Amanatur (Migration)

[2021] AATA 3463

Amanatur (Migration) [2021] AATA 3463 (20 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rosika Amanatur

CASE NUMBER:  1931694

HOME AFFAIRS REFERENCE(S):          BCC2019/4713814

MEMBER:Michael Biviano

DATE:20 August 2021

PLACE OF DECISION:  Melbourne

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

·cl 500.212(a) of Schedule 2 to the Regulations.

Statement made on 20 August 2021 at 5:30 pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine entrant criterion met – current studies are of some value to future – genuine interest in study – positive study record – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 499

Migration Regulations 1994, Schedule 2, cl 500.212

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 7 November 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 19 September 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) for the reason that she was not a genuine applicant for entry and stay as a student because she did not intend to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 10 May 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

5. The applicant was assisted in relation to the review by their registered migration agent.

6. It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary, to enable the examiner to establish the relevant facts.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant was a genuine applicant for entry and stay as a student.

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

9. 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?

10. 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.

11. 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.

12. The applicant is a 22-year-old Indonesian national who first came to Australia on 23 June 2019 pursuant to a tourist visa.

13. At the time of the decision, the applicant was enrolled to undertake a Certificate of General English, a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management (Leadership courses).

14. The Decision Record of the delegate of the Department of Home Affairs dated 7 November 2019, which was provided to the Tribunal by the applicant, confirms that the applicant made the current application for a Student (Class TU Subclass 500) visa on 19 September 2019 (Decision Record).

15. On 22 February 2021, prior to the hearing, the applicant filed with the Tribunal a Response within time pursuant to an invitation to supply student visa information about the courses she was studying and information about her entry and stay in Australia in accordance with s 359(2) of the Act (Response).

16. The applicant has relied on the documentation provided to the delegate which included bank statements, evidence of relationship between applicant and person providing financial support, GTE Statement, passport, COE No. AF241C82 confirming the applicant is studying General English at Southern Cross School of Business from 23 September 2019 to 13 December 2019, COE No. AF244D16 for the applicant to study a Diploma of Leadership and Management at Southern Cross School of Business from 6 January 2020 to 1 January 2021 and COE No. AF246888 for the applicant to study an Advanced Diploma of Leadership and Management from 15 February 2021 to 12 August 2022.  The COEs were all created on 19 September 2019.

17. Prior to coming to Australia, the applicant had undertaken secondary schooling and completed high school in Indonesia.  She did not undertake tertiary studies. While she had not been employed in an independent job, she had worked in her mother’s business which sold clothes.

18. The applicant gave evidence that she came to Australia for the purposes of visiting her sister on holiday.  She gave evidence that her sister lives in Australia and works in childcare.  While here, she did sightseeing, visited the Opera House and Darling Harbour and met a number of friends of her sister.  The applicant in the GTE Statement stated:

    During my visit here, I have talked with a few people, mainly my sister’s circle of friends and they have all advised me to pursue my education here.  After a long discussion with my parents and sister, I have finally decided to try to do a short business course first at Brighton Career Institute prior to sitting my IELTS test on 28 August 2019.

19. The applicant claims that she was encouraged to undertake her studies here because it was presented as a good opportunity to obtain a qualification that would enable her to obtain employment.  The applicant when questioned about the circumstances of her coming to Australia admitted that she arrived in Australia on a one-way ticket that had been purchased by her sister.  She claims that she was intending to buy a return ticket to fly back with her sister and the reason it had been organised that way was because it would have been cheaper.  The applicant confirmed that she had intended to reside in Australia with her sister whilst staying here.

20. The Tribunal accepts the applicant’s evidence that she came here for the purposes of visiting her sister and not to undertake study.  The Tribunal also accepts that evidence as it is consistent with the fact that she had undertaken an IELTS test some 2 months after arriving in Australia and did not enrol in any courses until 3 months after her arrival in Australia.  Such conduct is also consistent with her decision being made subsequent to her arrival about undertaking study here in Australia.  Accordingly the Tribunal accepts the applicant has arrived in this country in accordance with her visitor visa for the purposes of being a tourist and visiting family.

21. When questioned about what role the applicant would consider undertaking back in Indonesia if she was able to complete the qualifications in the Leadership courses, the applicant gave evidence that she intends to either work as a manager at her mother’s shop which she confirmed only employs 3 people or to work at a bank or in a large corporation.  The applicant in the GTE Statement confirmed on the completion of the courses that:

    All Australian VET offers a pathway into higher education (University) with credit transfer. That means I can complete my Bachelor course shorter than it’s standard length of time.

    To me, education is very important and this leadership and management course will build a strong foundation for me who wish to move on to a corporate role area. It will also provide practical skills for me who wish to move directly into the management position.

    Depending on my chosen stream, program and campus, successful completion of the leadership and management studies may qualify me for credit towards a higher education provider in Australia or secure a job back home in Indonesia.

    Upon completion of this course, I will have the confidence to seek a job in my home country at big companies such as BCA Group, Lippo Group, Sinar Mas Group, Djarum Group, as well as international companies such as Nestle, Coca-cola, P&G, etc. I would expect my starting salary would not be less than 4.5 mio rupiah a month as an Australian college graduate.

22. The applicant’s position was that if she returned to Indonesia and worked with her current qualifications, she would not be able to get a good job in a large corporation and she would have a low salary.  She gave evidence that her expected income with her current qualifications was between 2.5 million and 3 million rupiah per calendar month which equates to A$300 per calendar month. The applicant claims that if she completes the Advanced Diploma of Leadership and Management, she would be able to earn somewhere around 6 million to 7 million rupiah per calendar month which she claimed equates to A$500 per calendar month.  She claimed that would be the level of income that she would be able to earn from her mother’s store.  The Tribunal has difficulty accepting that the Advanced Diploma of Leadership and Management would have such a marked difference in her salary when compared to the fact that she has already completed the Diploma of Leadership and Management.  However the Tribunal does accept the applicant’s statement in her Response that the completion of the Advanced Diploma would result in her having a starting salary of around 4.5 million rupiah. Accordingly the Tribunal accepts that by studying and completing the Advanced Diploma of Leadership and Management, the applicant will marginally improve her employment prospects and her remuneration in Indonesia.

23. The applicant also claimed that by completing both the Leadership courses, it would assist her in undertaking the study of accounting in Indonesia or potentially to take accounting courses in Australia either at TAFE level or beyond that.  The Tribunal notes from the GTE Statement that the applicant is seeking to obtain credits from the Leadership courses that she is undertaking which would offer a pathway to a higher education course at a university for the purposes of undertaking a Bachelor’s degree.  The applicant candidly accepted that she would be happy to remain and study here in Australia for a period of 5 to 6 years which is a long period of time and inconsistent with the stay being temporary.  This is more so having regard to the fact the applicant came to this country on a visitor visa for the purposes of staying here for a 3-month period of time.

24. The applicant claimed at the hearing that she had completed the Diploma of Leadership and Management. On 20 August 2021, the Tribunal undertook a search of the Provider Registration and International Student Management System (PRISMS) database which confirmed, consistent with the applicant’s evidence, that the applicant had completed the Diploma of Leadership and Management on 1 January 2021 and she is studying the Advanced Diploma of Leadership and Management which is expected to conclude on 11 August 2022 in accordance with her COE.

25. The Tribunal recognises that the applicant is undertaking short vocational education training (VET) courses.  It would be inappropriate to undertake those courses if the purpose of enrolling in short VET courses in Australia was merely for the purposes to maintain residency here.  The Tribunal considers that the applicant’s purpose of enrolling in short VET courses is to improve her education and to develop a career path and obtain qualifications so she can gain employment back in Indonesia.  Accordingly it is appropriate for her to study short VET courses.  Further, the Tribunal recognises that the applicant has not obtained tertiary qualifications back in Indonesia, and the Advanced Diploma of Leadership and Management would be the highest qualification she would complete.  In those circumstances, the Leadership courses are consistent with her level of education.

26. The applicant gave evidence that there was no reason why she could not undertake a management course back at home or why she could not have returned home on her visitor visa and applied for a student visa here in Australia.  However in the Response the applicant outlined the reasons why she wanted to undertake the studies here in Australia.  She claimed:

    As part of the Australian high quality education, I will learn (1) how to speak my mind and think independently. (2) take responsibility of my own learning unlike in Indonesia; most parents still get involved in their children’s studies to ensure their good performance. (3) Australian education not only gives me the academic excellence but I also gain priceless interpersonal skills such as teamwork, ability to think on my feet, creative thinking and communication skill. (4) Australian offers a wide range of majors that I can choose from and their courses focus on practical approach, which offer me not only the theory, but also the real application of that theory through real life case studies, projects, group assignments, individual assignments and assessments. (5) Australian qualifications are internationally recognized and accepted.

27. In the circumstances and by reason that the applicant had decided to study here only after arriving on her visitor visa and being with her sister, she had reasonable motivation to undertake those studies here in Australia rather than in her home country.

28. The applicant gave evidence that she is not in employment whilst here in Australia.  The Response that she has filed indicates that the majority of her living expenses are being met by her sister who has a young child.  The applicant gave evidence that her sister’s husband is currently in Indonesia and her sister has a young child and she is providing assistance to her by helping looking after the young child.  Consequently the applicant’s sister and her family are supporting her in her studies and that would not provide her with an incentive to remain in Australia.

29. The applicant readily conceded that the level of wages here in Australia is substantially higher than it is in Indonesia.  The Tribunal notes the minimum wage in Australia, if the applicant obtained full-time employment in Australia, as at 1 July 2021 as set by the Fair Work Commission, is $772.60 per week, which equates to $40,175.20 per annum.[1]  Given that the level of wages in Australia is substantially higher than it is in Indonesia, the Tribunal finds that it would not provide the applicant with a strong incentive to return home, and instead it would provide the applicant with a substantial financial incentive to remain in Australia.

    [1] National Minimum Wage Order 2021 – [PR729671]

30. Further, the applicant readily conceded that the economic conditions in Australia were substantially better than those in Indonesia which would also provide a financial incentive for the applicant to remain in Australia rather than to return home. 

31. The applicant has been living in Australia for the last 2 years and 2 months and has not returned home.  Ordinarily that would be consistent with an applicant who does not wish to return home but wants to remain here permanently.  However for the large majority of that time, there have been COVID-19 travel restrictions which would have prevented the applicant from readily returning home to visit family.  In those circumstances, the Tribunal does not draw any adverse findings or make any adverse conclusion about her failure to return home.

32. Whilst the applicant has lived here for 2 years and 2 months, the Tribunal accepts that if she completes her studies in the Advanced Diploma of Leadership and Management which is expected to be completed on 12 August 2022, that is, in another year, her stay of 3 years and 2 months to undertake two Diploma level courses would be reasonable in the circumstances.

33. The applicant has lived in Australia for the last 2 years and 2 months and she has a substantial degree of knowledge about living in Australia.  Further, the applicant has been studying at Southern Cross School of Business in Leadership and Management courses since January 2020, and the Tribunal accepts by reason of the course and the duration of her studies at that education provider that she has a substantial degree of knowledge of both the course and the provider.

34. The applicant in the Response confirms she does not have any assets either in Australia or Indonesia and it would not provide a financial incentive for her to return to Indonesia.

35. Further, the applicant in both the Response and in the evidence did not have any concerns about returning to Indonesia and had no concerns about military service commitments or political and civil unrest in her home country.  The Tribunal finds they do not present as a significant incentive for the applicant not to return home.

36. The Tribunal finds that based on the applicant’s evidence and circumstances in her home country, including her current level of education and the support that she has from her family relative to others in that country, that she is in a good position and that would not provide a significant incentive for her not to return home.

37. The Tribunal accepts the applicant is not in a relationship of concern for a successful visa outcome.

38. The applicant has both personal ties in Australia and in Indonesia.  The applicant gave evidence that at home she has a substantive degree of family including her mother, her father, her grandmother, her sister’s husband and her other sister in Indonesia.  Such family would ordinarily provide a substantial incentive for her to return home to Indonesia.  However such ties must be considered in light of her ties to Australia including the ability to earn a high level of income here in Australia if she obtains a visa and that she intends to remain here for at least a further year and possibly longer to undertake further study here in Australia, in circumstances where she has already stayed in Australia for 2 years and 2 months.  She has a significant incentive to return by reason of her ties to Indonesia.

1. The applicant has substantial ties to Australia.  She has been in stable accommodation living with her sister and her niece.  The applicant claims she has no friends here in Australia but accepts that she does have friends from college and also has a connection with her sister’s friends.  Such ties in conjunction with her stable accommodation and the ability to earn a high level of income in Australia would demonstrate that she would have a significant incentive to remain in Australia rather than to return home by reason of her ties here.

2. The applicant in the Response has not identified any visa refusals here in Australia or elsewhere.  There is nothing before the Tribunal from the delegate’s Decision Record to indicate the applicant has experienced any other visa refusals or any immigration issues either in or outside of Australia.

3. Ultimately the applicant has brought this application to undertake studies to advance her education.  Undoubtedly an Advanced Diploma of Leadership and Management will improve her employment prospects in Indonesia although one might question to what extent considering that she has already obtained the Diploma.  However if the applicant intends to complete the Advanced Diploma of Leadership and Management and return home after the conclusion of that course in August 2022 then the Tribunal accepts that the applicant has sought to gain a student visa to study temporarily.  In those circumstances, the Tribunal considers that the primary objective of the application is to undertake study in Australia on a temporary basis.

4. Accordingly the Tribunal considers the above circumstances are consistent with the applicant’s motivation to remain in Australia on a temporary basis and not on a permanent basis.  On the basis of the above, the Tribunal is satisfied the applicant intends genuinely to stay in Australia temporarily.

5. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly the applicant meets cl 500.212(a).

6. 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.

   DECISION

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

   ·cl 500.212(a) of Schedule 2 to the Regulations.

   Michael Biviano
   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.