Araya Cares (Migration)

[2022] AATA 3323

Araya Cares (Migration) [2022] AATA 3323 (23 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Juan Pablo Araya Cares

REPRESENTATIVE:  Mr Ernie Hu

CASE NUMBER:  2115545

HOME AFFAIRS REFERENCE(S):          BCC2021/1257458

MEMBER:Brian Camilleri

DATE:23 August 2022

PLACE OF DECISION:  Sydney

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 23 August 2022 at 4:22pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine applicant for entry and stay in Australia as a student – applicant has made continuous academic progress in his courses of study –applicant’s stated ambition is consistent with his choice of courses and his work history –decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359, 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 13 October 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 16 June 2021. 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) and the applicant did not comply with the genuine temporary entrant criterion.

4. The Tribunal wrote to the applicant pursuant to s359(2) of the Act, inviting the applicant to provide information in writing about the courses he was undertaking and his study and stay in Australia. The applicant provided the requisite information, and a hearing was held on 4 August 2022.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 complies with the genuine temporary entrant criterion.

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

7. 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?

8. 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.

9. 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.

   Hearing – 4 August 2022

10. The hearing was attended by the applicant via telephone. It was explained to the applicant that the law which is applied by the Tribunal is the same law, which is applied by the Department of Home Affairs (the Department), but the Tribunal and the Department are separate and distinct agencies.

11. The applicant was informed that the Tribunal Member had access to:

    a.files of both the Department and the Tribunal relevant to his visa application and visa review;

    b.the delegate’s decision;

    c.a copy of the travel and movement record of the applicant showing his movements to and from Australia;

    d.the PRISMS (Provider Registration International Student Management System) record relevant to the applicant, listing all courses in which he had enrolled, the duration of the courses and whether the courses were cancelled, finished, completed, studying or approved for future study.

    e.the information in the response to the Tribunal’s request for student visa information (Form M17) completed by the applicant.

12. The applicant was also informed that the Tribunal’s review would involve a consideration of the applicant’s circumstances in his home country, the applicant’s circumstances in Australia, the applicant’s travel and movement record, the applicants’ academic record and the value of the course to the applicant’s future prospects and any other relevant matter.

13. Furthermore, the applicant was informed that the Tribunal was required to consider the facts and circumstances as they stood at the date of the decision and not the facts and circumstances as they stood as at the date of the delegate’s decision.

14. The Tribunal also informed the applicant that in conformity with the provisions of the Migration Act 1958 (Cth) (s359A) the Tribunal would put to him any information relied upon which in terms involved material comprising a rejection, denial or undermining of his case and he should use the hearing as an opportunity to correct, explain and address any such material or information and concerns.

    Applicant’s Circumstances in Home Country

15. The applicant was born in Venezuela but moved back to his parents’ home country of Chile at the age of 11. The applicant is forty-four (44) years old. His parents and a younger sister live in his home country of Chile. An older sister lives in Venezuela but is proposing to re-emigrate to her own home country of Chile.  Prior to entering Australia, he studied a Bachelor of Publicity and Marketing, graduating in 2005. He successfully ran a restaurant with a partner for nearly three years before coming to Australia.

16. He stated the following employment positions: (a) advertising manager (01/2006-11/2007), earning $16,000; (b) owner and manager of a restaurant (2008-2010) earning $21,000 per annum; (c) district coordinator. He declared as an asset a vehicle valued at $5,000.

    Applicant’s Circumstances in Australia

17. The applicant first arrived in Australia on 13 August 2014 on a Student (Subclass 570) Visa valid until 6 March 2015. Since that time, he has been granted three more student visas on the following dates:

    a.26 February 2015

    b.10 May 2016

    c.10 July 2019

18. Upon arriving in Australia, he struggled to attain the required level of English for some of his courses and the style of teaching, he found himself “too embarrassed to attend class”. His other explanations for course cancellations and changing education providers is covered in other parts of the Decision Record. Whilst his English is rudimentary his evidence (using a Spanish speaking interpreter) was straight forward and not evasive.

19. In written submissions to the Tribunal, the applicant listed annual living expenses of $24,800. He declared nine casual employment positions in Australia over his eight-year stay, in which he earned on average around $25,000 per annum, although in his most recent employment (as a delivery driver), he earns $39,000.

20. On 16 June 2021 (whilst in Australia), the applicant applied for a fifth Student (Subclass 500) Visa. At the time he was enrolled in the following courses: (a) Certificate III in Commercial Cookery; (b) Certificate IV in Commercial Cookery. His application was rejected on 13 October 2021.

    Applicant’s Movement and Immigration History

21. Since the applicant’s first arrival in Australia on 13 August 2014, he has made the following trips to and from the country:

Trip	Departure from Australia	Arrival in Australia
First Arrival	13 August 2014
1	8 May 2016	18 May 2016
2	14 August 2017	21 September 2017
Current Status	Onshore

Given the COVID 19 pandemic and resulting travel restrictions, the applicant’s recent lack of travel is unremarkable. Nevertheless, the applicant has been in Australia for eight years and departed only two occasions for short periods. In written submissions, the applicant argued that he is not using the student visa program in order to maintain the associated working rights. He declared that he is a relatively low-income earner and only works in order to cover his tuition fees and living expenses.

Applicant’s Academic Record and Progress

1. At the time of making its decision the Tribunal had available to it the applicant’s academic record as set out in the Provider Registration International Student Management System (PRISMS) as of 27 July 2022. It showed the courses undertaken by the applicant. Those courses successfully completed have their status described as “Finished” (shaded in grey). Courses not completed are described as “Cancelled”.

Course	Status
Diploma of Hospitality Management [094023D] (21 November 2022 to 6 August 2023)	Approved
Certificate IV in Commercial Cookery [094022E] (16 May 2022 to 25 September 2022)	Studying
Certificate III in Commercial Cookery [094021F] (19 April 2021 to 16 June 2021)	Finished
Diploma of Hospitality Management [095621G] (19 October 2020 to 16 April 2021)	Cancelled
Diploma of Hospitality Management [091068D] (6 May 2019 to 17 May 2020)	Cancelled
Certificate IV in Commercial Cookery [095620G] (11 March 2019 to 6 March 2020)	Cancelled
Certificate IV in Commercial Cookery [096761J] (19 March 2018 to 31 March 2019)	Cancelled
Advanced Diploma of Leadership and Management [089325K] (8 January 2018 to 18 January 2019)	Cancelled
Advanced Diploma of Leadership and Management [089325K] (13 November 2017 to 23 November 2019)	Cancelled
Certificate IV in Commercial Cookery [093804E] (25 September 2017 to 16 March 2018)	Cancelled
Certificate IV in Commercial Cookery [093804E] (25 September 2017 to 21 December 2017)	Cancelled
Certificate III in Spoken and Written English [080129J] (24 July 2017 to 11 August 2017)	Inactive
Diploma of Leadership and Management [090574E] (31 October 2016 to 10 November 2017)	Cancelled
Diploma of Leadership and Management [090574E] (5 September 2016 to 15 September 2017)	Cancelled
Certificate III in English Proficiency [085808A] (21 March 2016 to 5 July 2016)	Cancelled
Certificate III in English Proficiency [085808A] (21 March 2016 to 2 September 2016)	Cancelled
Certificate IV in English Proficiency [085809M] (21 March 2016 to 2 September 2016)	Cancelled
Certificate IV in Business [086927G] (26 October 2015 to 8 April 2016)	Cancelled
Certificate IV in Business [081472G] (12 October 2015 to 25 March 2016)	Cancelled
Certificate III in English Proficiency [085808A] (3 August 2015 to 15 January 2016)	Finished
IELTS Preparation [056499E] (3 August 2015 to 23 October 2015)	Cancelled
IELTS Preparation [056499E] (6 July 2015 to 25 September 2015)	Cancelled
General English (Beginners - Advanced) [056501E] (16 March 2015 to 5 June 2015)	Finished
General English (Beginners - Advanced) [056501E] (18 August 2014 to 6 February 2015)	Finished

1. According to PRISMS, the applicant has successfully completed the following courses:

   a.General English  

   b.Certificate III in English Proficiency

   c.Certificate III in Commercial Cookery

   d.He is enrolled and completes Certificate IV in Commercial Cookery in September 2022- (just two months hence).

   e.His last course commences in November 2022 and concludes in August 2023.

2. During the hearing, the Tribunal read out to the applicant those aspects of his study history that were averse to his application, including courses which were listed as “cancelled” as well as any extensive time periods (or “gaps”) in which the applicant did not appear to have been studying a course with a registered educational provider. The applicant was given the opportunity to correct any errors in the record, and to provide explanations for his periods of “non-study”. The Tribunal notes that the applicant was also requested as part of his s359(2) response to declare any course cancellations or periods where the applicant was not enrolled, and to provide explanations which he did.

3. After completing his two English courses (the second of which finished on 15 January 2016, the applicant then did not complete any course recorded on his record successfully until he commenced his Certificate III in Commercial Cookery (on 19 April 2021). This left a study gap of five years and three months, during which time the applicant was obliged under his visa conditions to maintain continuous enrolment in a registered education provider, but did not do so. This would normally rule out the applicant, but the evidence showed that this was for the most part the sequence of an unlucky events and encounters with hapless education providers and the pandemic.

4. In written submissions, the applicant explained the cancellations of his courses. His initial provider lacked adequate facilities for the practical components of his cookery course, and in some cases was deficient in the quality of the trainers and their treatment of him. The applicant submitted evidence of his communications with a few of these providers. As a person who had experience of running a restaurant in Chile for 3 years with a partner he was in a position (although not formally trained at the time) to make a judgement based on experience in this regard.

5. One educational provider with whom he had achieved completion of several subjects financially collapsed. More problematic however was the fact that e was unable to obtain from the collapsed college evidence of the completion of many subjects and therefore was unable to obtain accreditation for courses components already completed to provide to his next education provider.

6. His next provider refused him accreditation. This is understandable even without evidence (the applicant was unable to provide any); liquidators are notoriously disinterested in anything but winding up). In consequence the relationship with the new (subsequent) education provider became acrimonious and he withdrew, depressed and dispirited about the waste of time and money. These courses were all bundled together which explains the long list of cancellations. The Tribunal accepts this evidence and is satisfied the applicant was justified or compelled to withdraw from those particular courses, or was forced to withdraw for reasons not within his control.

7. The applicant also stated that he still struggled with the English language exigencies of some of his courses.

8. Dovetailed into his history is the common experience of dislocation caused by both unemployment and disrupted course study resulting from the impact of the pandemic which meant that both the colleges he was attending and he himself were poorly resourced to achieve positive educational outcomes. Especially since (of its nature) cookery courses have a high degree of practical modules and in-person attendance was almost impossible during the pandemic restrictions.

9. As the three related courses Certificate III and Certificate IV and the Diploma of Hospitality and management were bundled together, cancellation of the initial Certificate III course meant consequent cancellation of all subsequent enrolled courses, and the PRISMS record showed a laundry list of “cancelled” courses, many of which he was yet to commence. In consequence the PRISMS record looks very unattractive at first glance, but after probing this record it becomes evident that it was the result (for the most part) of factors outside of his control, or at least not entirely in his control.

10. The Tribunal accepts that the applicant had an unfortunate run with poor quality or defunct providers. However, the Tribunal notes that the applicant has maintained his motivation and reasons for studying, He maintains that the quality of the courses available here are superior in comparison with those in his home country.

11. The Tribunal notes that since 19 April 2021 the applicant has been studying continuously (and successfully finished one course and is only 2 months from finishing his Certificate IV course). His last course commences in November 2022 and finishes August 2023. It appears that having overcome and passed through a dismal set of circumstances involving various providers he has now spent not only the fees he lost (with the collapsed course) but has now spent and additional $5,500 for the Certificate III in Commercial Cookery course (completed) and he is on a monthly plan to finish payment of his current Certificate IV in Commercial Cookery. He has paid approximately 70% of these course fees (which finishes in September 2022). His final course is due to start in November 2022 and will cost between $5000 and $6,000.  The Tribunal finds that there are good reasons for concluding that he has a serious prospect of completing all three courses by August 2023.

    Value of Course to Applicant’s Future Prospects

12. The applicant provided an M17 response, and a detailed seven-page Personal Statement contained within a 67-page submission, which also contained supporting evidence, all of which has been considered by the Tribunal in additional to his oral testimony during the hearing.

13. The applicant states that he remains determined to complete his two cookery courses and a Diploma of Hospitality, which would require him to study in Australia until 6 August 2023. His stated aim is to then return to his home country and open a restaurant. He expects to earn approximately $47,000 as a starting salary. He would live with his parents, and given the lower cost of living in Chile, expects he would be able to save money to use as capital for his planned restaurant. His father has now retired and has conducted a number of businesses during his life. The applicant has the support of his elder sister who is currently living Venezuela and wrapping up aspects of her life in that country but proposes to return to Chile in the not-too-distant future. She is interested in funding the proposed restaurant venture (together with her father and the applicant).

1. Given the applicant’s previous experience owning in running a restaurant, as well as his considerable experience in Australia working in various restaurants as a chef’s assistant and in the hospitality industry, the Tribunal finds his stated ambition to be consistent with his choice of courses and his work history.

2. The Tribunal is required to make its decision based on the facts and circumstances at the time making its decision) and not as they existed at the date of the delegate’s decision. In this case the decision under review (at the time it was made by the delegate) was appropriate. But circumstances have changed since that time. The applicant has provided further information to establish his motives for studying in Australia and documentary evidence to support his claim. He finished the first courses contemplated by the visa application and productively utilised the long interval to study between the initial date of the rejection of his student visa and the date of this decision by the Tribunal to almost finish his second course. He has just one year to complete his final course.

3. It is evident that since the delegate’s decision he has performed consistently in accordance with his declared intentions and paid significant fees towards the study of the courses in question, all of which reinforces the conclusion that the applicant should be considered as a genuine temporary entrant. Although the horizon for completion of his current course almost exactly year (August 2023), the Tribunal has no evidence before it to suggest that the applicant is not a genuine temporary entrant or that he does not propose to leave Australia at the end of his course.

4. 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).

   Other Relevant Matters

5. The Tribunal has considered whether there are any other matters that are relevant to the assessment of the applicant's genuine intention to temporarily study and stay in Australia and finds that there are no other relevant matters for consideration.

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 of Schedule 2 to the Regulations.

   Brian Camilleri
   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;

   d.whether 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.