Bui (Migration)

[2022] AATA 1641

Bui (Migration) [2022] AATA 1641 (10 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hoang Linh Bui

REPRESENTATIVE:  Ms Thanh Mai-Hang Nguyen (MARN: 1802335)

CASE NUMBER:  2114762

HOME AFFAIRS REFERENCE(S):          BCC2020/2663780

MEMBER:Noelle Hossen

DATE:10 May 2022

PLACE OF DECISION:  Perth

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

Statement made on 10 May 2022 at 3:09pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – current enrolment – lengthy stay in Australia – limited academic progress – employment in Australia – course benefit to future career – impact of the COVID19 pandemic – maintaining ongoing residence in Australia – decision under review affirmed       

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 359, 499; Direction No 69
Migration Regulations 1994, Schedule 2 cls 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 5 October 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 18 November 2020. 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 (Cth) (the Regulations).

4. The applicant appeared before the Tribunal on the 17 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was assisted in relation to the review.

6. On the 21 December 2021 the Tribunal wrote to the applicant a s.359(2) letter as follows.

   As you applied for the visa on the basis of undertaking a course of study in Australia, it is a //requirement of the visa for you to be:

   ·enrolled in a registered course of study; and

   ·a genuine applicant for entry and stay as a student.

   Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below.

7. The Tribunal also advised that in considering whether the applicant is a genuine applicant for entry and stay as a student the Tribunal must have regard to ‘Ministerial Direction No.69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ and attached a copy.

8. The letter also noted the following:

   If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

9. The applicant was given until 16 December 2021 to provide the information requested. 

10. A response was received by the applicant to the request for information.

    The Tribunal caused a search of PRISMS, being the Provider Registration and International Student Management System register, to be undertaken. The purpose of this search was to ascertain whether the first named applicant was still enrolled in a registered course.

11. According to the PRISMS website, the Department of Education, Skills and Employment is responsible for the Commonwealth Register of Institutions and Courses for Overseas Students. It is recorded that PRISMS is a computer system developed by the Department in association with the Department of Home Affairs for the purpose of receiving and storing information about accepted overseas students that is given to the Secretary under the Education Services for Overseas Students Act 2000. It is further noted that PRISMS provides a secure system for providers of registered educational institutions to comply with legislative requirements by issuing confirmations of enrolments as ‘evidence of enrolment’ in a registered full-time course as required by the Department of Home Affairs and reporting changes in course enrolment, particularly where study ceases, or the duration of the study changes.

12. It is therefore apparent that PRISMS is a business record of the Department of Education, Skills and Employment and is used by the Department of Home Affairs as evidence of enrolment for the purposes of assessing the grant of student visas. While it is possible providers may not update PRISMS as required, the Tribunal accepts that PRISMS is a reliable record of enrolments, unless there is specific evidence to the contrary in relation to a particular case. There is no such evidence in this case.

13. The PRISMS search revealed that the applicant did hold a current confirmation of enrolment in a registered course as of 17 March 2022 being the date of the search.

14.   On the24 March 2022 the Tribunal sent the following s.359A letter to the applicant:

In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

Please note, however, that we have not made up our mind about the information.

The particulars of the information are:

A recent check of the Provider Registration and International Student Management System (PRISMS) indicates that you have not progressed academically in any course since 2017.

This information is relevant to the review because you have applied for a Student visa and it is a requirement for the grant of a Student visa that you are enrolled in a course of study at the time of decision (clause 500.211). A course of study is defined as a fulltime registered course. There are limited exceptions to this requirement which do not appear to be relevant to your review (such as where you are a Foreign Affairs, Defence or secondary exchange student).

If we rely on this information in making our decision, we may find that you are not currently enrolled in a course of study. This would mean that you do not meet clause 500.211. The consequence of the Tribunal relying on this information is that it would be the reason or part of the reason for the Tribunal to affirm the decision of the delegate to refuse to grant you a Student visa.

1. The applicant was given until the 5 April 2022 to comment on or respond to the information.

2. On the 6 April 2022 the applicant responded to the Section 359A by providing a submission.

   Due to this ongoing appeal, I am currently enrolled in the Certificate IV in Commercial Cookery.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

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

5. 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?

6. 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.

7. 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.

8. The applicant was born on the 7 July 1994 in Vietnam.

9. He arrived in Australia according to his written and oral evidence on the 20 May 2013. At the time of the Review hearing, he had been living in Australia for 9 years.

10. He indicated that he was studying a Certificate IV in commercial cookery and expected to finish the course at the end of April 2022. His representative confirmed that the end date would be 6 May 2022.He was enrolled in a Diploma of Hospitality. The Tribunal has taken into consideration the fact that he may have completed his course being the Certificate IV in Commercial Cookery, as at the date of this Decision.

11. His intention is to then study a Diploma of Hospitality which would extend his stay in Australia and would result in his stay in Australia to be over 10 years until November 2022.

12. The representative submitted that he could provide further information to the Tribunal when a response was filed in answer to the Section 359A.He wanted to provide a transcript and his Certificate results. The Tribunal sincerely hopes that he has completed the Certificate IV Course. However regardless of those facts the Tribunal’s concerns relate to the fact that aside from his English courses that he completed from his arrival in 2013, that the applicant has only completed Certificate llI in Commercial Cookery. At the time of the hearing, he had been in Australia for nearly 9 years and was in the process of completing a Certificate IV in Commercial Cookery and had not completed any courses since 2017. His submission is that he had low competency in English and because of the Covid pandemic that he was unable to complete the Courses. The Tribunal has considered those facts, but he has taken an inordinate amount of time to complete the Course, even if those factors are taken into consideration.

13. In his written evidence the applicant has stated that he has worked in the following capacities since 2014:

    kitchen hand Hyde Park hotel     09 / 2014 to 09 / 2015          $20,000 annual salary

    kitchen hand chef   Brookland Tavern   06/ 2016 to 03/ 2020    $20,000 annual salary

    kitchen hand chef     Kalamunda Hotel 07/ 2020 to date of hearing     $25,000 annual salary

14. He was asked by the Tribunal why he had taken so long to complete the Certificate IV in Commercial Cookery, and he replied that he did not submit some of his assignments and failed.

15. In his written submissions dated 9 March 2022 the applicant through his agent stated as follows:” In order to fully understand the applicant’s predicament there is a need to provide details of what happened to him leading up to his Student Visa (Subclass 500) application on 18^th of November 2020. During this time the applicant was still studying the Certificate IV in Commercial Cookery amidst the Covid 19 pandemic and so his study was heavily impacted as his mental and physical health was weakened by the stress of illness and insecurity. The whole world was in shutdown and news of so many people dying in Vietnam really scared him to the point where he could not eat or sleep well and eventually this affected his concentration during his study times. He was so worried for his parent’s health that he would call every few hours in the day, every day, for many weeks. His parents also were so very worried about his well-being in Australia with respect to Covid 19 and begged him not to return home to Vietnam anytime soon as his life would be in danger. All of this compounded his insecure mental state to the point that at times he could not function normally and could not get out of bed most days in the past.”

16. From the PRISMS records it appeared that he completed the Certificate III in Commercial Cookery on the 30/07/2017.The pandemic did not eventuate in Western Australia until March 2020 so there is a long period of time prior to that date, which should have been sufficient time to complete the Course.

17. He was first enrolled in the Certificate IV in Commercial Cookery on the 24 July 2017 which was noted as cancelled on his PRISMS records. He was further enrolled in the same course to commence on the 29 October 2017.He was enrolled again in 16 April 2018, 14 August 2018, 14February 2019, 29 April 2019 and 14 September 2019.

18. He was asked at the hearing to explain why he had not completed any courses since 2017. He did not explain save that he had not submitted the assignments. It was put to him that the submissions that the pandemic affected his studies was not entirely true because he had been enrolled in 2017 and 2018 long before the pandemic occurred.

19. If he did suffer from mental health issues, he should have provided evidence of psychological intervention by a medical professional, but no such evidence was proffered to the Tribunal. He did state that his friend was a doctor. If he did suffer from depression and anxiety as claimed, he should have provided the evidence to the Tribunal.

20. In his response to the Tribunal about the records that showed that he had been enrolled in numerous courses the applicant through his agent replied that some of the courses were packaged courses and so it looked worse than the reality. Nevertheless, the Tribunal did not take that in consideration as the focus of the Tribunal’s concerns is of the lack of completed courses.

21. The Tribunal is concerned that since 2017 after he completed the Certificate III in Commercial Cookery there was no evidence before the Tribunal at the hearing that he had progressed to finishing any other course. The Tribunal weighs those facts against the applicant’s case.

22. The summary of the Visas previously held by the applicant is as follows:

    Student Visa     04/2013 to 03/2017

    Bridging Visa, A   03/2017 to 10/2019

    Bridging Visa B 11/2017 to 11/2017

    Student Visa 10/2019 to 11/2020

    Bridging Visa A 11/2020 to now

23. The applicant explained that he had previously had an issue with one of the Decisions of the Department and was successful in his appeal to the Tribunal and it was for this reason that he held a Bridging Visa in 2017 to 2019.

24. The applicant stated that he had not applied for any other Australian Visa. He stated that he had never been refused a visa to any other country but that he had been refused a visa in Australia being his student Visa application 31^st of May 2017.

25. He stated that he chose the education provider for the Australian courses because:” Being able to experience and understand hospitality business from different angles (hierarchically) will help me to better run my business in the future once I complete my course. Diploma will provide me more profound knowledge of managing and operating my own restaurant especially from business perspective. My plan in the future is to complete all the desired courses, accumulate my experience during work in Australia and go back to my home country. Then I will pursue my dream to start up a grand Western restaurant and hope to expand it even further with multiple locations.”

26. The statement above is commendable but if he truly had a dream to open up his own business, he should be in a position to explain how he proposes to do it. He should have plans drawn up and explain to the Tribunal how he plans to afford the cost of the outlay etc. No such plans were provided to the Tribunal. The Tribunal places weight against the applicant’s case because of the lack of details in his answer.

27. The Tribunal is of the view that the applicant has worked in the Australian industry of Hospitality since 2014. Although he complained that his mental health had affected the results of his studies, he provided no evidence that his working life in Australia has been affected by his mental health or Covid 19.

28. He said that his father lives in Vietnam. He did say that he did not get on with his stepmother who was against the idea that he should receive any handouts of cash from his father, as his father was helping him to supplement his income whilst he was studying. He explained that his father has a new relationship and 2 stepchildren who are much younger than him and that if he returns to Vietnam, he plans to live his own life as he does not plan to live with his family. His brother from the same parents lives in Canada and is now a permanent resident of Canada. He says that he maintains video calls to his family once a week. He said he also emails them.

29. The Tribunal doubts that his family ties in Vietnam are so very close and that those relationships will provide an incentive for him to return to his home country based on the amount of time that the applicant has already spent in Australia. The Tribunal places some weight on those facts against the applicant’s case.

30. He was asked whether he would prefer to become a permanent resident of Australia, but he said he did not want to do that.

31. Although some of his family members reside in Vietnam the applicant has lived most of his adult life in Australia as he was  27 years old at the time of the hearing and had been in Australia for 9 years. He said that he did not have any community ties in Vietnam. It would be difficult to expect him to have strong emotional connections with members of the Vietnamese community in Vietnam as he has not lived there for 9 years. The Tribunal places some weight on those factors against the applicant’s case.

32. The Tribunal has also considered the fact that he did not provide evidence of economic ties to his home country. He owns a car in Australia valued in the sum of $8000 and technological devices in the sum of $5000. He has employment in Australia which may be an incentive for him to wish to remain living in Australia. The Tribunal finds that the applicant’s strong working history in Australia, when considered against that lack of, may be a motivating factor for the applicant to remain in Australia.  His evidence was that he finished High School in May 2012 and has not provided evidence that he has ever worked in his home country. The Tribunal does place weight on those facts against the applicant’s case.

1. He said that there are similar courses being taught in his home country, but he was keen to learn English and western culinary which he says is taught best in a Western country. He said he liked to study in Western Australia as it was close to his home country.

2. He said that after the completion of his Course he will go back to Vietnam to help his family business. He said that he will follow his passion and open a Western Restaurant of his own to enhance his career.

3. In answer to the details of remuneration the applicant expects to receive in his home country or a third country using the qualifications gained from his studies in Australia he stated as follows; “With my application, I expect to help my family business affluently with my knowledge gained here. Moreover, with condensed knowledge that I have received from both education and work experience in Australia, I will be more confident in opening my own restaurant and operate it successfully.”

4. The Tribunal considers that the statement contained in the paragraph above is vague and generalised and that the applicant has not provided any detailed evidence and should have a fair idea now. He should have a definite plan and completed some research of what his prospects will be.  

5. The applicant does not have any concerns regarding political or civil unrest in his home country. He said that he does not have to undertake any military service commitments.

6. The applicant has complied with the migration laws of Australia and there is no evidence before the Tribunal that he has not complied with the migration laws of other countries.

7. Given the amount of time the applicant has now spent in Australia on student and associated visas, the Tribunal is concerned that a further student visa may be used primarily for maintaining ongoing residence.

8. There is no evidence before the Tribunal regarding the following factors indicated by Direction 69: Circumstances in Vietnam relative to Australia or any other country and the applicant’s circumstances in Vietnam relative to others in that country.

9. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).

10. 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.

11. 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

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

    Noelle Hossen
    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.