Amar De Barreto Moura (Migration)

[2019] AATA 2645

Amar De Barreto Moura (Migration) [2019] AATA 2645 (26 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Karoline Beatriz Fernanda Amar De Barreto Moura

CASE NUMBER:  1702828

HOME AFFAIRS REFERENCE(S):           BCC2016/2542545

MEMBER:David Thompson

DATE:26 May 2019

PLACE OF DECISION:  Perth

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 of Schedule 2 to the Regulations.

Statement made on 26 May 2019 at 2:27pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – value of course – Bachelor of Engineering (Civil) – similarities with existing qualifications – Bachelor of Environmental Design – filling gaps in training – some common connecting elements – distinct and requiring specialised study – immigration history – length of time spent in Australia – failed to respond to 2 request for information – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Immigration and Border Protection on 10 February 2017 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 1 August 2016. 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 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant’s study history, potential circumstances in Australia, immigration history, and (in the delegate’s view) lack of value of the proposed course to the applicant’s future led the delegate to the conclusion that the applicant was using the student visa programme to circumvent permanent migration programmes, and that she was not therefore a genuine applicant for entry and temporary stay as a student.

4. The applicant appeared before the Tribunal on 17 April 2019 to give evidence and present arguments.

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

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 meets the requirements of clause 500.212.

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

1. 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?

1. 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.

2. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

3. The applicant is a citizen of the Federative Republic of Brazil.

4. The applicant first came to Australia on 21 April 2001 and studied English under a series of short term student visas, the last of which expired on 6 January 2003.  She remained in Australia on a tourist visa and departed on 31 March 2003.  She was granted a further tourist visa offshore on 19 January 2005 and returned to Australia for two months.

5. The applicant was granted a Higher Education Sector (class TU subclass 573) visa on 18 July 2006 and returned to Australia on 26 July 2006.  Apart from some short holidays overseas she has remained in Australia since that date under either a student visa, a graduate (class VC subclass 485) visa, or an associated bridging visa.

6. At the date upon which her visa application was refused (10 February 2017) the applicant had undertaken the following courses of study:

   ·Bachelor of Environmental Design

   ·Masters of Urban and Regional Planning

   ·Certificate IV in Residential Drafting

   ·Diploma of Building Design

   ·IELTS preparation course

7. The applicant was at that date enrolled in and studying for a Diploma of Civil and Structural Engineering.  Since that date the applicant has undertaken studies for an Advanced Diploma of Civil and Structural Engineering.

8. The applicant has completed all of those courses other than the Masters of Urban and Regional Planning, which she appears to have abandoned after a few months.  To the extent that she has worked during her stay in this country, the applicant has worked as a contract architectural drafter.  The applicant is currently enrolled in a Bachelor of Engineering (Civil) at Edith Cowan University.  That course is due to end in December 2022.

9. The delegate refused the applicant’s visa application because of doubts about the value of the course the applicant was then proposing to the applicant’s future, given what he saw as substantial similarities between that course and the courses the applicant had already completed (in particular, her Bachelor of Environmental Design course).  The delegate also found indications in the applicant’s immigration history that she was using the student visa system to maintain residence in Australia.  He made particular mention of the applicant’s failure to respond to two requests the Department made for further information, but was also clearly concerned by the length of time the applicant has spent in Australia.  The delegate also alluded to concerns relating to the applicant’s potential circumstances in Australia, although he did not discuss this issue. It is convenient to address these factors first, before moving to deal with other relevant considerations.

   Value of studies to the applicant’s future

10. The applicant gave evidence before the Tribunal explaining the course of her studies in Australia to the date of hearing. In summary, the applicant’s evidence was that after leaving school she worked as a trainee draftsperson in Brazil for a period before attempting to gain a university place in Brazil to study architecture. Having gained university entrance, she started studying architecture in Brazil at the Mackenzie Presbyterian University in Sao Paulo. After finishing the first year of that course and having become familiar with Australia from previous visits (during which she had studied English), she and her family decided that she should try and continue her studies in Australia. To that end she enrolled in the Bachelor of Environmental Design course at the University of Western Australia, a course which that institution offers as a pathway to its Master of Architecture course.  The applicant’s evidence was that a professional degree from a foreign university would have given her clear advantages in finding employment in her profession in Brazil, where domestic university degrees are common and do not offer jobseekers any particular advantage in the employment market.  She found that Bachelor of Environmental Design course was almost entirely theoretical and concerned largely with design concepts, and was lacking in many areas she felt were essential to working as an architect and which she had started studying in Brazil, including materiality, structural analysis and physics, mathematics, construction and budgeting, and architectural drafting. Nonetheless, she persisted with the course and finished it, under the impression that other universities would take the same approach.

11. Having completed the Bachelor of Environmental Design course, the applicant enrolled briefly in a Masters in Urban and Regional Planning in the hope that it would address some of the deficiencies in her undergraduate degree course. She found that it would not, and ceased her enrolment after a short period.  She then undertook a Certificate IV in Residential Drafting and a Diploma of Building Design at North Metropolitan TAFE in Perth, and found that these filled gaps in her training, including (although not exclusively) that relating to designing within regulatory frameworks.  At this point, the applicant was granted a graduate visa, and worked as a contract architectural drafter.

12. During this period she investigated other courses that might allow her to progress in architecture.  She enrolled in a Diploma of Civil and Structural Engineering course at North Metropolitan TAFE and made the visa application that gave rise to this review. Whilst studying that course the applicant found that she enjoyed engineering greatly and decided to move in that direction.  In the course of the review process she completed an Advanced Diploma in Civil and Structural Engineering. She is now enrolled in a Bachelor of Engineering (Civil) at Edith Cowan University, where she has been given advanced standing for previous studies and will be able to finish the course in three years rather than the usual four.

13. The applicant’s evidence was that this professional qualification, along with her other studies and qualifications, would give her a distinct advantage in obtaining employment and advancing in professional practice in Brazil. The Tribunal finds that the applicant’s change of direction from architecture to civil engineering is a reasonable change, being as it is a change between two disciplines that have some common connecting elements but are nonetheless distinct and requiring specialised and focussed study to pursue.  The Tribunal accepts the applicant’s evidence that she has not, contrary to the delegate’s view, enrolled in multiple courses covering the same ground. Rather, the Tribunal finds that the applicant’s studies are progressing in a coherent direction, and that the applicant has pursued them diligently. Those studies have, it is true, taken up a significant period of time. However, the Tribunal finds that (allowing for the applicant’s change of direction) this period of time is not excessive for the study of such serious and complex subjects. 

14. The Tribunal finds that the applicant’s studies to date, including the course she is currently engaged in, have a clear value for her future, and that the course she is currently studying is consistent with her previous level of education. The value of the applicant’s studies for her future support her claim that she is here only to study and intends to leave Australia to return to Brazil when she has completed her studies.

    The applicant’s immigration history

15. The Tribunal has already dealt with the issue of the length of time the applicant has spent in Australia, which is one facet of her immigration history.  There is no evidence before the Tribunal that the applicant has breached any of her visa conditions during her stay in Australia.

16. The applicant has made some short trips to Indonesia and Thailand, but there is no evidence before the Tribunal suggesting that she has contravened the immigration laws of those countries.

17. The delegate noted that the applicant had failed to respond to two requests for information from the Department in respect of her visa application.  The delegate saw this as conduct inconsistent with a genuine intention to say in Australia temporarily in order to study, indicating rather an intention to use the student visa system to maintain residence in this country.  The applicant was questioned about these failures at hearing. Her evidence was that her agent at the time, a Mr Pike, had not informed her of the Department’s enquiries, and indeed only informed her of the Tribunal’s request for information under s.359(2) of the Act the evening before her response was due, necessitating an application for extension of time.  The applicant has now dispensed with Mr Pike’s services. To some extent this evidence is confirmed by the documents on the Tribunal’s file, and the Tribunal accepts it as a reasonable explanation of the failures that so concerned the delegate. In the circumstances, the Tribunal finds that the applicant’s failures to respond to the Department’s enquiries do not amount to a lack of cooperation, or to an indication that she is using the student visa system simply to maintain residence.

18. Apart from the refusal the subject of the current review, there is no evidence before the Tribunal that the applicant has ever been refused a visa or had a visa cancelled.

19. The Tribunal finds that, on balance, the applicant’s immigration history supports her claim that she has a genuine intention to stay in Australia only temporarily and leave this country at the conclusion of her studies.

    The applicant’s circumstances in her home country

20. The applicant comes from a family of professionals who reside in Sao Paulo.  Her father is deceased, but her mother and three sisters live and work in that city.  They have been supporting her during her studies in Australia. The applicant has provided the Tribunal with a certified translation of a statutory declaration made jointly by her mother and sisters confirming this and stating their intention to continue to do so, as well as a certified translation of her mother’s 2018 tax statement. On that evidence, the Tribunal finds that the applicant’s economic circumstances in Brazil are at least as favourable as the economic circumstances a person in an equivalent situation would enjoy in Australia, and that this factor will not act as an incentive for the applicant to stay in Australia once she has finished her studies.

21. The applicant’s evidence is that her family is very close, and are in contact using WhatsApp, video calls, and email very frequently, if not daily.  The support the applicant’s family has given her in the course of her studies here, as stated in their statutory declaration, also attests to this. These familial relationships constitute a positive incentive for the applicant to return to Brazil on completion of her studies.  The applicant presented no evidence as to community involvements or promised employment in Brazil that would reinforce and strengthen that incentive, although this is unsurprising given the length of her absence from that country. Nonetheless, the applicant’s evidence at hearing made it clear that she feels a strong responsibility to her family, both to complete her studies successfully and to return to Brazil to establish herself in her professional career.

22. The applicant’s evidence makes it clear that she could have studied architecture or civil engineering in her home country.  Her reasons for coming to Australia to undertake those studies have been discussed in paragraph 21 above.  The applicant gave evidence at hearing that if she were to return to Brazil to finish her studies at this point, she would have to sit her University entrance exams over again and compete with a large number other hopeful students before she could do so. The Tribunal finds that the applicant’s motivations for coming to Australia to study and for seeking to finish her studies in country are reasonable, and do not indicate an intention to use the student visa programme to maintain residence in Australia.

23. There is no evidence before the Tribunal suggesting that the applicant will have any military service commitments to fulfil if she returns to her home country.  Nor is there any evidence before the Tribunal of political or civil unrest that would give the applicant a reason to stay in Australia after she finishes her studies.

24. In light of the matters discussed in paragraphs 28 to 31 above, the Tribunal finds that the applicant’s circumstances in her home country provide her with positive incentives to return there at the end of her studies.  This supports the applicant’s claim that she has come to this country to study and intends to leave when she finishes her studies.

    The applicant’s potential circumstances in Australia

25. As was noted above, the applicant spent time in Australia studying English before returning to Brazil to attempt her university entrance examinations. She may therefore be taken to have had good knowledge of this country before applying for her student visa to study architecture. The applicant gave evidence at hearing of the research she had undertaken into the study of civil engineering whilst considering changing her studies in that direction.  This is consistent with a genuine intention to stay in Australia only temporarily for the purpose of study.

26. The applicant’s evidence is that she currently lives in a shared house in Sorrento (a northern suburb of Perth) with the owner of that property and another student, that the owner of the house is Brazilian, and that her other housemate is a Chinese student.  The applicant stated that before she moved to Sorrento she lived from 2006 to 2016 on her own in an apartment. Written evidence to that effect was provided to the Department.  The applicant’s evidence is that whilst she has made some friends in the course of her time in Australia, she has always been and remains single, and that she has no family in Australia.  The applicant also gave evidence that she had joined the Australian Institute of Architects and Engineers Australia as a student member, but that she had no other community ties or involvements in this country. There is no evidence before the Tribunal to the contrary, or suggesting that the applicant has entered into any kind of relationship of concern. The applicant’s evidence is that she has no assets in Australia beyond a motor vehicle which she values at $4300.

27. The applicant gave evidence that a starting salary for a civil engineer in Brazil would be approximately 4500 Brazilian reals, or approximately AUS$1,636, per month, but that the possessor of a civil engineering degree obtained outside of Brazil could expect to earn 50% more than that. This Tribunal finds that this comparatively low level of remuneration provides the applicant with an incentive to stay in Australia at the end of her studies, and to that extent tends against her claim to be a genuine temporary entrant for the purposes of cl.500.212. Apart from that, however, her circumstances in Australia tend to bear out her claim to genuine temporary entrant status.

    Conclusion

1. The Tribunal finds that, on balance, the evidence supporting the applicant’s claim to be a genuine temporary entrant for the purposes of cl.500.212 far outweighs the evidence against that claim.

2. 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).

Does the applicant intend to comply with visa conditions?

1. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

2. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed in some cases (cl.500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).

3. The applicant has declared that she intends to comply with any conditions imposed on her student visa, should such a visa be granted to her.  There is nothing in the evidence before the Tribunal, whether as to her immigration record or otherwise, that would suggest that she has any contrary intention.  The Tribunal sees no reason to disbelieve the applicant’s statement.

4. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

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

1. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

2. The evidence before the Tribunal does not raise any such other relevant matter.

3. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

4. 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

1. 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 of Schedule 2 to the Regulations.

David Thompson
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

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

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

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

The applicant’s circumstances in their home country

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

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

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

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

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

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

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

The applicant’s potential circumstances in Australia

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

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

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

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

   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

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

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

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

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

The applicant's immigration history

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

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

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

   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

1. 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

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