Rodrigues Mendoca Dos Santos (Migration)

Rodrigues Mendoca Dos Santos (Migration) [2021] AATA 771 (7 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Lendinalva Rodrigues Mendoca Dos Santos
Gileno Jose Dos Santos
Pedro Gabriel Mendoca Dos Santos
Tiago Mendoca Dos Santos
CASE NUMBER:  1924540
HOME AFFAIRS REFERENCE(S):          BCC2019/3487204
MEMBER:T. Quinn
DATE:7 January 2021
PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·clause 500.212(a) of Schedule 2 to the Regulations.

Statement made on 7 January 2021 at 12:58pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine applicant for entry and stay as a student temporarily – courses appear to be relevant to and likely to assist and improve her future –Tribunal has determined to give the benefit of the doubt to the applicant – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 338, 347, 359, 499
Migration Regulations 1994, Schedule 2, cl 500.212
CASES
Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372
Khan v Minister for Immigration & Another [2019] FCCA 565
Tshering v Minister for Home Affairs [2019] FCCA 2667
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 (‘the delegate’) on 14 August 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).
The applicants applied for the visa on 11 July 2019 (‘the application’). At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary applicant (‘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 14 August 2019, 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 applicants’ review application.
On 2 September 2019, the applicants applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.
Approximately sixteen months have elapsed since the making of the delegate’s decision and the applicants’ application for review with the Tribunal. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed during that time. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information to the Tribunal for the purposes of determining the outcome of their application for review. To this end, on 5 June 2020, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’). The applicant responded to the s359(2) letter on 19 June 2020 which was within the prescribed time period.
The applicants were listed to appear before the Tribunal on 6 January 2021 for a telephone hearing to give evidence and present arguments. However, upon considering the material filed by the applicants, the Tribunal determined that it could make a decision without the need for a hearing.
The Tribunal has proceeded to a decision having had regard to all the information before it, including the information previously provided by the applicants to the Department and all submissions filed with the Tribunal by the applicants.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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 applicable, independently of any conclusions reached by the delegate. In this regard, the Tribunal also notes the decision of Judge McNab in Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]), wherein his Honour referred to the decisions of Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]) and Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) in relation to the proper approach to the consideration of guidelines such as the Direction. Most pertinently, his Honour endorses the view espoused in those cases, that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.
[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 primary applicant in this case is a 51-year-old male Brazilian citizen who first arrived in Australia on 11 April 2019 on a visitor visa.[2] The secondary applicant (aged 52 years) is the partner of the primary applicant and the third and fourth applicants are the children of the first and second applicants (aged six and eight years respectively).[3] Prior to coming to Australia, the applicant completed High School in Brazil in 2009 and worked as a Business Administrator from May 2012 earning AUD23,000 equivalent per annum in Brazil.[4]
[2] See delegate’s decision.
[3] See delegate’s decision.
[4] See delegate’s decision and applicant’s response to the s359(2) letter.
The applicant’s application which is the subject of this review was to undertake a General English course with a proposed completion date of October 2020.[5] The form completed by the applicant in her application for the current student visa included a section to be completed by the applicant headed ‘Genuine temporary entrant’. It is a critical part of the form that requests the applicant to provide information demonstrating that they meet the genuine temporary entrant criteria prescribed by the Regulations. The applicant did not provide a genuine temporary entrant statement.[6] The consequences of this are that the Department had limited submissions from the applicant before it in relation to:
a.their reasons for not undertaking the study in their home country;
b.their knowledge of their intended course and the research they have undertaken into their proposed course of study and course provider;
c.how the proposed courses will assist them obtain or improve their employment prospects in their home country;
d.the relevance of the proposed courses to their employment;
e.the remuneration they could expect to receive using the qualifications to be gained.
This perplexes the Tribunal and is not the behaviour one would expect of a genuine student.
[5] See delegate’s decision and applicant’s response to the s359(2) letter.
[6] See delegate’s decision.
Due to delays in the applicant’s matter coming before the Tribunal, she ought now to have completed same. Instead, she remains onshore. This raises concerns for the Tribunal, however, the applicant made forthright submissions about her period of non-enrolment from April 2019-June 2020 in relation to her plan to return to her home country upon receipt of her refusal notification but that shortly after trying to make flight arrangements in late 2019/early 2020 the COVID19 Pandemic occurred.[7] Her submissions appeared to be genuine and credible about what occurred, she indicated that it would be harmful for her family to be exposed to the virus and she therefore decided to return to her study plan in Australia but because the study was online she requested to delay her study until face-to-face teaching would resume in July 2020.[8] The Tribunal considers this explanation plausible, particularly given the applicant and her husband’s age. Whilst the student visa migration program does not exist to assist individuals to avoid other problems in their home country, such as the state of the Global Pandemic, individuals are entitled to use lawful means to remain in the country. The applicant has provided a Statement of Attainment from her course provider in relation to her most recent General English course which she undertook from July-December 2020.[9]
[7] See applicant’s response to the s359(2) letter.
[8] See applicant’s response to the s359(2) letter.
[9] See applicant’s email of 5 January 2021.
The applicant has supplied an enrolment letter dated 5 January 2021 from her course provider indicating that she is enrolled in a further General English course from 18 January 2021-2 July 2021.[10] She has made direct submissions to this Tribunal that she intends to return to her home country upon completion of her course in July 2021 and help her family construction business expand and grow with her fluency in English as well as commence her degree in Law in August 2021 in Brazil.[11] She submits that with the Australian qualifications she will have better skills and the family business will improve and they will be able to send the children to better schools in Brazil and anticipates her income will double to approximately AUD40,000 equivalent per annum in Brazil using the qualifications gained.[12] She has also indicated she would like to teach English to the youth in her local community in Brazil.[13] The Tribunal accepts that these courses are relatively consistent with the applicant’s current level of education and are relevant to and likely to assist and improve her future career prospects.
[10] See applicant’s email of 5 January 2021.
[11] See applicant’s response to the s359(2) letter and email of 6 January 2021.
[12] See applicant’s response to the s359(2) letter.
[13] See applicant’s email of 5 January 2021.
The applicant is living onshore with her spouse and two children and attends church regularly with her family in Australia.[14] The Tribunal considers that the applicant may have ties acting as a strong incentive for the applicants to remain onshore. However, the applicants have been onshore for less than two years and the Tribunal does not make any firm findings in this regard. Should the applicants seek a further student visa after completion of her proposed courses, this factor may be of greater concern to any decision maker.
[14] See applicant’s response to the s359(2) letter.
The applicants have not returned to Brazil since their arrival.[15] Her mother, two sisters and one brother live in Brazil and she speaks to them every day.[16] She states that she attended church on a weekly basis in Brazil and many other personal and cultural incentives to return to Brazil.[17] The Tribunal considers the applicant’s personal ties to her home country are likely to be serving as an incentive for them to return but does not consider it has sufficient information before it to conclude that those ties are acting as a significant incentive to return on the basis of the evidence before it as a whole, particular given the presence of their immediate family unit onshore.
[15] See applicant’s response to the s359(2) letter.
[16] See applicant’s response to the s359(2) letter.
[17] See applicant’s response to the s359(2) letter and email to Tribunal of 5 January 2021 (‘GTE Letter’).
The applicant has not been working onshore but her husband has been working part time to cover living expenses in addition to savings from Brazil.[18] The applicants have expenses of AUD43,200 per annum in Australia.[19] The applicant has not listed any assets in her questionnaire filed in response to the s359(2) letter, however, she refers to a house and family land in Brazil where she does not pay rent and she has a well-established life in her local community in her submissions of 5 January 2021 (‘the GTE Letter’).[20] The Tribunal notes that the United Nations Human Development Index, which is a statistical comparison of life expectancy, education and per capita income indicators by country, ranks Brazil as 79^th in the world as compared to Australia’s ranking of 6^th in the world.[21] The Tribunal considers that it does not have sufficient information before it to make any firm conclusions as to whether the applicants’ economic circumstances in Australia relative to Brazil are acting as a significant incentive for them to remain onshore at this time.
[18]See applicant’s response to the s359(2) letter and ‘GTE Letter’ filed 5 January 2021. The applicant has not disclosed her husband’s income in this correspondence which is of some concern to the Tribunal.
[19] See applicant’s response to the s359(2) letter.
[20] See applicant’s response to the s359(2) letter.
[21]See Table 1 of United Nations’ Human Development Report 2019 commencing at page 300 <>
The applicant has submits that learning English in Australia she is in touch with the local Australian culture and by listening to English native speakers she is learning English properly and forced to have a better understanding of the language by being culturally immersed.[22] The Tribunal considers the applicant has provided reasonable reasons for not undertaking the study in her home country.
[22] See applicant’s response to the s359(2) letter and ‘GTE Letter’ filed 5 January 2021.
The applicants have not had any other travel, visa or immigration issues in the past.[23] The applicant states she does not have any potential military service obligations or political or civil unrest circumstances in Brazil.[24]
[23] See applicant’s response to the s359(2) letter.
[24] See applicant’s response to the s359(2) letter.
The Tribunal is concerned by the way in which the applicant came to be onshore (being on a visitor visa and only then, once onshore, applying for a student visa). It is difficult for the Tribunal to accept that the applicant, in such a short space of time after her arrival onshore as a visitor, could have then promptly researched all study and living options and decided to remain onshore for a further two year period. The Tribunal accepts that it is possible that an applicant may seek a change in plans or to further their skills for employment reasons and remuneration opportunities, but the Tribunal is puzzled when an applicant arrives on a visitor visa and then makes sudden changes to their plans within a short period of time after arriving. It seems unlikely to the Tribunal that a person travelling as a tourist would make such a significant change from their initial intentions to visit. Such a significant change would necessarily include a greater level of planning and preparation before arriving in Australia considering the length of time (two years) that the applicant proposed to spend in Australia. It raises concerns about her true intentions in seeking a student visa.
However, the applicant has made direct submissions that she intends to return to her home country in July of this year and is undertaking courses which appear to be relevant to and likely to assist and improve her future.
The Tribunal considers the factors for and against the applicant being a genuine applicant for entry and stay as a student temporarily are finely balanced in this case. On balance, the Tribunal has determined to give the benefit of the doubt to the applicant. In this regard, the Tribunal notes that the applicant’s current General English course is due to finish in July 2021. She is therefore seven months from completion. Should the applicant make a further student visa application on the basis of an intention to undertake further study after this, the evidence and submissions she made to the contrary in connection with this case will clearly be relevant to any assessment of her intention to stay in Australia only to study.

Having had regard to the applicant’s circumstances, her immigration history and all other relevant matters, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student temporarily as required by clause 500.212. Accordingly, the applicant meets clause 500.212(a) of Schedule 2 to the Regulations.
Given the above findings, the appropriate course is to remit the applications for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
Consequently, as the decision in relation primary applicant’s review has been remitted, the Tribunal considers the Minister should also reconsider whether clause 500.311 in Schedule 2 of the Regulations is met by the second, third and fourth applicants as members of the family unit of a person who satisfies, or has satisfied, the relevant primary criteria.
Therefore, the decisions in relation to the second, third and fourth applicants’ review must also be remitted.
DECISION
The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa: clause 500.212(a) of Schedule 2 to the Regulations.
T. Quinn
Member

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

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

[2021] AATA 771

7 January 2021

Key Legal Topics

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

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