Genuine applicant for entry and stay as a student (cl 500.212)

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?

1. 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.
2. 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.

1. I discussed with the applicant that according to his movement records issued by the Department which captures details of all entries to and departures from Australia, as well as any Australian visas granted to the applicant, he arrived in Australia on a visitor visa on 10 March 2022 and subsequently applied for a further visitor visa before lodging his student visa on 3 May 2023. I noted that the applicant had remained in Australia for approximately 3 years and 5 months and that I needed to consider any extended periods in Australia when assessing whether he meets the genuine applicant for entry and stay as a student criterion. I invited the applicant to provide reasons as to why he remained in Australia for an extended period despite his business interests and extended family in China.
2. The applicant stated that while he wanted and needed to go back to China for his business interests and to visit his mother, he chose to remain in Australia as he had been told that, based on anecdotal conversations, that once he leaves Australia it is difficult to re-enter. It was noted that this was not advice given by his current representative. The applicant's priority was to remain in Australia to allow him to see out the review application process with the Tribunal and to ensure that he could remain with his family without facing any issues with re-entering Australia. The applicant also stated that if his student visa is approved, his intention is to immediately return to China in between his studies to continue managing his business interests. He has no work rights in Australia and is unable to do business in Australia.
3. The applicant spoke at great length about his business interests in China which started after his previous work experience for an American business, Cummins, the world's largest independent motor manufacturer in the world. After a decade with the business, he worked as a representative for that company in China. He explained that his family business centres around the import of motors for maintenance and adjustment, as well as manufacturing. Whilst living in Australia, the applicant has investigated a potential market which his business in China would like to tap into in future. He noted that in regions like Western Australia, there were companies, including those in the mining sector, that stopped using certain machinery and trucks, rendering them useless. However, in China, it would be possible for companies like his to clean them, replace parts, make adjustments and test them before releasing the vehicles for use again. He explained that this process is like recycling and is good for the environment but also good for business. The cost of this type of equipment is in the realm of 3 million yuan. However, refurbished motors cost about half while still generating good profit for his business.
4. The remote management of his business interests from Australia is a temporary arrangement only which came about due to necessity. The applicant explained that managing a business remotely from Australia is highly inconvenient. As his business deals with motor refurbishment, it involves very delicate and precise operations, and high-quality control is needed. With machine refurbishment, his team is working with large and expensive equipment. If anything were to go wrong, it would result in a significant loss for clients. The applicant also confirmed that it is his intention to return to China to manage his business interests in person. He said that the future of his business is not limited to Australia. He has business partners in other countries as well. The applicant also spoke about his reliance on his business partner to keep the applicant's own business running. Whilst in Australia, his staff who work on maintenance and refurbishment of machinery, have needed to work within his business partner's business as a temporary arrangement.
5. Asked what value the applicant's chosen courses would bring to his future, he stated that after he finished his management courses in China, his focus was on sales given that he also became a business owner himself. One of the key values of his Australian courses is the exposure to English language. Back in China, he did not have the skills or opportunities to speak or do business in English given his very limited English language abilities. While studying in Australia, he has worked hard to improve his English language skills and learn about Australian culture as he knows that such skills are crucial for international trade and business. He went on to explain that doing business in China involves dealing only with domestic clients. There is not the same multicultural mix in China as there is in Australia. The environment in Australia is more multicultural and globalised. The language, culture and thinking styles are much broader and different in Australia. He is of the view that his Australian courses will help him develop a better understanding of the mindset and way of thinking of Australian and other western prospective clients.
6. The applicant was able to confidently speak about some of the units he is currently undertaking in his Advanced Diploma of Leadership and Management. He spoke about learning about personnel management and how to lead people to achieve goals. He also explained that in his completed Diploma of Business course, it was the units on managing people that he found most difficult but also the most useful. If the applicant is ever able to register a trading business in Australia, his intention would be to use local people, which would require a different style of management to staff in China. The applicant spoke about the importance of altering his management style depending on whether he was dealing with staff in China or abroad.
7. Asked why the applicant went from studying a Bachelor-level degree in China to studying a lower-level Diploma and Advanced Diploma in Australia, the applicant explained that he had lost his bachelor degree certificate when applying for his Australian courses, so his former agent recommended that he use his Chinese Diploma certificate for enrolment purposes. However, the applicant also stated that due to his limited English language ability, it was appropriate for him to apply for the Diploma and Advanced Diploma courses in Australia.
8. With respect to his circumstances in China, the applicant confirmed that apart from his business interests, he also has a mother and sister still residing in China and is the owner of property in China. He contacts his mother by videocall each week and has told her that he plans to visit her this year.
9. With respect to his circumstances in Australia, the applicant confirmed that he has two children completing primary school and secondary school in Australia. As his children are minors, his wife is also in Australia on a guardian visa in order to care for the two children. The applicant feels that his children have inherited broader points of view and are doing better academically in Australia. As for future plans, he will leave them to decide what they wish to do in the future, but they may wish to undertake university studies in Australia.

1. I outlined to the applicant that one of the reasons for the delegate's refusal of his student visa was that he was unable to provide a detailed testimony as to how his Australian qualifications would assist him in achieving his goal of growing his Chinese business. The delegate also stated that they were not satisfied that the significant cost of the course was likely to be offset by potential income derived by the applicant in their expected employment field. I explained to the applicant that I do not agree with the delegate's reasoning as the applicant was able to speak at great length about his business goals and aspirations, including the potential Australia market that his Chinese business could target, being the acquisition of machinery that is no longer functional and refurbishing these to the extent that they can be repurposed and reused. I also explained to the applicant that I had accepted his oral and documentary evidence which demonstrates that he is not an employee of his Chinese business, but rather the person in charge who manages the business, along with his wife who is a majority shareholder. In these circumstances, I accept that the applicant does not draw down a salary from his business interests in China but rather relies on the profits generated. As such, I find that the development of his English language skills, knowledge of western culture and business dealings and personnel management skills will enable the applicant to work towards his goal of expanding the international reach of his China-based business. I have taken into account the business development and trade opportunities that the applicant envisages he will be able to grow and secure, in addition to the applicant's clear oral evidence on market opportunities his business has identified for Australia, which were also corroborated by the work certificate and business partner statements. On this basis, I find that the future growth in the applicant's business' revenue through business development and trade opportunities, therefore, outweigh the cost investment that the applicant has placed into completing his Australian courses.
2. In relation to the delegate's concern that the applicant had limited knowledge about his course and institute, the applicant provided sufficient evidence at hearing to demonstrate his in-depth knowledge of the courses he had either completed or is currently enrolled in. I accept the applicant's representative's written submissions which explain that when the delegate interviewed the applicant on 1 June 2023, this was only one month after the applicant had commenced the English component of his courses, and that an in-depth knowledge of course structures could not have been expected. During hearing, the applicant was able to sufficiently satisfy me that he had detailed knowledge of the course he had completed, and of the course that he is in the midst of completing. I accept that the applicant has sufficient knowledge of his courses of study.
3. I put to the applicant, under s 359A of the Act, that his wife and two children are currently in Australia. This information relates to the applicant's circumstances in Australia, a factor which I will be considering under Direction No 108. I explained that his wife and children's presence in Australia might indicate that there is a strong incentive for him to remain in Australia on a longer-term basis while his children are finishing their schooling and while his wife remains in Australia with them as their guardian. Taking into consideration the applicant's ties to China, this information might still lead me to conclude that his circumstances in Australia might outweigh the circumstances in his home country which would indicate that he might not meet the criterion set out in cl 500.212.
4. When invited to comment, the applicant stated that when both of his children reach 18 years of age, he and his wife have decided that their two children will live independently of them and will no longer require the same level of parental care. As his children have no issues with language or culture in Australia, he is of the view that they will have no issues living in Australia if they choose to do so. The applicant stated that when both children reach 18 years of age, his wife's guardian visa will cease, and she would need to go back to China. The applicant also stated that as his and his wife's business interests are in China, his wife's intention is to work for their business in China in order to support herself. She has training in accounting and handles the financial and accounting matters for the business domestically and internationally. The applicant stated that for him personally, his intention is to return to China once he finishes his Advanced Diploma in 2026. However, he still hopes that he will be able to travel frequently between Australia and China for business purposes while he completes his studies in Australia.

1. The applicant's representative was invited to present oral submissions on behalf of the applicant. The submissions are summarised as follows:
   1. Financial matters relating to applicant's children: Should the applicant's children decide to pursue university studies after they finish their high school studies, it should be noted that university tuition fees are much higher than those for high school. For secondary school, fees are around $14,000 to $18,000 per year. For university, the fees would be around $58,000 per year. Currently, the applicant is using his savings or profit from his Chinese business. However, if and when his children decide to go to university, they would not be able to pay their own tuition fees and would still be reliant on the applicant and his wife for this. If the applicant were to remain in Australia, he would not be able to earn money to support his daughters. He would need to do business within China, as well as international trading, in order to generate profit to a level would allow him to support hist children's tertiary studies;
   2. Applicant's intention to return to China: The applicant's representative had asked the applicant last year whether he wished to migrate to Australia. As the representative runs his own migration agency, he often helps his clients with their migration plans. The representative stated that the applicant had made it clear that he did not wish to migrate to or live in Australia permanently. The applicant's preference has always been to live in China given that he has business there, and that his native knowledge and understanding of the language and culture in China is an added advantage. It is in China that the applicant can earn more money with his business partner and personally manage staff there. In Australia, the applicant's arrangements are temporary in nature in that he is here only to study on a short-term basis, build up his English language skills and learn about the culture and business operations in Australia so that he can do business better in China. The applicant is also over 50 years of age, and staying in Australia would be more difficult from a language, culture and career perspective.

1. In determining the issues before me, I have taken into account guidance from case law which stipulates that cl 500.212(a) is:
   1. only concerned with how long a visa applicant intends to stay in Australia; and
   2. where, at time of decision, an applicant has a settled intention to later seek a visa that will lead other than to temporary residence, it is unlikely that there is an intention to stay temporarily.[1]
2. For reasons set out below, I am satisfied that the applicant genuinely intends to stay in Australia temporarily and will return to China upon completion of his studies.
3. I have considered the value of the applicant's studies to his future. The applicant was able to articulate in detail his business expansion plans to grow the international arm of his business, and that these plans are contingent on the applicant attaining certain skills and knowledge, including English language skills, an understanding of managing personnel in western cultures and communicating effectively with international partners or clients. The applicant was also able to identify the segment of the Australian market that his business in China could target in order to assist Australian companies in refurbishing and restoring defunct machinery - a goal which not only benefits the environment but will increase profits for his business. I consider that the applicant's studies do add value to his future and that the ability to increase profits for his business in China would be a strong economic incentive to return to China.
4. I place significant weight on the applicant's oral evidence and the applicant's representative's written submissions in that the applicant's children are temporary residents and are in Australia for temporary study purposes only, with his wife accompanying them as their primary guardian. I accept that the applicant's priority is to be able to travel frequently between Australia and China while he finishes his Advanced Diploma so that he can continue to manage his business in person, given that remote management of his business does not allow him to properly oversee personnel or quality control. I also accept, as per the applicant's oral evidence, that his intention is not to remain with his children in Australia who may consider staying on for tertiary education. While I acknowledge that the ties to his family who are temporarily residing in Australia may serve as an incentive for him to remain in Australia until his children have finished their schooling, I have weighed this factor against his circumstances and ties to China, notably his priority to resume in-person management of his business, to grow the international arm of his business to increase profits and his personal ties to China (discussed below), I do not consider that his ties to his family in Australia outweigh the ties he has to his home country.
5. I give weight to the applicant's ties to his remaining extended family members, including his mother and his sister. The applicant's oral evidence at hearing indicated that his priority is to visit his mother again in China as soon as he is able to. In the meantime, he keeps in contact with his mother on a weekly basis. I consider the applicant's relationship with his extended family, particularly with his elderly widowed mother, to be a further incentive for him to return to his home country.
6. I give weight to the applicant's business and personal property assets in China. As evidenced by the supporting documentation provided by the applicant, these assets are not insignificant in value and provide a further incentive for the applicant to return to his home country.
7. There is no information before me to suggest that the applicant has military service obligations, or that there is political or civil unrest in China that would present as an incentive for the applicant to remain in Australia.
8. In relation to the applicant's immigration history, namely his lack of travel back to China over a period of approximately 3 years and 5 months, I accept the applicant's oral evidence that he was concerned about difficulties around departing and then subsequently re-entering Australia and wanted to be able to see out the review application process with the Tribunal.
9. Having considered the applicant's circumstances against the factors set out in Ministerial Direction No 108, I am satisfied that the applicant intends genuinely to stay in Australia temporarily.
10. Having considered the applicant's circumstances against the factors set out in Ministerial Direction No 108, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).

Does the applicant intend to comply with visa conditions?

1. For the applicant to meet cl 500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant's record of compliance with any condition of any visa they previously held, and the applicant's stated intention to comply with any conditions to which the visa may be subject.
2. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl 500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents' education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). For visa applications made on or after 1 July 2022, condition 8208 (no critical technology related study without approval) must also be imposed.
3. As referenced on several occasions during hearing, the applicant was aware of condition 8101 being imposed on him. He had a clear understanding that he has no work rights in Australia. There is no information before me to suggest that the applicant has engaged in any work whilst in Australia. On the evidence before me, I am satisfied that the applicant has complied with the conditions of his previous visas.
4. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl 500.212(b).

Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

1. For the applicant to meet cl 500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl 500.212(a) and (b)).
2. There are no other relevant matters that arise for consideration under cl 500.212(c).

1. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
2. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

1. The Tribunal sets aside the decision under review and remits the application for a Student (Temporary) (Class TU) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 500 (Student) visa:
   • cl 500.212 of Schedule 2 to the Regulations.

Representative for the Applicant: Mr Henry Li (MARN: 0744038)

DIRECTION NUMBER 108 - ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

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).

Minister for Home Affairs and Minister for 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.

This Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

Direction No. 69, given under section 499 of the Act, is revoked.

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.

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.

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.

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.

1. Decision makers should have regard to the applicant's circumstances in their home country and the applicant's potential circumstances in Australia.
2. For primary applicants of Student visas, decision makers should have regard to the value of the course to the applicant's future.
3. 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

1. 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.

2. 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

1. 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.

1. 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.

1. An applicant's immigration history refers both to their visa and travel history.
2. 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: > > 1. 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 > 2. 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. > 3. b. Previous travels to Australia or other countries, including: > 4. 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; > 5. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances; > 6. 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 > 7. 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

1. 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.

1. 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.

[1] Saini v MIBP [2016] FCA 858.