Boonlert (Migration)

[2019] AATA 5271

Boonlert (Migration) [2019] AATA 5271 (7 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wattana Boonlert

CASE NUMBER:  1719289

HOME AFFAIRS REFERENCE(S):          BCC2017/2192988

MEMBER:Robert Cumming

DATE:7 August 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 07 August 2019 at 3:20pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – inexpensive course – length of study in Australia – poor English language skills – change in study direction – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 5 August 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 21 June 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) because the delegate was not satisfied the applicant intended genuinely to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 2 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 intends genuinely to stay in Australia temporarily.

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

8. 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?

9. 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.

10. 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.

11. According to the information supplied to the Department with the visa application (in particular the applicant’s statement at folio 20) and the information supplied to the Tribunal by the applicant through his migration agent in the completed Request for Student Visa Information form (Information form) received by the Tribunal on 29 March 2019, the applicant’s written statement received by the Tribunal on 30 April 2019, his migration agent’s submissions received by the Tribunal on 1 May 2019 and his oral evidence at hearing, his circumstances may be summarised as follows: -

    (a)The applicant is a 30-year-old citizen of Thailand who first arrived in Australia on 15 May 2015.

    (b)The applicant has links in his home country in the form of his mother and relatives who are involved with the family landholdings and a landscaping business. The applicant also has acquired an interest in vacant land which is used for rice production in circumstances where the farmers pay a proportion of their earnings from rice cropping to the applicant’s mother.

    (c)The applicant’s father died in Thailand on 8 January 2017 according to the Death Certificate supplied to the Tribunal by the applicant.

    (d)The applicant has a sister, but she too is studying in Australia. The applicant is unsure as to the studies his sister is undertaking in Sydney but advised the Tribunal she has been studying in Australia for the last two years.

    (e)The applicant says his family are middle class and while they would have some capacity to support him financially should he return to his home country he would need to find some source of income apart from that to support himself.

    (f)The applicant keeps in touch with his mother some two to three times per month and with his sister in Australia on a monthly basis.

    (g)The applicant indicated in evidence that there are no requirements for military service commitments which he would have to fulfil if he returned to his home country.

    (h)The applicant also advised that there is no political and civil unrest in the area of Thailand where his family live.

    (i)The applicant indicated that he does have a circle of friends here in Australia of varying nationalities and he does socialise with them a couple of times a month.

    (j)He is supporting himself to meet the costs of study and living in Australia by reason of a family inheritance from the death of his father. His living arrangements are enhanced by reason of the fact that the person who employs him in the massage parlour where he works part-time provides him board in exchange for him performing housework and cooking.

    (k)When the applicant came to Australia, according to his evidence, it was for the purpose of improving his English language skills. There has been progress in that regard, but this has been somewhat slow, a fact which the applicant acknowledges in his written submissions. The reason for the slowness, at least towards the early part of his studies, was the stress he was feeling due to problems at home with his father, particularly during the 2016 academic year.

    (l)It is noted, however, from a perusal of the Death Certificate supplied by the applicant in respect of his deceased father that his father’s cause of death was a head injury, seemingly from a fall, the duration of which injury seems to have been seven days.

    (m)In the Information form supplied by the applicant, he sets out the courses undertaken. This is largely mirrored in the printout statement from the Provider Registration and International Student Management System (PRISMS). In relation to that printout, the applicant was given the printout under the provisions of s.359AA of the Act and time to consider the information contained in that printout. At the conclusion of the time the applicant required to consider the material, the applicant indicated that he did not need any additional time or seek an adjournment in order to deal with the information provided. Apart from explaining some of the reasons for non-completion of the courses, the applicant did not challenge the accuracy of the information in the printout. As noted, the applicant largely had provided information to the same effect in the Information form.

    (n)Based on a consideration of the material as to courses, at hearing, it showed that the applicant had completed a total of four General English courses at various institutions during the periods respectively 3 August 2015 to 10 January 2016, 26 September 2016 to 6 November 2016, 13 February 2017 to 9 April 2017, and 26 June 2017 to 12 October 2018. Additionally, at hearing, he was enrolled in a General English course which was being conducted in the period 3 December 2018 to 3 May 2019, which was the day after the hearing. At hearing, the applicant indicated he would complete the course the next day.

    (o)The applicant had then been approved to study vehicle mechanic studies in the form of a Certificate III in Light Vehicle Mechanical Technology to be conducted in the period 3 June 2019 to 24 July 2020 and a Certificate IV in Automotive Mechanical Diagnosis to be conducted in the period 3 August 2020 to 9 April 2021.

    (p)When the applicant was questioned as to why he was not undertaking the vehicle mechanic studies in Thailand, the information provided was to the effect that education standards were higher in Australia compared to his home country and particularly the roadworthiness and other safety of vehicle standards in Australia were much higher, and he would not be able to obtain similar skill levels in his home country.

    (q)As to remuneration levels, while not able to compare directly with Australia, the applicant did suggest to the Tribunal based on research he had done on the internet and discussions with friends back in his home country Thailand, who run vehicle mechanic businesses, that were he to obtain the necessary vehicle mechanic qualifications from his two proposed courses his earning levels would be much higher than he could earn without them.

    (r)As noted, no specific evidence of this was given other than reference to a technical support job for Japanese Speakers situated in Bangkok which required him to have Japanese language as well as English language skills. He had obtained the necessary Japanese language skills from the electronics studies he undertook in Japan for three years with Sanko Denki Company which was an internship in Machinery and Apparatus Assembly.

    (s)Based on the information supplied by the applicant to the Tribunal on his Information form, since his arrival in Australia on 15 May 2015 he had only departed Australia once which was for a period of 42 days commencing in January 2017 which was to visit his family in Thailand and attend his father’s funeral.

    (t)It is noted that the Tribunal did have Departmental movement records on its file. As these were not different to the information the applicant supplied to the Tribunal in the Information form and confirmed at hearing by the applicant, the Tribunal has not had regard to the movement records in coming to its decision but rather has had regard to the information the applicant has himself supplied to the Tribunal.

    (u)The applicant gave sufficient evidence of his knowledge of living in Australia and his associated education provider.

    (v)As to the compliance with visa conditions, while the applicant himself indicated he had not had visas refused or cancelled but for the current application, the delegate in his decision did highlight non-compliance with visa condition 8516 relating to gaps in enrolment.

    (w)As to the applicant’s travels to Japan prior to his arrival in Australia, the applicant indicated he did comply with the migration laws of Japan.

    (x)The applicant did not suggest there were, or give evidence concerning, any other matters which may relate to his genuine temporary entrance status in Australia.

12. During the hearing, the Tribunal put to the applicant possible concerns it might have in respect to several issues.

13. Firstly, the Tribunal expressed its concern that given the status of his sister also being in Australia as a student and the fact that when he made his application for a visa his stated intention was to return home to work in the family landscaping business, his current intentions in respect to studies were of recent origin and courses of comparatively low cost designed merely to prolong his residence in Australia.

14. The applicant responded by suggesting his sister’s situation was different and he had a great interest in engines and fixing cars. Moreover, were he to go back to the family and into a farming business it would cost a lot of money and require skills he did not presently have. There was no evidence given by the applicant, however, that he could not return to the landscaping business, which had been a family business for some 20 years at the time of the visa application.  Similarly, there was no evidence from the applicant that the business had ceased to exist.

15. The second issue of concern related to the length of studies and the comparatively poor English language skills possessed by the applicant as evidenced by his appearance before the Tribunal at hearing. In response to this, the applicant noted his English language skills had improved markedly since his arrival in Australia and it was only for his own piece of mind in making sure that he correctly expressed himself in the important appearance before the Tribunal that it was necessary for him to have the safety net of an interpreter to assist him.

16. Having had regard to the applicant’s evidence and submissions, and his responses to the possible concerns raised by the Tribunal, as summarised above, and giving consideration to all the factors specified in Direction No. 69, the Tribunal makes the following findings:-

    (a)The Tribunal can accept the applicant’s reasons for studying English in Australia rather than in his home country, Thailand. As will be noted later, however, the Tribunal is not satisfied as to the applicant’s reasons for studying vehicle mechanic courses he had enrolled in to commence after the hearing. The Tribunal is not satisfied that such studies are for genuine student purposes.

    (b)The applicant has ties in Thailand (his mother) but his conduct in remaining in Australia with only one visit since 2015, his ability to remain in contact with his family via electronic means on a regular basis and the fact that his farming interests are being satisfactorily run by others leads the Tribunal to conclude that there is not a significant incentive for the applicant to return to his home country.

    (c)As to economic circumstances in the applicant’s home country, the Tribunal notes there is family support for his return in circumstances where he could not be completely self-sufficient does lead the Tribunal to find that, given the life for himself that he has made here in Australia, economic reasons are not a significant incentive for him to return to his home country.

    (d)There are no requirements for military service commitments affecting the applicant which would present as a significant incentive for him not to return to his home country.

    (e)There are no circumstances of political and civil unrest in the area the applicant’s family are located in his home country which would present as a significant incentive for him not to return to his home country.

    (f)In considering the circumstances in his home country relative to the circumstances of others in that country, the Tribunal finds that the applicant comes from a middle-class family but otherwise does not make any findings in that regard which are other than entirely neutral towards the applicant.

    (g)The applicant has ties in Australia, namely a circle of friends with whom he socialises regularly, a work situation including residing with his employer as well as his own circumstances which have provided him the wherewithal for the funding and support to stay in Australia, which present a strong incentive for him to remain in Australia.

    (h)While the Tribunal can accept that the applicant initially came to Australia for English language studies, the Tribunal places little weight on the applicant’s explanations for his change of mind to now be undertaking two courses for vehicle mechanic qualifications which will extend his stay April 2021. In particular, when the applicant applied for the visa on 21 June 2017, his statement (at folio 20 of the Departmental file) only indicated that, following his father’s death, the applicant’s intention was to undertake English studies and then return to expand the family business to the international market. No reference to vehicle mechanic studies was mentioned. However, in his statement received by the Tribunal on 30 April 2019 no mention is made of returning to the family business, but rather the intention of the applicant operating his own business either in farming or in the vehicle mechanic trade, the catalyst for which the applicant says was his father’s death. While the Tribunal can acknowledge a change of mind and notes that vehicle mechanic studies are consistent with the internship the applicant undertook in Japan between 2011 and 2014, the change of mind is of recent origin, dating from the beginning of December 2018 when the applicant enrolled in these courses as noted in the Confirmations of Enrolment the applicant supplied to the Tribunal. The Tribunal considers sufficient time following the applicant’s father’s passing in early January 2017 was available by the time the visa application was made in June 2017 (where no mention of vehicle mechanic studies is made). Moreover, the suggestion that the applicant could not afford to start a farming business on return to his home country flies in the face of his stated intention (see Departmental file folio 20) to return to an established business which had been in operation for some 20 years at the time of the visa application.  In those circumstances, the Tribunal considers the applicant’s conduct to be designed to remain in Australia and finds that the proposal for studies is designed to circumvent the intentions of the migration program.

    (i)For similar reasons, the Tribunal considers the student visa is being used to maintain ongoing residence in Australia.

    (j)As there is no secondary applicant, it is unnecessary for the Tribunal to consider whether a relationship of concern has been contrived for a successful student visa outcome.

    (k)The applicant has demonstrated adequate knowledge of living in Australia and his intended course of study and the associated education provider.

    (l)While the Tribunal has expressed its concern as to the real reasons for the applicant to be undertaking two courses in vehicle mechanic studies, viewed solely in isolation, such study does have consistency with previous studies and would assist the applicant to obtain employment or improve employment prospects in his home country.  As noted, however, the Tribunal places little weight on the applicant’s changed stated reasons for study set out in his statement to the Tribunal received on 30 April 2019.

    (m)For similar reasons, the Tribunal does not find that the applicant’s current proposed vehicle mechanic studies are irrelevant to the applicant’s stated desire to work in the vehicle mechanic industry. However, as already noted, the Tribunal places little weight on that stated intention and finds the studies are motivated for reasons other than study in Australia on a temporary basis.

    (n)As to remuneration, little information and evidence was presented concerning this by the applicant, leading the Tribunal to make a neutral finding towards the applicant in this regard.

    (o)At hearing, the applicant had been in Australia for almost four years during which time he had returned to his home country only once. Were he to remain to the conclusion of his proposed studies, the applicant will have been in Australia for almost six years.

    (p)As to previous visa applications for the applicant, but for the visa application under review in this application, there is no evidence in Australia of any of those visas having been refused. However, the delegate in his decision did draw attention to evidence of non-compliance with visa conditions.

    (q)Similarly, there is no evidence before the Tribunal that any of the applicant’s previous Australian visas have been cancelled.

    (r)There is evidence that the applicant had travelled to Japan prior to his arrival in Australia but there is no evidence before the Tribunal that the applicant had failed to comply with the migration laws of Japan.

    (s)As noted, were the applicant to remain in Australia to the completion of his proposed studies, he will have been in Australia almost six years. This will be in circumstances where the Tribunal is concerned as to the inconsistent evidence given by the applicant as to the reasons for his study and upon which the Tribunal places little weight as to his recently suggested course of action, which does lead the Tribunal to the conclusion that the use of the applicant’s student visa is primarily for the maintenance of ongoing residence in Australia.

    (t)As there is no child secondary applicant, it is unnecessary for the Tribunal to make any findings in respect to the intentions of the applicant as a parent.

    (u)There are no other relevant matters that bear upon the conduct of the review as to the applicant’s status as a genuine temporary entrant.

1. Balancing all these findings, the Tribunal considers the weight of the evidence points more to those factors not favouring the applicant’s case rather than those factors which are supportive of his case. The matters in subparagraphs 16(a), (b), (c), (g), (h), (i), (l), (m) and (s) above weigh more heavily in the view of the Tribunal to establish that there is not a significant incentive for the applicant to return to his home country and that the student visa is being used to maintain ongoing residence in Australia, than do the other subparagraphs which are either neutral to or in the applicant’s favour.

2. Having had regard to all matters, including the Direction No. 69 requirements to which regard is required, 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).

   Conclusion on cl.500.212

3. 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.

4. 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

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

   Robert Cumming
   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.