Donini Cassol (Migration)

[2019] AATA 2623

Donini Cassol (Migration) [2019] AATA 2623 (29 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Elvira Donini Cassol
Mr Giuliano Toledo Chiminelli

CASE NUMBER:  1722867

HOME AFFAIRS REFERENCE(S):           BCC2017/2729676

MEMBER:Glenn O'Brien

DATE:29 May 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 29 May 2019 at 11:54am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – strong ties to Australia – presence of de facto partner – limited travel home – employment history in Australia – income disparity – regression in level of study – value of course – attained similar qualifications already – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.212, 500.311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 September 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 1 August 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 applicant provided the Tribunal a copy of the delegate’s decision record with the application for review. The delegate in this case refused to grant the visas 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 that the applicant intends genuinely to stay temporarily in Australia.

4. The applicants appeared before the Tribunal on 9 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the secondary applicant.  The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

5. The applicants were assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 is a genuine temporary applicant for entry and stay as a student.

8. 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?

9. 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.

10. 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.

11. Adopting the procedure in s.359AA of the Act, the Tribunal put to the applicant that it had on the Tribunal file a copy of the applicant’s enrolment records from the Provider Registration International Student Management System (PRISMS) database.  The Tribunal explained to the applicant the relevance of the records to the review before the Tribunal. The Tribunal explained the consequences of relying on the information and confirmed the applicant understood the consequences of the information being relied upon. The Tribunal offered the applicant an opportunity to seek an adjournment to consider the information and comment on or respond to the information.  The applicant did not seek an adjournment and elected to comment on and to respond to the information during the course of the hearing.

12. The applicant arrived in Australia on 20 January 2017 after the grant of the initial Student (Temporary) (Class TU) Student Visa (Subclass 500), which was valid until 7 August 2017.  The applicant applied for the student visa under review by the Tribunal on 1 August 2017.

13. The Tribunal considered whether the applicant has reasonable reasons for not undertaking the proposed study in her home country if a similar course is already available there. The applicant stated that while there are similar courses in Brazil, the applicant chose Australia because of the quality of education, the impact of an international qualification and the importance of international experience.

14. The applicant told the Tribunal she has strong family ties in Brazil with her mother, step-father, and brother living in Brazil.  The applicant told the Tribunal she has a very close relationship with her mother and talks to her every day by video calls and telephone.  She also speaks with her step-father almost daily and her brother around three times a week.  Her brother has two daughters and the applicant seeks to remain in constant contact with her nieces.  Other than family, the applicant told the Tribunal that she does not have other community ties in Brazil.

15. The applicant completed her high school education in Brazil and holds a Bachelor in Tourism and Hotel Management. 

16. The applicants have significant assets in Brazil including two apartments, fixed investments, and approved lines of credit.  The secondary applicant maintains a business in Brazil, which the applicant described as a car checking business.  That business is run by family in the absence of the applicants.

17. The applicant previously worked in Brazil in a number of positions from January 2010 to November 2016.  The applicant’s most recent position was as a quality control assistant earning approximately $13,000 per annum. 

18. The applicant intends to return to Brazil to work in a hotel chain as a hospitality manager or reservations and event supervisor or front desk supervisor.  The applicant told the Tribunal that the annual salary for these positions is approximately $15,000 per annum.  Notably, the applicant told the Tribunal upon completion of her course of study she may return to Brazil to re-start and complete her Graduate Diploma in Quality Engineering from UNISOCIESC which she put on hold before coming to Australia.  The applicant does not have arranged employment to return to and is researching prospective vacancies on the internet.

19. The applicant has worked in Australia on a part-time basis since September 2017 as an attraction presenter at Village Roadshow, earning approximately $23,000 per annum.  The secondary applicant works part-time at Novotel on the Gold Coast in housekeeping.  The applicant told the Tribunal that the cost of living in Brazil is less and the applicant’s income in Australia meets only their living expenses. The Tribunal accepts the applicant’s cost of living in Brazil is likely to be less, however the applicant’s income in Australia on a part-time basis of 20 hours per week is significantly higher than what the applicant earned in Brazil previously.

20. The applicant has not returned to Brazil since arriving in Australia.  The applicants visited Indonesia for a holiday in 2016 (prior to travelling to Australia) and to Thailand in 2019.  The applicant told the Tribunal she has not travelled home because of the distance and limited time between studies.

21. The applicant told the Tribunal she has no military service obligations in Brazil and there are no circumstances of political or civil unrest that would induce her to apply for a visa to remain in Australia indefinitely.

22. In considering the applicant’s circumstances in their home country, on the basis of the evidence before the Tribunal, and the matters set out above, the Tribunal finds:

    a.    The applicant provided reasonable reasons for not undertaking the proposed course of study in their home country.

    b.    The applicants do have family ties to their home country, including strong family connections and assets.  In considering the period of time the applicant has been in Australia, the presence of her de facto partner with her in Australia, the absence of return travel to Brazil, the applicant’s part-time work in Australia, and the absence of any arranged employment in Brazil, the Tribunal finds these circumstances are not a significant incentive to return.

    c.    The applicant receives financial support from family as well as from a business, investments, and other assets in Brazil. The applicants have significant assets in Brazil.  The applicants do not have arranged employment for their return to Brazil.  On the basis of the matters set out herein, the applicant’s economic circumstances as a whole do not present as a significant incentive for the applicant not to return home.

    d.    The applicant does not have any military service commitments which would provide a significant incentive not to return home.

    e.    There is no evidence before the Tribunal of political and civil unrest in the applicant’s home country of such a nature that may induce the applicant to apply for a student visa to obtain entry to Australia to remain indefinitely.

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

23. The applicants rent together in Australia and do not maintain assets in Australia.  The applicant told the Tribunal she has colleagues through study but does not usually participate in community groups.

24. The applicant’s intention when travelling to Australia was to complete studies in the English language.  The applicant successfully attained qualifications in General English in July 2017.

25. The applicant subsequently enrolled in a Certificate III in Hospitality, a Diploma of Hospitality, and an Advanced Diploma of Hospitality Management.  The applicant told the Tribunal she has completed the Certificate III in Hospitality and the Diploma of Hospitality Management on 13 May 2017 and 17 February 2019 respectively.  The applicant’s current course of study will extend her period of residence in Australia to the end of September 2019.

26. The applicant told the Tribunal that she has no intention to stay in Australia and enrolled in these courses as they focussed on more practical things and complemented her already attained qualifications from Brazil.  The applicant told the Tribunal that she felt the necessity of better specialisation in relation to her education to obtain a better job when she returns to Brazil.

27. The applicant told the Tribunal that there were four units to complete in the Advanced Diploma of Hospitality Management, and she had completed ‘manage assets’ and has three to complete by September 2019. 

28. On reviewing the applicant’s record of results for the Diploma of Hospitality Management and Certificate III in Hospitality the applicant completed 15 units in the Certificate III, obtained 15 credit transfer subjects for the Diploma and was required to complete 13 additional units in the Diploma course.

29. The applicant told the Tribunal that the Advanced Diploma of Hospitality Management will be amazing and make her more competitive.  The applicant also told the Tribunal that she did not like starting something and not finishing it.  The applicant also told the Tribunal that her study will provide her a better level of English.

30. The Tribunal was concerned the applicant was enrolling in a series of the same or similar courses, for which she has obtained credit from previous courses, primarily for the purpose of maintaining the applicant’s residence in Australia.  The applicant’s study in Australia is in a series of lower level vocational education courses in the same field of study as her already attained bachelor course and incomplete diploma studies in Brazil, which was not her intention when she travelled to Australia.  While the Tribunal accepts that vocational training courses may be beneficial to the applicant and may offer more practical training, the applicant has already attained a specific English language qualification and industry qualifications in hospitality and hospitality management in Australia and the acquiring of four further units of study to obtain an Advanced Diploma of Hospitality Management provides the applicant with limited further value and delays the applicant from returning to Brazil to pursue her stated career goals and aspirations by a further six months.

31. In considering the applicant’s potential circumstances in Australia, and the matters set out above, the Tribunal finds:

    a.    The applicant has ties to Australia through the period of time the applicant has been working and studying in Australia, work experience in the applicant’s preferred career industry in hospitality, and the presence of her de facto partner in Australia.  The applicant has developed relationships with other people in Australia and these social, financial, and emotional connections to Australia provide a strong incentive to remain.

    b.    The applicant’s pattern of enrolment, change in the applicant’s intention from studying English to hospitality, period of study, and similarity of courses, evidences the student visa programme is being used to circumvent the intentions of Australia’s migration programme.

    c.    For the reasons and findings set out above, the applicant’s student visa application is being used primarily to maintain ongoing residence in Australia.

    d.    The applicant’s relationship to the secondary applicant did not provide any concern to the Tribunal and was not a matter affecting the applicant’s application for review in the present case.

    e.    The applicants have a good knowledge of their living arrangements in Australia, primarily as a result of the length of time the applicant has been in Australia, during which she has remained with her de facto partner.  The applicant intends to continue her existing living arrangements during the course of her proposed study.

    f.   The applicant has a good understanding of the proposed course of study and education provider.

32. The applicant’s proposed course of study is a regression in the level of qualification already held by the applicant and is in an identical field of study to two vocational level courses already completed by the applicant in Australia.

33. At the time of the visa application the applicant told the Tribunal that she intended to return to Brazil to establish a hostel with her partner.  The applicant told the Tribunal this was now a longer term plan and the applicants wish to return to Brazil to look for opportunities in their field of work and the applicant will seek opportunities within the hospitality sector, including positions as a hotel manager with an international hotel chain.  The Tribunal accepts this change in plan as reasonable.

34. In the applicant’s submissions to the Tribunal she provided a table setting out the differences between her Bachelor of Tourism and Hospitality attained in Brazil and her current course of study for a Diploma of Hospitality Management, which is reproduced below.

Bachelor of Tourism and Hospitality (Brazil)	Advanced Diploma of Hospitality Management (Australia)
*    Tourism and Hotel Administration	*    Manage diversity in the workplace
*    Administration applied to Tourism and Hotel administration	*    Manage operational plan
*    Law applied to tourism and hotel administration	*    Work effectively with others
*    Managerial Accounting	*    Provide housekeeping services to guests
*    Financial management and Budgeting	*    Enhance customer service experience
*    Planning and Development of means of hospitality	*    Develop and manage quality customer service practices
*    Manage conflict
*    Coach others in job skills
*    Monitor work operations
*    Establish and conduct business relationships
*    Implement and monitor work health and safety

1. The applicant told the Tribunal that this comparison establishes the difference between her existing qualifications and the proposed course of study.  While the Tribunal accepts the applicant’s evidence in that regard, the subjects listed as being studied in the Advanced Diploma of Hospitality are identical to the subjects the applicant has already completed in the Diploma of Hospitality, as set out in the Record of Results for the Diploma of Hospitality dated 3 April 2019 provided to the Tribunal.  While there may be a difference in some content and the level of study, the Tribunal considers the applicant’s proposed course of study offers the applicant with few additional skills to the qualifications she has already attained, and is of limited value in improving the applicant’s prospects of employment upon her return to Brazil.

2. The proposed course of study is relevant to both the applicant’s past and future employment in hospitality and does not evidence a change in proposed employment or career, noting the Tribunal accepts the applicant’s change in intention from establishing her own hostel to seeking a managerial position within an international hotel chain is reasonable.

3. The Tribunal has considered the applicant’s anticipated remuneration at paragraphs 19 and 20 of these reasons for decision.  The Tribunal accepts the applicant’s cost of living in Brazil is likely to be less, however considers the applicant’s remuneration in Australia working approximately 20 hours per week part-time is comparatively higher than what the applicant anticipates earning on her return to Brazil.

4. In considering the value of the applicant’s proposed course of study to the applicant’s future, in particular the matters set out above, the Tribunal finds:

   a.    The applicant’s proposed course of study represents a regression in relation to the qualifications held by the applicant.

   b.    In considering the applicant’s existing and attained qualifications, the similarity in the applicant’s proposed course of study, and the absence of arranged future employment, the applicant’s proposed course of study is of limited value in relation to improving the applicant’s employment prospects or career aspirations.

   c.    The applicant’s proposed course of study is relevant to both the applicant’s previous employment and proposed future employment.  In considering the value of the course to the applicant, the applicant’s existing qualifications, and the similarity of the course to the previous courses completed by the applicant in Australia, the Tribunal considers that if the applicant genuinely holds the career aspirations as claimed, her existing qualifications and experience would enable her to return to Brazil to implement those plans without further delaying her return to obtain a further qualification with limited value in relation to improving the applicant’s employment prospects.

   d.    The Tribunal accepts the applicant’s cost of living in Brazil is likely to be less than in Australia. The remuneration the applicant anticipates earning on her return to Brazil is comparatively less than the income the applicant earns in Australia on the basis of working 20 hours per week part-time. 

   e.    There is no evidence before the Tribunal of the comparative salary the applicant may obtain in Australia and her home country using the qualifications sought by the applicant.  The Tribunal therefore makes no findings in that regard.

1. Other than the applicant’s Australian visa history as set out in the delegate’s decision record, the applicant has not applied for any other visas to Australia.

2. The applicant told the Tribunal she has not applied for visas to other countries except for tourist visas to Thailand and Indonesia.  The applicant told the Tribunal that she had also obtained a visa to the United States of America but had not travelled there.  Other than the student visa currently under review before the Tribunal there are no circumstances of undetermined, cancelled or suspended visas.

3. The applicant told the Tribunal that she has complied with the immigration laws of other countries to which she has travelled.

4. The applicant has been in Australia since January 2017, undertaking a series of short and inexpensive courses in the vocational training sector.  The Tribunal was concerned that the applicant was enrolling in these courses for the primary purpose of maintaining her residence in Australia.  The applicant told the Tribunal this was not the case and her intention was always about study and it is her intention to study hospitality in Australia and return to a house, family, and beautiful country in Brazil. 

5. The secondary applicant told the Tribunal that his partner keeps studying in Australia to obtain good skills with the intention to return to Brazil. 

6. In considering the applicant’s pattern of enrolment, existing bachelor qualifications, and qualifications already obtained in Australia, the limited benefit the proposed course of study provides the applicant, having regard to the content of the Certificate III in Hospitality and Diploma of Hospitality already attained, the Tribunal considers the applicant is primarily using her student visa to maintain her residence in Australia.

7. In considering the applicant’s immigration history for the purposes of this application, the Tribunal finds:

   a.    Other than the Australian visa applications set out in the delegate’s decision record, the applicant has not applied for other visas to Australia or any other countries except for the purposes of tourism as set out above.

   b.    Other than the current application for a visa under review by the Tribunal, the applicant has not had any visas refused, cancelled or undetermined.

   c.    Prior to the applicant first travelling to Australia in 2017, the applicant has not previously travelled to Australia.

   d.    Except for the return travel to Indonesia and Thailand for the purposes of tourism, the applicant has not travelled to other countries from Australia or to Australia from other countries since arriving in 2017.  

   e.    The applicant has been resident in Australia since 20 January 2017, undertaking a series of short and inexpensive courses in English and hospitality.  The applicant’s proposed course of study is relatively similar to the Diploma of Hospitality and Certificate III of Hospitality already attained and is a regression from the Bachelor of Hospitality and Tourism already held by the applicant.  The proposed course of study is of limited value to the applicant in relation to improving her employment prospects and the applicant has already attained similar qualifications in the vocational education sector which fulfil the applicant’s stated intention of obtaining practical training in the hospitality sector.  For these reasons the Tribunal finds the applicant is using her student visa primarily to maintain residence in Australia.

8. The applicant is not a minor and it was not necessary to consider the intentions of their parent, legal guardian or spouse of the applicant.  There was no evidence before the Tribunal in relation to these matters and the Tribunal makes no such findings.

9. As required by Ministerial Direction 69, the Tribunal invited the applicant to make submissions in relation to any other relevant matter for the purposes of assessing the application.  No other relevant matters were raised by the applicant at the hearing.

10. The Tribunal had regard to all the factors in Ministerial Direction 69 in considering the applicant’s circumstances as a whole and in making its findings and is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

11. For cl.500.212 to be satisfied, subparagraphs (a), (b) and (c) must all be satisfied. Given the Tribunal has found that subparagraph (a) is not met, it is not necessary to consider subparagraphs (b) and (c). Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

12. 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.

    Secondary applicant

13. As the applicant does not satisfy the criteria for grant of a Subclass 500 visa, the Tribunal finds that the second named applicant does not satisfy cl.500.311 because he is not a member of the family unit of a person who holds a Subclass 500 visa granted on the basis of satisfying the primary criteria.

    DECISION

14. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Glenn O'Brien
    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.