Shrestha (Migration)

Shrestha (Migration) [2022] AATA 5208 (7 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Santosh Kamal Shrestha
CASE NUMBER:  2003393
HOME AFFAIRS REFERENCE(S):          BCC2019/4547003
MEMBER:Warren Stooke AM
DATE:7 January 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 7 January 2022 at 11:03am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa and study history – applied after arriving on visitor visa – did not complete previous course and behind assessment schedule in current course – family members in home country and Australia – working in brother’s business in breach of visa condition – cost of study in Australia relative to home country – vague future business plans – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a), Schedule 8, condition 8101
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 February 2020 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 11 September 2019. 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.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the available information did not present a compelling case to support the significant expense when their goals could be adequately served in their own country.
The applicant appeared before the Tribunal on 21 October 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
The applicant confirmed to the Tribunal that he had received and read the delegate’s decision relating to his application. A copy of the decision was provided to the Tribunal prior to the hearing with the applicant’s application for review.
The Tribunal asked the applicant what he understood to be the reason for the refusal of his visa application and the applicant responded: “because the decision said I would not return back to my native country and one of the documents was not there”.
The applicant was assisted in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student.
The Tribunal asked the applicant: Do you understand that to be that to be granted a Temporary Student Visa, it is a requirement that you satisfy the Minister that you are a genuine temporary entrant for stay as a student? The applicant responded: “Yes”.
The applicant is a 27 year old from Nepal, who was granted a Visitor 600 Visa from April 2019 to September 2019 and stated that he arrived in Australia in May 2019.
The applicant stated that he came to Australia to meet his sister and brother-in-law and whilst he was on a Visitor visa his sister and brother-in-law opened a restaurant. He stated that he liked Australia and wanted to stay here and his brother-in-law said he could return to Nepal after completing a Commercial Cookery course.
The applicant was granted a Bridging Visa A on 11 September 2019 that has a ‘no work’ condition 8101 and no travel.
The applicant provided evidence of health insurance with Allianz, which is valid from 10 September 2019 to 31 March 2022.
The applicant stated that he completed an IELTS English language test in Australia in 2019 and achieved a score of 5.5.
The applicant stated that he is currently studying a Certificate IV in Commercial Cookery at the Australian International College, which he commenced in October 2019 and has not completed. He also stated that the college has extended the course enrolment until April 2022, as he has not finished in the two year period and assignments are pending. He stated that the assignments were not completed because there was something wrong with the assignments.
The applicant provided evidence of enrolment to engage in the following courses of study:
a.Australia International College Pty Ltd Cert IV in Commercial Cookery from 10/2019 to 07/2021 (did not complete);
b.Australia International College Pty Ltd Cert IV in Commercial Cookery from 07/2021 to 04/2022 (currently studying);
c.Australia International College Pty Ltd Diploma of Hospitality Management from 04/2022 to 09/2022 (proposed future course of study).
The applicant stated that he liked the course and that it was good for his future and that Nepal has good restaurants and hotels but not in his home town. He stated that there was “good knowledge from here”.
The applicant provided a response to a s359(2) request from information from the Tribunal prior to the hearing that included the following response:
“Santosh decided to complete his study in Hospitality in Australia. During his visit to Australia, he assessed the course requirements, study details and was interested in pursuing his hospitality study to fulfill his dream of becoming a Chef.
He enrolled in Cert IV a commercial cookery and Diploma in Hospitality as this was the minimum study required for a Chef. After researching the many Vocational course providers available, he chose this course provider as the cost of course, study pattern, ease of commute and term of study met his requirement. He was also assisted by some education consultants who consulted him with his study needs and course (provider) options.
Santosh is a genuine International student and has always maintained enrolment in course of study. Since the initial arrival for study purpose, Santosh is trying to pursue and complete the Certificate IV in Commercial Cookery also enrolled in Diploma of Hospitality management. He has achieved "Competent grade" in all study units enrolled until now.
Due to the Covid 19 pandemic lockdown and temporary disruption of study and closure of colleges, the course completion has been delayed. But Santosh has evidence of continuous study and has progressed well. His COE is active, fees paid on time and course progression is satisfactory.
Nepal has the study options but the quality of courses in hospitality is no match to the Australian standard. Especially in the filed of hospitality, the quality of study, cooking standards, hygiene and safety standards and practical exposure
matters most. Therefore during his visit, he was very much impressed with the course delivery standards which was no match to what he would get in Nepal. Therefore, he decided to study in Australia, more so because he had his parents
who could afford his study and his sister in Australia who agreed to bear the cost of study and living for Santosh's bright future.”
The applicant stated that he intended to return to his home country after completing the Diploma of Hospitality Management in September 2022.
The applicant stated that he returned to Nepal for 16 days in May 2019 to visit his father, who was in a critical condition in ICU.
The applicant stated that his aspiration was to open a restaurant and to finance with his sister and brother-in-law in Australia and his father.
He stated that if there was a problem (finance) he would have a partnership in the restaurant, which will provide Nepalese cuisine.
The applicant stated that he lives in Auburn with his Australian brother and that his parents provide support. He stated that he helps his brother-in-law in the restaurant for no payment and he helps with pocket money.
The applicant stated that he does not have property in Nepal and that property is in his father’s name. He stated he has a motor bike and that his brother has a construction company for building roads and other government contracts, which was originally owned by his father and was then transferred to his father’s brother, after he came to Australia.
The applicant provided evidence that he has the following family in Nepal and Australia:
a.Kamal Prasad Shrestha - Father visited in Nepal 05/2019
b.Bishnu Maya Shrestha - Mother visited in Nepal 05/2019
c.Karishma Shrestha - Sister visited in Nepal 05/2019
d.Reshma Shrestha - Sister Australia 09/2021
The applicant provided a response to a s359(2) request from information from the Tribunal prior to the hearing that included the following response:
“Santosh had completed his high school when he departed Nepal. His father, mother and sibling are in Nepal . It is a close knit family and they all support each other. Santosh has plans to return to his parents in Nepal and start his own Restaurant / hospitality business after achieving his study goals in hospitality.
Nepalese community is very fond of food and an overseas qualification in Hospitality(Cookery) will add value to his business venture on return to Nepal.
Santosh is enrolled in studies and spends most time at study or home. He does not have work rights and helps his sister at home. During the pandemic, Santosh has been home most of the time with his sister and her family. He has friends.”
“While studying in Australia, I can witness the culinary world in international level alongside options and connections. After completing my Diploma of Hospitality Management and Certificate IV in Commercial Cookery Course, I am most likely to be employed as a Cook, Chef, Restaurant Manager, & Catering Manager position in Nepal. Once I gain suitable experience, I get more and better opportunities such as executive Chef position. Since Nepalese hotels and restaurants give better opportunities for internationally qualified applicants, I am more than certain that my qualification in Australia will really be helpful and fruitful in converting my ambition into reality of being a successful chef in my own country. I can seek employment in some of the below 5-star hotel, boutique hotel and fine dining restaurant as a cook or chef.”
The Tribunal asked the applicant if he would have any difficulty in assimilating into Nepalese society and he stated: “No”.
The Tribunal asked the applicant if there was any reason that would preclude the applicant from returning to Nepal and he stated: “No”.
The Tribunal asked the applicant if it was his motivation to remain in Australia permanently and he responded: “No. I don’t have any feeling to stay here permanently”.
The applicant provided the Tribunal with a detailed GTE statement that included the following conclusion:
“My family has sound financial background so with the support of my family I am planning to study in Australia. My family has enough property, regular income and bank saving to support during my temporary stay in Australia. I am the only son of my parents and I have responsibility to take care of them in their old age. So, I must return to Nepal to support them. My only goal is to get good necessary skills in culinary arts so I can be successful in life. My long-term goal is to establish a world class fine dining restaurant, in Kathmandu or Gorkha. I am expecting to gain cookery skills from Certificate IV and Management skills for Diploma of Hospitality Management. I already have some customer service skills from my previous job and that will certainly help me to achieve my dream come true. From this course I am sure that I will learn how to cook delicious food and present /decorate them on plate. Good food presentation only comes through measured combinations between the dish and sauces, garnish and the sides. Properly presented delicious good food psychologically communicates the quality standard of the Cook Chef or Restaurant. And I am looking forward to gaining such skill from my enrolled course so, I can successfully set up my own business in Nepal. I am confident that I will gain in-depth understanding of culinary/ cooking knowledge throughout the course. I am strongly convinced that this course will provide me with the knowledge, skills and experience required to work in Restaurant, Hotel, Café, Fine Dining Restaurant and any Hospitality Industry in Nepal. The information given above is true and correct from the best of my knowledge. I understand that incorrect information provided to Department of Home Affairs may result in refusal of my visa application. I hope for the positive response from the Department and I will be respectful with all the visa condition.”
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Tribunal has considered the evidence, provided by the applicant, in the context of Direction 69 and finds that the applicant is not a genuine temporary entrant for the following reasons:
a.The applicant confirmed in evidence that he has not completed any course of study since arriving in Australia on a Visitor 600 Visa in May 2019 and applying for a Student 500 Visa on 19 September 2019 and enrolling in a Certificate IV Commercial Cookery course to commence in October 2019. The Tribunal finds that the incomplete study based upon the evidence of the applicant after a 2 year period is not consistent with the expected behaviour of a genuine temporary applicant for entry and stay as a student;
b.The applicant confirmed in evidence that he currently has Confirmations of Enrolment to undertake registered courses of study that he has not either completed or commenced since arrival in Australia. The Tribunal is not satisfied regarding the genuine interest in study and seriously questions the purpose of the applicant’s stay in Australia, particularly given that he has no work rights with an 8101 visa condition and has been engaged in unpaid work at his brother-in-law’s restaurant for which he declared he was provided ‘pocket money’. As such, the Tribunal finds that the applicant has been in breach of his visa condition 8101 and has not completed studies, with outstanding assignments, during the period of enrolment;
c.Whilst the Tribunal acknowledges that the applicant has immediate family in Nepal and strong ties to his home country, the evidence also suggests that the applicant has strong ties to his sister and brother-in-law with whom he has been living with in Australia and assisting in their restaurant on a stated unpaid basis. The Tribunal is not satisfied that the applicant is a genuine temporary resident and is maintaining a lifestyle and residency in Australia that does not demonstrate a commitment to pursuing studies given the extended period of stay without completing any course of study;
d.The Tribunal is not satisfied as to how the applicant will improve his career prospects and future income given the cost of education involved in completing courses in Australia relative to undertaking such courses in his home country. As such, the lack of advice concerning future job opportunities, other than general assertions, or details of a specific business plan does not provide adequate weight to the substance of choosing the Commercial Cookery and Diploma of Hospitality Management courses intended to be studied;
e.The Tribunal gives some weight to the fact that the applicant provided evidence that study may be impacted by the pandemic, but the applicant has not completed any course of study for a period of 2 years, up to the time of hearing, which indicates the applicant is not motivated to genuinely involve himself in the courses of study advised to the Department in his application. This, in the Tribunal’s view, does not demonstrate a genuine purpose of stay in Australia as a student and leads to the finding that the motivation is to maintain residency and lifestyle in Australia. The Tribunal would have expected the applicant to have made good use of his time in Australia if he was a genuine temporary entrant for stay as a student.
The Tribunal gives weight to the lack of academic progress, since the commencement of studies in October 2019, when the stated purpose was to remain in Australia for the purposes of academic study. The applicant has exhibited an extended period of time where no study has been completed and without starting the courses for which confirmations of enrolment were held, including an admission, at hearing, of outstanding assignments.
Further, there is no evidence before the Tribunal that would suggest that the applicant has any valid reason for not returning to Nepal and to the contrary the Tribunal finds that the applicant has developed a desire to remain in Australia for the purposes of residency and the lifestyle and potentially other undisclosed purposes.
Based on what is evidenced of the applicant’s circumstances overall, in the absence of any other relevant information, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for temporary entry and stay as a student. As such, the Tribunal is not satisfied that the applicant intends to genuinely enter Australia temporarily having regard to the evidence advanced and considered cumulatively above.

Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.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. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Warren Stooke AM
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;
d.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
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.

[2022] AATA 5208

7 January 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction