Gundumalla (Migration)

[2023] AATA 1951

Gundumalla (Migration) [2023] AATA 1951 (24 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Praveen Kumar Reddy Gundumalla

REPRESENTATIVE:  Mr Jitesh R Parekh (MARN: 0639447)

CASE NUMBER:  2202143

HOME AFFAIRS REFERENCE(S):          BCC2021/109233

MEMBER:T. Quinn

DATE: 24 May2023

PLACE OF DECISION:  Melbourne

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

Statement made on 24 May 2023 at 2:49pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– applicant was not a genuine applicant for entry and stay as a student –the regression of studies – poor academic record– in Australia for a long period time –use the student migration program to maintain ongoing residence – decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, r 1.03, Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 12 January 2021, the applicant applied for a Student visa (the visa) to undertake study in Australia (‘the application’).[1]

   [1]Specifically, a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).  At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The applicant applied for the former and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

2. On 2 February 2022, a delegate of the Minister for Home Affairs (‘the delegate’) refused to grant the application on the basis that the applicant did not satisfy the genuine temporary entrant requirements in relation to student visas.[2]

   [2]See clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) which requires that student visa applicants be genuine applicants 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

3. On 17 February 2022, the applicant applied to this Tribunal for a review of the delegate’s decision.[3]

   [3] Pursuant to sections 338(2) and 347 of the Act.

4. 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 since making their application. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information for the purposes of determining the outcome of their application for review. To this end, on 14 March 2023, 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 s359(2) letter requests that a questionnaire (‘the questionnaire’) be completed by the applicant.

5. The applicant responded to the s359(2) letter on 28 March 2023, including providing the completed questionnaire, which was within the prescribed timeframe.

6. The applicant appeared before the Tribunal to give evidence and present arguments at a telephone hearing on 24 May 2023.  The applicant was assisted in relation to the review and their representative also attended the telephone hearing on 24 May 2023.

7. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. A 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.

8. For the following reasons, the decision is affirmed.  In reaching my conclusions, I have had regard to:

   a.the oral evidence given at the hearing;

   b.submissions made at hearing;

   c.all submissions and written material filed by or on behalf of the applicant; and

   d.other relevant documents on the Tribunal and Department files.

   Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in my reasons as set out below. The reasons incorporate reference only to that information that I have found to be fundamental or materially significant to the determination of the issues in the case.[4]

   [4]In this regard, please see Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (24 February 2020) at [82] and [96].

   STATUTORY FRAMEWORK

9. 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. Information in relation to Clauses 500.211 and 500.212 is attached to this decision.

   Does the applicant intend genuinely to stay in Australia temporarily?

10. In considering whether the applicant satisfies clause 500.212(a), I 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 is attached in full to this decision but broadly it requires Tribunal Members 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.

11. 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.

12. The Direction is a lawful direction of the Minister.[5]  I am therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[6]  Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before me.  However, I recognise that the Tribunal is an independent statutory body.  I must therefore reach my 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.  In this regard, I note well established case authority as to the proper approach by decision makers to guidelines such as the Direction[7] and McNab J’s view that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.[8] 

    [5] In accordance with section 499 of the Act.

    [6]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].

    [7]Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]), Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) and Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]).

    [8]Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47] per McNab J).

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The applicant in this case is a 30-year-old male Indian citizen who first arrived in Australia on 17 November 2016 on a student visa.[9]  He has remained onshore since that time on a second student visa and a Temporary Graduate (subclass 485) visa (‘the 485 visa’) which expired on 12 January 2021, the same day as he made the application which is the subject of this review.[10]  The timing of his application (being the same day as the expiry of the 485 visa), taken in combination with other evidence set out in this decision, raises concerns for me that the applicant may be using the student visa migration programme to maintain residence.

    [9]See the questionnaire.

    [10]See the questionnaire and evidence at hearing.

14. Prior to coming to Australia, the applicant completed a Bachelor of Information Technology (Computer Science and Engineering) in 2015 in India.[11]  He then worked as a Systems Analyst from September 2015-July 2016 earning AUD6,200 per annum equivalent in India.[12]

    [11]See the questionnaire and corroborating certificate in the Tribunal file.

    [12]See the questionnaire.

15. Since his arrival in Australia, the applicant has completed a Master of Information Technology in 2018 and a Professional Year Program in early 2021.[13]  I commend the applicant in relation to his course progress from 2016-2018 inclusive while on his previous student visas.  This is to his credit and I have placed weight in his favour in this regard.

    [13]See the questionnaire and corroborating documents from his course provider dated 9 November 2018 and 22 February 2021 respectively.

16. The applicant’s application which is the subject of this review was to undertake a Diploma and Advanced Diploma of Business with a cumulative completion date in June 2023.[14]  Due to delays in this matter coming before the Tribunal, the applicant ought now to be just weeks from completion of his courses and in a position to return to his home country shortly.  Instead, however, he has filed new confirmations of enrolment for a Diploma and Advanced Diploma of Leadership and Management, entirely new courses, with course dates from March 2023 to September 2025.[15] These confirmations of enrolment were created on 20 March 2023, just eight days before the applicant responded to the s359(2) letter. This timing raises concerns. It suggests the applicant may have re-enrolled in courses to ensure he satisfied the enrolment criterion under clause 500.211. This in turn raises concerns about whether the applicant is using the student visa migration program to circumvent the intentions of the migration program.

    [14]        See delegate’s decision.

    [15]See confirmations of enrolment in the Tribunal file with date of creation listed as 20 March 2023.

17. The applicant has filed a medical certificate dated 28 June 2022 setting out the applicant’s symptoms of stress, depression, anxiety, restlessness, irritability and broken sleep.  It details the loss of the applicant’s uncle to the COVID19 virus, the difficulties the applicant faced being unable to visit his home country, being unemployed and suffering from mental health challenges.  This letter diagnosis the applicant with adjustment disorder with mixed anxiety and depressed mood and states the applicant would benefit from MHP and counselling.  The applicant has filed a corroborating death certificate for his uncle who passed away on 31 January 2021.  I empathise with the applicant and the challenges he has faced and have made some allowance for these circumstances in coming to my conclusions in this case.  However, at hearing, I asked whether he had undertaken MHP or counselling and the applicant said he had not.  At hearing, I also noted that the applicant had continued to work throughout this period.  The applicant stated that he kept working but was mentally ill, did not know what he was doing and tried to submit assessments but was not concentrating on his study at all.  The applicant’s representative also made submissions that the applicant had to continue working to support himself but was in distress and so unable to study. 

18. Although making some allowance for the applicant’s personal and mental health challenges, I remain very concerned that he has not made any meaningful academic progress from January 2021-March 2023.[16]  A particularly effective way for an applicant to demonstrate that they hold a genuine desire to study in Australia, while awaiting a review hearing following an initial student visa refusal, is to take positive steps towards achieving the educational qualification they had proposed in their original application. That is to say, an applicant should progress with their proposed course of study in Australia notwithstanding that their visa application has been refused.  In doing so, by the time the application on review proceeds to a hearing before the Tribunal, an applicant will be a position to produce compelling evidence at the hearing that shows they are a genuine applicant for a student visa.  In this case, there is no such evidence, save for the applicant’s oral evidence that he has progressed well since commencing his current course in March, two months ago.  This is not the kind of behaviour that is consistent with that expected of a genuine applicant for entry and stay as a student in Australia.  In fact, if the applicant had engaged with the courses he initially proposed, he would be just weeks from completion.  Instead, he has remained in Australia, working but not making any meaningful academic progress for over two years whilst claiming he wishes to remain onshore as a genuine student.  This evidence raises concerns for the Tribunal about the true nature of the applicant’s intentions in applying for the student visa and, when taken as a whole with other evidence outlined in this decision, appears to constitute evidence that the applicant is using the student visa programme to circumvent the intentions of the migration programme.

    [16]        See the questionnaire and evidence at hearing.

19. The applicant has been working onshore since May 2018, including in two different jobs since December 2022.[17]  I consider if an individual is residing onshore on the basis of student visa and/or a bridging visa based on a claimed intention to study, such study should take priority over work.  There are financial requirements before such visas are granted.  It raises concerns about an individual’s true intentions in residing onshore if when doing so they are working but not studying, in contrast to the claims in their outstanding student visa application that they wish to remain onshore to study.

    [17]          See the questionnaire and evidence at hearing.

20. I am concerned by the downgrade this study represents from the applicant’s existing Bachelor and Master qualifications.  He claimed at hearing that when the 485 visa expired, he did not want to remain onshore illegally but could not return to India due to the COVID19 Pandemic and so elected to do vocational courses.  Whilst I appreciate the forthright nature with which the applicant gave evidence in this regard, my concerns about the downgrade in his level of education are not assuaged by this explanation, nor are more concerns that he is using the student visa migration program to maintain residence.

21. The applicant plans to seek work in the Information Technology industry and possibly open his own business and he anticipates earning AUD60,000 equivalent per annum in India using his qualifications.[18]  I allow for reasonable changes to study and career but remain concerned by the downgrade this study represents from the applicant’s Bachelor and Master level of education.  I accept that these proposed courses are relevant to and may assist and improve the applicant’s proposed future career but am concerned about whether that assistance is more than just marginal given the applicant’s existing educational experience.

    [18]See the questionnaire and evidence at hearing.

22. I am concerned by the length of time the applicant has been onshore for – a period of over six years. His new courses would extend this period to nearly nine years which is difficult to reconcile with the meaning of ‘temporary’ as required by the Act and Regulations in relation to student visas. I am concerned the applicant is using the student visa migration program to maintain residence. The applicant submitted at hearing, when I raised concerned about this, that he is only here temporarily, wants to complete his study and then will return to India. I did not find this submission persuasive and find the evidence of the applicant’s extensive time onshore more of an indication of his intentions.

23. The applicant states he has no particular community or social ties in Australia, apart from his class fellows and colleagues he knows.[19]  The applicant has now been living in Australia for over six years, which has also included considerable time working and studying onshore (and necessarily engaging in those respective communities).  The length of the applicant’s stay in Australia, over six years, indicates that the applicant has a preference to remain onshore.  It is reasonable to conclude that after over six years onshore the applicant has cultivated a satisfactory life and established strong ties to the Australian community acting as a strong incentive for him to remain onshore.  As each day passes, those ties strengthen.

    [19]See the questionnaire.

24. The applicant has returned to India once since his arrival – for 47 days in 2019 to visit his family.[20]  The COVID19 Pandemic and associated restrictions have made international travel virtually impossible from early 2020 to early 2022 and I place no weight against the applicant in relation to not travelling home during that time.  The applicant’s parents and brother live in India and he speaks to them every day.[21]  The applicant describes a close relationship and expressed great difficulty processing his uncle’s death in 2021 as he was very close with his uncle, having grown up with him since childhood until undertaking his Bachelor.[22]  The applicant submits he has social and family ties with all his family and friends in India.[23]  He participates in cultural and community festivals.[24]  I accept that the applicant has personal ties to India acting as an incentive for him to return but, taking the evidence as a whole, I do not consider those ties are acting as a significant incentive for him to return.  Any incentives for the applicant to return to India appear to be outweighed by his desires and incentives to remain onshore.

    [20]See the questionnaire.

    [21]See the questionnaire and evidence at hearing.

    [22]See Tribunal file and evidence at hearing.

    [23]See the questionnaire.

    [24]See the questionnaire.

25. The applicant states, inter alia: practical education is lacking  in India as the focus is on theory; it is very expensive in India to get into the top business colleges and even they are still lacking in practical aspects of study; he has adjusted to study in Australia and studying in India would not have any positive impact on his learning; Australian education focusses on theory and practical components.[25]  The applicant has provided reasonable reasons for undertaking this study in Australia as opposed to his home country or region.

    [25]See the questionnaire.

26. The applicant has been working in Australia: as a console operator from May 2018-June 2022 earning AUD59,000 per annum; as a Computer Service Consultant from March 2022-present earning AUD53,000 per annum; and as a console operator from December 2022-present earning AUD21,000 per annum.[26]  The applicant gave evidence he is currently working both of the latter two jobs which would indicate an annual income of AUD74,000 since December 2022.  The applicant has expenses onshore of AUD46,400 per annum.[27]  Taking the evidence as a whole I am concerned that the applicant’s economic circumstances onshore are acting as a significant incentive for him to remain. 

    [26]See the questionnaire and evidence at hearing.

    [27]See the questionnaire.

1. There is no evidence that the applicant has had any travel, visa or immigration issues in the past.  The applicant does not have any potential military service obligations or political or civil unrest concerns in India.[28]

   [28]See the questionnaire.

2. I have carefully considered all evidence and submission before me.  In this case, the factors falling against the applicant in relation to whether he is a genuine temporary entrant have outweighed those falling in his favour.  I am particularly concerned by the length of time the applicant is proposing to remain onshore for and his lack of academic progress over the last two years.  I am concerned that the applicant is motivated by factors other than study and is using the student visa program as a means of maintaining residence in Australia. 

3. Having had regard to the applicant’s circumstances, his immigration history and all other relevant matters, I am not 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.

4. Given the above findings, 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

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

   T. Quinn
   Member

   Attachment – Clauses 500.211 and 500.212 of Schedule 2 of the Regulations

   Enrolment (clause 500.211)

   ·Clause 500.211 requires that, at the time of decision, the student visa application in question be founded on evidence that the applicant is enrolled in a course of study.[29]

   [29]Clause 500.211(a) of Schedule 2 to the Regulations.

   ·‘Course of study’ is defined as a ‘full-time registered course’ and a ‘registered course’ is a course provided by an institution which has been registered under the Education Services for Overseas Students Act2000 (Cth) (‘the ESOS Act’) to provide that course to overseas students.[30]

   [30]Regulation 1.03 of the Regulations.

   ·All registered courses and course providers are listed in the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’), an online register kept in accordance with the requirements of the ESOS Act.[31]  Details of courses listed in CRICOS are integrated into the Provider Registration and International Student Management System (‘PRISMS’), a database maintained by the Australian government.[32] The PRISMS database is the principal means by which registered course providers comply with legislative requirements relating to the monitoring of international students studying in Australia. Upon enrolling an international student into a registered course of study, the course provider enters the details of that enrolment into the PRISMS database. The database then records a Confirmation of Enrolment (‘COE’) for the student. The COE functions as a record of the student’s enrolment status in the course and as proof of enrolment for the purposes of clause 500.211 of Schedule 2 of the Regulations.

   [31]Section 10 of the ESOS Act.

   [32]See generally, Department of Education and Training, Provider Registration International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018).

   Genuine Temporary Entrant

   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.

   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;

   d.whether 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.