Da Silva Moura (Migration)

[2021] AATA 238

Da Silva Moura (Migration) [2021] AATA 238 (29 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Maria Helena Da Silva Moura

CASE NUMBER:  1921296

HOME AFFAIRS REFERENCE(S):          BCC2019/2343323

MEMBER:T. Quinn

DATE:29 January 2021

PLACE OF DECISION:  Melbourne

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:

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

Statement made on 29 January 2021 at 1:34pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant – applied for student visa after arriving on tourist visa – lack of academic progress – harassment by fellow student and non-completion of course – enrolment in new course, close to finishing – incentives to remain or return – partner visa application in progress – mother and her business in home country – uncertain future plans because of COVID-19 pandemic – closely balanced factors – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338(2), 347, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

CASES
Baker v Minister for Immigration and Citizenship [2012] FCAFC 145
Chen v Minister for Immigration and Border Protection [2017] FCA 46
Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345
FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555
Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482
Kaur v Minister for Home Affairs [2019] FCCA 1372
Khan v Minister for Immigration [2019] FCCA 565
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Saini v MIBP [2016] FCA 858
Tshering v Minister for Home Affairs [2019] FCCA 2667
Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112

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 (‘the delegate’) on 12 July 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicant applied for the visa on 1 May 2019 (‘the application’).   At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The applicant applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. On 12 July 2019, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that the applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

4. On 2 August 2019, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act. There was some confusion with the copy of the Department’s decision which was filed by the applicant on this date (which was not the correct decision record for this proceeding). This was not identified by the Tribunal until the day of hearing (22 January 2021) but was not a substantive issue in the hearing of this application as the Member involved had read the decision contained in the Department file, not the decision filed by the applicant, in preparation for hearing.

5. More than 17 months have elapsed since the making of the delegate’s decision and the applicant’s application for review with the Tribunal. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed during that time. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information to the Tribunal for the purposes of determining the outcome of their application for review. To this end, on 14 May 2020, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’). The applicant requested and was granted an extension of time within which to respond and subsequently provided the requested information on 25 June 2020 which was within the extended prescribed timeframe.

6. The applicant appeared before the Tribunal on 22 January 2021 for a telephone hearing to give evidence and present arguments.  The hearing was conducted with the assistance of an interpreter in the English and Portuguese languages.  The Tribunal also received oral evidence from Mr James Gallaway who is the partner of the applicant but who has also registered to assist the applicant in relation to this proceeding.

7. There was some confusion as the commencement of the hearing as the applicant and Mr Gallaway have also applied for a partner visa. They both indicated they were not prepared for the hearing and Mr Gallaway suggested that the proceeding should be withdrawn and/or adjourned. The Tribunal elected to speak directly to the applicant in relation to this. The applicant is currently studying and did not ask to withdraw her application, so the proceeding remained on foot. The applicant brought her application over seventeen months ago. She received a request for student visa information in the form of the s359(2) letter on 14 May 2020 and then a hearing invitation 5 January 2021. There was no ‘return to sender’ or other notification indicating that this hearing invitation had not been received. The Tribunal also sent the applicant SMS hearing reminders on the mobile number provided to the Tribunal in relation to this proceeding on 15 and 21 January. There was no suggestion that these text messages were not received. The Tribunal determined that the applicant had had ample time to prepare for her hearing, that it was not appropriate to further delay the progress of this application and that the matter should proceed. In this regard the Tribunal notes the Tribunal President’s Direction in relation to Conducting Migration and Refugee Reviews given under section 18B of the Administrative Appeals Tribunal Act 1975 (‘the President’s Direction’). Clause 5.2 of the President’s Direction states that requests for adjournment of a scheduled hearing will not be granted simply on the basis of the convenience of the review applicant or their representative. Where the Tribunal has given sufficient advance notice of the hearing, adjournments will not be granted based on a need to gather further evidence unless cogent reasons can be shown.

8. The Tribunal has proceeded to a decision having regard to all the information before it, including the Department file and all material and evidence provided by the applicant to the Tribunal.

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

   STATUTORY FRAMEWORK

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 clause 500.211 to clause 500.218 must be satisfied by at least one applicant.

11. 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?

12. In considering whether the applicant satisfies clause 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’ (‘the Direction’), made under section 499 of the Act. The Direction 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.

13. 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.

14. The Direction is a lawful direction of the Minister made in accordance with section 499 of the Act. The Tribunal is therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[1]  Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before the Tribunal.  The Tribunal, however, recognises that it is an independent statutory body.  It must therefore reach its own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate.  In this regard, the Tribunal also notes the decision of Judge McNab in Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]), wherein his Honour referred to the decisions of Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]) and Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) in relation to the proper approach to the consideration of guidelines such as the Direction. Most pertinently, his Honour endorses the view espoused in those cases, that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.

    [1]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The applicant in this case is a 42-year-old female Brazilian citizen who first arrived in Australia on 4 April 2019 as the holder of a tourist visa.[2]  She has not returned to her home country since that time.[3]  The applicant commenced studying shortly after her arrival and sought the student visa which is the subject of this review to undertake a General English course with a proposed completion date of 15 March 2020.[4]

    [2] See delegate’s decision and applicant’s response to the s359(2) letter.

    [3] See applicant’s response to the s359(2) letter.

    [4] See applicant’s response to the s359(2) letter and evidence at hearing.

16. Prior to coming to Australia, the applicant completed a twelve month Business Administration Technology course in 2007 and a six month course for entrepreneurial women in 2015 in Brazil.[5]  The applicant worked as a Manager for three different employers: from 1999-2004 earning AUD12,000 equivalent per annum; from 2004-2017 earning AUD24,000 equivalent per annum and from 2017-2019 earning AUD30,000 equivalent per annum in Brazil.[6]

    [5] See delegate’s decision and applicant’s response to the s359(2) letter.

    [6] See applicant’s response to the s359(2) letter.

17. The applicant’s application which is the subject of this review was to undertake a General English course with a proposed completion date in March 2020 – over ten months ago. The Tribunal is troubled by the fact that this date is now passed, and the applicant remains onshore. However, the applicant was forthright in her response to the s359(2) letter and in her evidence at hearing that she was harassed by a fellow student and ceased attending classes. This evidence is corroborated by a psychological report dated 28 July 2020 filed by the applicant on 22 January 2021. This report and the applicant’s evidence at hearing refers to a troubled history in Brazil of a similar nature where the applicant was the victim of unwelcome and inappropriate conduct. The psychological report indicated that the applicant is experiencing some symptoms of depression and post traumatic stress disorder.

18. The applicant gave evidence that she was initially mis-advised and told she could not enrol with a different course provider.  She stated that she did in fact enrol in a new English course with a different school because she feels she needs English and wanted to continue studying.  She gave evidence that she is currently studying English and indicated the course will finish in three months.

19. The Tribunal is troubled by the applicant’s lack of overall academic progress.  She has now been onshore awaiting the outcome of this application for twenty months but has not completed any courses.  A particularly effective way for an applicant to demonstrate that they hold a genuine desire to study in Australia, while awaiting a review hearing following an initial student visa refusal, is to take positive steps towards achieving the educational qualification they had proposed in their original application. That is to say, an applicant should progress with their proposed course of study in Australia notwithstanding that their visa application has been refused.  In doing so, by the time the application on review proceeds to a hearing before the Tribunal, an applicant will be a position to produce compelling evidence at the hearing that shows they are a genuine applicant for a student visa.  In this case, there is limited evidence in this regard.  The Tribunal does not consider this to be the kind of behaviour that is consistent with that expected of a genuine applicant for entry and stay as a student in Australia.  In fact, if the applicant had engaged with the course she initially proposed, she would have finished that course in ten months ago and have been in a position to return home and reunite with her family and put into motion any future plan.  Instead, she has remained in Australia, engaging in minimal study whilst claiming she wishes to remain onshore as a genuine student.  This evidence raises concerns for the Tribunal about the true nature of the applicant’s intentions in applying for the student visa and may constitute evidence that the applicant is using the student visa programme to circumvent the intentions of the migration programme.  However, the applicant’s evidence as set out in the two immediately preceding paragraphs goes some way to explain her behaviour.  Further, she is currently engaged in study and appears to be doing this for genuine reasons, particularly given she has a partner visa application on foot and may not necessarily need her student visa application to be successful in order to remain onshore. 

20. The applicant gave evidence at hearing that she will complete her study in a few months and then join her mother’s business and continue to import and grow the business.  She and Mr Gallaway both gave evidence that Mr Gallaway supports the applicant in her career goals, and they may live in Brazil or Australia and intend to travel between the countries.  Their evidence appeared genuine in that it was difficult for them to give a definitive plan for the future given the COVID19 Pandemic and the state of the pandemic in Brazil currently.  The COVID19 Pandemic has made travel very difficult and the Tribunal has allowed for this in coming to its conclusions.

21. The applicant and Mr Gallaway gave evidence that they have made application for a Partner visa which is a permanent residency visa.  This is relevant in relation to the disposition of the applicant’s present application for review.  Such application is problematic for a claim before this Tribunal that one is a genuine temporary entrant.  If at the time of decision, there is a settled intention to later seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention genuinely to stay temporarily.[7]  However, in circumstances and in the context of the evidence given at hearing as set out above, the Tribunal cannot conclude that there is a settled intention to remain in Australia and/or seek a residence that is other than temporary if that application is successful.[8]

    [7]           Saini v MIBP [2016] FCA 858, [30].

    [8] See applicant’s response to the s359(2) letter.

22. The applicant gave evidence at hearing that she has been assisting her mother in her retail clothing business for some time as her mother does not speak English.  The applicant gave evidence that she currently liaises with importers via WhatsApp in English from Australia and speaks to her mother every day in order to assist in this regard.  The applicant gave evidence that her mother has been sick (ageing and depression) and the other members of her family are not in a position to care for her and this responsibility falls to the applicant.  The applicant states she will take over her mother’s business and anticipates earning AUD40,000 equivalent per annum.[9]  The Tribunal accepts that the course the applicant is undertaking is relevant to and likely to assist and improve the applicant’s future career prospects.  However, the Tribunal has reservations about the fact that the applicant appears to be currently successfully engaging in this role from Australia, without having completed her proposed course.

    [9]See applicant’s response to the s359(2) letter.

23. The Tribunal accepts that this study is relatively consistent with the applicant’s current level of education.

24. The applicant gave evidence that she is living with her partner, Mr Gallaway and she is not working onshore.[10]  The applicant has friends and is involved with the Brazilian community in Australia.[11]  The Tribunal finds the evidence for and against the applicant having ties to the Australian community serving as a strong incentive for her to remain is finely balanced.  Ultimately, the applicant and Mr Gallaway presented as very close and the Tribunal considers it likely he is serving as a strong incentive for her to remain onshore, despite her limited other ties.

    [10] See applicant’s response to the s359(2) letter and evidence at hearing.

    [11] See applicant’s response to the s359(2) letter.

1. The applicant has not returned to Brazil since her entry in April 2019 but the Tribunal places little weight on this fact given the COVID19 Pandemic severely restricted international travel for virtually all of 2020.[12]   The applicant’s father died when she was two and all of the material and evidence before the Tribunal demonstrates a very close relationship between the applicant and her mother.  The applicant also has two brothers and two sisters in Brazil with their own families and she speaks to her family daily.[13]  The applicant is a member of a Forro Music and Dancing Association and a Brazilian Food Club in her home country.[14]  Tribunal considers the applicant has ties to Brazil serving as an incentive for her to return but does not have sufficient information before it to form any firm conclusions about whether those ties are acting as a significant incentive for her to return. 

   [12]          See evidence at hearing.

   [13] See applicant’s response to the s359(2) letter and evidence at hearing.

   [14] See applicant’s response to the s359(2) letter.

2. The applicant is not working onshore and has expenses of AUD3,000 per annum.[15]  She owns a car worth AUD8,000 in her home country.[16]  The Tribunal notes that the United Nations Human Development Index, which is a statistical comparison of life expectancy, education and per capita income indicators by country, ranks Brazil as 79^th in the world as compared to Australia’s ranking of 6^th in the world.[17]  The Tribunal does not consider it can form any firm conclusions as to whether the applicant’s economic circumstances onshore are acting as a significant incentive for her to remain onshore.

   [15] See applicant’s response to the s359(2) letter and evidence at hearing.

   [16] See applicant’s response to the s359(2) letter and evidence at hearing.

   [17]See Table 1 of United Nations’ Human Development Report 2019 commencing at page 300 <>

   The applicant states that English courses in Brazil will not provide skills to a level of proficiency that those in Australia can and studying English in an English speaking country will further develop her skills.[18]  The Tribunal considers the applicant has provided reasonable reasons for not undertaking the study in her home country or region.

   [18] See applicant’s response to the s359(2) letter.

3. The applicant’s response to the s359(2) letter stated she has had no travel, visa or immigration issues in the past.

4. The applicant stated she does not have any potential military service obligations or civil unrest concerns in Brazil.[19]

   [19] See applicant’s response to the s359(2) letter.

5. The Tribunal is concerned about the way in which the applicant arrived onshore (being on a tourist visa and only then, once onshore, applying for a student visa).  It is difficult for the Tribunal to accept that the applicant, in such a short space of time after their arrival onshore as a tourist, could have then promptly researched all study and living options and decided to remain onshore for a further extended period.  The Tribunal accepts that it is possible that an applicant may seek a change in plans or to further their skills for employment reasons and remuneration opportunities, but the Tribunal is puzzled when an applicant arrives on a visitor visa and then makes sudden changes to their plans within a short period of time.  It seems unlikely to the Tribunal that a person travelling as a tourist would make such a significant change from their initial intentions to visit.  Such a significant change would necessarily include a greater level of planning and preparation before arriving in Australia considering the length of time that the applicant proposed to spend in Australia.

6. The Tribunal considers the factors for and against the applicant being a genuine temporary entrant for study in Australia are closely balanced in this case.  However, the applicant has provided a plausible explanation in relation to her study history and is currently enrolled, studying and only months away from completion.  Should the applicant make a further student visa application on the basis of an intention to undertake further study after this, her submissions and evidence in connection with this case will clearly be relevant to any assessment her intention to stay in Australia temporarily only to study.

7. Having had regard to the applicant’s circumstances, her immigration history and all other relevant matters, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student temporarily as required by clause 500.212. Accordingly, the applicant meets clause 500.212(a) of Schedule 2 to the Regulations.

8. 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

9. 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:

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

   Member

   T. Quinn

   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.