Zhuge (Migration)

[2021] AATA 828

Zhuge (Migration) [2021] AATA 828 (24 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Chenjing Zhuge

CASE NUMBER:  1915373

HOME AFFAIRS REFERENCE(S):          BCC2019/1271500

MEMBER:T. Quinn

DATE:24 March 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·Clause 500.312(a) of Schedule 2 to the Regulations.

Statement made on 24 March 2021 at 6:55pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – member of family unit of primary visa holder – husband’s further study visa – husband assessed as genuine temporary entrant – remote work for Chinese companies while in Australia and career plans – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338(2), 347
Migration Regulations 1994 (Cth), Schedule 2, cl 500.312(a)

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
Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482
Kaur v Minister for Home Affairs [2019] FCCA 1372
Khan v Minister for Immigration [2019] FCCA 565
Maharjan (No 2) v MHA [2020] FCCA 731
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Tshering v Minister for Home Affairs [2019] FCCA 2667

Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 28 May 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicant (‘the applicant’) applied for the visa on 13 March 2019 as a Subsequent Entrant and as a member of the family to join her husband, Zeyu Yan (aged 27, hereinafter referred to as ‘Mr Yan’) who holds a TU-500 Student Visa (‘the application’).   At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  Mr Yan was the primary applicant for a Subclass 500 (Student) visa to undertake study in Australia and neither the applicant nor Mr Yan claims to meet the criteria for a Subclass 590 (Student Guardian) visa. 

3. On 28 May 2019, the delegate refused to grant the applicant the visa on the basis that the applicant did not satisfy the requirements of clause 500.312(a) of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that he was not considered to be a genuine temporary entrant. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

4. On 14 June 2019, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.

5. The applicant appeared before the Tribunal via telephone hearing on 24 March 2021 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. 

6. The applicant was assisted in relation to the review by their registered migration agent who also attended the hearing on 24 March 2021.

7. 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.

8. For the following reasons, the Tribunal has concluded that the decision under review ought to be remitted in this case.  In reaching its decision, the Tribunal has had regard to:

   a.the oral evidence of the applicant given at the hearing;

   b.the submissions made by the applicant’s agent, Ms Li, at hearing;

   c.all written material filed by or on behalf of the Applicant; and

   d.other relevant documents on the Tribunal and Department files.

   The Tribunal notes that not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference only to the information that the Tribunal has found to be fundamentally or materially significant to the determination of the issues in the case.

   STATUTORY FRAMEWORK

9. 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. 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 satisfies the secondary criteria.

10. Clause 500.312 requires as follows:

    The applicant is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa, having satisfied the primary criteria for that visa 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?

11. In considering whether the applicant satisfies clause 500.312(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. These factors must be considered in relation to both the primary visa holder’s application at the time that a decision maker determines that application but also in relation to individuals such as the applicant, as members of the family unit of the primary visa holder. The exception in the applicant’s case in relation to the Direction factors is that matters relating to studying and the value of the course, namely the factors in paragraphs 9(a) and 12(a)–(c) of the Direction, are not directly relevant considerations unless there is some relevance to this information in the context of any of the other factors (for example, the applicant’s immigration history if the applicant previously held and breached a student visa condition).[1]  Therefore, in the present case, the Direction factors must be considered in relation to:

    ·the applicant’s circumstances in their home country and potential circumstances in Australia;

    ·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.

    [1]         Maharjan (No 2) v MHA [2020] FCCA 731

12. 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.

13. 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.[2]  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.  In this regard, the Tribunal also notes the decision of Judge McNab in Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]), wherein his Honour referred to the decisions of Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]) and Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) in relation to the proper approach to the consideration of guidelines such as the Direction. Most pertinently, his Honour endorses the view espoused in those cases, that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.

    [2]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

14. The applicant is a 26 year old female Chinese citizen who is married to Mr Yan (aged 27 years).[3]  Mr Yan has been studying in Australia and has now completed the Bachelor of Information Technology which was his proposed course under the visa he held at the time of the applicant’s application.  Due to delays in this matter coming before the Tribunal, Mr Yan has now sought and been granted a further student visa to complete a Master of Business Analytics which it appears he partially completed before transferring into a Master of Commerce with a completion date in July 2022.[4]  The applicant gave evidence at hearing that Mr Yan has a student visa valid until March 2022 at which time they will return to China to pursue their future careers, care for their parents and start a family of their own.[5]

    [3]See delegate’s decision and marriage certificate in Department file.

    [4]See evidence at hearing and Tribunal file, Document ID: 8238941 and 8238949 being COE for latter and transcript for former.

    [5]See also submissions from the applicant and her husband on the Tribunal file.

15. The criteria that must be satisfied by the applicant is that she must be a member of the family unit of a person who holds a student visa, having satisfied the primary criteria for that visa.  There is no reason for the Tribunal to doubt the marriage between the applicant and Mr Yan as family members – much material has been provided in support of their relationship history.  The Tribunal has less material in relation to the validity of Mr Yan’s new student visa but there is no material on the Tribunal or Department file suggesting that the applicant’s evidence that her husband holds a student visa valid until March 2022 is untrue.  The Tribunal accepts that the applicant is a member of Mr Yan’s family unit and that Mr Yan has met the primary criteria for the grant of a student visa.

16. The applicant and her representative clarified at hearing that the delegate’s decision contains an error in relation to her arrival date in Australia and her immigration history.  They clarified that the applicant arrived in Australia on 20 November 2016 on a visitor visa and then applied for and on 14 December 2017 was granted a Subsequent Entrant Student Visa (of the same type as she is currently seeking).[6] 

    [6]See delegate’s decision.

17. The applicant owns assets in China which are worth AUD620,000 equivalent and her mother has funds to the value of AUD60,000 equivalent waiting for the applicant in China.[7]  She gave evidence at hearing and has filed multiple corroborating documents to indicate that she is working as a graphic designer for companies in China (remotely from Australia) in preparation for her career upon return to China, which she indicated at hearing she cannot properly pursue until her husband has completed his study and they are able to return to China.  The applicant gave evidence that she and her husband are not working onshore (aside from her work for Chinese businesses remotely from Australia and a brief period for three months in 2019) and that her job prospects in China are much better than in Australia, particularly given her limited English skills.  The family has expenses onshore of AUD4,845 per month.[8]  The Tribunal considers that the applicant’s economic circumstances in Australia relative to China do not appear to be presenting as a significant incentive for them to remain onshore.

    [7]See submissions filed 23 March 2021, Tribunal file Document ID 8238953.

    [8]See submissions filed 23 March 2021, Tribunal file Document ID 8238953.

18. The applicant’s parents and friends live in China and she speaks to her parents every week.[9]  The applicant has returned to China on five occasions since her arrival: twice in 2017 for three weeks and six weeks for family reunions; twice in 2018 for six weeks for a family reunion and for three days for her grandfather’s funeral and once in 2019 for one month for a family reunion.[10]  She has made submissions that she did not travel home in 2020 due to the COVID19 Pandemic and associated travel restrictions – the Tribunal accepts this evidence.[11]   The applicant has made submissions and gave evidence that she and her husband come from traditional families and are expected to take care of their parents in their old age in China.  The applicant states that she and her husband both have plans for careers in China and has provided evidence of Mr Yan’s remote internship with a Chinese company.[12]  She also states that she hopes to assist her mother in her family business.[13]  The Tribunal accepts that the applicant’s community ties to China are an incentive for her to return but notes that she has now been onshore for over four years and is concerned that these incentives may not be serving as a significant incentive for her to return to their home country.

    [9]See submissions filed 23 March 2021, Tribunal file Document ID 8238953.

    [10]See submissions filed 23 March 2021, Tribunal file Document ID 8238953.

    [11]See submissions filed 23 March 2021, Tribunal file Document ID 8238953.

    [12]See submissions filed 23 March 2021, Tribunal file Document ID 8238953.

    [13]See submissions filed 23 March 2021, Tribunal file Document ID 8238953.

19. The applicant is living onshore with her immediate family: her husband.  She claimed at hearing that they do not have any networks or friends onshore.  However, she has also filed photos of herself and her husband with friends onshore.  The applicant has now been living in Australia for over four years and it is difficult for the Tribunal to accept that she has not formed community ties in that time.  However, neither she or her husband are working onshore, and she stated at hearing that her English is not very good, and it will be easier for her when they return to China.  On balance, the Tribunal does not consider that it has sufficient information before it to conclude that the applicant’s ties to Australia are acting as a strong incentive for her to remain onshore at this time.

20. The applicant travelled to the United States of America for six weeks in 2015 and to Korea for two weeks in 2014 both for sightseeing.[14]  There is no evidence before the Tribunal that the applicant has had any travel issues in the past.

    [14]See submissions filed 23 March 2021, Tribunal file Document ID 8238953.

21. The applicant had a visitor visa application to Australia refused in 2016.[15]  There is no further information before the Tribunal about this and the Tribunal does not place any weight on any past visa or immigration issues.[16]

    [15]See submissions filed 23 March 2021, Tribunal file Document ID 8238953.

    [16]See submissions filed 23 March 2021, Tribunal file Document ID 8238953.

22. There is no evidence before the Tribunal that the applicant has any potential military service in China or that she has any political or civil unrest concerns in China.[17]

    [17]See submissions filed 23 March 2021, Tribunal file Document ID 8238953.

23. In considering whether the applicant meets the genuine temporary entry criterion, the Tribunal has considered the requirements of clause 500.312(a) and all of the applicant’s circumstances, with specific regard to the relevant considerations in the Direction.

24. The Tribunal notes that ‘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’ is also covered by the Direction.  The Tribunal considers it relevant that the Department has obviously found that the primary visa holder, Mr Yan, is a genuine temporary entrant in granting his student visa.  The Tribunal considers in the context of the evidence before it that the applicant and her husband have tightly joined future plans and that if either one of them intends to remain temporarily or permanently, the other is likely to also hold that intention.  The evidence and material before the Tribunal, which includes a multitude of submissions clearly indicating the parties’ joint future plans, clearly reflects a unified approach to a joint future.  In such circumstances, it seems to the Tribunal inappropriate to conclude that the applicant’s intention is not to remain temporarily while the primary visa applicant, Mr Yan, has been found by the Department to be a genuine temporary entrant.  The Tribunal considers this must be considered when coming to a conclusion in a case such as the one before it.

25. The Tribunal notes that the applicant has given evidence that she and her husband will return to China after her husband completes his study in 2022.  Should the applicant and/or Mr Yan make a further student visa application beyond July 2022, the evidence the applicant gave to the contrary in connection with this case will clearly be relevant to any assessment of their intentions to stay in Australia temporarily and/or only to study.

26. Having had regard to the applicant’s circumstances, her immigration history and all other relevant matters, the Tribunal is satisfied that the applicant meets the requirements of clause 500.312 of Schedule 2 to the Regulations.

27. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to reconsider.

    DECISION

28. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa: Clause 500.312(a) of Schedule 2 to the Regulations.

    Member

    T. Quinn

    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.