1835133 (Migration)

[2021] AATA 1821

1835133 (Migration) [2021] AATA 1821 (28 April 2021)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1835133

MEMBER:Noelle Hossen

DATE:28 April 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 28 April 2021 at 3:25pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa, residence, study and work history – non-completion and cancellation of courses and gaps in study – mental health – limited knowledge of proposed course – limited family and community ties to home country and returns since arriving in Australia – parents’ health – no work and financial circumstances because of COVID-19 restrictions – previous intention to apply for permanent visa – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 on 9 November 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 26 June 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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.

3. The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The Tribunal sent an invitation to the applicants on the 9 April 2020 pursuant to Section 359(2) asking the applicant to provide further information to the Tribunal prior to the hearing.

5. The applicants did forward some documents to the Tribunal. He completed his MR17 Form but did not complete it in its entirety leaving a lot of blank spaces in the document. There was very little written evidence from the applicant, available to the Tribunal at the time of the hearing.

6. The Tribunal sent an invitation for a hearing to the applicants on 3 occasions as he sought a postponement of the hearing on 3 occasions being the 21 September 2020, the 20 November 2020 and the 26 January 2021.The Tribunal refused their third request for a postponement of the hearing and the matter was listed for the 22 February 2021.

7. The first named applicant appeared before the Tribunal on 22 February 2021 to give evidence and present arguments.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 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.

10. Clause 500.212 requires as follows:

    The applicant is a genuine applicant for entry and stay as a student because:

    (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

    (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)any other relevant matter; and

    (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

    (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

    (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

    (c)of any other relevant matter.

    Does the applicant intend genuinely to stay in Australia temporarily?

11. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, 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.

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 applicant was born on [Date] in India. He arrived in Australia [in] February 2009. The applicant is presently living in Australia with his wife who was born on [Date] and [his child] who was born on [Date] in India and subsequently travelled to Australia to be with her father and mother. The movement records show that the child arrived in Australia [in] November 2016.

14. Since arriving in Australia, the first named applicant has returned to his home country on three occasions. His first trip back to India was in 2011. He went back for his cousin’s wedding in 2013 and then went back again in September October 2013 for his own wedding.

15. It was very difficult to follow the oral evidence of the first named applicant at the hearing, as he spoke in a pressured way and found it difficult to stay on track to answer the questions put to him by the Tribunal. He did say that he could not afford to pay for a trip to India for three people and that was one of the reasons given, as to why he had not travelled on a regular basis since 2013. He said that he did not think that the Delegate of the Department was fair in his assumption in the Decision dated the 9 November 2018, that he had not travelled to India because he did not have strong ties with his family in India.

16. He was very upset regarding the events that have happened with his family in India. He gave evidence that his mother was diagnosed with a [medical condition] and that she required treatment for the [medical condition], but she eventually died in March 2020. The ancestral family home had to be sold to meet the costs of her treatment. His father had a major [operation] and then he was diagnosed with Covid 19 so it meant that his brother who has a young family is unable to visit his father.

17. He said that his younger brother had been in Australia in 2010 and studied [Subject] and returned to India in 2014 and was able to run the [shop] belonging to his uncle, as his uncle did not have any children. The shop is in the Punjab region.

18. He said that his brother knows how to run a business because he had completed a [Qualification 1]. He had a student visa.

19. The first named Applicant has not returned to India on a regular basis since his arrival in Australia. The evidence suggests that it is unlikely that he has close community ties as he has lived in Australia for so long. However, the Tribunal accepts that his wife may still have close family ties as she has not lived in Australia for the same period as the first named applicant.

20. He did state that he did have what he termed as cousins who reside in Australia, one in [Suburb 1] and another one who lives in [Suburb 2]. He had not seen them recently, but he speaks to them regularly on the telephone.

21. He does not have any assets in India. He was emotional during the hearing when describing his family situation and he seemed desperate to remain in Australia due to the financial situation of his family in India. He said he was broke. He said if he returned to India now, he may have difficulty with providing accommodation for his family.

22. The Tribunal finds that the first named applicant does not have significant economic and family ties to his home country which will serve as an incentive to return to his home country to live after the completion of his course. The Tribunal places weight on those factors against the applicant’s case.

23. The applicant had been granted a student visa Class TU subclass 572 which was valid until the 11 April 2010.

24. The Tribunal notes that the applicant was refused a student visa when his first visa was expired by the Delegate of the Department.

25. The Tribunal has read the decision of the Delegate dated the 13 September 2010 and the decision of the Tribunal dated the 8 April 2013.

26. At the time of the Delegate’s Decision it was noted that he had enrolled in 5 courses and had completed 3. At the time of the delegate’s decision in 13 September 2010 he was enrolled in a course known as a [Qualification 2] at [Institution]. He had lodged his application for a student visa subclass 572 on the 9 April 2010.

27. The issues were very different at that time when the decision was made. The records indicate that the Delegate had written to the first named applicant on the 15 April 2010 requesting evidence of funds to meet the costs of the courses. The applicant had provided evidence of a loan with [a] Bank. The loan documents provided by the applicant were assessed by the Australian High Commission to be fraudulent.

28. Even though the first named applicant subsequently provided further financial documents that were assessed as genuine, there appeared to be some confusion between the evidence of his father and the applicant as to the source of the funds. On the 13 September 2010 the delegate refused to grant the visa. The applicant applied for a review of the Delegate’s Decision to the Tribunal.

29. On the 8 April 2013 the Tribunal remitted the matter for further consideration to the Department, as the Tribunal was satisfied that the [bank] was an acceptable financial institution and that the loan was held by an acceptable individual.

30. The applicant was successful in obtaining a Temporary Work Skilled visa UC 457 which was valid from the 26 February 2014 to the 26 June 2018.

31. The first named applicant applied for another student visa on the 26 June 2018 and received notification of a refusal on the 9 November 2018 from the Department.

32. The first named applicant stated in his written response to the Tribunal that he had a current confirmation of enrolment in a registered course of study.

33. The confirmation of enrolment was for a [Qualification 3] which was created on the 12 of February 2021.He was due to commence the Course on the 1 March 2021.

34. The applicant failed to provide written evidence of his past courses in his response to the Tribunal for the hearing.

35. The applicant stated in his written evidence that he was employed as [an Occupation 1] earning $24,500 per year from May 2016 to November 2019 in Australia. At the time that the decision was made by the delegate the first named applicant was working for [Employer] but it was in another suburb.

36. Although his evidence was at times vague and confusing, he admitted that he worked at his last job which he said ended on the 3 March 2020.He said he had not worked since the outbreak of the Covid -19 pandemic. The Tribunal asked him why he had not regained employment as the [businesses] are open for business. He said that he is living in New South Wales on the border of the Australian capital territory.

37. When the first named applicant arrived in Australia, he was to study a [Qualification 4] and his course started on the 9 February 2009 and was finished on the 11 February 2010. He was single and had no dependents at that time.

38. He then enrolled in a [Qualification 5] and that was cancelled so he restarted the course on the 8 of February 2010 and finished it on 20 May 2011. He then enrolled in [a Qualification 6] on the 14^th of November 2011. He appears to have finished the course of 13 May 2012. He then enrolled in a [a Qualification 7] on the 18^th of February 2013 and finished the course on 18 August 2013. He then deferred his [Qualification 8] on the 9th of February 2014 on compassionate or compelling circumstances. He continued to study the [Qualification 8] and finished it on 4 May 2014. There was no record of any other studies between 2014 and 2018.

39. He stated that he was the recipient of a 457 Visa for a period of 4 years. He said that initially he had some difficulties settling in as one of the businesses that he worked for closed and the other one closed because his employer had [an operation] and died but he was able to get longer standing employment at [Employer]. He had initially moved to regional Australia but returned to the Canberra region to work for [Employer]. His employment ended at the first [Employer] on the 26 June 2018.

40. He said that he worked hard, and he felt very upset as at the end his employer did not do as he had promised which was to help him apply for a permanent resident visa. He was very upset that the plans for him to remain employed as a fulltime [Occupation 1] did not eventuate, and he was not assisted by his employer. The fact remains that his wish to remain in Australia and attain a permanent resident status means that the applicant did not have an intention at that time to return to India.

41. The Tribunal asked him what he was hoping to achieve with his present studies when he returned to his home country as he had already qualified as [an Occupation 1] and completed [Qualifications]. His answer was not clear, and he did not have a definite plan.

42. He enrolled in the [Qualification 3] on 23 July 2018 and this was cancelled by 22 July 2019 as the records show that he did not commence the studies. The records show that despite repeated correspondence and phone calls the student had not responded. The college sent warning letters to no avail.

43. He did not agree with the summing up on the records as he said that he had told them that he could not study. The Tribunal does not place any weight on the circumstances as written in the record save and except that the first named applicant did not continue the courses.

44. The Tribunal asked him why he had not progressed in his studies after 2018 as he had enough time to complete the Course being a [Qualification 3] since 2018.

45. He told the Tribunal that he suffers from Anxiety and depression. He said that he had gone to his general practitioner and had consulted his psychiatrist on 2 occasions. He did not provide any evidence of his mental health difficulties whilst in Australia to the Tribunal. If he did suffer from the mental health difficulties that he should have provided evidence of the same to the Tribunal.

46. The Tribunal has considered the decision of the delegate and the Decision states that the first named applicant applied for a visa on the 30 August 2018. The Department sent him an email seeking a response within 28 days. The applicant responded and provided a statement on the 27 and 28 September 2018 to the Department.

47. It was noted by the Delegate that at the time of the refusal that the first named applicant had lived in Australia for 9 years with 193 days in total offshore. Since the Decision of the delegate the applicant has not left Australia.

48. The Decision of the delegate states as follows: ‘I am concerned that the applicant’s intention to live in Australia is motivated by factors other than study and this is supported by their claim of ongoing employment  with [Employer] as [an Occupation 1].”

49. The Delegate noted that the applicant had included his wife and child in the application which reduces his incentive to return to their home country on completion of their study.

50. At the time of the delegate’s Decision it was noted in the Decision that the first named applicant would be required to remain onshore until at least 22 July 2019.He had applied for the student visa on the 26 June 2018 and obtained enrolment in the proposed course shortly before applying for the visa on the 25 June 2018.

51. He did not provide information to the Tribunal about his living expenses in Australia.

52. In respect to his evidence regarding his community ties he stated that he and his wife are members of a temple. They go to the temple for two hours of worship and attend meditation classes each week. He says that he is quite friendly with the priest at the temple and attends for workshops and meditation to help him get back on his feet. The Tribunal is satisfied that the applicant has developed friendships in Australia and considers this social and emotional connection to Australia a strong incentive for him to remain here.

53. The applicant stated that he does not have any assets in Australia save and except for a motor vehicle valued at $10,000.

54. He said that he had worked hard as a professional [Occupation 1] for a [workplace], but the owner of the [workplace] had betrayed him for not applying for his visa after working for him on a 457 Visa. He then applied for a student Visa to study a course as he wanted to study. He did not give any evidence that was convincing as to what his future prospects are and the reasons for studying the present course.

55. The applicant stated that there is no reason why he cannot return to his home country as he does not have any obligations regarding military service commitments. There is no political or civil unrest in his home country.

56. He stated however that it would be too difficult for him and his family to return to his home country as the financial circumstances are too difficult. He does not have a place to live and he does not have a job.

57. He begged the Tribunal to give him a last chance as he really wishes to remain in Australia. He said that he really wanted to study this course. He said that he plans to return to his home country in the future.

58. He said that his study and life in Australia was interrupted when his mother was diagnosed with [a medical condition] in December 2017. He stated that his mother had to go to 3 hospitals. His father had to sell the family home. As the family home is now gone, his father is now renting a two-bedroom unit. He is extremely concerned about the fact that he has no accommodation for his family when he returns to India. He is presently on a bridging Visa due to the COVID19 situation.

59. He said that he is presently not working because of the difficulties with the pandemic. His wife is presently working with [specified people]. She helps by [doing a task] for a period of 20 hours a week in accordance with the Visa. He said that he had difficulties because of the pandemic getting employment as businesses were slow to recover.

60. The Tribunal has a lot of empathy for the first named applicant as he is in a terrible bind in Australia now. The concerning aspects of the first named applicants’ case is that he is living in Australia and he says that he is presently unable to find a job. He did not provide any evidence to the Tribunal of his attempts to obtain employment. The Tribunal questioned him about his prospects as most businesses in [deleted] appear to be open as there are few restrictions regarding the pandemic now in Australia.

61. His efforts to study have been stalling since 2018. He has not progressed satisfactorily since 2018. He did not study whilst he worked full time from 2014 to 2018.

1. He did not provide the Tribunal with any information about the Course that he plans to study save and except for a flyer printed by the Course organisers. The fact that he had previously studied in Australia and has previously enrolled in the course one would expect that he would have a better understanding of the course structure. The Tribunal places some weight against the applicant’s case in respect to these facts.

2. Having carefully considered the applicant’s oral testimony regarding his career aspirations the applicant’s evidence appeared to be tailored to fit his current course selection in Australia. If the applicant has career aspirations that are claimed to lead out of Australia his course selection should seek to serve that purpose .The Tribunal considers that if the applicant did have a plan to pursue a career outside of Australia , then he could have already left Australia particularly if what he says is true, as he is presently finding it difficult to find employment in Australia.

3. The Tribunal does not have relevant information or evidence regarding the applicants’ financial circumstances relative to other persons in their home country and the Tribunal makes no findings concerning the applicants in that respect.

4. The applicant said that prior to his arrival in Australia he had worked as [an Occupation 2] in his home country and earned $50 per month. He said that he had always worked hard and had worked for the same company in India for 3 years. He had initially travelled to [Country] and was told that Australia offered better opportunities for acquiring skills and study. He expected that with the qualifications that he has gained in Australia that his income will be $800 per month in India.

5. He said that he loved [doing Occupation 1] and wanted to be [an Occupation 1] again. He said that he needed to feed his family.

6. If the student visa is granted the first named applicant would have been onshore for 13 years if the prospective end date is 2022. He has not held student visas for the entire time that he has lived in Australia and the 457 visas has been taken into account by the Tribunal. He has not completed any courses since 2018.

7. The Tribunal’s strongly held view is that the first named applicant is motivated to remain in Australia to work until he can find a pathway to a more permanent arrangement. The Tribunal is not satisfied, in his circumstances, considering his visa history and the time he has spent in Australia, 12 years, indicates that he considers residing in Australia to be temporary. Although he has visited his home country on 3 occasions the applicant has spent most of his adult life living in Australia.

8. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. The applicant demonstrated an intention to remain in Australia but did not articulate a lawful means of doing so outside of the student visa program at the moment, It follows that the Tribunal is concerned that the applicant proposes to use the student visa program primarily in order to maintain ongoing residence in Australia. The tribunal places a lot of weight on those facts against the applicant’s case.

9. The Tribunal does not make any adverse findings against the applicant in relation to his compliance with visa conditions or prior immigration history. There is no evidence that the applicant has not complied with the migration laws of Australia or other countries before the Tribunal.

10. The second named applicants having applied for the visa on the basis of being a member of the first named applicants’ family and therefore their application will be determined by reference to the outcome of the first named applicant’s application.

11. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

12. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

13. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

14. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Noelle Hossen
    Member

    
    

    Attachment – Direction No.69

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

    This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

    c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    d.any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

    2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

    3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; and

    d.apparent inconsistencies in information provided by the applicant in their Student visa application.

    5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

    6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

    7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

    The applicant’s circumstances in their home country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

    13.An applicant’s immigration history refers both to their visa and travel history.

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.