friends and got information about the study he would undertake. The Tribunal accepts the applicant’s evidence but is troubled by it as having a year onshore on a student visa and not spending any of that time actually studying causes the Tribunal to question the genuine intentions of the applicant in relation to his student visa and whether he may be motivated by factors other than study.
The applicant explained that some of his cancelled enrolments were due to a migration agent enrolling him in courses that had already commenced and it was too late for the applicant to commence. The Tribunal accepts this evidence. The applicant also indicated that since the delegate’s decision he has completed his Diploma of Hospitality Management in June 2018. He provided a confirmation of enrolment in an Advanced Diploma of Hospitality Management commencing 1 April 2019. The Tribunal asked the applicant what he had been doing with his time since finishing his Diploma in June 2018 and he said started the Advanced Diploma in Hospitality Management in July 2018, attended courses and submitted his assignments but did not pass any of the subjects. Whilst the Tribunal accepts that the applicant has completed his Diploma of Hospitality Management, it is troubled by the applicant’s lack of academic progress.
The applicant indicated that because he did not pass his first semester in the Advanced Diploma, his enrolment in the Bachelor of Tourism and Hospitality Management was cancelled. This is also a source of concern for the Tribunal; particularly given it means that the applicant is currently breaching his Higher Education Sector condition of his visa. The applicant indicated he no longer wishes to complete any Bachelor studies and wants only to complete his Advanced Diploma in Hospitality Management and then return to his home country. The Tribunal notes that this indicates the applicant does not intend to comply with his Higher Education Sector condition of his visa in the future. The Tribunal is concerned about this.
The Tribunal enquired about whether the applicant considered changing his visa to a vocation sector visa, the applicant indicated he did not. The Tribunal asked whether the applicant knew he was in breach of one of his visa conditions and the applicant said that he did know. This was a further cause for concern for the Tribunal.
The Tribunal is confused by the applicant’s studies in security operations as set out in the delegate’s decision, as it appears inconsistent with his other studies. The applicant gave evidence at hearing that wanted to do security and wanted any security job to enhance skills and observe a field he did not know. He said he wanted to observe how security goes on in Melbourne and then go back to his home country and run and agency for security there. This caused the Tribunal to ask about the cookery courses and the applicant said he likes cooking and the food industry is always in demand. He said he would like to open any business in cooking and get a better future and that he would open a fast food shop in his home town. The Tribunal asked about how the security agency would fit into those plans and the applicant said that over time things had changed and he wanted to ‘go for the burger place’. The Tribunal considers the applicant’s explanation of why he undertook the security operations course inconsistent as it postdates his first cookery course. The Tribunal allows for reasonable changes to career or study pathways but regards the applicant’s study history as inconsistent and not the academic progress one would expect of an individual who has been studying in Australia for a period approaching five years. It appears the applicant has undertaken a series of short, inexpensive, low level courses, has been onshore for some time but has only completed four vocational sector courses in that period, one of which does not seem relevant to his future employment goals.
The applicant has travelled to his home country to visit his family three times since his arrival in Australia. He indicated at hearing that his most recent visit was to look at, together with his father, locations and places he could buy where he could run his fast food business.
The Tribunal accepts that there may be some value to the applicant’s future employment prospects in his home country but considers that such value is limited and is outweighed by the length of time it has taken the applicant to successfully complete such study.
The applicant has both parents in India and speaks to them 3-4 times per week via phone or video calls. The applicant’s parents are financially supporting him. In his response to the s359(2) letter the applicant indicates he has many relatives in India and is very involved in discussing social and political updates in India with his cousins. The Tribunal accepts that the applicant has personal ties to India that may be a significant incentive for him to return.
The applicant got married in Australia in 2018. His wife was a family friend in India. She moved to Australia in June 2018 shortly before their marriage and is living in Australia on a student visa studying a Master of Professional Accounting. The applicant and his wife live in shared accommodation with two other females, one friend and one cousin of the applicant. The applicant gave evidence that when he is not working or studying he goes drinking with his friends or out for a meal with his wife. The Tribunal regards that the applicant’s ties with Australia present as a strong incentive for him to remain in Australia.
The applicant has been working casually for 18-20 hours per week as a chef at a burger shop earning approximately $1500 AUD per month since August 2016.[3] The applicant’s living expenses in Australia total $850 per month.[4] Although the applicant indicated his family has assets in India, the Tribunal considers the applicant’s economic circumstances in Australia present as a significant incentive for him not to return to his home country given how much the applicant is earning in Australian Dollars in excess of his living expenses.
[3] See applicant’s response to the s359(2) letter dated 5 March 2019.
[4] See applicant’s response to the s359(2) letter dated 5 March 2019.
In his response to the s359(2) letter dated 5 March 2019, the applicant indicated that he anticipated his remuneration from the proposed business would be $25,000AUD per month. The Tribunal was surprised by this figure and enquired about how much the applicant expected to earn in his home country with the qualifications gained in Australia and he said he expected $10,000 AUD equivalent per month. The Tribunal asked the applicant how he arrived at this figure but his answer was vague and not based on any particular accounting figures or process. The Tribunal finds this evidence implausible given the per capita income in the applicant’s home town is 1,78,890 rupees (approximately equivalent to $3,636AUD) per year.[5]
[5]See Economic Survey of Haryana 2017-2018 (>
In the applicant’s application for a visa dated 24 August 2017, where he was asked about current employment he stated ‘student’. The Tribunal enquired as to why he wrote this and not his job at the burger shop. He stated he must have forgotten. The Tribunal has trouble accepting that an individual working between 18-20 hours per week and earning $1500AUD per month can have forgotten about their employment circumstances.
The applicant submitted that he is undertaking his studies in Australia as Australia is good for study and Melbourne has very good institutions for hospitality and lots of restaurants so he can enhance his skills and experience better than he could in India. The Tribunal accepts this evidence and considers these reasonable reasons for the applicant not undertaking the study in his home country.
The applicant’s evidence was that other than the travel to India described above, he has not undertaken any other international travel and not had any visa applications or problems in any other country. The Tribunal accepts this evidence.
The applicant indicated he did not have any military service commitments or political and civil unrest concerns in his home country. The Tribunal accepts this evidence.
CONCLUSIONS
The Tribunal is particularly vexed by the applicant’s evidence, lengthy and current breach of his Higher Education Sector visa condition and lack of academic focus and course progress described in the preceding paragraphs. The Tribunal considers the applicant’s conduct taken as a whole indicate he is motivated by factors other than study and it appears the student visa programme is being used to circumvent the intentions of the migration programme and maintain ongoing residence. Hence, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily.

Having had regard to the applicant’s circumstances, his immigration history and all other relevant matters, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student temporarily as required by clause 500.212(a). Accordingly, the applicant does not meet clause 500.212(a) and the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by 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

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:
c.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
d.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
e.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
f.whether 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
g.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;
i.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
ii.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
iii.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country
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 3200

9 April 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Breach