GHARTI MAGAR (Migration)

[2019] AATA 6404

GHARTI MAGAR (Migration) [2019] AATA 6404 (2 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  LOKENDRA GHARTI MAGAR

CASE NUMBER:  1715370

HOME AFFAIRS REFERENCE(S):           BCC2017/1035260

MEMBER:T. Quinn

DATE:2 November 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 02 November 2019 at 3:44pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – satisfactory course progress – applicant delayed commencement of studies – limited details of career prospects – maintaining ongoing residency in Australia – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359, 363; Direction No 69
Migration Regulations 1994, Schedule 2 cls 500.211, 500.212; r 1.03

CASES

Baker v Minister for Immigration and Citizenship [2012] FCAFC 145
Chen v Minister for Immigration and Border Protection [2017] FCA 46
Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345
FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555
Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2001] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (‘the delegate’) on 28 June 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicant applied for the visa on 15 March 2017 (‘the application’).   At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The applicant applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. On 28 June 2017, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that the applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

4. On 17 July 2017, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.

5. The applicant was assisted in relation to the review by their registered migration agent; however the Migration Agent’s registration lapsed on 17 July 2017.  The applicant has been directly notified by the Tribunal of the lapsing of their migration agent’s registration but has failed to provide an updated or alternative address for service and as such the migration agent’s details remain the last address provided by the applicant in connection with the review.

6. More than 28 months have elapsed since the making of the delegate’s decision and the applicant’s application for review with the Tribunal. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed during that time. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information to the Tribunal for the purposes of determining the outcome of their application for review. To this end, on 9 January 2019, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’). The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by the prescribed date, being 23 January 2019, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. Given the Migration Agent’s registration lapsing, the Tribunal wrote to the applicant on 8 October 2019, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’). The invitation was sent to the last address provided in connection with the review (being the Migration Agent’s address) as well as to the applicant directly, and advised that, if the information was not provided in writing by the prescribed date, being 22 October 2019, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The Tribunal is satisfied that the applicant was properly sent an invitation to provide further information under section 359(2) of the Act.

7. The review applicant did not provide the information within the prescribed period or otherwise and no extension of time was requested. Where a review applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action.[1] 

   [1] Pursuant to section 359C(1) of the Act.

8. The Tribunal finds that the review applicant did not provide further information as requested. In these circumstances, section 359C of the Act applies and pursuant to section 360(3) of the Act the review applicant is not entitled to appear before the Tribunal. The effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear.[2]

   [2]           Hasran v MIAC [2010] FCAFC 40.

9. The Tribunal, therefore, has no additional information relating to the applicant’s visa application beyond that which was before the delegate on 28 June 2017 and is otherwise discernible from the delegate’s decision and Department file.

10. The Tribunal has considered whether, in the circumstances of this case, information that the review applicant meets the requirements of the Act and Regulations is likely to be forthcoming and whether the review applicant has had a fair opportunity to provide relevant information already.

11. The Tribunal has given consideration to whether it should adjourn the review under section 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal has had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs[3] and Manna v Minister for Immigration and Citizenship[4] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.  It has also had regard to Minister for Immigration and Citizenship v Li[5] regarding reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[6] which considered analogous issues, as well as the decision of Kaur v Minister for Immigration and Border Protection.[7]

    [3] [2002] FCA 617.

    [4] [2001] FMCA 28.

    [5] [2013] HCA 18 (8 May 2013).

    [6] [2014] FCAFC 1 (4 February 2014).

    [7] [2014] FCA 915 (28 August 2014).

12. In these circumstances, for the reasons set out in this decision record above, the Tribunal considers that the review applicant has had a fair opportunity to provide relevant information.

13. Accordingly, the Tribunal has elected not to exercise its discretion under section 363(1)(b) of the Act to adjourn the review any further to allow the review applicant more time. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information it has before it, including the information previously provided by the applicant to the Department and the Tribunal.

14. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.

15. The Tribunal has proceeded to a decision having had regard to all the information before it, including the information previously provided by the applicant to the Department but without taking further steps to obtain the additional information sought by this Tribunal under section 359(2) of the Act.

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

    STATUTORY FRAMEWORK

17. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant.

    Enrolment (clause 500.211)

18. Clause 500.211 requires that at the time of this decision the applicant is enrolled in a course of study: clause 500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.

19. ‘Course of study’ is relevantly defined in clause 500.111 of the Regulations as a ‘full-time registered course’. Registered course’ is defined in rule 1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

    Genuine Temporary Entrant (clause 500.212)

20. 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?

21. In considering whether the applicant satisfies clause 500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (‘the Direction’), made under section 499 of the Act. The Direction requires the Tribunal to have regard to a number of specified factors in relation to:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

22. 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.

23. The Direction is a lawful direction of the Minister made in accordance with section 499 of the Act. The Tribunal is therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[8]  Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before the Tribunal.  The Tribunal, however, recognises that it is an independent statutory body.  It must therefore reach its own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. The applicant is a 26 year old male Nepalese citizen who first arrived in Australia in December 2013 on a TU573 Higher Education Sector visa to undertake a Bachelor of Science in Information Technology under the Streamlined Visa- Processing arrangements.[9]  However, the applicant’s enrolment in that course was cancelled in March 2015 due to non-commencement of studies.[10]  The delegate’s decision outlines that the applicant then commenced a Diploma of Business but ceased that course in August 2016 and did not commence any other study until he started a Bachelor of Business (Accounting) in March 2017, indicating a period of seven months during which the applicant remained onshore on the basis of a student visa but was not in fact studying or enrolled to study.  This conduct was in breach of the applicant’s visa conditions requiring that he remain enrolled in a higher education sector course and make adequate course progress.  This is of great concern to the Tribunal and raises questions about the applicant’s intentions and whether he will adhere to and abide by conditions of any visa granted. 

    [9]           See delegate’s decision.

    [10]          See delegate’s decision.

25. The delegate’s decision also indicates that in October 2015, the applicant was reported to the Department of Immigration and Border Protection by his course provider for not achieving satisfactory course progress.

26. In addition, it appears that since his arrival nearly six years ago, the applicant has only actually completed one English course.[11]  This again raises concerns about the applicant’s true intentions in residing onshore and whether he is motivated by factors other than study as it is not the behaviour or academic progress one would expect of a genuine student.

    [11]          See delegate’s decision.

27. On 15 March 2017, the applicant lodged the application which is the subject of the present review.  This application was to undertake a Bachelor of Business (Accounting) – which course was enrolled in on the exact same day as the applicant’s application was made to the Department.[12]  The timing of the applicant’s enrolment and application raise concerns for the Tribunal that the applicant may be motivated by factors other than study in seeking his student visa.  So far as the Tribunal can ascertain from the material before it, it appears that the applicant has not returned to his home country since his arrival in December 2013.[13]

    [12]          See delegate’s decision.

    [13]          See delegate’s decision and applicant’s application at page 7 of the Department file.

28. Prior to coming to Australia, the applicant completed secondary school in Nepal.[14]  Since arriving in Australia, the applicant has states he in not employed and is a ‘student’;[15] however the delegate’s decision refers to VEVO checks having been undertaken by employers which is usually a good indication of employment onshore.  This again raises concerns as to whether the applicant is being forthright in the information he has provided to the Department.

    [14]        See page 9 of the Department File.

    [15]        See page 8 the Department File.

29. The form completed by the applicant in his application for the current student visa included a section to be completed by the applicant headed ‘Genuine temporary entrant’. It is a critical part of the form that requests the applicant to provide information demonstrating that they meet the genuine temporary entrant criteria prescribed by the Regulations. The applicant merely stated “THE GTE IS ATTACHED”.[16]  Nothing further was stated by the applicant and no supporting documents were included with their application, save that the applicant stated that his future employment intentions were as follows: ‘WILL BE LOOKING FOR TOP JOBS IN ACCOUNTING FIELD IN MY HOME COUNTRY AFTER COMPLETING THIS COURSE’.[17]The consequences of this are that, aside from this statement, the Tribunal has no submissions from the applicant before it in relation to:

    a.their reasons for not undertaking the study in their home country;

    b.their knowledge of their intended course and the research they have undertaken into their proposed course of study and course provider;

    c.how the proposed courses will assist them obtain or improve their employment prospects in their home country;

    d.the relevance of the proposed courses to their employment;

    e.the remuneration they could expect to receive using the qualifications to be gained.

    [16]          See page 10 of the Department file and delegate’s decision.

    [17]          See page 18of the Department file and delegate’s decision.

30. The Tribunal acknowledges that a Bachelor of Business (Accounting) is likely to be relevant to and assist and improve an applicant’s employment prospects in a job in an accounting field, the Tribunal cannot make any firm conclusions in this regard as the applicant has not provided any information on whether he has continued to engage with his study in this degree and/or what sort of academic progress he has made.  The Tribunal holds real concerns, given the applicant’s study history, that the applicant is not so engaging.

31. Further, although the Tribunal allows for reasonable changes in career and study pathways, the applicant has made a significant change to his study area from Science/Information Technology to Business/Accounting without proffering an explanation for same.  The Tribunal is puzzled by this. 

32. The Tribunal acknowledges that the proposed study is consistent with the applicant’s current level of education.

33. Given the failure of the application to provide a genuine temporary entrant statement, the Tribunal cannot properly assess specifically how the proposed course will assist and improve his future career prospects or what sort of remuneration he could expect to receive using the qualifications gained.  The applicant has not supplied any confirmation of enrolments or other documents supporting his submission that he is enrolled in registered course of study.

1. Significantly, it is not clear whether the applicant is actually engaging in the proposed studies or what progress he has made over the last two and a half years.  The Tribunal notes that, given the delays in the matter coming before the Tribunal, if the applicant had engaged with the proposed studies, he ought now be near completion of same, gained any potential benefit from such course and be in a position to depart Australia, reunite with his family and put into motion his plan to work in accounting. However, the Tribunal has no information about the applicant’s academic progress in the proposed courses, if any. This is aggravated by his failure to respond to the s359(2) letter where he had an opportunity to provide such information.

2. The applicant has not supplied any confirmation of enrolments or other documents supporting her submission that he is enrolled in registered course of study. There is no evidence that he is even currently enrolled and complying with clause 500.211 of the Regulations.

3. The applicant has not provided detail in relation to his personal ties in Australia.  Given the applicant’s residence onshore for in nearly six years and his application to extend that stay, the Tribunal considers the applicant has a preference to remain onshore.  It is reasonable to conclude that, after nearly six years, the applicant has cultivated a satisfactory life and has established strong ties to the Australian community.  As each day passes, those ties strengthen.

4. The applicant has indicated he has his parent’s financial support to the value of $65,000AUD equivalent.[18]  The applicant has provided very little information in relation to his economic circumstances in Nepal or Australia outside of this.  The Tribunal notes that the United Nations Human Development Index ranks Nepal as 149^th in the world as compared to Australia’s ranking of 3^rd in the world.[19]  The Tribunal considers that the applicant’s economic circumstances in Australia may be acting as a significant incentive for him to not return to his home country.

   [18]          See pages 9-10 of the Department File being the applicant’s application form.

   [19]See Table 1 of United Nations’ Human Development Indices and Indicators 2018 Statistical Update <>

   The Tribunal notes that the applicant has his mother and two brothers in Nepal.[20]  The applicant has not returned home since his arrival nearly six years ago, so far as the Tribunal can ascertain from the material before it.  In the circumstances, it appears the applicant does not have personal ties to Nepal acting as a significant incentive for him to return, any such incentive is outweighed by the applicant’s desires and incentives to remain onshore.

   [20]          See pages 10-11 of the Department File being the applicant’s application form.

5. The applicant has not provided reasonable reasons for not undertaking the study in his home country or region.

6. There is no evidence before the Tribunal that the applicant has had any travel, visa or immigration issues in the past save for the issues with his visas in Australia as outlined above.

7. The Tribunal has not been provided with any other information regarding the following factors indicated by Direction 69: any potential military service in Nepal, political or civil unrest circumstances in Nepal or the remuneration the applicant could expect to receive in Nepal or a third country compared with Australia. 

8. There is not sufficient evidence before the Tribunal, to satisfy the Tribunal that the applicant genuinely intends to stay in Australia temporarily.  In making this comment, the Tribunal places weight on: the length of time the applicant has been onshore for, now approaching six years; the limited academic progress the applicant has made in that time; the lack of detail provided by the applicant (including failing to provide a genuine temporary entrant statement) in relation to his future goal and how his qualifications will specifically assist him in his career.  Taken as a whole, the information (and lack thereof) provided by the applicant in relation to their application raises questions for the Tribunal about the applicant’s true intentions in residing in Australia.  The Tribunal considers that the visa is being sought primarily to maintain residence in Australia.

9. Having had regard to the applicant’s circumstances, their immigration history and all other relevant matters, the Tribunal cannot be satisfied that the applicant is a genuine applicant for entry and stay as a student temporarily as required by clause 500.212. Accordingly, the applicant does not meet clause 500.212.

10. 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. Therefore, the decision under review must be affirmed.

    DECISION

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

    T. Quinn
    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.