FRANCISCO (Migration)

[2019] AATA 3056

FRANCISCO (Migration) [2019] AATA 3056 (25 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Joseph Aldrin Francisco

CASE NUMBER:  1720439

HOME AFFAIRS REFERENCE(S):          BCC2017/2422793

MEMBER:Frank Russo

DATE:25 June 2019

PLACE OF DECISION:  Sydney

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

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 25 June 2019 at 4:17pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine applicant for entry and stay as a student– experienced bullying and harassment in home country – satisfactory study progress – a credible witness – applicant is currently enrolled – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212, 500.218, 500.611

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 21 August 2017 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 7 July 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

4. The applicant appeared before the Tribunal on 30 May 2019 to give evidence and present arguments.

5. The applicant was assisted in relation to the review.

   BACKGROUND

6. The applicant is a 24-year-old national of the Philippines.

7. The applicant first arrived in Australia on 17 May 2017 on a Tourist visa. On 7 July 2017 he applied for a Student visa onshore to undertake a Certificate III in Travel and a Diploma of Travel and Tourism Management.

8. In addition to the application form, the applicant provided the Tribunal with a number of other documents, as follows:

   a.A s.359(2) response from the applicant, provided on 26 March 2019;

   b.Confirmations of Enrolment for the Certificate III in Travel, the Diploma of Travel and Tourism Management and the Advanced Diploma of Business at Bridge Business College;

   c.Interim Student Transcript for the Diploma of Travel and Tourism Management, issued by Bridge Business College on 15 April 2019;

   d.Undated Academic Attendance Record for the Certificate III in Travel and Diploma of Travel and Tourism Management issued by Bridge Business College;

   e.Tuition fee record and payment receipts for tuition fees, issued by Bridge Business College;

   f.Western Union payment records for payments made by the applicant’s father to the applicant, dated from 30 August 2017 to 2 April 2019;

   g.Copies of identity cards, birth certificate and passport of the applicant’s father;

   h.Bank Certification documents for the applicant’s father’s bank account details; and

   i.Insurance policy covering the applicant.

9. The Tribunal has had regard to these documents. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

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

12. 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?

13. 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.

14. 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.

15. The applicant first arrived in Australia on 17 May 2017. At that time he was an employee of Cebu Pacific Air in the Philippines. He commenced working as a ground baggage handler in May 2016 and worked at Cebu Pacific Air until he resigned in May 2017, after his arrival in Australia. The applicant told the Tribunal that he had won a prize in a raffle which was run for employees of Cebu Pacific Air. The prize consisted of tickets for domestic travel within the Philippines. The applicant told the Tribunal that instead of using the prize for domestic travel, his family decided to travel to Australia for a holiday and paid the difference in cost themselves. He travelled to Australia with his father and two siblings, who returned to the Philippines at the conclusion of their planned holiday.

16. Upon arriving in Australia the applicant became aware of the potential opportunities to study in Australia, and therefore made a Student visa application while onshore. The courses which were the subject of his application were a Certificate III in Travel and a Diploma of Travel and Tourism Management.

17. The applicant told the Tribunal that he did well in his studies in high school. However, he came out as a gay man during his first year of university, and subsequently experienced bullying and harassment for the remainder of his university studies. He told the Tribunal that he consequently found it difficult to focus on his studies. Although he finished university in the Philippines in March 2016 and obtained a Bachelor of Science in Tourism Management, he was not satisfied with his university results and found that he was not able to obtain employment at the level which he desired. After his arrival in Australia as a tourist, he saw the opportunity to pursue studies in an environment which would be more supportive and free from bullying and harassment.

18. The applicant told the Tribunal that after he arrived in Australia he conducted his own internet research into potential colleges, and after narrowing down his options, he visited three schools, Bridge Business College, Cordon Bleu Institute Australia and Strathfield College. He stated that he chose to study in Travel initially because he had experience working in the travel industry. He enrolled in a Certificate III in Travel at Bridge Business College.

19. Adopting the procedure in s.359AA of the Act, the Tribunal put to the applicant that it had on file a copy of his enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal provided the applicant with a copy of his PRISMS enrolment records. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records and advised that he may be granted time to comment on or respond to the information if needed.

20. The applicant indicated that he wished to respond to the PRISMS record at the hearing. He indicated that the record was correct, although he stated that he completed the Diploma of Travel and Tourism Management on 12 May 2019. The PRISMS record indicates that the applicant is not due to complete this course until 29 June 2019. The Tribunal accepts the applicant’s evidence as to the completion of this course. On this basis the Tribunal finds that the applicant has enrolled in the following courses in Australia:

    a.Certificate III in Travel, commenced on 26 June 2017 and completed on 15 September 2018;

    b.Diploma of Travel and Tourism Management, commenced on 17 September 2018 and completed on 12 May 2019; and

    c.Advanced Diploma of Business, commenced on 20 May 2019, in which he is enrolled until 7 November 2020.

21. The Tribunal questioned the applicant as to why he has now enrolled in the Advanced Diploma of Business following the completion of his tourism-related studies, which were the subject of his Student visa application. The applicant stated that he intends to use this qualification in several ways. The first is to assist his father in developing his business. His father runs a business where he delivers vegetables to marketplaces. Secondly, he intends to open his own travel agency in the Philippines. In addition, the applicant told the Tribunal that the further study he is undertaking will increase his opportunities of finding higher paid work in the Philippines, where overseas qualifications are highly regarded. He stated that upon completing the Advanced Diploma of Business he intends to return to the Philippines to look for work, and stated that he believes this qualification would be of value to work within the business, travel and government sectors.

22. Having considered all the material before it and the relevant factors as set out in Direction 69, the Tribunal is satisfied that the applicant genuinely intends to stay in Australia temporarily for the reasons set out below.

23. The Tribunal is satisfied that the applicant has reasonable reasons for undertaking his current studies in Australia rather than the Philippines. While the applicant’s business ideas are at an embryonic stage, the Tribunal accepts his reasons as to why he sees Australia as a better environment in which to obtain well-regarded qualifications and improve his career and remuneration prospects in his home country, particularly in light of the bullying and harassment which he experienced during his undergraduate studies in the Philippines and the effect this had on his ability to focus on these studies. The Tribunal accepts that the applicant is dissatisfied with the results of his undergraduate studies and desires to obtain international qualifications which may boost his employment opportunities on his return to his home country.

24. The Tribunal also notes that despite the visa refusal that applicant has performed in a manner expected of a student visa holder in Australia, and progressed in his studies to complete the Certificate III in Travel and the Diploma of Travel and Tourism. At the time of the hearing he had commenced studies in the Advanced Diploma of Business, thus showing progression within the Vocational Education and Training Sector. The applicant has provided copies of his attendance records for the Certificate III in Travel and the Diploma of Travel and Tourism Management, which for each month were 100%, bar two months when his attendance was recorded as 83%.

25. As to his family ties, the applicant has a father and two siblings who all live in the Philippines. His mother has passed away. His sister is studying Law and his younger brother is an electrical engineer. His father, in addition to having a vegetable transport business, is a local councillor. He stated that he has not returned to visit his family since arriving in Australia as he has been on a Bridging visa following the expiry of his Tourist visa, and therefore unable to depart Australia. His father has however visited him since his initial trip to Australia in 2017, and he maintains regular contact with his family through phone calls, Messenger and Viber. The applicant confirmed that he has no family ties within Australia and is not in a relationship.

26. As to his economic circumstances, the applicant gave evidence that he has not worked in Australia. He is supported by his father, who provides him with an allowance which covers his living expenses and his tuition fees. This is supported by the banking records of the applicant’s father, as well as the Western Union receipts, which evidence the transfer of funds to the applicant on an approximately monthly basis from 30 August 2017 to 2 April 2019.

27. The Tribunal raised with the applicant the concerns raised in the delegate’s decision, including querying why the applicant would forego full-time employment in the Philippines in order to study in Australia. The applicant explained that he had worked as a ground baggage handler and was not satisfied with this as a career. The Tribunal notes that the applicant had worked in this role for twelve months and accepts his evidence that he was not satisfied with this role and has a desire to obtain overseas qualifications which he hopes will assist him in improving his employment and business prospects upon his return to his home country.

28. There is no evidence of any military service or civil or political incidents that would act as an incentive for the applicant to remain in Australia. Although the applicant told the Tribunal about the discrimination which he faced in college in the Philippines, the applicant gave evidence that he is supported by his family and that he intends to use his additional qualifications to help overcome discrimination which he might otherwise face in the Philippines as a result of his sexuality.

29. As to the applicant’s circumstances in Australia, he told the Tribunal that he was living in share accommodation. He has met some friends at his college, but has no other ties. The applicant stated in his s.359(2) response that he has done some volunteer and community involvement with the LGBTQI community in Sydney, however the Tribunal does not consider that this, in the absence of other family, relationship or economic ties would present as a strong incentive to remain in Australia. As noted above, the applicant has not worked in Australia and has been supported financially by his father since his arrival in May 2017. The applicant’s circumstances in Australia do not indicate to the Tribunal that he is building a career or a long-term life in Australia, rather that he is involving himself in events in the local community while he has the opportunity to do so.

30. There is no evidence that the applicant has entered into a relationship of concern. There is insufficient evidence before the Tribunal regarding the applicant's circumstances in the Philippines, relative to others in that country, and the Tribunal makes no adverse findings in that regard. There is also insufficient evidence of the remuneration the applicant could expect to receive in his home country or a third country, compared with Australia.

31. The Tribunal has considered whether the applicant may be using the student visa programme to circumvent the intentions of the migration program or to maintain ongoing residence, but considers there is insufficient evidence to support such findings, particularly given the applicant’s economic circumstances and lack of other compelling reasons to remain in Australia other than his stated intention of completing his current studies. The Tribunal has considered the applicant’s initial arrival in Australia on a Tourist visa, and his subsequent onshore application for a Student visa. The Tribunal considers his initial arrival in Australia following a raffle ticket win to be not only relatively unique, but also considers that this goes a significant way towards explaining the applicant’s lack of forward planning in making a Student visa application prior to his arrival. The Tribunal overall found the applicant to be a credible witness, who gave his evidence in a sincere and coherent manner. The Tribunal accepts the applicant’s evidence as to his change of travel plans following his initial trip to Australia with his family. The Tribunal is also satisfied that the applicant has a good level of knowledge of living in Australia, of his course of study and of his education provider.

32. There is no evidence that the applicant has not complied with previous visas or that he has previously held visas that were refused, cancelled or considered for cancellation. The immigration history of the applicant does not raise concerns for the Tribunal.

33. Therefore having considered the particular circumstances of the applicant in accordance with the relevant considerations in Direction 69, the Tribunal finds that the applicant meets the genuine temporary entrant criterion. The Tribunal notes in particular the applicant’s explanations for his studies and his change in plans, as well as the substantial progress he has been making with his studies. The Tribunal also considers that his economic circumstances in particular suggest that the applicant intends to stay in Australia only temporarily.

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

    Does the applicant intend to comply with visa conditions?

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

36. 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).

1. The applicant has provided with his visa application an undertaking to comply with any conditions the subject of which the visa is granted. There is no evidence to demonstrate that this would not be the case. 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).

2. 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?

3. 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)).

4. There is no evidence before the Tribunal of any other relevant matter that gives rise to a concern by the Tribunal that the applicant is not a genuine applicant for entry and stay as a student.

5. 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.

6. 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

7. 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.

   Frank Russo
   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.