Anastacio (Migration)

[2020] AATA 4191

Anastacio (Migration) [2020] AATA 4191 (3 September 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Willian Rafael Anastacio

CASE NUMBER:  1913493

HOME AFFAIRS REFERENCE(S):          BCC2019/1247514

MEMBER:  Peter Booth

DATE:  3 September 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 03 September 2020 at 1:34pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa, travel, study and work history – multiple low-level courses completed or not commenced – family, social and economic ties to home country not sufficient incentive to return – vague and inconsistent evidence about future plans and value of courses – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359
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 Home Affairs on 15 May 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

1. The applicant applied for the visa on 12 March 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.

1. 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 was not a genuine temporary entrant.

1. The applicant appeared before the Tribunal by telephone on 10 August 2020 to give evidence and present arguments.

1. The applicant was assisted in relation to the review by his registered migration agent.

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

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 is a genuine temporary entrant.

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.

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

1. The applicant gave evidence at the hearing, the substance of which was follows. The applicant had read the delegate’s decision dated 15 May 2019 refusing his application for a student visa. The applicant understood, and knew that the issue for determination was whether he was a genuine temporary entrant.

1. The applicant said that he was currently enrolled in a course of study, which commenced in October 2019 and was due to finish in October 2020. He was vague about the details of the course. The Tribunal informed him that the dates of the course he had identified did not accord with the confirmation of enrolment documents which had been provided to the Tribunal. The applicant was asked to provide details of his enrolment after the hearing. The Tribunal will return to this point later.

1. The applicant had also provided information to the Tribunal in the form of a response to a request to do so pursuant to s.359(2). The applicant confirmed that he did not want to add to or vary this document. In summary the information provided by the applicant was as follows.

1. The applicant was born on 3 December 1986. Prior to arriving in Australia, he completed his secondary education, although he did not disclose when he did so. Prior to arriving in Australia, he worked at Unilever between October 1998 and November 2014 ( although this may be incorrect having regard to his arrival date in Australia) in the capacity of “operation”, from which he derived an annual salary of AU$24,000.

1. The applicant arrived in Australia on 28 March 2014 and since that time has returned to Brazil on four occasions: in December 2014 for 11 days; in May 2015 for two months; in November 2016 for 42 days; and in November 2018 for 37 days. He also travelled to Thailand in May 2018 for 10 days and to Indonesia in July 2016 for 14 days.

1. The application for the student visa in question was made in March 2019. The applicant disclosed a visa history as follows. He held a student visa between March 2014 and August

2014, another student visa between August 2014 and March 2016, and another student visa between May 2016 and March 2019.

1. The applicant disclosed an extensive study history in Australia as follows. He completed: a general English course between March 2014 and July 2014; another vocational English course between March 2016 and October 2016; another vocational English course between January 2017 and December 2017; and a certificate IV in business administration between January 2018 and August 2018, He was enrolled in: a certificate III in commercial cookery in January 2017 but did not commence it; a certificate IV in commercial cookery in January 2017 but did not commence it; and a diploma of hospitality management in January 2017 but did not commence it. He completed a certificate III in commercial cookery between October 2018 and October 2019. He stated that he had future enrolments in a diploma of hospitality management due to commence in May 2020 and to be completed in October 2020, and an advanced diploma of hospitality management due to commence in November 2020 and be completed in December 2020.

1. As to the availability of similar courses in his home country he stated:

   ·Australia is well-known for its restaurants and chefs; and

   ·Chefs in Brazil are better recognised and tend to have better jobs when holding qualifications from overseas; and

   ·Chefs who qualified overseas tend to have better salaries in Brazil, as well as better employment opportunities; and

   ·The applicant has a higher chance to succeed as a Chef once self-employed with his own restaurant in Brazil if he takes to Brazil the technical skills learned in Australia, along with a larger range of tastes and dishes. It is important to note that Brazilian cuisine is very limited and lacks good options, mainly in the countryside of the state of Sao Paulo where the applicant comes from and intends to live on his return to Brazil.

1. As to his employment history in Australia, he stated that he was employed as a “salesperson” by “garden organics” in June 2017, from which he derived an annual salary of AU$24,350, and then as a forklift driver by “Melba fresh organics” between July 2015 and July 2018, from which he derived an annual salary of AU$24,960.

1. He stated that his mother, father, sister and brother reside in Brazil and that his de facto partner resides in Australia.

1. The applicant stated that he owned an apartment in Brazil with an estimated value of AU$120,000.

1. As to his future employment plans, he stated:

   ·The applicant intends to return to Brazil after the completion of his courses in order to work in the hospitality industry in Brazil as a Chef; and

   ·The applicant's intention and future plan is to open his own small restaurant in Brazil; and

   ·The applicant intends to obtain sufficient knowledge and skills in his field of study in order to be a Chef and to be able to create a business plan to open his own restaurant as well as operate his own restaurant in the future in Brazil; and

   ·The applicant has already completed a certificate III in commercial cookery [084471G] and will be completing a certificate IV in commercial cookery [091531G] this month of May 2020, which nevertheless shows that the applicant is a genuine student in Australia; and

   ·The applicant's remaining courses of study (diploma and advanced diploma in hospitality) will be essential for the applicant's future in Brazil due to the fact that

these courses will teach the applicant to create his own business plan as well as all the operational essentials to be able to run a restaurant; and

·The applicant's course of study will provide him with the title of a Chef with Australian formal qualifications, which will be extremely relevant for the applicant's future as a Chef in Brazil. It is important to note that Australia is well known for its restaurants and Chefs. The applicant will have a huge advantage in the hospitality industry in Brazil as a Chef with formal qualifications from Australia. This will be life changing in the applicant's future when he returns to Brazil after the completion of his courses of study; and

·The applicant will be returning to Brazil speaking English fluently and qualified as a Chef, holding Australian qualifications. There is no better approach to be taken at this stage by the applicant in order to succeed as a Chef on his return to Brazil.

1. As to his expected future remuneration he stated: AU$45,768.26 - AU$60,459.24 is the estimated annual average salary for a Head Chef in Brazil.

1. The Tribunal proceeded to ask the applicant some questions based upon the responses paraphrased above. The questions and the applicant’s responses, in summary were as follows.

1. The applicant said that he was employed in Brazil as an operator of a machine that produced ice cream. He said that he arrived in Australia with the intention of “learning English with my ex-girlfriend”. He said that his initial visa expired “after six months, then I applied for her visa, then we broke up, March 2016, I started again in English course”. When asked the date on which he applied for his second visa, he said, “the second student visa was my ex-partner visa, between August 2014 and March 2016”. When asked what type of visa he held during that time, he said, “I had partner visa”. He did not elaborate. When asked whether that visa had ceased in March 2016, he said “yes”. He then applied for a student visa in his own name in March 2016, which was granted in May 2016 and expired in March 2019. When asked what course he intended to study when he applied for that visa, he said, “English course, then a business course”.

1. When asked to explain the certificate III in commercial cookery work which he did not commence, he said, “no I finished the certificate III in commercial cookery and the certificate IV in commercial cookery but I’m waiting for the diploma”. The Tribunal put to him that he had stated in his information given to the Tribunal that he enrolled in a commercial cookery course in 2017 but did not commence it. He said, “no is incorrect”. When asked to explain his study history in Australia, the applicant was vague and confused. He was asked to provide details of his study history in writing to the Tribunal after the conclusion of the hearing. The Tribunal will return to this later.

1. The applicant said that he is currently employed as a forklift driver and salesman at the Queen Victoria produce market earning $415 after-tax each week.

1. When invited to add anything further to his application for review he said “I would like to finish my course, have a diploma, a career, I want to make my family proud, I want to return to my country and make my own work”.

1. The applicant’s representative was invited to make submissions. He made broad submissions consistent with the evidence and with written submissions dated 8 June 2020. The representatives written submissions have been taken into account and given appropriate weight.

1. The applicant also provided a variety of documents to the Tribunal, none of which were referred to by him in his oral evidence. Nonetheless they have been taken into account by the Tribunal to the extent relevant and given appropriate weight.

1. By mail dated 10 August 2020, the applicant’s representative informed the applicant that the applicant’s de facto relationship had ended on Friday 7 August 2020, and that “the applicant is single and no longer in a de facto relationship”. This had not been drawn to the Tribunal’s attention until the end of the hearing. The Tribunal proceeded to ask the applicant some questions about this matter. When asked whether he was in a de facto relationship, he said, “no broke up last Friday”. When asked whether he had been cohabiting with his de facto partner he said, “she is now staying still with me, until she gets another house or place to go”.

1. After conclusion of the hearing the applicant’s representative provided 10 confirmation of enrolment documents, dated variously from 2016 to 2021. Relevantly, the Tribunal was provided with a confirmation of enrolment in an advanced diploma of hospitality management, due to commence on 16 November 2020 and to be completed on 16 May 2021, and a diploma of hospitality management which commenced on 18 May 2020 and is due to be completed on 11 October 2020. These apparently are the courses which are currently being studied by the applicant or will be studied in the immediate future. The applicant’s representative also provided a letter dated 16 February 2019 in the form of a narrative statement by the applicant. This document is referred to in the migration agent’s written submission but had not previously been provided to the Tribunal. It provides some further insight into the applicant’s circumstances, which he did not disclose during the course of the oral evidence. It has been taken into account by the Tribunal and given appropriate weight. In addition, the applicant’s representative provided a summary of the applicant’s study history in Australia. The information in that document confirms the study history disclosed by the applicant in his information request response.

1. In considering whether the applicant has met the genuine temporary entry criterion, the Tribunal had regard to the following factors consistent with cl.500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether he has satisfied the genuine temporary entrant criterion.

1. The Tribunal has considered the applicant’s circumstances in his home country. The applicant is single and is from Brazil. The applicant has provided evidence of social, direct family and financial ties to his home country or other economic incentives to return. When considering the applicant’s circumstances in his home country, the Tribunal therefore finds that he has been able to demonstrate ties to act as an incentive to return to his home country at the completion of the proposed study. The Tribunal accepts that the applicant may have family ties to Brazil, however, given the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to Brazil.

1. The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 28 March 2014 as the holder of student visa. The proposed study would extend the applicant’s stay until at least 16 May 2021. The Tribunal finds that the length of this proposed additional stay creates serious concerns that the applicant is studying for the purposes of staying in Australia. Whilst the Tribunal accepts that plans can change, this is not the conduct of a genuine temporary student. Rather, it suggests the applicant has decided to extend his stay in Australia by utilising the student visa programme.

1. The Tribunal does not place weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. The applicant gave extremely vague evidence in that regard.

1. The Tribunal has considered the applicant’s study history since arrival and notes that he commenced study in 2014 and since that time he has completed three vocational courses in English, and a vocational course in business administration. He was enrolled in vocational courses in cookery but did not commence them. The applicant gave no satisfactory explanation as to why he did not commence those courses. He completed a certificate in commercial cookery between October 2018 and October 2019. He intends to study in related cooking or hospitality fields until 16 May 2021.

1. The Tribunal notes that this course plan is inconsistent with the applicant’s plans when he initially entered Australia. The applicant now wishes to pursue vocational courses in cookery and hospitality in Australia. The courses are asserted to have relevance to very vague future plans.

1. The applicant has provided a letter in which he attempts to address the genuine temporary entry criterion. It has been taken into account.

1. The Tribunal is not satisfied that the applicant has established that study will provide him with significant benefits in his proposed career plan, especially considering the cost of the study. The Tribunal therefore is not satisfied that the applicant has demonstrated that the proposed additional study has a realistic prospect of providing significant value to his future beyond the qualifications he already holds.

1. The Tribunal has had regard to whether there are any other relevant matters. The Tribunal finds that there are no other relevant matters to consider that may be beneficial or adverse to the applicant, and that this aspect is not relevant.

1. The Tribunal has considered all the information provided with the visa application. After weighing up these factors as a whole, the Tribunal finds that the applicant has not been able to satisfy it that the applicant genuinely intends a temporary stay in Australia as a student.

1. The Tribunal has considered the evidence and has taken into account the applicant’s economic circumstances in his home country relative to his potential circumstances in Australia. Given the disparity in economic circumstances between Brazil and Australia, the Tribunal cannot be satisfied that the applicant has significant incentive to return to Brazil. The applicant has been unable to demonstrate substantial ties or personal assets in his home country, which diminishes his incentive to return to Brazil.

1. The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from his proposed study which will outweigh the significant time and monetary commitment this course will require. Therefore, the Tribunal is not satisfied that the applicant has demonstrated the value of his proposed course to his future.

1. The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 28 March 2014, the applicant has spent approximately six and a half years in Australia and returned to Brazil on four occasions, which indicates that he does not appear to have strong personal ties to Brazil. Based on this evidence, the Tribunal assesses the applicant’s incentive to return to Brazil to be minimal.

1. On balance, the Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. Whilst the applicant clearly wishes to stay and continue to

study in Australia, it is noted that the applicant was previously granted a visa specifically to enable him to achieve that goal. The applicant was granted a student visa, which would have facilitated the applicant’s study in his desired field. It appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study. The Tribunal has also had regard to whether there is any other relevant matter and finds there to be no other relevant matter to the assessment of the applicant’s intentions to stay in Australia temporarily. The Tribunal has considered all information provided by the applicant in support of his application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in his home country, potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.

1. On the contrary, the factors indicate that the applicant appears to have enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study and overall academic progress. The applicant appears to be using the student visa programme as a means of maintaining ongoing residence in Australia, and does not have a genuine intention to stay in Australia temporarily.

1. There is no evidence before the Tribunal regarding the following factors indicated by Direction No.69: economic circumstances of the applicant; any potential military service in Brazil; political or civil unrest circumstances in Brazil; remuneration the applicant could expect to receive in Brazil or a third country compared with Australia; circumstances in Brazil relative to Australia or any other country; and the applicant’s circumstances in Brazil relative to others in that country.

1. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time, to utilise lawful means to remain in Australia. Given the amount of time the applicant has now spent in Australia, the Tribunal is concerned the student visa may be used primarily for maintaining ongoing residence.

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

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

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

DECISION

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

Peter Booth 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.

1. 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).

1. 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.

1. 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.

1. 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.

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

1. 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.

1. 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.

1. 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.