Buasim (Migration)

[2019] AATA 3047

Buasim (Migration) [2019] AATA 3047 (25 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Kannika Buasim

CASE NUMBER:  1713019

HOME AFFAIRS REFERENCE(S):          BCC2017/916514

MEMBER:Damian Creedon

DATE:25 June 2019

PLACE OF DECISION:  Perth

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

·cl.500.212(a) of Schedule 2 to the Regulations.

Statement made on 25 June 2019 at 2:39pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant failed to provide the requested information– no entitlement to a hearing–  course provider had closed down – daughter in home country – strong incentive to return home – applicant is currently enrolled– decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212, 500.218

CASES
Hasran v MIAC [2010] FCAFC 40

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 14 June 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 8 March 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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. On 9 January 2019 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information to the Tribunal in writing about the course(s) of study she is undertaking and her entry and stay in Australia as a student. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing within the prescribed period, ending 23 January 2019, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The applicant did not request an extension of time and provided the information outside of the prescribed period, on 24 January 2019. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

6. In the circumstances, the Tribunal has proceeded to make a decision having regard to all the information before it, including the information provided to the Tribunal by the applicant, and the information previously provided by the applicant to the Department.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant.

2. Clause 500.212 requires as follows:

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

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

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

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

   (iv)any other relevant matter; and

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

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

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

   (c)of any other relevant matter.

Does the applicant intend genuinely to stay in Australia temporarily?

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

   ·the applicant’s circumstances in her 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.

2. 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.

Overview of evidence

1. The Tribunal had before it a copy of both the delegate’s decision, which the applicant provided to the Tribunal, and the Department’s file in relation to the application.

2. The applicant is a 35-year-old Thai national who first arrived in Australia on 20 December 2011 as the holder of a Student (TU573) visa. 

3. Among the information provided by the applicant to the Tribunal was an undated statement addressing the genuine temporary entrant criterion (GTE Statement).  In her GTE Statement the applicant makes the following claims in summary:

   a.She arrived in Australia in December 2011 to discover that her intended course provider had closed down.  She was then required, under the supervision of the relevant regulatory authorities, to select alternative courses with a different provider.  Accordingly the commencement of her studies in Australia was interrupted as she settled upon a new study pathway.  

   b.Although she arrived in Australia intending, eventually, to study in the higher education sector, after completing her English courses she came to the conclusion that, while her English-language proficiency was sufficient for the vocation education and training (VET) sector, it was “too low” for bachelor’s level study.  Accordingly, she decided to enrol in a pathway comprising a Certificate IV of Business and a Diploma of Business.

   c.After completing these courses, the applicant states:

   I believed that I got a good foundation knowledge already [sic] but I believed it was not good enough to become a business owner in the future. So, I discussed with the education agent about gaining specific knowledge in the different area in the industry which I decided to lodge new visa with subclass 572 in January 2015 by enrolling into Diploma and Advanced Diploma of Management at Crown Institute of Business and Technology (CIBT). During studying to the end of Diploma course, CIBT had informed about the change of the institute as Advanced Diploma of Management course will no longer provided thus, every student will automatically transfer to study in Advanced Diploma of Leadership and Management which caused the revised CoE.

   d.As she was completing this course of study, the applicant states:

   I discussed with my family and checked the business news in Thailand through the local websites. I found out that many business owners got embezzled by the staff [sic] [and] I got the idea to gain further knowledge and skills in Accounting courses as I want to be able to plan the accounting strategy for moving the business forward and to protect the embezzle [sic] from dishonest staff as well. My family agreed with the idea because it will lead to me protect the family business and control with the budget in order to increase the profit of the business as well. Therefore, I decided to enrol into Certificate III in Accounting Administration, Certificate IV, Diploma and Advanced Diploma of Accounting at CIBT. Furthermore, apart from apply [sic] this important accounting skill into my father[‘s] business, on the other hand, my sister has another business about the chemical supplies by selling and delivering to shops, education providers, business owner, and government department – after I am well-qualified in accounting area, I will definitely return to Thailand for looking after the accounting part in both businesses.

   e.In respect of her work experience in her home country, the applicant states that she left school in 2005 and commenced working in her family business “right away”.  She states that she “learnt everything step by step and followed [her] father everywhere in order to learn [about the business from him]”.  After six years of work in the business she states that she discussed with her parents the prospect of engaging in further studies in order to enhance her “knowledge, skills and abilities” in a way that would benefit her family business in the future.

   f.She states that she chose to study abroad, in an English-speaking country, as English is the “most important communication channel for business purpose[s] [in] either domestic or international markets”.  She states that:

   I wished to continue further study in [the] business field in order to bring all [of] the important and useful knowledge back to Thailand for developing and expanding my family business into the bigger markets. Therefore, I chose to come over to study in Sydney Australia.

   g.She states that after completing the Advanced Diploma of Accounting at Crown Institute she intends to return to her home country to work in the family business.  She states that her family had owned and run the “Sombat Rice Mill” since she was young, however as a result of a “disaster” it has recently closed and the family is embarking on a new venture in “drinking water” called “Buawian Drinking Water”.  She states that she has been involved in the establishment of the business and it is proving to be successful.  She states that she intends to use the “advanced accounting knowledge” from her course to work in and develop the business upon her return.

   h.She also states that her sister runs a chemical delivery business that she also intends to work in.

4. The Tribunal had before it a number of documents provided by the applicant.  Save as required for the purposes of this decision it is unnecessary to list these documents in detail.  Relevant documents will be referred to as required.

5. According to the evidence submitted by the applicant, including her response to the Tribunal's s.359A letter, since arriving onshore she has undertaken the following courses[1]:

   [1] As confirmed by a review of the applicant’s Provider Registration and International Student Management System (PRISMS) record.

Course Name	Date Commenced	Date Completed
English for International Communication (Beginner to Advanced)	27/02/2012	10/08/2012
English for Academic Purposes (Upper Intermediate to Advanced)	22/04/2013	14/06/2013
English Language (Programs)	24/06/2013	13/09/2013
Certificate IV in Business	30/09/2013	28/03/2014
Diploma of Business	07/04/2014	19/09/2014
General English (Elementary to Advanced)	17/11/2014	28/11/2014
Diploma of Management	12/01/2015	04/12/2015
Advanced Diploma of Leadership and Management	11/01/2016	27/11/2016
General English (Beginner to Upper Intermediate)	10/01/2017	27/01/2017
Certificate III in Accounts Administration	13/02/2017	11/02/2018
Certificate IV in Accounting	10/02/2018	17/02/2019
Diploma of Accounting	18/02/2019	16/02/2020[2]

[2] Prospective completion date.

1. PRISMS also records that the applicant is currently enrolled in an Advanced Diploma of Accounting which she is scheduled to commence on 17 February 2020 and complete on 14 February 2021.

Analysis and findings

1. 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.

2. Save for relatively brief periods, the applicant has been resident in Australia for approximately seven-and-a-half years, since December 2011.  In that time she has held two Student visas and is currently onshore on a bridging visa pending the outcome of her application for a further Student visa.  In her submissions to the Department, the applicant states that her motive in continuing her studies in Australia (generally) is that it is one of the “recognised countries among students all over the world to pursue their study abroad” and the education system here “focuses on encouraging students to practice critical thinking”.  Her evidence to the Tribunal is that, although she could undertake an accounting course in Thailand, it would take at least four years to complete and would not be of a comparable standard to the education she could receive in Australia.  She states that she has chosen her specific course provider in Australia for its “highly experienced” teachers and the high standards it maintains.  She states that there is a mix of international students and she has the opportunity to practice her English language skills.  Of themselves, although they are somewhat generic, these reasons suggest a rational and reasonable motive for an international student to choose to study in Australia, and to select a course provider here, and they do not cause the Tribunal concern. 

3. In respect of her specific study goals, in both her submissions to the Department and the GTE Statement the applicant states that she intends to apply the knowledge learned in her courses towards working in and developing her family’s businesses.  In her submissions to the Department she states that she has chosen to further her studies in an accounting pathway, in particular, for the following reason:

   I will gain first-hand experience in [the] accounting and tax system to maintain financial records, set up and operate a computerised accounting system and evaluate organisation's financial performance.

4. In her decision record, the delegate expressed her concerns at this claim given the similarity of these courses to those already completed by the applicant in the VET sector.  Addressing this concern in her GTE Statement, the applicant states:

   In my opinion, education is not about the level but as long as I can gain the useful knowledge and skills from each and every course is the success. At the beginning, I may aim to get the bachelor degree in order to make my family proud of myself [sic] but … so many factors [changed my goals].  First of all, I still believe that English language is a huge barrier as I have tried [to] read through text book[s] of my friends who are in university – I found out that it was too complicated and difficult. Then, I changed my study plan to enrol into vocational courses which started from Business, Management, Leadership & Management, and Accounting [in] which every course that I chose to study are the [sic] important factors that I will be able to apply into my future career when I return to Thailand.…

   … the knowledge and skills from Accounting courses are very important in the role of business owner. Every individual subject in the course is meaningful especially to me who never has any accounting foundation. I [am] aware that in some subject[s] such as financial system, accounting system and tax system will not be the same in [a] different country but it is beneficial to gain this knowledge in order to adapt and adjust into my family’s businesses in Thailand.

5. Although the Tribunal initially shared the delegate’s concern as to the applicant’s continued studies in the VET sector, it is on balance persuaded that: firstly, the applicant has made a rational and reasoned decision as to her English language capabilities not extending beyond the VET level; and secondly, that she has identified areas in her family’s businesses in Thailand where she believes she could add specific value and has chosen her courses accordingly.    The Tribunal is mindful of its obligation to allow for reasonable changes to career or study pathways and, overall, it is persuaded that the course of study the applicant is embarked upon is complementary to her previous studies and consistent with her past and proposed future employment in working in, and assisting with the management of, her family’s business.  The Tribunal weighs this factor in the applicant’s favour.

6. In her reasons for decision the delegate also expressed concern at the significant period of time the applicant has spent onshore since her initial arrival, considering it to be indicative of having created an incentive, over time, to maintaining ongoing residence in Australia.  Addressing this concern directly, in her GTE Statement the applicant states:

   Since I arrived in Australia on 20/12/2011, I faced with the problem about the education provider closed down in early stage [sic]. I was in the disaster situation for a period of time. Once I got back on track, I put my time and efforts into my lesson because I knew that I came from non-English speaking background so, I must try harder than others to reach my goal. During study time, I could not return to my home country even though I missing my beloved daughter and my family with all my heart. I have to stay strong for myself and everyone back in Thailand because I chose to come over to Australia for gaining the most knowledge and skills for our future. Once everything right on track, I started to return [sic] to Thailand occasionally as below;

   1. Thailand: 21/03/2013 to 19/04/2013

   2. Thailand: 26/04/2014 to 03/05/2014

   3. Thailand: 16/09/2014 to 14/11/2014

   4. Thailand: 14/03/2016 to 14/04/2016

   It may seem like small time to be back in my home country, but I can confirm that every single day that I am living in Australia I put all my time into the lessons [sic].

7. In all of the circumstances the Tribunal is persuaded that the applicant’s extended time onshore is a product of the reasons she claims and is not, without more, indicative of her having undertaken a series courses primarily for the purposes of maintaining ongoing residence here.  The Tribunal weighs this factor moderately in her favour.

8. The Tribunal also accepts that, having lived in Australia for some seven years, the applicant has sufficient knowledge of living in Australia; although there is no specific evidence before the Tribunal as to the applicant’s knowledge of her intended course of study, the general outline of what she expects to achieve though obtaining these qualifications and the use she intends to put them to is sufficient to allay any concerns the Tribunal may have in this regard.  In all of the circumstances the Tribunal places some slight weight on this factor in the applicant’s favour.

1. There is no evidence or information before the Tribunal of any military service or civil or political incidents that would act as a clear incentive for the applicant to remain in Australia.  The Tribunal places some small weight on this factor in the applicant’s favour.

2. It appears from the information supplied by the applicant to the Department and the Tribunal that her parents, two siblings and, most notably, her daughter all reside in Thailand.  The Tribunal accepts that these personal ties, particularly to her daughter, provide a strong incentive for the applicant to return there at the completion of her studies.  Balanced against this is the applicant’s decision to reside in Australia, apart from her family, for seven years years and to seek to extend her visit here by a further 18 months.  Accordingly, the Tribunal places only moderate weight on this factor in her favour.

3. In addition to the factors set out above, the Tribunal has also turned its mind, and had regard, to the following factors as a guide to assessing the GTE criterion in this case:

   a.     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;

   b.     the applicant’s previous visa applications to other countries, including, 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; and

   c.     the applicant’s previous travels to Australia or other countries, including: whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances; and whether they complied with the migration laws of Australia or another country and the circumstances around any non-compliance.

4. There is no evidence or information available to the Tribunal in respect of these factors as they apply to guide a decision the applicant’s case. 

5. The Tribunal has had regard to all other relevant information provided by the applicant (or information otherwise available to the Tribunal) when assessing the applicant’s intention to temporarily stay in Australia, including information that may be either beneficial or unfavourable to the applicant. 

6. In weighing the available information the Tribunal has taken care to draw no inferences adverse or unfavourable to the applicant from any absence(s) of evidence or information.  That said, in the absence of evidence or information pertaining to a relevant factor or factors it is impossible for the Tribunal to weigh those factors in the applicant’s favour.

7. The Tribunal has assessed all of the evidence before it, including that the applicant is currently enrolled, has previously completed the courses claimed in Australia, has said she will return home on completion of her studies, has strong family ties to their home country and all the other matters she has raised.

8. Overall, based on the applicant’s evidence to the Department and to the Tribunal, the Tribunal is not persuaded that the student visa programme is being used by the applicant to circumvent the intentions of the migration programme.  For the reasons outlined above the Tribunal accepts that the applicant is undertaking her studies for the reasons she claims.

9. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. It follows that the applicant meets cl.500.212(a).

10. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

11. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

DECISION

1. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

   ·cl.500.212(a) of Schedule 2 to the Regulations.

Damian Creedon
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 her previous studies or employment; and

   d.apparent inconsistencies in information provided by the applicant in her 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

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

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

3. 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 her home country

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

   a.whether the applicant has reasonable reasons for not undertaking the study in her 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 her home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to her home country;

   c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to her 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 her 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.

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

The applicant’s potential circumstances in Australia

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

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

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

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

   dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived her 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 her 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 her proposed course of study and living arrangements.

Value of the course to the applicant’s future

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

   a.whether the student is seeking to undertake a course that is consistent with her current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in her 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 her home country or a third country; and

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

The applicant's immigration history

1. An applicant’s immigration history refers both to her visa and travel history.

2. 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 her visa and left before her visa ceased, and if not, were there circumstances beyond her control;

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

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

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

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

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

Any other relevant matters

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