Arif (Migration)

[2019] AATA 4419

Arif (Migration) [2019] AATA 4419 (10 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zeeshan Arif

CASE NUMBER:  1732581

HOME AFFAIRS REFERENCE(S):           BCC2017/3555224

MEMBER:Michael Biviano

DATE:10 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 10 October 2019 at 8:44am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine intention to stay in Australia temporarily – applicant’s circumstances in Pakistan and Australia – multiple changes of course and career objective – long gap in studies – objective to maintain ongoing residence and remain in Australia permanently – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

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 8 December 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 28 September 2017. 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) for the reason that he was not a genuine applicant for entry and stay as a student because he did not intend to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 31 May 2019 to give evidence and present arguments.

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

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

9. Clause 500.212 requires as follows:

   The applicant is a genuine applicant for entry and stay as a student because:

   (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

   (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)any other relevant matter; and

   (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

10. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:

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

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

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

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

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

12. The applicant is a 27 year old Pakistan national who came to Australia on 21 November 2012.  He entered Australia after obtaining an initial Student visa (Class TU Subclass 573) on 1 November 2012, which was valid until 4 December 2013.  The applicant was granted the visa based on his intention to study a package of business courses including a Diploma of Business and Bachelor of Business at Cambridge International College in Melbourne.

13. The decision record of the delegate of the Department of Immigration and Border Protection dated 8 December 2017, which was provided to the Tribunal by the applicant, confirms that the applicant made his application for the current Student (Class TU Subclass 500) visa on 28 September 2017 (Decision Record).  Further the Decision Record confirms that the applicant has, since arriving in Australia in November 2012, resided and remained in Australia either on student visas or a bridging visa.

14. At the time of the hearing, the applicant was studying an Advanced Diploma of Leadership and Management at Imperial College of Australia, which he had commenced studying on 1 May 2019, less than one month prior to the commencement of the hearing.  The Advanced Diploma is expected to be completed by 28 April 2020.  If the applicant completes that course he will have remained in Australia for seven and a half years.

15. On 8 April 2019, prior to the hearing, the applicant filed with the Tribunal a response within time pursuant to an invitation to supply student visa information about the courses he was studying and information about his entry and stay in accordance with s.359(2) of the Act (Response). 

16. In addition to the Response, on 13 May 2019, prior to the hearing, the applicant filed a submission together with supporting documentation, which included:

    (a)Certificate IV in Accounting at Education Access Australia dated 21 July 2015 with academic transcript;

    (b)Letter from Education Access Australia Pty Ltd dated 21 July 2015;

    (c)Diploma of Accounting from Education Access Australia issued 21 July 2015 with academic transcript;

    (d)Letter from Education Access Australia Pty Ltd dated 21 July 2015;

    (e)Letter from Baxter Institute to the applicant dated 6 December 2016 confirming that he had met the course requirements in Certificate III in Retail Baking together with a record of results and the Certificate;

    (f)Record of Intermediate and Secondary Education Annual Result Card for the applicant for 2010, together with exam results for the Senior School Certificate in Pakistan 2008;

    (g)Conditional Letter of Offer from Victoria University to the applicant dated 16 June 2017;

    (h)Information regarding the applicant’s family together with extract of Pakistan bank account statement.

17. The Decision Record confirms that since arriving in Australia, the applicant has enrolled in and studied the following courses:

    (a)In November 2012 he enrolled at Cambridge International College to study a Diploma of Business, however, he did not complete that course.  Further he was enrolled to complete a Bachelor of Business at Cambridge International College but he never started that course;

    (b)In November 2013 he enrolled at Education Access Australia in a Certificate IV in Accounting, which he studied from 11 November 2013 to 7 November 2014, and he completed that course and obtained the Certificate;

    (c)In November 2014 he undertook a Diploma of Accounting at Education Access Australia, which he studied between 10 November 2014 and 8 May 2015, and he completed the course and obtained the Diploma;

    (d)In July 2015 the applicant enrolled in a Certificate III in Retail Baking (Combined) at Baxter Institute, which he studied from 3 July 2015 to 2 November 2016, and he completed the course and obtained the Certificate;

    (e)The applicant, whilst initially enrolled in a Certificate IV in Advanced Baking at Baxter Institute, did not start the course;

    (f)In February 2017 the applicant was enrolled in the Advanced Diploma of Marketing at VICAT, which he studied from 2 February 2017 until 16 February 2018, but he did not complete that course; and

    (g)In May 2019 he enrolled in the Advanced Diploma of Leadership and Management at Imperial College of Australia, to be studied between 1 May 2019 and 28 April 2020. 

18. The Tribunal notes that there is a gap in studies between 16 February 2018 and 1 May 2019, where the applicant was not enrolled in a course of study for a period of 14 and a half months.  The Tribunal finds that the long gap in studies is inconsistent with a student who is in Australia genuinely studying in an expeditious manner to complete his course and then return home. 

19. If the applicant had commenced the Advanced Diploma in early 2018, he would have completed the course.

20. Further the Tribunal notes that the applicant has not completed any course of studies since completing the Certificate III in Retail Baking in November 2016.  The applicant gave evidence that when he commenced at Cambridge International College studying the Diploma and Bachelor of Business, he struggled with his studies and failed a number of subjects.  Accordingly he decided to undertake a Certificate IV and Diploma in Accounting, based on advice given by his agent that it would be easier to complete the course.

21. The applicant gave evidence that at the end of 2012 he commenced working at Alasya Bakery working 20 hours a week, earning approximately $600 per week after tax.  He is still employed in that position, earning approximately $30,000 per annum after tax, which is a relatively high level of income. The applicant’s long and secure employment, earning this level of income, presents the applicant with substantial incentive to remain in Australia.

22. He further gave evidence that his father owns a sweet shop in Pakistan and, in undertaking his studies, he wanted to know more about running a shop and the business so that if he returns to Pakistan he could manage the store.

23. The applicant’s father’s store in Pakistan makes sweets on site and is also a general store; it has a staff of approximately six people working there seven days per week.

24. In light of the applicant working in a bakery and his family having a sweet shop, the applicant decided he would enrol in a Certificate III in Retail Baking (Combined), which he did in July 2015.

25. In 2017 the applicant decided he would change his course of study to undertake a medical course of study. However, he was unable to enrol in a Bachelor of Nursing due to the limited numbers available.  He decided that he would enrol in an Advanced Diploma of Marketing at Victorian Institute of Culinary Arts (VICAT) so that he could continue studying until a seat became available at a tertiary institution so that he could study nursing.

26. On or about 16 June 2017 the applicant received a conditional letter of offer from Victoria University Melbourne to study a Bachelor of Nursing commencing on 10 February 2018, which was expected to conclude on 31 December 2020.  The applicant continued his studies at VICAT leading up to the enrolment in the nursing degree.  However, in or about October or November 2017, during the middle of studying the Advanced Diploma of Marketing, VICAT closed down.

27. The applicant gave evidence that he had then arranged to start the Bachelor of Nursing at Victoria University in February 2018, however, after he received the decision of the Department refusing his visa application, he lost confidence in studying the degree.  Instead of continuing with the enrolment and studying the course, the applicant ceased his studies. The applicant then enrolled in the Advanced Diploma of Leadership and Management and the CoE for the course confirms that the enrolment took place on 18 April 2019.

28. The applicant has claimed that he has studied the Advanced Diploma of Leadership and Management so that he could return to Pakistan and manage his father’s business.  He gave evidence that on his return he expects he will receive an income of 60,000 to 70,000 Pakistan rupees per month, which equates to AU$600 to AU$700 per month. The Tribunal notes that these plans are inconsistent with studying a medical course of study.  

29. The applicant in evidence conceded the income he would receive in Pakistan would be substantially less than the income he would receive if he was employed in Australia, which has a higher level of wages, and which would not present a significant incentive for the applicant to return to Pakistan.  Further, it is common knowledge that the economic conditions in Pakistan are not as favourable as those in Australia, which also would not present a significant incentive for the applicant to return to Pakistan.

30. The applicant has changed his career path, initially from business to accounting, and then to retail baking, marketing, nursing, and leadership and management.  The courses studied are in many respects unrelated and they do not lead to a career path or position in employment.  As discussed above, the applicant intends to return to Pakistan to work in his father’s business and it is unclear how all the qualifications that he has obtained in Australia would assist him in that position and role.  While an Advanced Diploma of Leadership and Management may assist in providing some additional skills in the management of a small sweet shop in Pakistan, it is not a requirement of the position and does not support his previous qualifications in accounting and baking.

31. While the Tribunal recognises that it is important to allow for reasonable changes to career and study pathways, this is not the case where an applicant has merely changed career pathways through undertaking short vocational educational training (VET) courses.  The courses in which the applicant has both enrolled in and completed over the last six years and ten months are all short VET courses and do not reveal reasonable changes to career and study pathways. 

32. Further the Tribunal finds that his current course of study, the Advanced Diploma of Leadership and Management, is not consistent with his level of education having regard to the fact that he has already completed two certificates and a diploma over the period of six years and ten months.

33. The Tribunal also finds that the applicant’s current course of study is only likely to marginally improve his employment prospects and remuneration in Pakistan when considered alongside the qualifications and experience that he has already obtained both in Australia and in Pakistan.

34. When questioned about whether there are other similar courses he could study in Pakistan, the applicant gave evidence that he was unsure and that he had not undertaken any research into that particular course of study in Pakistan. The Tribunal does not accept that the applicant had reasonable motives to study this course in Australia rather than in his home country.

35. The applicant, if he completes the advanced diploma on 28 April 2020, will have remained in Australia for seven and a half years.  The applicant has stayed in and studied in Australia for a long period of time, which is inconsistent with a stay being on a temporary basis. 

36. The applicant has lived in Australia for nearly seven years and he has a substantial degree of knowledge of living in Australia.  When questioned about the course he was studying the applicant was able to provide some sketchy details about the course but could not name the units he was currently studying.  Notwithstanding this, the Tribunal accepts that the applicant has a degree of knowledge about the course and his provider. 

37. The applicant has given evidence that he had been working in a bakery earning a relatively high level of income, being $30,000 per annum after tax.  The applicant has also given evidence that he is renting with friends in Melbourne.  He has, in the last few years, lived in different locations, and is currently living in Heidelberg West, where he has been for one year, and previously lived in Pascoe Vale for two years, which indicates a transient accommodation arrangement.

38. The applicant gave evidence that if he returned home to Pakistan he would live with his family, which has a large house, and work in his father’s business.  He gave evidence that he is currently arranged to marry his cousin in Pakistan who is currently studying at University.

39. The applicant gave evidence that he does not have any assets in his own name in Pakistan, which would not present a significant incentive to return to Pakistan.  However, the Tribunal finds that, based on the applicant’s evidence and circumstances in his home country, including his family assets and family business and the support that he would receive from his family relative to others in his country, he is in a good position and this would not provide an incentive not to return home. 

40. The applicant has returned home on two occasions, once in January 2014 and the other occasion in February 2016, for a total of 14 weeks of travel to Pakistan to visit his family.  This travel home has occurred during his stay of almost seven years in Australia.  Considering the applicant’s circumstances, and the limited time he has spent out of Australia in the last six years and ten months, the Tribunal finds that the applicant’s conduct in returning home only twice and not returning at all in the last three and a half years is consistent with him wanting to stay in Australia permanently and not wanting to return to Pakistan.

41. The applicant intends studying in Australia for a further seven months and this, when coupled with his stable employment in Australia, in which he is earning a relatively high level of income, and the higher incomes generally in Australia, present the applicant with a significant incentive to stay in Australia. 

42. The applicant, in the Response, confirmed that he did not have any concerns about returning to Pakistan and he had no concerns about military service commitments and political and civil unrest in his own country.  The Tribunal finds that they do not present a significant incentive for the applicant not to return home.

43. The Tribunal finds that based on the applicant’s evidence and circumstances, he has ties to both Pakistan and Australia

44. The applicant gave evidence that his father lives in Pakistan as does his fiancée.  That would ordinarily provide the applicant with incentive to return home.  However, he has not seen them in person since early 2016, although he does speak to them and remains in contact with them every second day.  However, the applicant has stayed in Australia for the last six years and ten months, has stable employment, and intends to study the Advanced Diploma of Leadership and Management which would result in him living in Australia for a further seven months, and the Tribunal finds that such conduct demonstrates that he intends to stay in Australia permanently.  Having regard to his circumstances in Pakistan, the Tribunal finds the ties he has there do not provide a significant incentive to return home to Pakistan.

1. Further, the duration and stability of the applicant’s living and employment arrangements, as well as his stable and long term employment in a relatively highly paid job, demonstrate his strong ties to Australia.  Accordingly, the Tribunal finds that he has a strong incentive to remain in Australia rather than to return home as a consequence of his ties to Australia. 

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

3. Based on the above matters, the Tribunal is not satisfied that the applicant has made this application to gain a student visa to study temporarily, and it considers that the primary objective of the applicant is to maintain ongoing residence in Australia and to remain in Australia permanently. 

4. The Tribunal considers the above circumstances are consistent with the applicant’s motivation to remain in Australia on a permanent basis and not on a temporary basis.

5. 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).

6. 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.

7. 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

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

   Michael Biviano
   Member

   
   

   Attachment – Direction No.69

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

   (Section 499)

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

   Dated: 18 April 2016

   Peter Dutton
   Minister for Immigration and Border Protection

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

   Part 1 of Direction No. 69 - Preliminary

   Name of Direction

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

   It may be cited as Direction No. 69.

   Commencement

   This Direction commences on 1 July 2016.

   Interpretation

   Act means the Migration Act 1958.

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

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

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

   Regulations mean the Migration Regulations 1994.

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

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

   Student visa means a Subclass 500 (Student) visa

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

   Application

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

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

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

   Preamble

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

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

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

   a.the applicant’s circumstances; and

   b.the applicant’s immigration history; and

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

   d.any other relevant matter.

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

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

   Part 2 of Direction No. 69 - Directions

   Assessing the genuine temporary entrant criterion

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

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

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

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

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

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

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

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

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

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

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

   The applicant’s circumstances

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

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

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

   The applicant’s circumstances in their home country

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

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

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

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

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

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

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

   The applicant’s potential circumstances in Australia

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

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

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

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

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

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

   Value of the course to the applicant’s future

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

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

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

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

   The applicant's immigration history

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

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

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

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

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

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

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

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

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

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

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

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

   Any other relevant matters

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