Enescu (Migration)

[2021] AATA 2199

Enescu (Migration) [2021] AATA 2199 (4 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Catalin-Constantin Enescu

CASE NUMBER:  1930666

HOME AFFAIRS REFERENCE(S):          BCC2019/4212891

MEMBER:David Thompson

DATE:4 June 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 04 June 2021 at 12:25am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – current enrolment – evidence of study progress – residential property ownership in home country – plans to start a business in Romania – decision under review remitted   

LEGISLATION

Migration Act 1958, ss 65, 359; Direction No 69
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 15 October 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 25 August 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

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

4. The applicant appeared before the Tribunal on 11 December 2020 to give evidence and present arguments.

5. The applicant was assisted in relation to the review by their registered migration agent.

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

   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 meets the requirements of cl.500.212.

   Evidence

8. As was noted above, the applicant gave oral evidence at hearing. In addition, and before hearing, he provided a number of items of relevant documentary evidence to the Tribunal. Those items of evidence were:

   a.the delegate’s decision record dated 15 October 2019;

   b.a completed ‘Request for Student Visa Information form (M 17), provided in response to a request made by the Tribunal pursuant to s.359(2) of the Act;

   c.identification pages from the applicant’s passport;

   d.a statement of attainment issued by AIWT on 12 December 2019, regarding the applicant’s completion of first aid courses;

   e.a record of the applicant’s absences from his Certificate III and IV in Commercial Cookery courses;

   f.Confirmation of Enrolment (CoE) AE1A0283, in respect of the applicant’s enrolment in a Certificate III in Commercial Cookery course at Kingston International College, scheduled to start on 16 September 2019 and to end on 16 August 2020;

   g.a certificate of completion issued by Kingston International College dated 29 September 2020, and stating that the applicant had completed all requirements for his Certificate III in Commercial Cookery, with transcript of results attached;

   h.CoE AE1A1811, in respect of the applicant’s enrolment in a Certificate IV in Commercial Cookery course at Kingston International College, scheduled to start on 14 September 2020 and end on 15 March 2021;

   i.letters dated 20 October 2020 from Kingston International College, stating that the applicant had completed all units in his General English Program, his Certificate III in Commercial Cookery course and his Certificate IV in Commercial Cookery course;

   j.CoE AE1A2B85, in respect of the applicant’s enrolment in a Diploma of Hospitality Management course at Kingston International College, scheduled to start on 12 April 2021 and 2 finish on 7 November 2021;

   k.CoE 9D297592, in respect of the applicant’s enrolment in general English (Beginner to Upper Intermediate) course at Kingston International College, scheduled to run from 16 July 2018 to 12 July 2019;

   l.a certificate of achievement issued by Kingston International College, stating that the applicant had successfully completed a General English course between 16 July 2018 and 26 July 2019, at the Upper-Intermediate level (with graduation report attached);

   m.an IELTS test report form dated 27 July 2019, giving the applicants results in an English test held on that date;

   n.a letter of offer from Kingston International College to the applicant dated 15 August 2019, offering him a place in a package of hospitality courses;

   o.a statement issued by Kingston International College for the period 20 November 2019 to 19 October 2020, showing payment of the applicants course fees;

   p.a certificate of achievement dated 22 June 2018 certifying that the applicant has completed full-time studies in general English between 4 June 2018 and 22 June 2018 at Perth International College of English (with report of results attached); and

   q.a letter from Kingston International College (undated) giving a performance and character reference for the applicant.

9. Prior to hearing, the Tribunal obtained and considered the Department’s file on the applicant’s student visa application. That file contained the following relevant documents not already listed:

   a.the applicant’s student visa application;

   b.a letter from ANZ bank giving an account balance for an account held in the name of Mrs CG Dumitrescu;

   c.identity pages from Mrs Dumitrescu’s Australian passport;

   d.the applicants son’s Romanian birth certificate, dated 29 September 2009;

   e.Mrs Dumitrescu’s Western Australian driver’s licence and Australian pensioner concession card;

   f.identity pages from the Romanian passport of Ms Ana-Maria Enescu;

   g.a letter from ING Bank dated 14 July 2019, giving a balance for an account held by the applicant at that bank;

   h.a copy of the applicant’s academic record from Spiru Haret University of Bucharest, Faculty of Economics, setting out the results of the applicant studies between 1998 and 2004;

   i.the applicant’s Romanian identity card;

   j.a Genuine Temporary Entrant statement made by the applicant for the purposes of his visa application, undated;

   k.pages from the applicant’s Romanian passport; and

   l.the applicants Romanian marriage certificate, showing his marriage to Ms Ana-Maria Tudorescu (now Enescu) on 22 October 2005.

10. The Tribunal also obtained the applicant’s movement record, and record from the Provider Registration and International Student Management System (PRISMS) prior to hearing. Those documents merely confirmed the applicant’s evidence on the points on which they touched. There was, consequently, no need to put those records to the applicant at hearing pursuant to s.359AA of the Act.

11. In what follows, where it is necessary to refer to documents listed above, they will be referred to by their paragraph number. Thus, ‘document 8(a)’ will refer to the document listed in paragraph 8(a), and so on.

    Findings

12. on the basis of the applicant’s oral evidence at hearing, and the documentary evidence noted above, the Tribunal makes the following findings of fact:

    a.The applicant is a Romanian citizen and, at the date of this decision, is 49 years old.

    b.He is married, and has an 11-year-old son. His wife and son, his parents, and his brother (who has his own family including a 12-year-old daughter) all live in Romania. The applicant contact his wife and son daily, usually by video call.

    c.The applicant has no community involvements in Romania.

    d.He owns an apartment in Romania, and has various personal items there along with savings of approximately AUD30,000.

    e.The applicant has completed the academic requirements for a degree in marketing at the Spiru Haret University in Bucharest, but did not take the degree because he did not sit his final examinations.

    f.The applicant has a history of employment in Romania starting in 1993 and finishing in 2009. He has worked for a number of companies, usually in a sales or management position.

    g.There has completed all of his military service obligations in Romania, and has no concerns regarding civil or political unrest in that country.

    h.The applicant has relatives in Australia, being an aunt and her 2 children, his cousins. The applicant has been living with them whilst in Australia.

    i.The applicant has no property in Australia, and no community involvements.

    j.The applicant has a record of employment in Australia, having worked as a casual van driver between August 2018 and October 2019, and since October 2020 as a chef. The applicant has in the past travelled to the United States of America and Canada on business, and to Indonesia as a tourist.

    k.The applicant first arrived in Australia on 15 August 2015, as the holder of a tourist visa. He departed the country on 6 September 2015. He made a further visit to Australia as a tourist on 30 April 2016, departing on 19 May 2016.

    l.On 12 May 2018 the applicant arrived in Australia on an electronic travel authority (TV-651). He was granted a student visa (TU-500) on 23 July 2018, in order to study English. He successfully completed an English course at Kingston International College on 26 July 2019.

    m.On or about 15 August 2019, the applicant enrolled in a package of hospitality courses at Kingston International College. Those courses were as follows:

    i.Certificate III in Commercial Cookery, starting on 16 September 2019 and ending on 16 August 2020;

    ii.Certificate IV in Commercial Cookery, starting on 14 September 2020 and finishing on 15 March 2021;

    iii.Diploma of Hospitality Management, starting on 12 April 2021 and finishing on 7 November 2021.

    n.The applicant has made 2 visits to Romania since arriving in Australia in May 2018. The first journey was made between 15 September 2018 and 1 October 2018, and the second between 2 January 2019 and 7 January 2019.

    o.The applicant has now successfully completed the first 2 of his hospitality courses, and is studying towards his Diploma of Hospitality Management. He is due to finish that course in line with his original enrolment on 7 November 2021.

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

13. 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?

14. 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.

15. 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.

    Consideration

16. The Tribunal’s basic findings regarding the applicant’s circumstances in his home country set out above. On the strength of those findings, the Tribunal is satisfied that his personal ties to his home country give him a significant incentive to return their studies. His economic ties, principally the fact that he owns residential property in his home country, only served to bolster that conclusion. There is nothing in the evidence before the Tribunal that suggests any economic circumstances providing the applicant with a significant incentive to avoid returning to his home country. Although he has found work in Australia, that work has been casual and relatively remunerative. Indeed, on the applicant’s evidence some of his work has been performed as part of the practical component of his studies, and he has not been paid for it.

17. The Tribunal is also satisfied that the applicant has no military service commitments, or concerns regarding civil and political unrest in his home country, that would provide him with an incentive not to return there.

18. At hearing, the Tribunal asked the applicant whether he could have studied hospitality in Romania. His response was that the only courses available were short-term courses, between 4 and 5 months long at maximum. He also said that most chefs working in his home country take their courses abroad, because Romanian diplomas in the area are not well regarded or considered to be worth much. The applicant also referred to his view (which may or may not be correct, but which the Tribunal is satisfied the applicant sincerely holds) that having foreign experience in the hospitality industry significantly increases one’s chance of obtaining good employment in Romania. The Tribunal finds these to be reasonable motives to decide to study in Australia.

19. The applicant has, as was noted above, some family in Australia. He is clearly sufficiently close to them to be able to live with them while he is here. However, the Tribunal is satisfied that these family connections are not so strong as to provide the applicant with any serious incentive to stay in Australia once you have finished your studies. The Tribunal has found that the applicant has no community ties or assets in Australia. These cannot, therefore, provide him with an incentive to stay in this country. The applicant has a history of employment in Australia, as noted above, but the nature of that employment can hardly compare with the positions he held his home country, and can hardly be considered remunerative enough to provide with any incentive to stay in Australia.

20. There is no evidence before the Tribunal that the applicant has entered into any relationship concern, in the sense of a relationship contrived or contracted in order to increase the chances of a successful Australian visa outcome. Indeed, the Tribunal’s findings as to the applicant’s family situation Romania tend strongly against any such conclusion.

21. The applicant had made two visits to Australia before coming to this country to study. He also has relatives who have lived in Australia for a long period, and are Australian citizens. When the applicant came to Australia to study, therefore, he had already experienced Australian life to some extent, and had a ready source of information on it. The applicant was asked at hearing how he chose this course providers once he had decided to study hospitality. His response was that he had originally come to Australia to study English, because he needed it to advance his career in Romania. He said that he had always had an interest in being a chef, and that once he had started studying at Kingston International College he had realised that the college also offered hospitality courses. He took the opportunity to investigate the facilities and courses on offer, and to speak to staff members. It was on that basis that he made his decision to enrol in his hospitality package. The Tribunal is satisfied that this represents a sufficient level of research into the applicant’s courses.

22. There is no evidence before the Tribunal suggesting that the applicant is using the student visa program to circumvent the intentions of the Australian migration program, or to maintain ongoing residence in Australia.

23. The Tribunal is satisfied that the applicant’s circumstances in his home country, and its potential circumstances in Australia, give strong support his claim to intends genuinely to return to his home country once he has finished his studies.

24. At hearing, the applicant was asked about his intentions once he has finished his courses. He stated that, ultimately, he aimed to return to Romania and open a restaurant as a family business. He explained that he had worked in sales for many years and was tired of it. He said that he wished to build something for his family that he can enjoy working in. The applicant’s current studies are clearly at a lower level than their university studies he undertook in Romania. However, they are also studies in a completely different area. They are obviously directly relevant to his stated plans once he returns to Romania. In that regard, the applicant was asked whether he had made any preparations to start his business in Romania. He said that he had investigated some possible premises, and had looked into renting equipment when he had been able to return to Romania, but that the COVID-19 pandemic had made it impossible to do anything more to prepare. He also said that it was still a little early to make concrete preparations, as he still had studies to complete.

25. The applicant was asked at hearing what remuneration he could expect to make in Romania using his Australian qualifications. He responded that working as a chef, he thought he could earn the equivalent of approximately AUD2,000 per month. However, he said he would hope to earn a good deal more working in his own business. The Tribunal notes the applicant’s evidence that now he has finished his practicum he is being paid AUD18 per hour, for 15 hours per week. At that hourly rate, he could earn a little more working full-time in Australia, but not so much more that he would have any particular incentive to stay in this country.

26. The Tribunal finds that the applicant’s courses have a real value for his future, and that this lends considerable support to his claim to intends generally to return to his home country at the end of his studies.

1. The applicant has given evidence, which the Tribunal accepts, that he has travelled to several other countries as well as Australia. He was also given evidence, verified in his movement record, of earlier visits to Australia. There is no evidence before the Tribunal that the applicant has ever been refused a visa to enter any country for any substantive reason (it should be noted that the applicant disclosed some difficulties obtaining his earlier visitors visas, caused by failure to provide sufficient documentation in support of his applications). There is no evidence before the Tribunal that the applicant has any other Australian visa application on foot, and no evidence that he has ever had a visa granted to him cancelled or considered the cancellation. Nor is there any evidence before the Tribunal suggested that the applicant has breached the migration laws of Australia or any other country.

2. The applicant has now been in Australia for approximately 3 years. Given the courses he has undertaken, the Tribunal considers that a reasonable length of stay. It does not indicate, in Tribunal’s view, an intention to remain in Australia permanently. The applicant has in studying English, and thereafter studying other VET level. In that context, the Tribunal finds that he has been pursuing courses that are neither short nor inexpensive. The Tribunal notes that the applicant has passed all of his courses to date.

3. All of these aspects of the applicant’s immigration history are consistent with the conduct of a person genuinely intending to stand Australia temporarily. The Tribunal finds that they give considerable support to the applicant’s contention that he is such a person.

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

   Does the applicant intend to comply with visa conditions?

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

6. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed in some cases (cl.500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).

7. At hearing, the applicant stated that he intended to comply with any conditions that might be placed on his student visa, should he be granted one. There is no evidence before the Tribunal of the applicant ever having breached a condition placed on any of his previous visas.

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

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

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

10. One relevant matter to be considered under this head is the requirement imposed by the chapeau of cl.500.212 of Schedule 2 of the Regulations, to the effect that the applicant must be a genuine applicant for entry and stay as a student. The Tribunal notes that, on its findings made above and evidence before it, the applicant has continued to study despite the refusal of his student visa application, and has finished all of his courses except his last. His PRISMS record shows that he has done so without cancellation of his enrolments, and without any other kind of interruption also. The Tribunal finds that these matters indicate that the applicant is a genuine student, and has applied for his student visa so that he may stay in Australia (temporarily) as a student. The Tribunal is satisfied that the applicant meets this requirement.

11. Accordingly, the Tribunal is 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 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

13. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations.

    David Thompson
    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.