Shaik (Migration)

Shaik (Migration) [2020] AATA 3537 (27 July 2020)
A
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Nemath Shaik
CASE NUMBER:  1722721
HOME AFFAIRS REFERENCE(S):          910602436 BCC2017/2638046
MEMBER:Gabrielle Cullen
DATE:27 July 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 27 July 2020 at 11:53am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment status – not enrolled in a course of study – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.212
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 on 5 September 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 25 July 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
A Confirmation of Enrolment attached to the current application of 25 July 2017 refer to the applicant studying a General English (Power Language) from 17 July 2017 to 13 July 2018. The evidence indicmates that enrolment in this course was cancelled on 7 September 2017 for non-commencement of studies. He was also enrolled in a Diploma of Business from 17 July 2017 to 13 July 2018 and enrolment in this course ceased as he changed courses on 20 July 2017. He was then enrolled in an Advanced Diploma of leadership and Management from 8 January 2018 to 7 July 2019, but enrolment ceased for non-payment of fees on 21 February 2019. He was then enrolled in an Advanced Diploma of Business from 8 July 2019 to 3 July 2020, but enrolment was cancelled for non-payment of fees on 4 December 2019.[1]
[1] Information from PRISMS was raised with the applicant via s.359AA at the hearing on 16 August 2019 and in the s.359A letter dated 10 July 2020
On 11 July 2017 the delegate decided to refuse to grant the visa because the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations on the basis that he is not a genuine applicant for entry and stay as a student. The delegate noted the applicant’s wife and children did not travel with the applicant to Australia but was concerned the applicant had not clearly demonstrated the benefit of the proposed course to his future.
On 22 September 2017 the applicant lodged an appeal to the Tribunal and attached the decision of the Department.
On 5 April 2019 the Tribunal wrote to the applicant a s.359(2) letter as follows
As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:
·enrolled in a registered course of study; and
·a genuine applicant for entry and stay as a student.
Accordingly, you are now invited to give, in writing, information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the ‘Request for Student Visa Information’ form which you can access by clicking on the link below.
The applicant was also provided with information as to how to access a printable copy of this form if they wished to return a hard copy. The Tribunal also advised that in considering whether the applicant is a genuine applicant for entry and stay as a student the Tribunal must have regard to ‘Ministerial Direction No.69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ and attached a copy.
On 10 April 2019 the applicant provided a COE indicating he was enrolled in an Advanced Diploma of Leadership and Management from 8 January 2018 to 7 July 2019
On 12 June 2019 the Tribunal wrote to the applicant and invited him to attend a hearing on 4 July 2019. The letter, among other matters, requested the applicant provide a current COE and documents that show his past studies in Australia. It noted the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by clause 500.212(a) and asked him to provide a written statement addressing this issue by referring to Direction 69, which was attached.
On 3 July 2019 the applicant submitted a COE indicating he was enrolled to study an Advanced Diploma of Business from 8 July 2019 to 3 July 2020.
He also submitted a completed MRD Student Visa Information Form, which referred to enrolment in the Advanced Diploma of Business from July 2019 and addressed the genuine temporary entrant criteria as follows:
·As to employment, he was a crane operator from 2004 to 2013. He noted he lived in Kuwait for 9 years from 2004.
·As to the value of the course to his future, he said he has good experience in business as a crane operator and a good knowledge of mechanical. He claimed he wished to be promoted to a managerial potion but has little education since he finished high school. He submitted that secondary education would boost his employment opportunities. He later said he is seeking a managerial position in business on completion of his enrolled course.
·He outlined why he wished to study the Advanced Diploma of Leadership and Management at Richmond School.
·He outlined his travel history and indicated he had to return home in 2019 as his son had surgery.
·His wife and 3 sons remain living in India.
·He is not involved in any community groups in Australia.
·He owns 2 properties and land in India
Prior to the hearing, the applicant provided the following evidence.
·Australasian International Academy student card valid until 7 July 2019.
·CoE indicating enrolment in an Advanced Diploma of Business at Richmond School of Business Pty Ltd from 8 July 2019 to 3 July 2020.
·CoE indicating he was enrolled in an Advanced Diploma of Leadership and Management at Australasian International Academy Pty Ltd from 8 January 2018 to 7 July 2019.
·Applicant’s secondary schooling certificate dated 31 May 2014 from Andhra Pradesh Open School Society.
·ID documents from Kuwait
·A letter from the General Manager of Global Clearinghouse Systems that certifies the applicant is employee number 395 and worked as Assistant Mechanic from 11 May 2004 to 14 May 2013.
The applicant appeared before the Tribunal (differently constituted) on 4 July 2019 to give evidence and present arguments. His representative attended the hearing. The hearing was adjourned by the Tribunal as the interpreter was did not able speak Urdu sufficiently.
On 11 July 2019 the Tribunal wrote to the applicant and invited him to attend a hearing on 16 August 2019.
The applicant appeared before the Tribunal (differently constituted) on 16 August 2019 to give evidence and present arguments. His representative attended the hearing. He was assisted with an interpreter in the English and Urdu languages. He provided additional evidence pertaining to the genuine temporary entrant criteria as follows:
·He claimed he completed the English course but said he did not complete the Advanced Diploma.
·As to why he did not successfully complete the Advanced Diploma he said his son had surgery in India, so he had to return to India in December 2018 for 2 months to take care of his child.
·As to the value of his current course to his future, he said he is going to open a spinning mill business in India. He said it would produce thread and clothes from cotton; such as cotton clothes, bedspreads and pillows. He said it would be located in Hyderabad and would be a factory on 2 acres of land. He said he purchased the land in 2013 and 2014.
·He confirmed prior to coming to Australia he did not work in the clothing industry but worked as a forklift driver in Kuwait from 2004 to 2013, and then worked n the cotton industry on return to India until 2017. He said he used to purchase cotton from agricultural lands and sell it to companies. He said there were two partners in the business, and he was one of the partners. He later said the future business he would open was with the same partner he worked with from 2013 to 2107
·The Tribunal raised with the applicant that the information appeared inconsistent as to his work experience as he did not mention working in a business buying and selling cotton in India from 2013 to 2107. He responded that he gave the agent all the information when he applied for the visa, so the agent must have failed to put it in the form.
·He said the current course will help him with the finance management, how to do resource management and how to do the marketing strategy in the business. The Tribunal noted that he is saying he now wants to set up a manufacturing business and asked how the current course would help. He said he does not have a problem with manufacturing, but he wants to learn selling strategies and how to sell his own brand.
·The applicant agreed he had not completed any courses he had been enrolled in since his arrival in Australia in 2017. The applicant referred to his son’s surgery. He said when he went back to India for his son’s surgery, a tonsil operation they cancelled his CoE.
·He has one brother who lives in Australia a wife and son in India, as well as his mother.
·The Tribunal raised with him that in his s.359(2) reply there is no mention of starting his own business making clothes and other products out of cotton as his future career aim and value of the course to his future. He said he just signed the documents and did not read it. He said he did not tell his agent about his future carer aim.
·He said that he has no military commitments in India, or political or civil reasons why he cannot return.
·The Tribunal raised with the applicant via s.359AA information from PRISMS as to courses he had been enrolled on, when and why enrolment had been cancelled in these courses. When the Tribunal asked whether he had anything to say about the English course he said he completed whereas the information indicates he had not, he said he has nothing to say.
The applicant’s representative noted the applicant had only achieved an education to year 10 and outlined why he needs his current course to open the cotton factory on return. He noted the applicant has 2 or 3 flats in his own country, is strong financially and can support himself and requested the Tribunal look at the evidence overall.
On 3 June 2020, the applicant was advised by the Tribunal that the previous member who was reviewing the cases is no longer available and that the matter had been reconstituted to a different member. The applicant was advised that all documents and other material that were considered by the previous Member have been given to the current member, including material from the Department; recordings of any hearings and any submissions or other evidence provided to the Tribunal.
On 16 June 2020 the applicant was invited to attend a hearing on 20 July 2020. The letter, among other matters, requested the applicant provide a current COE and documents that show his past studies in Australia. It noted the Tribunal may assess whether he intends genuinely to stay in Australia temporarily, which was the reason for the delegate’s decision and referred to and attached Direction 69. The letter also noted that the Tribunal may assess whether the applicant is enrolled in a registered course of study and that not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review.
On 10 July 2020 the Tribunal sent the following s.359A letter to the applicant:
You are invited to comment on/respond to information that the Tribunal considers would, subject to any comments/response you make, be the reason, or a part of the reason, for affirming the decision that is under review.

The particulars of the information are:
·You applied for a Student visa on 25 July 2017 and attached Confirmation of Enrolments to study a General English course, Diploma and Advanced Diploma of Leadership and Management to 7 July 2019. You then provided evidence of enrolment in an Advanced Diploma of Business to 3 July 2020.
·Information from the Australian Government PRISMS record system, which records Confirmation of Enrolments and start and end dates of each course you were enrolled in indicates that you are not currently enrolled in a registered course of study and that enrolment in the Advanced Diploma of Business ceased on 4 December 2019 for non-payment of fees.
The information also indicates that enrolment in the Advanced Diploma of Leadership and Management ceased on 21 February 2019 for non-payment of fees.
This information is relevant because one of the criteria for the visa for which you have applied, regulation 500.211 provides that at the time of this decision you are enrolled in a course of study: cl.500.211(a). You have not claimed to meet any of the alternative criteria in cl.500.211.
‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.
The evidence from the PRISMS record indicates that you do not meet this requirement as you are not currently enrolled in a course of study.
If the Tribunal is not satisfied that you meet this requirement, the Tribunal may find that you do not meet cl. 500.211. You may then not be entitled to be granted a Student visa for which you have applied.
You are invited to give comments/respond to the above information in writing
The applicant was given until 24 July 2020 to comment or respond to the information.
The applicant appeared before the Tribunal at the hearing on 20 July 2020. His representative attended the hearing. He was assisted with an interpreter in the Urdu and English languages.
The Tribunal referred to the s.359A letter written and noted that an issue before the Tribunal is whether he meets the enrolment criteria in s.500.211. It outlined the requirements of cl. 500.211. The Tribunal noted that another issue before it is whether he meets the genuine temporary entrant criteria as per cl.500.212(a). It outlined these requirements and Direction 69.
The applicant confirmed he was not currently enrolled and had not been since December 2019. The Tribunal referred to information from PRISMS raised in its s.359A letter and the and information raised via s.359AA at the hearing on 16 August 2019 and noted that he had not successfully completed any course he had been enrolled in or achieved course progression since his application for the visa in 2017. It raised with him that his lack of enrolment since December 2019, lack of course completion and effective study may lead the Tribunal to find he is not a genuine student and does not meet the genuine temporary entrant requirement. He said he had financial difficulties and he had to return to India in November 2018 as his son required surgery. He later referred to having to return to India in 2019 as his mother was sick. He referred to the financial burden as to why he could not study.
The Tribunal asked him if he had to return for his son in November 2018, why he did not successfully complete the General English course, studied before his son became ill which he enrolled in from July 2017 to July 2018. He said he completed 8 months of the course and referred to financial difficulties.
As to his future plans, he said he wants to develop a business spinning cotton to make clothes and when asked why he had not returned home to start the business, he said he cannot open such a business until he undertakes the study and referred to the Advanced Diploma of Leadership and Management. The Tribunal raised with him that it had difficulty accepting this evidence as he has not been studying and successfully completing the Advanced Diploma of Leadership and Management for 2 years. He said his enrolment in the course was twice cancelled due to financial difficulties in India. The Tribunal asked how he can start a business if he has financial difficulties and he responded that he has 3 apartments in India. The Tribunal raised with him that his he owns 3 properties questions that he was unable to study and complete courses due to financial difficulties. He responded that he is going to use those funds for his investment in the business. The Tribunal referred to the evidence he provided at the previous hearing, where he said his financial situation is very good as he has 2 to 3 flats in Hyderabad, receives rent and has some investment in land in other places. It raised with him that this questions the credibility of his reasons for not studying and successfully completing courses.
He then said he would have finished the course, as he had completed 50% but he had to return for his son’s and then mother’s operation, then his COE was cancelled. The Tribunal asked the applicant whether he approached the College to defer due to the medical emergency and financial difficulties and he said he did not.
The Tribunal asked the value of the course to his future and he referred to opening the mill. The Tribunal again raised the inconsistency in his evidence as to his future career aim, as raised at the previous hearing. It noted he also had said at the last hearing he was going to open a restaurant/café and in the s.359 (2) letter that he will use the course to obtain a managerial position in business.
He confirmed that there are no civil and political reasons which would act as a disincentive to return to India.
When asked if he wished to add anything; he said he requested time to finish his course and referred to twice being unable to finish it due to financial difficulties. He said he wants to study in 1- or 2-months’ time.
The representative referred to the current difficulties arising from Covid 19 and submitted that these should be taken into account. The Tribunal raised with him that despite these difficulties, courses were continuing to be run and taught, and the applicant can become enrolled in a registered course. The representative noted that there is a tension as the applicant wants to study but was prevented due to financial difficulties. He noted that the applicant was only educated to year 10 or intermediate level in India and needs to course to provide him with the skills for his business.
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 before the delegate was whether the applicant met the criterion in cl.500.212, however as raised with the applicant another matter before the Tribunal is whether she meets cl.500.211.
Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.
‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

The Tribunal raised with the applicant the requirement of enrolment for the grant of a student visa and referred to cl. 500.211 in writing on a number of occasions including in the recent s.359A letter.
The evidence as to enrolment submitted to the Department and the Tribunal indicates the applicant was enrolled in a General English (Power Language) course from 17 July 2017 to 13 July 2018, a Diploma of Business from 17 July 2017 to 13 July 2018, an Advanced Diploma of Leadership and Management from 8 January 2018 to 7 July 2019 and then an Advanced Diploma of Business from 8 July 2019 to 3 July 2020. However, current information obtained from the PRISMS record, raised with the applicant via s.359A in the Tribunal’s letter dated 10 July 2020, indicates he is not currently enrolled in a course of study and ceased enrolment in the Diploma of Business on 4 December 2019. When the issue was raised at hearing on 20 July 2020 the applicant confirmed he was not currently enrolled in a course of study. Despite being granted time to respond or comment to the information outlined in the s.359A letter and the issue being raised at the hearing on 20 July 2020, no evidence of current enrolment in a course of study has been received from the applicant as at the time of this decision.
In making this decision the Tribunal has considered all the applicant’s reasons for non-enrolment including the current Covid19 situation. However as raised with the applicant information indicates education providers of registered courses continue to enrol students, run courses and issue CoEs.
Therefore, on the evidence before it, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.
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.
DECISION
The Tribunal affirms the decisions not to grant the applicant a Student (Temporary) (Class TU) visas.
Gabrielle Cullen
Member
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 3537

27 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice