Tung (Migration)

Tung (Migration) [2019] AATA 2685 (2 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Kar Wai Tung
CASE NUMBER:  1731374
HOME AFFAIRS REFERENCE(S):           BCC2017/3598151
MEMBER:T. Quinn
DATE:2 June 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 02 June 2019 at 9:20am
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant failed to provide requested information– genuine temporary entrant criterion not met – no evidence provided regarding academic progress– using student visa to maintain ongoing residence –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 338, 359,360,363, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212, 500.218
CASES
Baker v Minister for Immigration and Citizenship [2012] FCAFC 145
Chen v Minister for Immigration and Border Protection [2017] FCA 46
Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345
FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555
Hasran v MIAC [2010] FCAFC 40
Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (‘the delegate’) on 2 December 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).
The applicant applied for the visa on 2 October 2017 (‘the application’). At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
On 2 December 2017, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that the applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.
On 12 December 2017, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.
More than 17 months have elapsed since the making of the delegate’s decision and the applicant’s application for review with the Tribunal. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed during that time. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information to the Tribunal for the purposes of determining the outcome of their application for review. To this end, on 5 April 2019, 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 invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by the prescribed date, being 23 April 2019, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The Tribunal is satisfied that the applicant was properly sent an invitation to provide further information under section 359(2) of the Act.
The review applicant did not provide the information within the prescribed period or otherwise and no extension of time was requested. Where a review applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action.[1]
[1] Pursuant to section 359C(1) of the Act.
The Tribunal finds that the review applicant did not provide further information as requested. In these circumstances, section 359C of the Act applies and pursuant to section 360(3) of the Act the review applicant is not entitled to appear before the Tribunal. The effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear.[2]
[2] Hasran v MIAC [2010] FCAFC 40.
The Tribunal, therefore, has no additional information relating to the applicant’s visa application beyond that which was before the delegate on 2 December 2017 and is otherwise discernible from the delegate’s decision and Department file.
It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.
The Tribunal has proceeded to a decision having had regard to all the information before it, including the information previously provided by the applicant to the Department but without taking further steps to obtain the additional information sought by this Tribunal under section 359(2) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
STATUTORY FRAMEWORK
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant.
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies clause 500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (‘the Direction’), made under section 499 of the Act. The Direction requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist, but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Direction is a lawful direction of the Minister made in accordance with section 499 of the Act. The Tribunal is therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[3] 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.
[3]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a 32 year old female Malaysian citizen who first arrived in Australia on 5 July 2017 on Tourist visa UD 601 for a 13 day holiday, advising that her usual occupation was as a sales officer.[4] So far as the Tribunal can ascertain from the material before it, it appears that the applicant has not departed Australia since her arrival in July 2017. It is unclear to the Tribunal in what capacity the applicant was onshore between the end of her 13 day holiday visa in July 2017 and her application for student visa in October 2017
[4] See delegate’s decision.
The delegate’s decision outlines the applicant’s application which was to undertake a package of courses including a Certificate III and IV in Commercial Cookery and Diploma of Hospitality Management with a prospective completion date in October 2019. The applicant filed with the Department confirmations of enrolments reflecting the delegate’s description of proposed courses. However, the Tribunal has no evidence before it about whether the applicant has maintained her enrolments since 2017, whether she has engaged with the proposed courses since the time of her application in October 2017 and/or what sort of academic progress she has made.
Prior to coming to Australia, the applicant completed secondary school in Malaysia in 2004 followed by a Certificate in Hospitality Management (Hotel Management) (Level IV) in June 2006[5] and then worked as a cook at a café from August 2006 to December 2010, a pastry cook at a restaurant from February 2011 to August 2015 and as marketing officer in a Hotel from September 2015 to 12 June 2017.[6]
[5]See page 32 of the Department File.
[6] See pages 33 and 53-55 of the Department File.
The delegate’s decision transcribes the applicant’s undated genuine temporary entrant statement titled ‘Genuine Student Statement’ (‘the GTE’)[7] in which the applicant states ‘[a]fter working in hospitality industry for over 10 years, I felt my real interest is to become a qualified chef, and creating delicious dishes for diners. I have never studied western cuisine cooking theory and skills before; it is necessary for me to go back to school to study specialized commercial cookery theory and skills if I would like to take chef as my professional career goal.’ She goes on to state that her current Malaysian education is not satisfactory and that when she visited Australia for a holiday in July she preferred the Australian cuisine and ‘came up with the idea of studying western cuisine theory in Australia.’ She claims to have then engaged in research about her study and living arrangements and that a higher quality Australian qualification will enable her to secure a chef’s position more easily. She submits that upon completion of her studies she will ‘seek a chef’s position in a high class western style restaurant or international hotel there’.
[7] See delegate’s decision and pages 33-4 of the Department File.
The Tribunal accepts that the proposed Commercial Cookery courses apply and are relevant to the applicant’s employment prospects in relation to her stated goal to become a chef in a western style restaurant. They may also offer some limited assistance to her future employment prospects. However, the Tribunal does not consider that the applicant has explained how the skills she will obtain from the Diploma of Hospitality Management will apply to, are relevant to, or will help assist or improve her employment prospects in relation to her goal to become a chef. This is particularly the case when she has already completed a Certificate in this field of study in Malaysia. The applicant has also failed to provide any submissions in relation to the remuneration she could expect to receive in the position of chef and/or the remuneration she previously received prior to arriving in Australia as a cook and chef. Further, it is not clear whether the applicant has or is actually engaging in her studies or what progress she has made. This is aggravated by the applicant’s failure to respond to the s359(2) letter where she had an opportunity to provide such information. It is difficult to see how any improvement from the proposed courses would outweigh the significant time and monetary commitment of relocating and living in Australia in order to undertake them.
Although the applicant has expressed favourable views of the Australian education system and the quality of qualifications obtained here, it does not appear that the applicant has properly investigated such courses in Malaysia and the Tribunal considers that the applicant has not provided reasonable reasons for not undertaking the study in her home country. This is of concern for the Tribunal as it is fair to assume similar courses would have been available to the applicant in Malaysia without the expense of relocating to and living in Australia.
Due to the delays in the applicant’s matter coming before the Tribunal, if the applicant has been engaging with her studies as proposed at the time of his application to the Department, she should now have completed both Commercial Cookery courses and be only a few months away from completing the proposed Diploma. Given the Tribunal’s comments in paragraph 21, it is significant that the Cookery courses should now have been completed and the applicant should now have obtained the primary benefit of her proposed study in Australia. As such, the applicant ought now be in a position to depart Australia, reunite with her family and put into motion her plan to work as a chef in Malaysia. However, the applicant has not provided any material to the Tribunal and the Tribunal does not know what sort of academic progress the applicant has made, if any, and whether she has been engaging with her proposed studies or not. The Tribunal, therefore, cannot properly assess the applicant’s academic progress since the time of her application in October 2017.
The applicant has a husband, both parents and a brother in Malaysia. In the GTE, the applicant states that she owns a term deposit with her mother to the value of RM 120,000 and that her mother and brother also own a term deposit to the value of RM 45,000 totalling approximately $50,000AUD equivalent. She adds that her mother and brother intend to support her financially during her time in Australia. The Tribunal accepts this. There is limited other evidence before the Tribunal in relation to the applicant’s economic circumstances in Australia or Malaysia. The Tribunal notes that the United Nations Human Development Index ranks Malaysia as 57^th in the world as compared to Australia’s ranking of 3^rd in the world.[8] The Tribunal considers that the applicant’s economic circumstances in Australia relative to Malaysia may present as a significant incentive for her not to return.
[8]See Table 1 of United Nations’ Human Development Indices and Indicators 2018 Statistical Update <>
The applicant has proffered little detail in relation to her personal ties in Australia. The Tribunal considers the applicant has a preference to remain onshore but cannot form any firm conclusions as to whether the applicant’s ties with Australia present as a strong incentive to remain in Australia.
The Tribunal notes that, save for the statement in the GTE that she has discussed her plans with her mother and brother and has their financial support; the applicant has not made any particular submissions about her closeness with her family in Malaysia. She does not provide the regularity of her contact with them or any intention to return to visit them during her time onshore. Although the applicant’s family in Malaysia would usually be considered a significant incentive for an applicant to return to their home country, it appears to the Tribunal that any such incentive is outweighed by the applicant’s desires and wishes to remain onshore.
The applicant has undertaken some travel for holiday purposes including to South Korea in 2013, Thailand in 2014, Taiwan in 2015 and Vietnam in 2016.[9] There is no evidence before the Tribunal that the applicant has had any visa or immigration issues in the past.
[9] See page 57 of the Department File.
The Tribunal has not been provided with information regarding the following factors indicated by Direction 69: any potential military service in Malaysia and any political or civil unrest circumstances in Malaysia. Accordingly, these factors have no bearing, either favourable or unfavourable, in the present application for review.
It is difficult for the Tribunal to accept the applicant’s submissions in the GTE that in such a short space of time, having arrived on a tourist visa, and on the basis of a preference for Australian cuisine, she ‘came up with the idea of studying western cuisine theory in Australia’ and then promptly researched all study ad 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, 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.
The Tribunal is not satisfied that the applicant genuinely intends to stay in Australia temporarily. In making this comment, the Tribunal places weight on:
a.the way in which the applicant arrived in Australia, being as a tourist on holiday and then changing her intentions shortly thereafter, as one would expect that such a significant change to an individual’s plans for a period of approximately two years would require considerably more planning than the applicant suggests;
b.the fact that the applicant has now, at the time of decision, had ample time to meaningfully engage and obtain the major benefit from the proposed studies,
The Tribunal considers that the visa is being sought primarily to maintain residence in Australia.

Having had regard to the applicant’s circumstances, her immigration history and all other relevant matters, the Tribunal cannot be 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 does not meet clause 500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Therefore, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
T. Quinn
Member
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.

[2019] AATA 2685

2 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies