Wickramatunga (Migration)

Wickramatunga (Migration) [2019] AATA 2579 (18 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Lakmal Wickramatunga
CASE NUMBER:  1726933
HOME AFFAIRS REFERENCE(S):           BCC2017/3124080
MEMBER:T. Quinn
DATE:18 May 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 18 May 2019 at 10:16pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – s 359(2) invitation – submissions received outside of prescribed period – genuine temporary entrant – value of course – business plan – work history in Australia – income disparity – length of time onshore – limited travel home – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
CASES
Hasran v MIAC [2010] FCAFC 40
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 30 October 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).
The applicant applied for the visa on 29 August 2017 (‘the application’). At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
On 30 October 2017, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that the applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.
On 2 November 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.
The applicant was assisted in relation to the review by their registered migration agent.
More than 18 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 25 February 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 12 March 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 Tribunal received submissions on 19 March 2019. However, the requirement was that the information requested be ‘received by 12 March 2019’ and the review applicant therefore did not provide the information within the prescribed period 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.
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 and including the applicant’s response to the s359(2) letter filed 19 March 2019.
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 28 year old male Sri Lankan citizen who first arrived in Australia on 7 October 2011 on a Student visa (subclass 573) which was valid until 15 March 2015 for the purpose of studying a program of Certificate IV, Diploma and Bachelor of Information Technology.[4] The applicant then obtained a graduate work visa (VC485) from April 2015 to October 2016 (‘the 485 visa’) (the details of his employment in that regard are unclear to the Tribunal) and then obtained a further subclass 500 student visa in August 2016 which expired in October 2017.[5]
[4] See delegate’s decision.
[5] See delegate’s decision and applicant’s response to the s359(2) letter.
Prior to coming to Australia, the applicant completed secondary school in Sri Lanka in 2010.[6] The applicant has returned to visit his family in Sri Lanka on three occasions: in August and December of 2014 for 41 and 18 days respectively and again for 36 days in November 2015.[7] The applicant has not departed Australia since November 2015.[8]
[6]See applicant’s response to the s359(2) letter.
[7] See applicant’s response to the s359(2) letter.
[8] See applicant’s response to the s359(2) letter.
Since his arrival onshore, the applicant has completed:[9]
a.a Certificate IV in Information Technology (General);[10]
b.a Diploma of Information Technology (Networking);[11]
c.a Bachelor of Information Technology (study Group Australia);[12] and
d.an Advanced Diploma of Business.[13]
[9] See delegate’s decision.
[10]See corroborating evidence provided by the applicant at pages 4-2 of the Department File.
[11]See corroborating evidence provided by the applicant at pages 30-2 of the Department File. The Tribunal notes the applicant’s exceptional grades in this course, being predominantly High Distinctions and commends his efforts in that regard.
[12]See corroborating evidence provided by the applicant at pages 37-8 of the Department File.
[13] See corroborating evidence provided by the applicant at pages 34-6 of the Department File
The applicant’s present application for a further student visa, which is the subject of this review, was to study an Advanced Diploma of Marketing and Communication which the delegate’s decision states was to be completed in March 2019. The applicant’s response to the s359(2) letter indicated that he was presently studying that course and due to complete in March 2019. The applicant has not filed any further material in relation to his completion of that course, which ought to have occurred by now.
In relation to the 485 visa, the delegate’s decision states that the applicant listed his occupation as “System Analyst”. However, in his response to the s359(2) letter, he lists only employment as a cook in his employment history. It would appear that the applicant has not provided all relevant information in relation to his employment history in Australia given his residence onshore on the basis of the 485 visa. This troubles the Tribunal.
The Tribunal acknowledges that the applicant has made good academic progress in all of his courses, has no cancelled enrolments and appears to have complied with the conditions of his visas at all time. This is to his credit.
In his genuine temporary entrant statement dated 28 August 2017[14] (‘the GTE’), the applicant claims that ‘[a]fter completing my course I will go back to Sri Lanka to start my own small IT Company in my home town’, he submits that in order to fulfil this goal he needs ‘to have sharp skills of Computers, Business, Management and Marketing… without "MARKETING" it won't work in long run’ and that ‘[t]o make a strong foundation of any business, management skills are really essential.’ The Tribunal allows for reasonable changes in study path but considers that the benefit of the proposed course to the applicant may be somewhat marginal given he has already completed a bachelor’s degree and three vocational education sector courses which would all give him ample knowledge to commence his own business. Further, his work experience in the 485 visa appears to have been in this field and if he has engaged with his study as proposed, he ought now to have completed his Advanced Diploma of Marketing and Communication. The Tribunal is concerned that the proposed course is not consistent with the applicant’s current tertiary level of education. The Tribunal considers any benefit to the applicant from the Advanced Diploma of Marketing and Communication is very marginal given his study history and the communication skills displayed in his submissions. Further, after in excess of seven years onshore and having completed the courses described above, the applicant is likely to have maximised any benefit in terms of assistance to him in his future employment prospects in his home country. The Tribunal considers that for an applicant with the educational experience such as that of the applicant, particularly given his grades in the Certificate IV in Information Technology, the primary benefit of his study in Australia is likely to have been obtained and the applicant can presently return to Sri Lanka and set in motion his plan to run his own Information Technology business.
[14] See page 48 of Department File and delegate’s decision.
In his response to the s359(2) letter, the applicant outlines the reasons he chose his current course provider. The Tribunal accepts these submissions and considers the applicant has a realistic level of knowledge about his course provider.
The applicant has provided reasonable reasons for not undertaking the study in his home country, including the limited availability of such courses in the Sri Lankan region and the quality of teaching in Australia.[15] The Tribunal accepts these submissions.
[15] See applicant’s response to the s359(2) letter.
The delegate states that in his previous student visa application, the applicant stated ‘I am pretty sure that this is going to be my last study in Australia’. That application was made in 2016 and it is of concern to the Tribunal that the applicant remains onshore, proposing to continue residing in Australia as a student. It raises questions about the nature of the information provided by the applicant and his true intentions.
The applicant refers to friends in his response to the s359(2) letter but states that he has no personal ties to Australia other than his Sri Lankan friends. This is difficult for the Tribunal to accept. It would seem to the tribunal that the length of the applicant’s stay in Australia for in excess of seven years and his application to continue to remain onshore suggests that he has a preference to remain. It is reasonable to conclude that, after more than seven years, the applicant has cultivated a satisfactory life and has established strong ties to the Australian community. As each day passes, those ties strengthen.
The applicant states that he expects to receive approximately $5-10,000AUD equivalent per annum using the qualifications gained, running his own Information Technology business in his home town.[16]
[16] See applicant’s response to the s359(2) letter.
The applicant states he has worked as a cook since his arrival onshore, earning $26,000AUD per annum from October 2011 to April 2016, $12000AUD per annum from June 2016 to March 2019 and $10,000AUD from July 2017 to March 2019 indicating that he is currently earning $22,000AUD total per annum working as a cook in Australia. The applicant has not listed any assets and states that his expenses are $20,400AUD per annum. He has provided evidence of approximately $28,000AUD held in an Australian bank account in August 2017 to the Department.[17] Given the:
a.discrepancy in the value of the respective dollar in Australia as compared to Sri Lanka;
b.the fact that the applicant is earning in excess of his expenses in Australian dollars while residing onshore, particularly having regard to the anticipated future remuneration of the applicant upon return to Sri Lanka; and
c.the United Nations Human Development Index which ranks Sri Lanka as 76^th in the world as compared to Australia’s ranking of 3^rd in the world[18],
the Tribunal considers that the applicant’s economic circumstances in Australia relative to Sri Lanka are presenting as a significant incentive for him not to return.
[17] See pages 27 and 51 of the Department File.
[18]See Table 1 of United Nations’ Human Development Indices and Indicators 2018 Statistical Update <>
The Tribunal notes that the applicant has both parents and his sister in Sri Lanka.[19] The applicant has returned to visit his family in 2014 and 2015 as detailed above but has remained onshore for in excess of three years now without seeing his family.[20] The applicant states he maintains contact with his family over the phone and internet. He states he makes audio and video calls to them 2-3 times per week and wishes to live with his parents and sister to support them upon his return.[21] The Tribunal accepts that the applicant’s family members may serve as an incentive for the applicant to return to his home country but, given the length of time he has been onshore for and the limited travel home he has engaged with in that time, it appears to the Tribunal that any such incentive is outweighed by the applicant’s desires and incentives to remain onshore.
[19] See applicant’s response to the s359(2) letter.
[20] See applicant’s response to the s359(2) letter.
[21] See applicant’s response to the s359(2) letter.
The applicant states he has not undertaken any other international travel outside that described above to his home country, has had no visa or immigration issues in the past and does not have any potential military service or political or civil unrest concerns in Sri Lanka.[22] The Tribunal accepts this evidence.
[22] See applicant’s response to the s359(2) letter.
The Tribunal considers that the applicant has not demonstrated any clear and substantial improvement arising from any further proposed study that will outweigh the significant time and monetary commitment required.
The applicant’s application and submissions do not satisfy the Tribunal that the applicant genuinely intends to stay in Australia temporarily. In making this comment, the Tribunal places weight on the significant length of the applicant’s time onshore, being in excess of seven years, the inconsistent nature of the current course to his bachelor level qualifications, the limited (if any) benefit the proposed course will have to his future goal and the fact that the course ought now to have been completed due to the delays in the applicant’s matter coming before the Tribunal. The Tribunal is concerned that the visa is being sought primarily to maintain residence in Australia.

Having had regard to the applicant’s circumstances, his 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 2579

18 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction