Deciyanto (Migration)

[2020] AATA 5712

Deciyanto (Migration) [2020] AATA 5712 (21 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr. Fredy Deciyanto

CASE NUMBER:  1907171

HOME AFFAIRS REFERENCE(S):          BCC2018/5060421

MEMBER:P. Adami

DATE:21 October 2020

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 21 October 2020 at 4:44pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not a genuine temporary entrant – 11 years in Australia – no value in proposed advanced diploma – already has adequate Australian educational and work experience to further career – no strong employment links in Indonesia – few return visits – using student visa program to maintain residency – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359(2), 499
Migration Regulations 1994, Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 March 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 14 November 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations), because the delegate was not satisfied that the applicant intends genuinely to stay in Australia temporarily as a full time student.

4. On 23 April 2020, the Tribunal formally wrote to the review applicant pursuant to section 359(2) of the Act, inviting the applicant to provide further information to the Tribunal, including information as to the applicant’s enrolment and being a genuine applicant for entry and stay as a student. The invitation was sent to the applicant’s registered migration agent Mr. Shadesh Barua being the contact details provided by the applicant in his 26 March 2019 ‘Application for review’.

5. On 06 May 2020, the applicant filed with the Tribunal a completed ‘Request for Student Visa Information under s.359(2) of the Migration Act 1958’, together with other evidence in support.

6. On 19 October 2020, the applicant appeared before the Tribunal to give evidence and present arguments. The applicant’s representative did not appear at the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

7. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant intends genuinely to stay in Australia temporarily as a full-time student.

2. Clause 500.212 requires as follows:

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

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

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

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

   (iv)any other relevant matter; and

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

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

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

   (c)       of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

3. 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 several 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.

4. 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.

5. The applicant is a 41 year old Indonesian male who first travelled to Australia on 16 August 2008, on a Student visa. The applicant was granted second Student visa and studied until June 2013. The applicant returned home to Indonesia for the period June 2013 to July 2015, when the applicant then returned to Australia holding a Student visa. The applicant was granted a fourth Student visa which according to the applicant expired in November 2018. On 14 November 2018 the applicant applied for a further Student (Temporary) (Class TU) (subclass 500) visa, which was refused, as per the delegate’s Decision Record dated 08 March 2019. It is this refusal which gives rise to this review application before the Tribunal.

6. The Tribunal has read and had regard to the documents provided by the applicant to the Department. These in part include; the applicant’s completed ‘Application for a Student Visa’ dated 14 November 2018; 01 November 2018 Genuine Temporary Entrant (GTE) Statement; 14 November 2018 Bridging Visa A Grant Notice with a Condition 8105 ‘Work limitation’ issued to the applicant.

7. The Tribunal has read and had regard to the documents provided by the applicant to the Tribunal. These in part  include; a copy of the delegate’s Decision Record dated 09 March 2019; the applicant’s completed Request for Student Visa Information; a COE issued to the applicant for the Advanced Diploma of Leadership and Management with a course start date of 25 May 2020 and a course end date of 07 November 2021 VIA Education; Interim Transcript of Results dated 13 October 2020 issued to the applicant for the completed study in the Advanced Diploma of Leadership and Management course; 05 May 2020 GTE Statement filed by the applicant in support of his application for review.

8. The applicant in his completed Request for Student Visa Information lists that he completed Year 10 in secondary school in June 1997 prior to arriving in Australia in August 2008. Since arriving in Australia to study over the two periods he has been a student, the applicant lists an extensive academic history in Australia. From most recent to oldest these enrolments include:-

   Currently enrolled Advanced Diploma of Leadership and Management (course ending November 2021)

   Certificate IV in Commercial Cookery (completed between October 2018 and April 2020)

   Advanced Diploma of Hospitality Management (completed between April 2016 and September 2019)

   Certificate III in Tourism (did not complete, studying between January 2016 and April 2016)

   Bachelor of Business (did not complete, studying between July 2015 and February 2016)

   Diploma of Human Resources Management (completed between February 2011 and February 2013)

   Diploma of Business (completed between December 2018 and October 2010)

   English course (completed between August 2008 and October 2008)

9. The applicant lists an employment history in Indonesia prior to arriving in Australia in August 2008. The applicant in his 01 November 2018 GTE Statement filed with the Department states that his employer was Toko Maju, a family owned business that sold items such as nuts and spices to retail customers and supplied restaurants. The applicant worked as a helper in the shop at Toko Maju between July 1997 and February 2001. The applicant then lists he worked at his sister’s mobile phone business as a sales assistant between March 2001 and April 2005. The applicant then lists that he returned to Toko Maju, working in the factory between May 2005 and August 2008. The applicant then came to Australia to study and when he returned home between June 2013 and June 2015 he worked as the head of the warehouse at Toku Maju. Given the applicant’s successful study history in Australia, the Tribunal does not consider that the applicant has any employment ties which serve as a significant incentive to return home.

10. The applicant told the Tribunal that since June 2020 to date he has been working as a chef earning approximately $465 net per week. In his completed Request for Student Visa Information the applicant lists a work history that includes working between March 2010 and April 2013 as an assistant chef at a café. The applicant then lists from July 2017 to December 2018 he worked as a cook at two different cafes. The applicant then worked as a chef from December 2018 to March 2020 at a bar/restaurant. The applicant states in his completed Request for Student Visa Information that he intends to find short term employment in the hospitality field and then would like to open his own business in the hospitality field in Indonesia after he has completed the Advanced Diploma of Leadership and Management. The applicant states that the Advanced Diploma of Leadership and Management, “will provide me knowledge and skills to look for a job and open own business in hospitality sector in Indonesia immensely.”

11. The applicant told the Tribunal at the hearing that after he has completed the Advanced Diploma of Leadership and Management, he would go back to Indonesia and open a café or a small restaurant. In his 05 May 2020 GTE Statement filed with the Tribunal the applicant states,

    I really enjoy the work I have as cook and chef, and decided to become a good chef in the future. I discuss things with my parents and they support my decision to pursue career as chef in the future because now occupation as chef in Indonesia is consider as a prestigious job too that can give high income. I decided the next step I have to take is study Advanced diploma of Leadership and Management at VIA Education to equip me more with the skills and knowledge to become a chef and open own business and manage and lead in hospitality in the future, I believe the formal education and qualification I will be getting can and will support my chosen career in the future.  

    The applicant also states in his completed Request for Student Visa Information that, “The course will help me to get an employment and open own business in hospitality sector in the future in Indonesia.” [original]

12. The applicant told the Tribunal at the hearing that the Advanced Diploma of Leadership and Management will teach him how to manage people, support his performance management skills, and help with managing the workforce planning, including termination. The applicant also told the Tribunal that the Advanced Diploma will help him in his business in the future when he returns home and that essentially, he wanted to own his own business, and that he did not want to work as an employee, but rather wanted to be the boss.

13. The Tribunal accepts that the applicant has successfully completed a Diploma of Business; Diploma of Human Resources Management; and an Advanced Diploma of Hospitality Management, all of which well places him to return home and fine suitable employment. The Tribunal is troubled that the applicant has already obtained suitable qualifications from his study in Australia (beyond management courses) and has adequate work experience, obtained in both Indonesia and Australia, to carry into effect his stated career plan. The Tribunal is unpersuaded that the Advanced Diploma of Leadership and Management will meaningfully assist the applicant in carrying into effect his career plan should he complete the Advanced Diploma. The Tribunal is also mindful that the applicant is turning 42 years old in December 2020 and given his age, and overall work history and study experience, is well placed to return home to open his own café/restaurant.

14. The Tribunal does not consider objectively, that completing the Advanced Diploma will meaningfully add to the applicant’s employment prospects, given his plans to open his own café/restaurant. The Tribunal considers that there is little apparent value in the Advanced Diploma course.

15. The applicant states in his completed Request for Student Visa Information that the benefit of the proposed studies to the applicant’s expected remuneration in Indonesia or a third country, might earn him IDR 9 million to IDR 23 million per month. The applicant states if he were to find employment as an Executive Chef the salary would be higher at approximately IDR 690 million to IDR 830 million. The applicant states, “It is very high as usually for one adult, the living expenses in a month only around IDR 3.5 million -IDR 5 million.” The applicant includes a link to an article in Indonesian from 2016 in support. Given the lack of specific evidence in this regard, the Tribunal does not consider the Advanced Diploma is likely to increase the applicant's remuneration in his home country.

16. The Tribunal is mindful that the applicant has only successfully studied in the VET sector. The Tribunal is also mindful that should the applicant complete the Advanced Diploma in November 2021, he will have stayed in Australia approximately 11 years (from approximately August 2008 to June 2013 and July 2015 to November 2021). The Tribunal is mindful that the applicant states in his 01 November 2018 GTE Statement that,

    I decided to give it a go [more study in Australia after returning in July 2015] and took Bachelor of Business majoring in Human Resources. However I couldn’t cope with the study load and decided to withdrawn from the course after 6 months of study. It was very boring because all I learnt was theory that’s similar with what I already studied in the diploma, so it wasn’t what I expected nor want to repeat learning. At that time, my brother in law asked me to join him open a travel business so I feel the need to know the industry especially the reservation system, and since I also like travelling and tourism course also has practical elements in it, I thought it’s the best course I need for my future. However, soon after started study the tourism course, I found out that it’s not suitable for me and is not the career I want to pursue in the future. [original]

    Since arriving in Australia to study a second time in July 2015, the applicant has completed an Advanced Diploma of Hospitality Management and a Certificate IV in Commercial Cookery. Since May 2020 the applicant has been studying the Advanced Diploma. The Tribunal considers the applicant is seeking to use the Advanced Diploma as a means for maintaining an ongoing residence in Australia.

17. The applicant states in his completed Request for Student Visa Information that he is studying in Australia rather than Indonesia because given he has not completed Year 12, it is not possible for him to study in a college in Indonesia. The applicant states that despite his successful studies in Australia “I still need to complete Year 12 to enrol study in Indonesia. And in Indonesia to complete this qualification takes 3 years (Diploma Level III).” The applicant also states this in his 05 May 2020 GTE Statement filed with the Tribunal. The applicant did not provide the Tribunal with any evidence to substantiate this claim of his inability to study in Indonesia because he had not finished Year 12. The Tribunal accepts the applicant considers that VIA Education provides a high quality and cost effective study program close to where he lives as stated in his completed Request for Student Visa Information. The applicant states in his May 2020 GTE Statement that he has studied in Australia before and that Australia is closer to Indonesia than the USA or Canada were he to study in those countries. However, the Tribunal considers that it cannot meaningfully weigh this factor given the lack of information before the Tribunal. The applicant did not provide any evidence to the Tribunal that he had undertaken research into studying in Indonesia, and the Tribunal does not consider that the general benefits of studying in Australia weigh heavily as reasonable reasons for not undertaking his study in Indonesia. 

18. There is no evidence regarding the applicant’s circumstances in his home country relative to others in that country and the Tribunal makes no findings concerning the applicant in that respect.

19. In his completed Request for Student Visa Information, the applicant lists that his parents, 2 sisters and a son that lives with his ex-wife, live in Indonesia. In his completed Request for Student Visa Information the applicant states that he usually contacts his family using phone technology every day. The applicant also states in his completed Request for Student Visa Information that he speaks to his son and ex-wife 2-3 times a week. Given the length of time studying in Australia to date, the Tribunal considers that the applicant’s family in Indonesia does not act as a significant incentive for him to return to Indonesia. The Tribunal is mindful that the applicant has held a Bridging Visa A which does not allow travel since November 2018. There is no evidence that the applicant has applied for a Bridging Visa B that would permit the applicant to travel home and return to Australia. The Tribunal is comforted in this regard given the applicant seeks to study in Australia for approximately 11 years were he to successfully study as proposed, finishing in November 2021.

20. The applicant in his completed Request for Student Visa Information does not list any property or other significant assets owned by him in Indonesia. The applicant told the Tribunal that from June 2020 to date he earns approximately $465 net per week. The applicant lists in his completed Request for Student Visa Information that he earned approximately $20,280 per annum when he worked as a chef between December 2018 and March 2020. Between July 2017 and June 2018, the applicant list that he earned $19,959 as an annual salary. The applicant appears to have had stable employment when he has obtained it. The applicant lists his expenses in Australia at approximately $21,660 per annum. The applicant told the Tribunal that his income is applied towards his expenses, but that his parents have also given him approximately $9,800 on each occasion when he has returned from Indonesia in 2015, 2018 and 2019 to assist him.

21. Noting the economic disparity between Australia and Indonesia and the applicant’s choice to remain in Australia rather than return home to Indonesia and pursue his career as proposed, the Tribunal is concerned that the applicant’s ability to earn Australia dollars in the course of ordinary employment may operate as an incentive to remain, although the evidence falls short of establishing this is a significant incentive. The Tribunal considers that it cannot conclude on the evidence whether economic circumstances operate as an incentive for the applicant to remain in Australia or return to Indonesia. The Tribunal considers they are a neutral factor in the application.

1. In the Request for Student Visa Information, in the question about community ties in his home country and in Australia, the applicant does not state community ties. The Tribunal does not consider this factor weighs either for or against concluding the applicant is a genuine temporary entrant.

2. In his completed Request for Student Visa Information, the applicant lists that he travelled home to Indonesia on 3 occasions- in June 2013 for approximately 2 years “Go back to Indonesia for good with wife (now ex-wife) & son.)”; December 2017 for approximately 1 month to visit his parents and siblings, and his son; and November 2019 for approximately 1 month to visit his sick father and to visit his siblings. Acknowledging that the applicant returned home between June 2013 and July 2015, since he first arrived in August 2008, the Tribunal considers that the applicant’s few trips home in total, suggest that he is using the student visa program to maintain residence in Australia. The Tribunal considers this factor weighs heavily against concluding the applicant is a genuine temporary entrant for study in Australia.

3. The applicant states in his completed Request for Student Visa Information that there are no military service commitments that would present as a significant incentive for him not to return to his home country, and there is no political or civil unrest in his home country that may induce him to apply for a student visa as a means of remaining in Australia indefinitely.

4. The applicant has disclosed no concerning travel history. There is no evidence that the applicant has been denied a travel visa to another country, or that he has breached an Australian visa. The applicant discloses that he had an application for an Australian student visa refused on “6/03/2015 because sponsors' regular income (clause 573.232).” The Tribunal places no weight on this refusal in determining if the applicant is a genuine temporary entrant given, he was granted a Student visa after this refusal.

5. Having considered all the information before it, on balance the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. It is difficult to reconcile a proposed total 11 year stay in Australia with the meaning of temporary. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily. The applicant has not demonstrated that there is any real value in completing the Advanced Diploma of Leadership and Management. The Tribunal is concerned that the applicant is using the student visa program primarily in order to maintain ongoing residence in Australia. Accordingly, the applicant does not meet cl.500.212(a).

6. Based on the above, 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.

7. 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

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

   P. Adami

   
   

   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.