Yin (Migration)

Yin (Migration) [2024] AATA 1457 (23 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Liyu Yin
REPRESENTATIVE:  Mr Rongwu Liu (MARN: 0321108)
CASE NUMBER:  2306174
HOME AFFAIRS REFERENCE(S):          BCC2020/2116878
MEMBER:David Thompson
DATE:23 May 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 23 May 2024 at 1:26pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – no evidence of course value to benefit future career – no evidence of previous courses completed – significant gap in studies – maintaining ongoing residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 363, 499; Direction No 108
Migration Regulations 1994, Schedule 2 cls 500.212, 500.215
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 Home Affairs on 24 April 2023 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 19 August 2020. 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 he was not satisfied that the applicant intended genuinely to stay temporarily in Australia.
The applicant was assisted in relation to the review.
On 5 January 2024 the Tribunal wrote to the review applicant pursuant to s 359 of the Act, inviting the review applicant to provide information about his enrolment in a registered course of study. In the same letter, the Tribunal also invited the applicant to provide information relevant to the issue of whether he was a genuine applicant for entry and stay as a student, providing him with access to a Request for Student Visa Information form containing the specific details of the information sought.
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 19 January 2024, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The review applicant has not provided the information within the prescribed period, or indeed at all. No extension of time in which to do so has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 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: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.
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 meets the requirements of cl 500.212.
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.
Evidence
The applicant has provided the following items of documentary evidence to the Tribunal:
a.a decision record and notification letter, both dated 25 February 2022, sent to the applicant by the Department informing him of the refusal of his student visa application on the ground that he did not meet the requirements of cl 500.215 of Schedule 2 to the Regulations; and
b.a decision record and notification letter, both dated 24 February 2023, sent to the applicant by the Department informing him of the refusal of his student visa application on the basis that he did not meet the requirements of cl 500.212.
Prior to constitution of this review application, the Tribunal obtained the Departmental file on the applicant’s student visa application. That file contained the following relevant documents provided by the applicant and not already listed above:
a.Confirmation of Enrolment (CoE) C8105931, recording the applicant’s enrolment in a Diploma of Business at Velocity Education and Training, scheduled to run from 10 January 2022 to 8 January 2023;
b.the applicant’s student visa application, lodged on 19 August 2020; and
c.identification pages from the applicant’s People’s Republic of China passport.
Prior to the preparation of these reasons, the Tribunal obtained a copy of the applicant’s record from the Provider Registration and International Student Management System (PRISMS). It is clear on the face of the delegate’s decision record dated 24 February 2024 that the delegate considered this record before refusing the applicant’s visa application. In his decision record, which the applicant provided to the Tribunal, the delegate sets out the information contained in that record up to the date of decision and notes that the applicant was invited to comment on that information and did not do so. The applicant has provided that information to the Tribunal, by providing it with a copy of the delegate’s decision record, but has not provided any comment on, evidence relevant to, or submissions dealing with, that information. The applicant’s PRISMS record as obtained by the Tribunal obtains a small amount of additional information, none of which is a reason or part of a reason why the Tribunal might affirm the delegate’s decision. The Tribunal has not, therefore, sought the applicant’s comments or response to that additional information.
It is convenient to note at this point that the decision record referred to in paragraph 11(a) above contains no information relevant to the determination of this review application that cannot be found in one or another of the other documents listed in paragraphs 11 and 12 above, although the fact that it exists at all is slightly relevant to one issue regarding the applicant’s immigration history. I will refer to it specifically, albeit briefly, on that point. Otherwise, any reference below to the delegate’s decision record is a reference to the decision record dated 24 February 2023 (paragraph 11(b) of these reasons).
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 108, ‘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.
Consideration
Background
Before considering the requirements of cl 500.212(a), it is convenient to note that, given the paucity of evidence before me, such findings as I have been able to make below are based on information contained either in the delegate’s decision record, the applicant’s student visa application, or his passport.
The applicant’s circumstances in his home country
The applicant is a citizen of the People’s Republic of China. At the date of these reasons, he is 37 years old.
In his visa application, the applicant declared that he has family in his home country, namely, his parents. There is no evidence before me, such as evidence as to the frequency and mode of contact with his parents, which would allow me to make any assessment of the strength of his relationship with them. In the same document, the applicant stated that he has never been married, and has not declared any dependants. There is no evidence whatsoever before me regarding the applicant’s community ties and involvements, if any, in his home country. I am not satisfied that such personal ties as the applicant has to his home country will give him any incentive to return their after he has finished his studies in Australia.
The applicant has stated in his visa application that his highest level of schooling completed outside of Australia is “secondary school – year 12 of equivalent.” He has gone on, however, to identify the school at which he reached that level as a school in Australia. He has given no evidence at all regarding his finances, any assets he may have in his home country, or any record of employment he may have in that country. I am not satisfied that the applicant has any economic ties with his home country that would provide him with any incentive to return there when he has finished studying in Australia.
There is no evidence before me regarding any military service obligations or concerns the applicant may or may not have regarding civil or political unrest in his home country. It would seem, on the basis of the applicant’s PRISMS record, that he is currently enrolled in a package of courses comprised of a Diploma of Project Management (which he is currently studying) and an Advanced Diploma of Program Management (which is scheduled to run from 15 July 2024 to 21 December 2025). There is no evidence before me as to whether these courses or their equivalents are available to the applicant in his home country, and no evidence as to the reasons for which he has decided to study in Australia. I note in that regard that the applicant did not submit a Genuine Temporary Entrant statement in the course of the visa application process, and has not provided any such document to the Tribunal.
For the reasons I have set out above, I am not satisfied that the applicant’s circumstances in his home country give any support to his claim to intend to stay in Australia temporarily.
The applicant’s potential circumstances in Australia
There is no evidence before me as to whether the applicant has, or does not have, family or community ties in or to Australia. Nor is there any evidence as to any economic ties the applicant may have to Australia, or indeed of any lack thereof. There is no evidence whatsoever before me, not even an assertion made by the applicant, to indicate whether or not he has entered into any relationship of concern whilst in Australia. There is no direct evidence before me indicating that applicant is using the student visa system to maintain evidence in Australia, nor any direct evidence that he is attempting to circumvent the intentions of the Australian migration program and any other way. However, the sheer lack of evidence as to the applicant’s circumstances, activities, and intentions surrounding his visa application provide fertile grounds for inferences that he is attempting to do just that.
There is no evidence before me as to any preparations three applicant may have made for life and study in Australia prior to his making the student visa application that has given rise to this review application. However, comments made by the delegate regarding the applicant’s immigration history make it clear that he has had a long-standing connection with Australia (whether that has been continuous or sporadic is not clear). This would tend to indicate that the applicant’s preparedness for life and study in Australia at the time of his visa application would not be of any assistance in determining his review application in any event. There is no evidence before me as to the manner in which the applicant has chosen his course provider, and no evidence that would allow me to reach any conclusion at all as to the applicant’s understanding of and engagement in his courses.
The almost complete lack of evidence before me in relation to the applicant’s potential (or indeed, actual) circumstances in Australia does not support the applicant’s claim to intend genuinely to stay in Australia temporarily. Rather, the reasons given above, it tends to undermine that claim.
The value of the applicant’s courses for his future
There is no evidence before me to suggest that the applicant has regressed in his level of study. Indeed, such evidence is there is (being the applicant’s statement as to his highest level of educational achievement outside of Australia and the level of his current enrolments) suggests that he is studying at a higher level than has been the case in the past. However, the applicant has provided no evidence whatsoever as to his plans on his return to China apart from the statement in his visa application that “Will look for a job after I returned to China.” It is impossible upon the basis of that statement to form any conclusion as to the relevance of the applicant’s courses to his plans. There is no evidence before me whatsoever as to such matters as the demand for persons with project management qualifications in China, or the remuneration person with the qualifications for which the applicant is working would be able to command in that country.
For these reasons, I am not satisfied that the applicant studies have any value for his future in China.
The applicant’s immigration record
The applicant stated in his visa application that he has not visited any countries in the past 10 years. There is no one’s before me to suggest otherwise, and I am prepared to accept that statement. The applicant has also stated, in the same place, that he has never had a visa issued to him cancelled, and has never been refused a visa. I am prepared to accept the applicant’s statement regarding cancellations, there being no contrary evidence before me. I note that the applicant’s current visa application was refused once prior to the refusal decision that gave rise to this review application. That much is apparent from the document noted in paragraph 11(a) above. As that refusal happened in the context of the applicant’s present visa application, I do not put any particular weight on it. It would appear to have been the natural result of the applicant’s failure to provide relevant information to the Department in support of his visa application. Otherwise, there is no evidence to contradict the applicant’s statement as to previous refusals. These aspects of the applicant’s immigration history give some limited support to his case.
It may be inferred from comments made by the delegate that the applicant has had a reasonably long association with Australia. It is convenient to quote the delegate’s words in full at this point:
I have given regard to the applicant’s immigration history. I note that the applicant initially arrived onshore on 17 August 2014 as the holder of a Class TU subclass 571 student visa which was granted on 11 August 2014 and which ceased on 24 May 2016. There is no evidence to show that the intended courses of study for which this student visa was granted were ever undertaken or completed. I note further that on 24 May 2016 a Class TU subclass 573 Higher Education student visa was granted to the applicant that ceased on 30 August 2020. I also note that there is no evidence that the initially intended courses of study for which this student visa was granted were ever undertaken or completed. I am also concerned that according to PRISMS website, there is a study gap present from 17 June 2018 to 10 August 2020. There is no evidence of study undertaken during this period of nearly 26 months it is also noted that during this time the applicant remained onshore on their student visa, apart from 2 short departures outside of Australia for 2 months on each occasion, which was valid until 30 August 2020. Given this, I am concerned the applicant may not have complied with visa condition 8202 of their previous visa.
On 19 May 2022 the applicant was provided with an invitation to comment on this adverse information and was given 28 days to respond. No response has been received from the applicant.
I am concerned that the applicant has not provided an explanation or evidence to support their poor progression in study in Australia. I am additionally concerned that since the applicant’s initial arrival in Australia in August 2014 the PRISMS website indicates the following: that the applicant has only completed one English course; that the applicant has possibly completed a Certificate IV in Business Administration; and that when located wholly onshore the applicant has a demonstrated gap of nearly 22 months without study. I consider that the significant time spent onshore and the poor study completion is not commensurate with a student whose primary purpose for being in Australia is to study and progress academically. In considering the applicant’s previous study and immigration history, I am not satisfied that they are genuinely seeking the proposed courses for the reasons they have declared and find that they are more likely seeking to maintain residency in Australia.
If any of the information the delegate has included in these paragraphs is incorrect, the applicant has made no effort to correct it, beyond applying to the Tribunal for a review of the delegate’s decision. The information, as opposed to the statements of opinion and inference, contained in these paragraphs is to a large extent second-hand. However, even taking that circumstance into account, that information raises significant concerns regarding both the length of the applicant’s stay (or stays) in Australia, and the manner in which she has used his time in this country.
I find that, overall, the applicant’s immigration history tends to weigh against accepting his contention that he genuinely intends to remain in Australia temporarily.
Conclusion on cl 500.212(a)

On the basis of the above, I am not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a). That being the case, it is not necessary to consider the requirements of cl 500.212(b). For sake of completeness, I note that no other relevant matter arises on the evidence before me for consideration pursuant to cl 500.212(c).
Accordingly, I am 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, I find 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.
David Thompson
Member

Attachment – Direction No.108
DIRECTION NUMBER 108 - ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, CLARE O’NEIL, Minister for Home Affairs and Minister for Cyber Security, give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 21 March 2024
Clare O’Neil
Minister for Home Affairs and Cyber Security
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 - Preliminary
Name of Direction
This Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 108.
Commencement
This Direction commences on 23 March 2024.
Revocation
Direction No. 69, given under section 499 of the Act, is revoked.
Interpretation
Act means the Migration Act 1958.
Finally determined has the same meaning as is set out in subsections 5(9) and (9A) of the Act.
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 against the genuine temporary entrant criterion for Student visa applications and Student Guardian visa applications (as applicable).
This Direction also applies to members of the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; who review the decisions of primary decision-makers in relation to a Student visa or Student Guardian visa application.
This Direction applies in relation to Student visa applications and Student Guardian visa applications made before 23 March 2024 but not finally determined on that date, including such visa applications that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for a Student visa and seek to satisfy the primary or secondary criteria, or an application for a Student Guardian visa and seek to satisfy the primary criteria.
Note: Direction No. 106 applies in relation to Subclass 500 (Student) visa applications and Student Guardian visa applications made on or after 23 March 2024, including visa applications made on or after that date that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.
Preamble
The Australian Government operates a student visa program 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 program 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 - 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 or Student Guardian 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 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.
iii.b. Previous travels to Australia or other countries, including:
iv.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;
v.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
vi.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
vii.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 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.

[2024] AATA 1457

23 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction