al hallab (Migration)

[2019] AATA 2871

al hallab (Migration) [2019] AATA 2871 (6 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Jibril al hallab

CASE NUMBER:  1720499

HOME AFFAIRS REFERENCE(S):           BCC2017/1023367

MEMBER:T. Quinn

DATE:6 June 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 06 June 2019 at 2:36pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant – significant periods when not enrolled in approved course of study – absence of evidence of academic progress – reasons for not undertaking study in home country – insufficient evidence and supporting detail – incentive to return to home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 347, 359, 359C, 360, 363A, 499
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

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
Hasran v MIAC [2010] FCAFC 40
Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
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 Immigration and Border Protection (‘the delegate’) on 14 August 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicant applied for the visa on 15 March 2017 (‘the application’).   At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The applicant applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. On 14 August 2017, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that the applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

4. On 4 September 2017, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.

5. More than 20 months have elapsed since the making of the delegate’s decision and the applicant’s application for review with the Tribunal. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed during that time. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information to the Tribunal for the purposes of determining the outcome of their application for review. To this end, on 1 March 2019, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’). The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by the prescribed date, being 28 March 2019, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The Tribunal is satisfied that the applicant was properly sent an invitation to provide further information under section 359(2) of the Act.

6. The review applicant did not provide the information within the prescribed period or otherwise and no extension of time was requested. Where a review applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action.[1] 

   [1] Pursuant to section 359C(1) of the Act.

7. The Tribunal finds that the review applicant did not provide further information as requested. In these circumstances, section 359C of the Act applies and pursuant to section 360(3) of the Act the review applicant is not entitled to appear before the Tribunal. The effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear.[2]

   [2]           Hasran v MIAC [2010] FCAFC 40.

8. The Tribunal, therefore, has no additional information relating to the applicant’s visa application beyond that which was before the delegate on 14 August 2017 and is otherwise discernible from the delegate’s decision and Department file.

9. 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.

10. The Tribunal has proceeded to a decision having had regard to all the information before it, including the information previously provided by the applicant to the Department but without taking further steps to obtain the additional information sought by this Tribunal under section 359(2) of the Act.

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

    STATUTORY FRAMEWORK

12. 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.

13. 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?

14. In considering whether the applicant satisfies clause 500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (‘the Direction’), made under section 499 of the Act. The Direction requires the Tribunal to have regard to a number of specified factors in relation to:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

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

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

15. 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.

16. The Direction is a lawful direction of the Minister made in accordance with section 499 of the Act. The Tribunal is therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[3]  Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before the Tribunal.  The Tribunal, however, recognises that it is an independent statutory body.  It must therefore reach its own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate.

    [3]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The applicant is a 32 year old male Lebanese citizen who first arrived in Australia on 29 July 2013 on a Student visa (subclass 573) to undertake courses in English and a Bachelor of 3D Art and Animation which was valid until March 2017.[4]  So far as the Tribunal can ascertain from the material before it, it appears that the applicant has not departed Australia since February 2017.[5]

    [4]           See delegate’s decision.

    [5]           See delegate’s decision and page 36 of the Department File.

18. The delegate’s decision outlines the applicant’s study and visa history, including that he completed the proposed English course but did not commence the Bachelor studies, instead completing a Certificate IV Interactive Digital Media.  Significantly, the applicant was not enrolled in a course of study between February2015 when he completed his Certificate IV in English and July 2015 when he enrolled in English Language Programs.  Further, the applicant’s enrolment in the English Language Programs was cancelled in November of the same year and he was not enrolled in a course until July 2016.  This indicates a cumulative period of in excess of 12 months where the applicant was breaching a condition of his visa, namely that he be enrolled in a course of study.  This situation is aggravated by the fact that the enrolment in July 2015 was later cancelled, indicating a period of in excess of 17 months where the applicant did not make any academic progress.  The applicant has provided a Diploma of Business Certificate dated 28 September 2016[6], however, the delegate’s decision indicates that no record of the course or the education provider can be found on the Provider Registration and International Student Management System (PRISMS), therefore, the applicant was also not complying with his visa condition that the course be a registers course with a registered course provider, at that time.

    [6]         See delegate’s decision and page 18 of the Department File.

19. The applicant’s application which is the subject of this review was to undertake a Diploma and Advanced Diploma of Accounting which were to be completed by 4 November 2018.  However, the Tribunal has no evidence before it about whether the applicant engaged with this course and/or what sort of academic progress he has made.

20. Prior to coming to Australia, the applicant completed secondary school in 2003, a ‘Bt – Graphic Design’ in 2006 and a ‘TS – Graphic design’ in 2010 in Lebanon[7] (which appears to be at least Bachelor level studies)[8] and then worked as a graphic designer for approximately three years for four different businesses, three in Lebanon and one in the United Arab Emirates, including as manager (in a Lebanese business) from March 2011 to February 2012.[9]  He states he has not worked since arriving in Australia.

    [7]See pages 38 and 64 of the Department File.

    [8]         See page 51 of the Department File.

    [9]         See page 37 of the Department File.

21. Since coming to Australia, the applicant claims he has completed an Advanced English for Further Studies course from July to November 2013, a Certificate IV in Interactive Digital Media from February to June 2014 and a Diploma of Business from November 2015 to March 2016 and.[10]  However, the transcript of academic record dated 2 July 2014 provided by the applicant to the Department in relation to the applicant’s Certificate IV in Interactive Digital Media indicates competency in 8 subjects, 1 distinction and 7 subjects not yet competent.[11]  The Tribunal acknowledges that this letter appears to be dated at the commencement of that course, not the completion (although, it seems inconsistent that at that particular time the applicant would have completed any of the subjects) and that the delegate’s decision seems to suggest the applicant has, in fact, completed this course, but the Tribunal has no material before it corroborating this (such as a certificate or letter confirming same from the course provider).  The applicant has provided certificates for his Certificate III in Advanced English for Further Study dated 12 November 2013 and the aforementioned Diploma of Business (which was not a registered course with a registered course provider).[12]  The Tribunal is troubled by the fact that, on the material before it, the only course which the applicant has completed in compliance with his visa conditions over a period of nearly six years,  which he has actually provided a certificate for is an English course which took him less than 6 months to complete.  Even more troubling for the Tribunal is the fact that on the applicant’s own material, he has not completed any courses from June 2014 until November 2015 and no registered course with a registered course provider from June 2014 until the time of his application in March 2017, nearly three years.  Furthermore, there is no material before the Tribunal to indicate that the applicant has made any course progress since the time of making his application in March 2017, which extends that period of no academic progress with a registered course provider to approximately five years.

    [10]See page 38 of the Department File.

    [11]        See page 16 of the Department File.

    [12]        See pages 17-18 of the Department File.

22. The applicants undated Genuine Temporary Entrant Statement (‘the GTE’)[13], the applicant states he will continue his Diploma of Accounting and then commence an Advanced Diploma of Accounting.  He claims to have improved his general English, communication and business skills in his time in Australia.  The only real insight the applicant provides into his long term career goal is a statement in the GTE that ‘[c]ontinuing in Diploma of Accounting is the first step to achieve my long term goal to be a general manager in one of the major companies in Lebanon’.

    [13]        See delegate’s decision and page 51 of the Department File.

23. The Tribunal allows for reasonable changes in career and study pathways, however, the detail provided by the applicant in relation to his career goal and how the courses proposed fit in with that goal is so deficient, it is difficult to assess whether the course will assist him obtain or improve his employment prospects in his home country. The Tribunal considers that the proposed courses are not consistent with the applicant’s current tertiary level of education, have no relevance to his past employment and has difficulty assessing any benefit to future employment in the circumstances. The Tribunal does not consider that the applicant has explained how the skills he will obtain from the proposed courses will apply to, are relevant to, or will help assist or improve his employment prospects in relation to his goal. The applicant has also failed to provide any submissions in relation to the remuneration he could expect to receive in a general manager position and/or the remuneration he previously received prior to arriving in Australia. Further, it is not clear whether the applicant has or is actually engaging in his studies or what progress he has made. The Tribunal has real concerns that the applicant is not so engaging given his visa history and the fact that the courses should have been completed by this time. The applicant’s situation is aggravated by his failure to respond to the s359(2) letter where he had an opportunity to provide such information. It is difficult to see how any improvement from the proposed courses would outweigh the significant time and monetary commitment of relocating and living in Australia in order to undertake them.

24. The applicant has not demonstrated that he has properly investigated similar courses available in Lebanon and the Tribunal considers that the applicant has not provided reasonable reasons for not undertaking the study in his home country.  This is of concern for the Tribunal as it is fair to assume similar courses would have been available to the applicant in Lebanon without the expense of relocating to and living in Australia.

25. Due to the delays in the applicant’s matter coming before the Tribunal, if the applicant has been engaging with his studies as proposed at the time of his application to the Department, he should now have completed them.  The applicant should now have obtained any benefit from his proposed study in Australia and be in a position to depart Australia, reunite with his family and put into motion his plan to work as a general manager in Lebanon.  However, the applicant appears to remain onshore, has not provided any material to the Tribunal and the Tribunal does not know what sort of academic progress the applicant has made, if any, and whether he has been engaging with his proposed studies or not. 

26. The applicant has a wife, both parents, three brothers and one sister in Lebanon.[14]  The applicant has one further brother who is living in Australia.  The applicant was living with his brother at the time of his application to the Department and had been doing so since July 2016.[15] It is of concern to the Tribunal that the applicant failed to disclose that his brother was living in Australia in his application to the Department which was submitted in March 2017 when he has provided other documents to the Department which clearly indicate that his brother was living in Australia at that time.[16]  The applicant indicated that at the time of his application he had his parents’ financial support to the value of $35,000AUD equivalent.[17]  There is limited other evidence before the Tribunal in relation to the applicant’s economic circumstances in Australia or Lebanon.  The Tribunal notes that the United Nations Human Development Index ranks Lebanon as 80^th in the world as compared to Australia’s ranking of 3^rd in the world.[18]  The Tribunal considers that the applicant’s economic circumstances in Australia relative to Lebanon may present as a significant incentive for him not to return.

    [14]        See pages 43-8 of the Department File.

    [15]        See pages 36 and 48 of the Department File.

    [16]        See pages 36, 48 and 61-2 of the Department File.

    [17]        See pages 52 and 63 of the Department File.

    [18]See Table 1 of United Nations’ Human Development Indices and Indicators 2018 Statistical Update < type="1">

27. The applicant has proffered little detail in relation to his personal ties in Australia but the Tribunal considers the presence of the applicant’s brother onshore and that they have been living together is of note.  The length of the applicant’s stay in Australia for in excess of six years suggests that he has a preference to remain.  It is reasonable to conclude that, after more than six years, the applicant has cultivated a satisfactory life and has established strong ties to the Australian community.  As each day passes, those ties strengthen.

28. The Tribunal notes that the applicant has not made any particular submissions about his closeness with his family in Lebanon such as how often he communicates with them. The Tribunal notes that the applicant returned to visit his family in June 2014 for two months, July 2015 for 3 months, and July 2016 for two months and for one month at the start of 2017 as his father was unwell.[19]  The Tribunal accepts that the applicant’s family present a significative incentive for him to return to Lebanon but considers that, particularly considering the length of time he has been onshore for, any such incentive is outweighed by the applicant’s wishes and desires to remain onshore.

    [19]        See pages 36 and 66 of the Department File.

29. There is no evidence before the Tribunal that the applicant has undertaken any other international travel apart from to Australia and Lebanon and described above, and obviously to the United Arab Emirates for work prior to his arrival onshore.

30. There is no evidence that the applicant has had any visa or immigration issues in the past, save for those outlined above.  However, the Tribunal is very concerned by the applicant’s lengthy breaches of his enrolment and academic progress conditions of his student visas.  They indicate a lack of intention to adhere to and abide by conditions of any visa granted and are of serious concern to the Tribunal. 

31. The Tribunal has not been provided with information regarding the following factors indicated by Direction 69: any potential military service in Lebanon and any political or civil unrest circumstances in Lebanon.  Accordingly, these factors have no bearing, either favourable or unfavourable, in the present application for review.

32. The applicant’s application and submissions do not provide sufficient detail, nor is there sufficient evidence before the Tribunal, to satisfy the Tribunal that the applicant genuinely intends to stay in Australia temporarily.  In making this comment, the Tribunal places weight on the significantly limited academic progress the applicant has made in his six years onshore, his breaches of his visa conditions and the lengthy period he has been onshore for.  The Tribunal considers it is not the progress or conduct one would expect of a genuine student intending to stay onshore temporarily.  The Tribunal considers that the visa is being sought primarily to maintain residence in Australia.

33. Having had regard to the applicant’s circumstances, his immigration history and all other relevant matters, the Tribunal cannot be satisfied that the applicant is a genuine applicant for entry and stay as a student temporarily as required by clause 500.212. Accordingly, the applicant does not meet clause 500.212.

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

    DECISION

35. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    T. Quinn
    Member

    Attachment – Direction No.69

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

    (Section 499)

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

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

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

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

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

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

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

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

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

    Regulations mean the Migration Regulations 1994.

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

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

    Student visa means a Subclass 500 (Student) visa

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

    Application

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

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

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

    Preamble

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

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

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

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

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

    d.any other relevant matter.

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

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

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

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

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

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

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

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

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

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

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

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

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

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

    The applicant’s circumstances

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

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

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

    The applicant’s circumstances in their home country

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

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

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

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

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

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

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

    The applicant’s potential circumstances in Australia

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

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

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

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

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

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

    Value of the course to the applicant’s future

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

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

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

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

    The applicant's immigration history

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

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

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

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

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

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

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

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

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

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

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

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

    Any other relevant matters

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