CHONG (Migration)

[2020] AATA 4455

CHONG (Migration) [2020] AATA 4455 (11 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr LIANG CHONG

CASE NUMBER:  1921626

HOME AFFAIRS REFERENCE(S):          BCC2019/2702613

MEMBER:Meena Sripathy

DATE:11 August 2020

PLACE OF DECISION:  Sydney

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 of Schedule 2 to the Regulations.

Statement made on 11 August 2020 at 1:40pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–study gap explained – applicant failed to provide requested information – detailed GTE Statement provided– current COE provided – currently enrolled – positive study record –personal ties to home country– 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

Education Services for Overseas Students Act 2000

CASES
Eros v MICMSMA [2020] FCA 1061
Hasran v MIAC [2010] FCAFC 40
Saini v MIBP [2015] FCCA 2379

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 18 July 2019 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 24 May 2019. 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 intends genuinely to stay temporarily in Australia.

4. On 14 May 2020 the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act inviting the applicant to provide further information to the Tribunal by 28 May 2020, including information in relation to current enrolment.

5. The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under s.359(2) of the Act. The invitation was sent to the applicant’s nominated address, being the address provided in connection with this application for review.

6. Where an applicant is invited to provide further information under s. 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information: s.359C(1).

7. The Tribunal finds that the review applicant did not provide further information by the date requested. In these circumstances, the review applicant is not entitled to appear before the Tribunal: s.360(3). Crucially, the effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to invite the review applicant to a hearing: Hasran v MIAC [2010] FCAFC 40.

8. Notwithstanding the aforementioned consequences of the applicant’s failure to respond to the invitation, the Tribunal retains a discretion, if it considers it necessary or appropriate, to take further action to obtain information from the applicant (albeit not at a hearing).  In the present matter, having regard to the evidence before it and the passage of time since the application and review applications were made, the Tribunal decided to invite the applicant to an interview to obtain further information. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

    Evidence before the Department

11. The Department file indicates that at time of lodgement the applicant provided a Confirmations of Enrolment for a Bachelor of Business (Accounting) course commencing 27 May 2019 until 22 May 2022. Information before the Department obtained from the Provider Registration and International Student Management System (PRISMS) website indicated three courses the applicant had completed between 2010 and 2015 and a further six CoEs that had been cancelled. 

12. On 9 July 2019 the Department wrote to the applicant to invite his comments on the PRISMS information. The invitation noted that the applicant appeared only to have enrolled in the Bachelor of Business (Accounting) course three days after being contacted by the Department in relation to his current student visa, and that this was after a period of more than 13 months of not being enrolled in a course of study.  The applicant responded to this invitation with an explanation for the gap n his study between April 2018 and May 2019. He explained the pressure he suffered having chosen an inappropriate course in the Master of Technology (Enterprise Systems) and that following a period of illness he decided to pursue a different course in business management and therefore applied for the Master of Business (Accounting) which he believes he can complete.

13. The delegate considered this response but on 18 July 2019 determined that she was not satisfied the applicant intends genuinely to stay temporarily in Australia and refused the application.  In his application for review of this decision to the Tribunal, lodged on 5 August 2019, the applicant included a response to the delegate’s reasons and further explanations about his circumstances in China and motivations to return home.  He stated that he is  currently studying in the Bachelor of Business (Accounting) at CIC and actively participating in class and promises to comply with the conditions of the student visa.

    Evidence before the Tribunal

14. As indicated above, the applicant was invited by the Tribunal on 14 May 2020 to provide updated information, including information in relation to current enrolment, however he failed to respond to this invitation and as a consequence lost his entitlement to appear before the Tribunal at a hearing.  It was open to the Tribunal to proceed to a decision on the review without taking any further action to obtain the information about his current enrolment.

15. Information in the Department file before the Tribunal indicated the applicant was enrolled in a CoE for a Bachelor of Business (Accounting) course commencing 27 May 2019 until 22 May 2022.  Given the passage of time since the application was made, the Tribunal decided to obtain an updated PRISMS record. This information obtained by the Tribunal on 23 July 2020 indicates the enrolment in the Bachelor of Business (Accounting) as ‘cancelled’ and that the applicant is currently enrolled in a Diploma of Leadership and Management commencing 4 November 2019 until 1 November 2020, and is recorded as ‘studying’. 

16. On 16 July 2020 the Tribunal decided to exercise its discretion to take a further step to obtain the information it had previously requested, and invited the applicant to an interview, given that he had lost his entitlement to a hearing. The interview was conducted by teleconference and with the assistance of an interpreter in the Mandarin and English languages. The applicant was assisted in relation to the review by their registered migration agent.

17. At the interview the applicant told the Tribunal he never received the correspondence sent by the Tribunal and was only informed about this interview by his representative in the last few days. The representative explained that the email address used in the correspondence was incorrect and that is why he never received the correspondence.  The Tribunal noted that the email address used was that provided by the applicant in the review application.  In any event this interview was arranged for the Tribunal to obtain information it requires to make its decision and the applicant now has the opportunity to provide information notwithstanding the loss of the hearing entitlement.

18. The applicant provided the following information: he started studying at CIC in the Bachelor of Business (Accounting) course in May 2019 for two terms. He got very good grades in the first term (HDs) and was expecting to continue to do well.  However when he went to sit his exams at the end of the second term he realised that his name was not on the list of students and this was when he found out his CoE had been cancelled.  When he asked the provider they told him the Department advised them the visa was declined and therefore they cancelled the CoE.  He said they sent him an email earlier but he overlooked it and continued to attend classes. He can provide evidence to support this, in the form of attendance records.  After the cancellation of his CoE in this course, he found another course which was a one year Diploma of Leadership and Management, which was also relevant to his career goals.  He started this course in November 2019 and is currently studying. This course has no exams, only assignments and assessments which he has submitted as required.  He can provide evidence of his participation and satisfaction of course requirements.  Since Covid 19, the course is no longer on campus but all online.

19. The Tribunal asked the applicant how he was able to enrol in another course if CIC cancelled his enrolment because of the visa refusal.  He said they told him they were not prepared to risk having a student without a substantive visa, but this new provider was prepared to issue him a CoE for the one year course. When asked his plan now, he stated that he intends to complete the course and then return to China. He said because of the situation of the pandemic it was and is difficult to return to China.  He decided to use the time wisely by completing a relevant course and his plan at the conclusion is to return home.

20. The Tribunal put to him that he has been here since 2010 and in that time has completed several courses including a Bachelor of Engineering, but since then has enrolled in two courses and not completed them and now is enrolled in a third course. Given this it may have concerns about his intentions to stay only temporarily in Australia and not return to China. In response the applicant explained that after his Engineering degree he worked for a period and realised that his knowledge was insufficient for the workplace and he needed to do further study.  He started the IT course but found it difficult and it was not for him so he transferred to another course.  During this time he struggled to figure out the best path for his future and he was not in good shape during this time.  After he made up his mind he enrolled at CIC and was doing well until the student visa was refused and they CoE got cancelled. Still he did not give up and found this other course and is studying now. 

21. The applicant said he has made enquires about jobs in China by submitting online applications but due to the effect of the pandemic on the job market he has had no responses to date.  He is the only member of his family here and the rest of the family are in China. His parents are keen for him to return home. They are worried about him here alone especially during the coronavirus situation.  They have been financially supporting him fully throughout his period in Australia.  The applicant is single and does not work here. His parents want him to finish his course and return to China to get work there. 

22. The applicant requested additional time to provide supporting evidence. The Tribunal allowed him two weeks.  On 10 August 2020 the applicant provided a statement dated 4 August 2020 reiterating his explanations provided at the interview and intentions upon completing the present course; a copy of the email from CIC sent to him in September 2019 informing him of the cancellation of his CoE, letters from Mercury Institute of Victoria confirming his current enrolment and participation in the Diploma course and course progress to date, and evidence of his online job applications.   

    Enrolment (cl.500.211)

23. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.

24. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

25. On the evidence before the Tribunal, it is satisfied the applicant is enrolled in a Diploma of Leadership and Management since November 2019 and which is due to end in November 2020.  The applicant confirmed his enrolment and participation in this course at the interview and in supporting evidence provided to the Tribunal subsequently from Mercury Institute.  The enrolment is confirmed in PRISMS records before the Tribunal.

26. Therefore, the Tribunal is satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is met.

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

27. 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?

28. The expression ‘genuinely intends to stay in Australia temporarily’ has been subject to judicial consideration in Saini v MIBP considering the equivalent pre 1 July 2016 student visa criteria, where Judge Cameron held it requires that the applicant must unqualifiedly intend his or her stay to be temporary.[1] Saini was cited with approval and applied most recently in Eros v MICMSMA,[2] where Allsop CJ confirmed that cl.500.212(a) is concerned and only concerned with the intention as to length of stay.

    [1] Saini v MIBP [2015] FCCA 2379 at [23], upheld on appeal in Saini v MIBP [2016] FCA 858.

    [2] [2020] FCA 1061, 28 July 2020

29. 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.

30. Direction No 69 recognises that 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.[3]

    [3] See Preamble to Direction No 69. In EEG18 v MHA; EEI18 v MHA; EEJ18 v MHA [2019] FCCA 2132 at [25]–[31], the Court held that it was illogical for the Tribunal to conclude that the applicants, a mother and her two children, were not genuine temporary entrants, in circumstances where they had first arrived in Australia on Visitor visas and the children were enrolled in a private school within 17 days of arrival.

31. In his GTE Statement lodged with the application the applicant addresses the reasons for undertaking the Bachelor of Business (Accounting) degree he proposed at the time of application.  He commenced but did not complete that course.  Since then he has commenced and is undertaking a different course, being a Diploma of Leadership and Management.  At the interview with the Tribunal on 29 July 2020, and in his statement of 4 August 2020 provided afterwards, the applicant explained why he changed course again.  On the basis of this evidence, the Tribunal accepts that he started this course and attended until his enrolment was cancelled by the provider due to the refusal of the application by the Department. 

32. The Tribunal accepts that, since then, the applicant found a provider willing to enrol him and has been enrolled and is participating in a Diploma course which he is due to finish in November 2020.  The applicant gave oral and written evidence to the Tribunal that his intention after completing this course is to return to China and find work suitable to his skills and qualifications obtained in Australia. He provided evidence of his attempts to seek employment in China via online submissions. 

33. The Tribunal has considered the applicant’s circumstances in Australia and China, his immigration history and other relevant circumstances, including his level of academic achievement in the courses completed to date.  It accepts that he has been in Australia since 2010 and in that period has completed several courses, including a Bachelor’s degree.  His academic transcripts indicate a high level of achievement in the Bachelor degree and more recently in the first term of the Accounting course he commenced, which the Tribunal considers relevant to its consideration of whether he is genuine in his desire to be a student.   It has considered his explanation for the gap in his education and changes to his course programs since the present application was made. The applicant told the Tribunal his intention following completion of the present course is to return to China to find suitable employment in his field.  His parents and close family are all in China. Until 2015 he regularly returned there once a year.  By contrast, he has no close family ties in Australia.  He is not working in Australia and has been supported financially throughout his study by his parents. 

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

    Does the applicant intend to comply with visa conditions?

35. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

1. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider).

2. The Tribunal has had regard to the applicant’s visa history.  He first arrived in Australia on a subclass 575 student visa in 2010 and has since then been granted a further student visa (subclass 573), a post study work visa (subclass 485)  and then a further student visa (subclass 500).  The Department’s decision record refers to him being contacted by the Department on 21 May 2019, regarding a concern of possible breach of condition 8202.  Shortly thereafter he enrolled and commenced study in a new course, and lodged the present application for another subclass 500 visa.  The Tribunal acknowledges the explanation provided by the applicant for the gap in his study between April 2018 and May 2019.  Having regard to his study and visa history over the entire period, his age and circumstances and the explanation provided, the Tribunal finds the explanation for his cessation of study and gap to be credible and reasonable. Since then he has been undertaking study, even after the refusal of the application and consequent cancellation of his then enrolment. He is now two thirds of the way through his present course and has stated his intention to complete it.

3. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

   Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

4. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

5. As indicated above, the Tribunal considers the applicant’s record of academic achievement in his earlier Bachelor’s course and the first term of the Accountancy course he started is indicative that he has been a genuine student in the past.  He came to Australia for the purposes of study as an 18 year old and has since then completed courses and undertaken work experience consistent with his stated intentions of securing academic qualifications and personal skills to further his career prospects upon return to China. 

6. Accordingly, having regard to all of the above the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

7. Given the above findings, the 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

8. 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 of Schedule 2 to the Regulations.

   Meena Sripathy
   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.