Bak (Migration)

[2021] AATA 4708

Bak (Migration) [2021] AATA 4708 (25 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Hana Bak
Mr Wonho Son
Miss Jia Son

CASE NUMBER:  2002794

HOME AFFAIRS REFERENCE(S):          BCC2019/6514124

MEMBER:Penelope Hunter

DATE:25 November 2021

PLACE OF DECISION:  Sydney

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

·cl 500.211 of Schedule 2 to the Regulations.

Statement made on 25 November 2021 at 5:14pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – lengthy stay in Australia – Vocational studies after degree courses – commitment to family in Korea – substantial academic progress to benefit future career – evidence of substantial job opportunities in Korea – return visits to Korea – decision under review remitted    

LEGISLATION

Migration Act 1958, ss 65, 359; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.211, 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 4 February 2020 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 6 December 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas on the basis that the applicant did not satisfy the requirements of 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay in Australia temporarily as a student.

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

   BACKGROUND

   Department Application

5. The applicant is a 36 year old citizen of Korea. She first arrived in Australia on 6 August 2012. She has applied for a Student visa in order to undertake a course of study in a Diploma of Leadership and Management with a completion date of 5 December 2021. The second named applicant, Mr Wonho Son, is her husband, and the third named applicant, Miss Jia Son, their daughter. The second and third named applicant have sought the visa on the basis of being a member of her family unit.

6. In addition to the visa application the applicant provided to the Department for consideration evidence of her finances, confirmation of Overseas Student Health Insurance, identity and relationship documents and a statement in support by both the applicant and Mr Son.

7. In her statement the applicant set out the following relevant information (in summary):

   1. She is working as a chef in a busy kitchen. Only possessing cooking skills was not enough to manage and lead junior staff and co-workers and ensure everyone is performing their job. Recently she had a chance to be promoted to a higher level but the key to it was leadership. She had learnt a little about leadership with her previous qualification but it was not enough to apply it the real work field. To be a professional chef in Korea, leadership skills are the most important thing. When she opens her business in the future, she would like her business to be the gold standard in managing the hospitality industry.
   2. She chose to study at the Collins Institute because based on her research it had the best curriculum for her. She confirmed this information once again with her education agency  and before getting an offer letter she checked what subjects she would like to study further. After successfully completing the course she believed that she could succeed in being a professional chef and make her dreams come true.
   3. She had studied at Le Cordon Bleu – the best culinary school in Australia. She learned so many things, from theory to practice. In Australia she could study on a student visa and work part-time simultaneously, so it was a valuable time because she was given another chance to practice cooking. After studying the Advanced Diploma of Hospitality Management (Commercial Cookery), she worked full-time on a graduate visa. But maintaining a high position requires leadership skills and knowledge about how to manage staff.
   4. There is still a prejudice in Korea that chefs should be male because it is labour intensive. She wished to  go back to Korea and break these prejudices. She wanted to show a strong image as a leader where she works and as a wife and mother. Korean society still tends to recruit more people who have studied abroad, especially when it comes to cooking. She has strengthened her practical ability and now she wants to make her skills more rounded by studying the Diploma. She wants to back to Korea with her family and be a head chef at a Shilla Hotel. She also wants to set up her own restaurant in the future.
   5. Shilla Hotel is one of the most popular and well-known hotels in Korea with foreign guests and Korean people. It has been prioritised on her list to seek employment. When she return to Korea after her studies she thinks she will be able to get a job with them with much better compensation.
   6. She had already finished a Bachelor’s degree in Engineering in Korea and an Advanced Diploma in Australia. In her experience , the Australian study has helped her more than her Korean. Australian classes are more detailed compared to Korean classes, and were easier for her to understand. She would like to top up her leadership and management skills.
   7. When she returns to Korea, she will go back to Incheon where she lived about 30 minutes away from Seoul. She looks forward to living in Korea with her daughter and husband. Her child is staying in Australia while she studied, her daughter had just turned two. She is making various efforts to make her daughter have a fondness for Korea, such as teaching Korean steadily and talking frequently with her grandparents. When she decided to study in Australia, she was going to send her daughter to her parents. But her parents and husband suggested otherwise, so she decided to stay with her daughter in Australia until she finishes her studies. While she studies her husband will be in charge of taking care of their daughter.

8. In his statement Mr Son, also provided the following relevant information (in summary):

   1. He met his wife three years ago while he was working in a resort in Yulara, NT, Australia. He fell in love with her at first sight. On 19 April 2017 they got married in South Korea. Even though they only met for six months, they were convinced that they were lifelong companions. Their daughter was born shortly after on 23 October 2017 in South Korea.
   2. After finishing cookery and hospitality, the applicant wished to have more experience and study to be a competent chef. The applicant wanted to keep working as a chef in Australia to improve and learn more cooking skills and about the western cuisine.
   3. When the applicant was studying and working in Australia, they would use funds from their joint account for course fees and living expenses.  
   4. While his wife is studying he will take care of their daughter. He will support his wife so that she only needs to focus finishing on studying in Australia. They will go back to Korea and live with his parents. As a Korean, he would like to show and teach Korean culture to his daughter. He wants to make his child feel the love of her grandparents.

9. The delegate in their decision record, a copy of which the applicant has submitted to the Tribunal provided the following reasons for the visa refusal (in summary):

   1. The applicant arrived in Australia in  2012 and spent a significant time in the country on multiple temporary visas. She has spent time on two Working Holiday visas, a Student visa, a Visitor visa and most recently a Temporary Graduate visa. The proposed courses would require her to remain at least until March 2022. The applicant declared that her mother, parents-in-law and sister-in-law reside outside of Australia. Based on her travel history, she did not appear to have returned to her home country to visit them on a reasonably regular basis. In addition strong employment or economic circumstances in her home country were not demonstrated. The delegate was not satisfied that she would be genuinely motivated to return home after completing her studies particularly as her spouse and child were included in the visa application.
   2. The applicant had not provided evidence of substantial job opportunities in Korea that would be available to her in the future, or shown that she has investigated or researched a career pathway. Overall the delegate held concerns that the applicant did not demonstrate strong employment opportunities to show that she will be motivated to return home following her studies.
   3. On her visa application form, the applicant had been working as a chef since July 2018 and holds an Advanced Diploma of Hospitality Management. It was considered that she would have already gained leadership and management skills in the qualification, supplemented by the practical experience as a chef in Australia. The delegate did not consider that the proposed course would not add significant value to her future.

   Tribunal Application

10. The Tribunal received an application for review from the applicants on 13 February 2020.

11. In response to a request by the Tribunal pursuant to s.359(2) of the Act, on 13 September 2021, the applicant provided a completed Request for Student Visa Information form. In this she disclosed that she had a job offer in 2022 at Sway Coffee Station, in Yeonhui-dong, Seoul Korea, with an annual salary of $40,000,000 Korean Won or AUS $46,500. The applicant also submitted the following additional documents:

    1. Certificate of Bank Balance of the applicant’s Shinhan Bank account as at 2 September 2021, $121,366.38.
    2. Letter of offer of employment to the applicant from Sway Coffee Station dated 16 June 2021, in the position of full-time sous chef.
    3. Certificate of Deposit Balance of the husband, as at 31 August 2021, $25,342.14.
    4. Certificate of Deposit Balance of the husband, as at 31 August 2021, $188,047.32.
    5. Letter of balance of the joint Commonwealth Bank account, as at 12 September 2021, $39,285.88.

12. On 17 November 2021, the representative for the applicant provided to the Tribunal further submissions which included the following additional documents:

    1. Applicant’s resume.
    2. A Confirmation of Enrolment in a Diploma of Leadership and Management at the Collins Institute of Australia, with course dates from 6 January 2020 to 5 December 2021, created on 29 November 2019.
    3. Notice of Assessment for the applicant for the years ending 30 June 2019; 30 June 2020, and 30 June 2021.
    4. Statement of Completion of Advanced Diploma of Hospitality Management, academic transcript and letter of completion.
    5. Interim academic transcript for the applicant in the Diploma of Leadership and Management issued on 28 October 2021.
    6. Letter from Collins Institute of Australia, confirming the applicant’s enrolment in a Diploma of Leadership and Management from 6 January 2020 to 5 December 2021.
    7. Letter of confirmation of employment for the applicant with Leaf Café & Co as a chef dated 16 November 2021.
    8. PAYG payment summaries of the applicant for the years ending 30 June 2019, 30 June 2020 and 30 June 2021.

13. The applicant and Mr Son appeared before the Tribunal on 25 November 2021 by telephone to give evidence and present arguments. The hearing was scheduled during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Korean languages. The applicants were assisted in relation to the review by their registered migration agent, who also participated in the hearing.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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 satisfies cl 500.212.

15. 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?

16. 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.

17. 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.

18. The Tribunal accepts the evidence before it that the applicant has continued with her enrolment in the Diploma of Leadership and Management. The interim academic transcript submitted dated 28 October 2021, indicates that the applicant has substantially progressed through her course. At the hearing the applicant told the Tribunal that she had only one subject left to complete. To maintain enrolment and progress through planned study is the general expectation of applicants holding Student visas in Australia and the applicant has performed consistent with that expectation. The Tribunal also had before it the Provider Registration and International Student Management System records of the applicant, which confirmed for the Tribunal that the applicant has also completed her previous course on time and in accordance with the enrolment requirements.

19. At the hearing the applicant added to her written submissions and explained to the Tribunal that in depth courses in Leadership and Management were not available in her home country. The applicant claimed to only be able to source short courses of a few days or at most a couple of months part-time. The Tribunal accepts the reasons advanced by the applicant that she prefers the method of course delivery in Australia, and that she wished to obtain the benefit of well regarded qualifications. It is accepted that the applicant has advanced reasonable reasons for not undertaking the study in her home country.

20. The Tribunal further accepts that the applicant has family and in-laws in her home country and that they would act as an incentive for her to return. The applicant emphasised several times at the hearing that it was important for her mother to have a role and ongoing presence in her daughter’s life in the future. Both applicant’s have demonstrated considerable savings held in South Korea. There is also no evidence of any economic circumstances of the applicant that would present a significant incentive for her not to return to her home country. The delegate had commented that the applicant had not returned home on a reasonably regular basis since 2012, however an examination of her Departmental Movements records, and her actual evidence to the Tribunal, documents that up until 2019 there were regular returns. In addition, some of her returns to her home country were for considerable periods and the applicant returned for approximately 12 months in 2013, again for most of 2016 and for several months around the birth of her daughter. It is accepted that any travel the applicant may have contemplated since the visa refusal has been impacted travel restrictions associated with the pandemic.

21. The applicant has produced an offer of employment upon return to her home country. It is noted that the offer is not with a luxury hotel, that the applicant initially claimed to seek to pursue. The Tribunal questioned the applicant at the hearing as to her need for further leadership skills if she was to work in a café. The applicant claimed that it was a popular café in Seoul, that the operators had previously worked in Australia, and it had a western style that was particularly suited to her training and experience. She had interviewed for the position via the internet and had genuinely been recruited for the role. The applicant claimed that the salary was considerable by comparative standards in South Korea and she believed that it would provide her with relevant experience as she intended to open her own business in the future. The Tribunal further accepts that a genuine offer of employment may act as an incentive for the applicant to return.

22. There is no evidence that the applicant or Mr Son have any military service commitments. Furthermore, there is no evidence of any civil or political unrest in the applicant’s home country that would induce her to apply for a Student visa for the purposes of remaining in Australia indefinitely. Overall, the applicant’s circumstances in her home country are generally supportive of the visa grant.

23. In Australia the applicant has been employed at the Leaf Café since 2018, the applicant claimed to be appreciative of this experience but wished to expand her experience with the proposed employment in her home country. Mr Son was working casually at a warehouse, and the applicant considered that her husband would be able to obtain better employment in her home country. They are living in rented accommodation and their daughter attends childcare. The applicant claimed that their costs of living in their home country would be reduced with the assistance of family members to care for their daughter. There is no evidence of any other family ties in Australia. The applicant told the Tribunal that she was making arrangements to return to her home country at the conclusion of her course, including providing notice for 2022 for her daughter’s childcare.

1. The applicant spoke to the Tribunal about her course freely and the times that she attends. The Tribunal notes that there was some units of management contained within her Advanced Diploma of Hospitality, however they were more suited to working in a hotel environment, rather than operating her own busines. It is accepted that the applicant has advanced reasonable reasons why she considers that she requires additional leadership skills to improve her employment prospects. It is noted that the applicant has substantially completed her course, and has demonstrated it has led to an offer of employment in her home country. In these particular circumstances, the Tribunal accepts that her course has had some value for the applicant. She further confirmed for the Tribunal that she did not intend further study at the conclusion of her course in a matter of weeks, and there is no evidence before the Tribunal that she has obtained additional enrolments.

2. The Tribunal has also had regard to the immigration history of the applicant. There is no evidence that the applicant has previously had visas refused or considered for refusal in Australia or elsewhere. The applicant has held several previous visas, including Working Holiday visas, a Student visa, Visitor visa and Temporary Graduate visa. There is no evidence that she has not complied with the conditions of those previous visas. The applicant told the Tribunal that she was starting to make enquiries to depart Australia with her family early in 2022. She wished time to complete her course, attended graduation and pack up their lives in Australia. The representative for the applicant discussed that planning had been complicated with awaiting the outcome of the Tribunal review and COVID related travel restrictions. It is noted that the applicant has an extensive travel history and she expressed concern about the impact of a visa refusal for any future travel intentions. Overall, the Tribunal finds that other than the length of time that applicant has spent in Australia there is nothing of concern in the applicant’s immigration history, and in the circumstances where it is the applicant’s stated intention to depart Australia within a few months it is not satisfied that this factor should mitigate against the visa grant.  

3. Considering the totality of the evidence the Tribunal accepts that the proposed studies and future plans corroborate her claims that she views Australia as a temporary place to study, obtain international experience and a well-regarded qualification. On the basis of the above, the Tribunal accepts that the applicant genuinely intends to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).

4. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa for the applicant, second named applicant and third named applicant.

   DECISION

5. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

   ·cl.500.212 of Schedule 2 to the Regulations.

   Penelope Hunter
   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.