Jadav (Migration)

[2021] AATA 867

Jadav (Migration) [2021] AATA 867 (19 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Arpit Hiralal Jadav and
Mrs Priti Tarunbhai Dabhi

CASE NUMBER:  1933328

HOME AFFAIRS REFERENCE(S):          BCC2019/4790604

MEMBER:Michael Bradford

DATE:19 March 2021

PLACE OF DECISION:  Sydney

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

·cl.500.212(a) of Schedule 2 to the Regulations.

Statement made on 19 March 2021 at 11:43am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Advanced Diploma of Leadership and Management – reason for undertaking the course – enrolment history – future plans – intention to seek work as a Chef – incentive to return to home country – strong potential economic tie to India – decision under review remitted

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

STATEMENT OF DECISION AND REASONS

Preliminary, nature of the case

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 11 November 2019 who refused to grant to the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 24 September 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The main applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he was a genuine temporary student in Australia and that, consequently, the secondary applicant, who is his wife, could not satisfy the requirements applicable to her.

4. The visas were refused on 11 November 2019 and the Review Application was filed on 22 November 2019. It is thus within time.

5. As will be seen shortly, the central issue on this review is whether the applicant is a genuine temporary student.

   Background, relevant procedural aspects pertaining to the review

6. The applicant engaged with the review process by responding to the Sec 359(2) request in a timely fashion, by providing additional documents in support of his case, also in a timely fashion, and by duly accepting the Tribunal’s invitation to participate in the hearing.

7. Shortly before the hearing the Tribunal obtained from other sources Movements Details for each applicant together with a PRISMS record for the applicant. Relevant information in these documents was discussed with him at the hearing and was uncontroversial.

8. Also available to the Tribunal for the purposes of the review is a file from the department which contains among other documents a copy of the Visa Application, a GTE statement in support from the applicant and a copy of the decision.

9. The applicant appeared before the Tribunal by way of telephone on 3 March 2021 to give evidence and present his case. Only the applicant gave oral evidence, his wife did not. His evidence was taken in English over a period of about 1 hour 40 minutes. An interpreter was not required. The applicant’s registered migration agent, Mr Ahmad Mohseni, was also in attendance at the same place. He had been retained in the early stages of the review and in due course provided a written submission to the Tribunal in July 2020, which is signed by the applicant, and a supplementary statement in January of this year.

10. At the conclusion of the oral evidence the Tribunal reserved its decision and made a direction that the applicant provide additional documents in support of his case by 4 pm on 5 March 2021. These documents were duly provided and consist of some updating records relating to the applicant’s current enrolment in a vocational course the details of which I will come back to shortly.

11. For the reasons which follow, the Tribunal has concluded that the matter should be remitted for reconsideration.

    The issues in the case and the approach taken to resolve them

12. The criteria for the grant of a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clauses 500.211 to 500.218 inclusive must be satisfied by the applicant.

13. Among them is the need for him to firstly establish that he is currently enrolled in a registered course of study. The Tribunal is satisfied that he is enrolled in such a course, namely an Advanced Diploma of Leadership and Management (ADLM) at the Harward International College (HIC). According to the COE for this course it began on 22 June 2020 and is due to finish on 24 October 2021, in other words in about 6 months’ time. According to other documentary evidence from HIC, the applicant has completed more than 60% of this course as at 4 March 2021.

14. The issue on this application is thus the same issue which the delegate determined adversely to the applicant, namely whether he meets the requirements of clause 500.212(a) or, in other words, whether he is at the time of the Tribunal’s decision a genuine temporary student in Australia (the GTE issue).

15. In considering that issue the Tribunal must have regard to Direction no 69 made under Sec 499 of the Act. This Direction, a copy of 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 his home country, potential circumstances in Australia, including the value of the ADLM to his future, his immigration history and any other relevant information which he has provided or which is otherwise available to the Tribunal, including information that may be either beneficial of unfavourable to him.

16. The Direction, as interpreted in the decisional law, is intended to mean that the factors should not be used as a check-list but are rather to be used to guide decision makers, including the Tribunal, to reach a decision as to whether an applicant satisfies the GTE criterion having regard to his or her overall circumstances.

17. This essentially involves a balancing exercise in which weight is to be given to those factors according to their relative significance and having regard to the overall merits of the case. It is very much context driven and fact specific and, consequently, the weight to be given to them may vary from case to case depending on the circumstances in which they are to be applied.

18. It is also important to recognise that in approaching the GTE issue the Tribunal must have regard to and make findings on so much of the evidence as is necessary to carry out the Tribunal’s statutory review function and to reach an informed decision on that issue. It does not require the Tribunal to make findings on everything which is the subject of evidence. Given that the function involves a hearing de novo, it is necessary for the Tribunal to have regard to so much of the evidence which is currently available to it and which bears upon the relevant factors whether that evidence was before the delegate or not.

19. In this case, as in most review cases of this kind, the applicant has provided to the Tribunal a good deal of evidence and other material which the delegate did not have.

    An overview of the evidence before the delegate and the decision under review

20. At the time he filed the Visa Application the applicant was enrolled in the ADLM at HIC, the initial COE for this course having been generated on 17 September 2019. According to this record the course had a start date of 30 September 2019 and an end date of 28 March 2021.

21. In his GTE statement he explained to the delegate that he wanted to undertake studies in this course in order to acquire leadership skills to help him better manage and lead staff in a commercial kitchen. He mentions the fact that he had already completed some vocational courses in commercial cookery and hospitality management and that as a result of having completed them says that he could find work as a Chef. He goes on to say that he felt that the course would enable him to manage his own business further down the track. Although he does not identify in the statement what business he had in mind it is not unreasonable to read it as referring to a restaurant or some other business in the hospitality field such as a café. Certainly, the applicant gave oral evidence to this effect at the hearing and the Tribunal is in these circumstances prepared to read the statement in this way.

22. Pausing here, although the Tribunal has done that, this is not to say these assertions should be accepted at face value, or that this is indeed his real intention or that the prospect of operating or managing such a business is the reason he wants to complete the course. In this case, as in many cases where intentions and motives are in issue, it will be necessary for the Tribunal to test this evidence against the apparent logic of what he wants to do and to determine whether what he has in fact done is consistent with his expressed intentions.

23. In the Employment section of the Visa Application he mentions that he had worked at the Kealba Hotel as a Chef during the period from January 2017 to August 2019, that he had been working as a Gaming Attendant at the Plough Hotel as from July 2019 and that he had also worked in that role at the Derrimut Hotel during the period from January 2016 to February 2018.

24. The delegate had various concerns in relation to the GTE issue some of which stemmed from the fact that the applicant’s wife was living with him in Australia and that, although he had other family in India, his personal ties there were not regarded to be strong enough to warrant a finding that he had a significant incentive to return to India on completion of the ADLM. Reference was made to the applicant’s travel pattern since he arrived here in July 2014. Other concerns were that his explanation for wanting to study this course was unclear and insufficient information had been provided to justify undertaking this course in Australia when compared to the reduced cost of undertaking it in India. Also, the delegate wanted to know more about the additional income which the applicant could be expected to earn in India from having completed this course and found that his career goals could be adequately met by undertaking it in his home country.

25. Overall, the delegate was not convinced that he wanted to undertake this course for the reasons he had given and that he was more likely wanting to maintain residence in Australia.

26. Whilst the Tribunal shares some of these concerns, and whilst the GTE issue in this case could have gone either way, the Tribunal has reached the conclusion, albeit not without some hesitation, that the applicant is a genuine temporary student in Australia at the time of this decision.

    Findings and evidence  

27. Despite the limitations which a telephone hearing presents, having heard the applicant give oral evidence, and having tested that evidence and his documentary case in the ways noted earlier, and against the independent records, the Tribunal is satisfied that he has given what for the most part is a reliable and truthful account. There are some aspects of his review case which call for scrutiny but, having done that, the Tribunal is satisfied that the bulk of the evidence he has led can safely be acted on.

28. The applicant was born in India in 1991. He completed a Diploma of Civil Engineering at a local Board in late 2012 and arrived here in July 2014 on a TU 573 visa to study English and Commerce.

29. He completed an ELICOS program at the Box Hill Institute in late 2014. PRISMS indicates that his enrolment in a Bachelor of Commerce was cancelled in August 2015 but, as he had completed the CIII in Commercial Cookery at the Front Cooking School by June 2016  nothing really turns on the cancellation apart from the fact that he regressed into the vocational sphere. He had earlier found work as a Gaming Attendant at the Derrimut Hotel in January 20116

30. By December 2016 he had completed the CIV at the same school and moved into the Diploma of Hospitality at Front completing it in June 2017. In early July 2017 his enrolment in another Bachelor of Business was cancelled but again nothing turns on this as, by the end of 2017, he had completed the Advanced Diploma of Hospitality Management (ADHM), also at Front. He was by this stage employed as a Chef at the Kealba Hotel, having begun work there in July 2017.

31. In March 2018 he was granted a VC 485 visa and, in April of that year, his enrolment in yet another Bachelor of Business was cancelled for non-commencement of studies. He was not enrolled again until 17 September 2019 when he enrolled in the ADLM but, once again, nothing really turns on this given that he was then on the VC 485. By that stage he had ceased work as a Chef and had commenced work as a Gaming Attendant at the Plough Hotel, this having taken place in July 2019. He remains in this employment, according to his Sec 359(2) Response Form and other documents. There is in evidence a certificate from the Venue Manager of the Plough Hotel dated 10 February 2021 which states that the applicant has been employed as a Manager since November 2019 and which describes him as a valuable employee.

32. In February 2020 his enrolment in the ADLM was cancelled for non-payment of fees. In his oral evidence the applicant said he was confused about what he should do in relation to his studies at this stage given that he was waiting for the Tribunal to deal with his Review Application. Although his agent’s details appear on the initiating process the applicant said at the hearing that he did not seek any advice from him at that stage. This was clearly a mistake but, although the Tribunal has reservations about this evidence, it is ultimately prepared to accept it given the applicant’s later conduct.  

33. On 18 June 2020, shortly after he had received the Sec 359(2) request, the applicant re-enrolled in the ADLM and, it would appear, commenced studies in that course in a timely fashion. The Tribunal is prepared to infer in this case that his re-enrolment in this course came about as a result of advice from his agent, Mr Mohseni. The Tribunal notes that the agent had at about this stage received instructions to seek an extension of time within which to comply with the request, this extension having been sought in his letter to the Tribunal of 22 June 2020. His request was granted.

34. On 20 July 2020 the Response Form was filed within the extended time together with other supporting documents including a submission from the agent and, as noted earlier, a declaration from the applicant verifying its content.

35. In the submission it seems to be suggested that the applicant first became aware of the need for him to develop leadership skills whist working as a Chef at the Kealba Hotel. The Tribunal is prepared to accept that this is indeed the case given the content of the applicant’s GTE statement to the delegate which, as noted earlier, is broadly to the same effect and given that his enrolment in the initial ADLM took place not long after he had ceased to work at that Hotel.

36. The submission is to the effect that the applicant needs to complete the ADLM in order to acquire knowledge and skills so that he can effectively coordinate operations in a business of some kind in the hospitality industry, whether as an employed Chef or in running his own enterprise. Although the submission, once again, does not identify what kind of business the applicant had in mind he has, as noted earlier, given oral and documentary evidence that he wants to find work as a Chef before running his own hospitality business and the Tribunal is prepared to read this submission in this way.

37. In the additional statement, which the Tribunal will treat as further evidence, it is said that the applicant wants to look for a job as a Chef at a high-end restaurant or reputable Hotel in India once he completes the course. The applicant confirmed at the hearing that this was indeed his intention. The statement goes on to say that he needs to develop skills which will enable him to manage and lead a multi-ethnic team given that India has people from different ethnic backgrounds and cultures.

38. The statement also explains, although rather glibly it must be said, the applicant’s decision to enrol in the ADLM in Australia rather than a similar course in India and why he selected HIC as the course provider. In essence he says, and the Tribunal accepts, that an Australian qualification will give him a competitive edge in India, that he investigated similar courses in his home country but came to the view that the quality of training in those courses was inferior to what Australia had to offer. He also says, and again the Tribunal accepts, that he thoroughly investigated the course structure at HIC and became familiar with the standard of training before enrolling in the ADLM.

39. Although the Tribunal cannot accept, for one reason or another, all of the other submissions which are made in these statements, it is prepared to accept the basic proposition that the applicant intends to seek work as a Chef on his return to India on completion of the ADLM and that his completion of this course will add value to his future there by giving him practical leadership skills which he has not yet acquired. Much of his academic program here and a good deal of his work experience is consistent with a plan along these lines. Although it may be more than a little ambitious for the applicant to expect to be leading a team in a commercial kitchen at a high-end restaurant or hotel in the short term it is not, in the Tribunal’s view, unrealistic for him to have that as his eventual goal and one which he can at least work towards. The applicant has obviously impressed his current employer with his work as a Manager at the Plough Hotel since he was promoted to that role in November 2019 and the early indications for a successful career at that level in the hospitality field must be assessed at this early stage as good.

40. The Tribunal has not overlooked the fact that some of his work experience here has been as a Gaming Attendant rather than a Chef, nor has it overlooked the fact that the applicant explained this in his oral evidence by saying that he did not want to work in a small kitchen. At first blush these things might seem to tell against acceptance of his evidence as to what he intends to do but it is not inconsistent with his stated plan nor is it incompatible with his desire to acquire leadership skills for the reasons he has given. The Tribunal has taken on board his work history but does not regard it to stand in the way of a finding that he genuinely has these intentions and plans.

41. In his Sec 359(2) Response Form the applicant states that he could, on completion of the ADLM, earn a salary or wage in India with an AUD equivalent of $1,500 to $2,000 per month.  The Tribunal has no reason not to accept this evidence it presumably having been led on the review in purported answer to the delegate’s concerns on the cost/benefit aspects of undertaking this course in Australia.

42. Although the applicant’s academic record in Australia has some blemishes, including a period or periods during which he was not enrolled in any registered course of study, it has been for the most part progressive and homogenous.

43. Moreover, the documentary evidence in the form of the Record of Results for the ADHM and the (Interim) Statement of Attainment for the ADLM, both of which have been provided by the applicant in support of his review case, reveals clearly enough that these courses have a sufficiently different emphasis and content to warrant a finding that the applicant is acquiring knowledge and skills in the ADLM which he has not previously been taught in the ADHM.

1. All things considered, including the 18 months during 2018 and 2019 when he was on the VC 485, the Tribunal regards the applicant’s academic history to be that of a genuine student.

2. As to the issue of whether the applicant has a significant incentive to return to India on completion of this course, it must first be recognised that he has ties in Australia. He has been here since July 2014, now some 6.75 years ago. His work at the Plough Hotel is ongoing and he has a solid work history here going back to January 2016, now more than 5 years ago. His wife is living with him and has been since July 2018. She too is working on a part-time basis as a Marketing Officer, apparently, and has been since about October of that year.

3. On the other hand, the Tribunal accepts that the applicant went back to India in late May 2017 to marry his wife and that she remained in India until July 2018 probably because she was studying for a Master of Business Administration at that stage. The applicant’s mother and sister live in India as does his wife’s family. He says and the Tribunal accepts that he is in regular contact with them and with his friends. In his 2019 GTE statement to the delegate he said that their families are well settled in India and that they continue to assist them with financial support. In the additional statement he says, and the Tribunal accepts, that his mother has always been a strong support for him, his father having passed on some time ago.

4. In the Sec 359(2) Response Form the applicant says, and the Tribunal accepts, that his parents own land in India which he expects to have an interest in.

5. In addition, on the Tribunal’s findings, he has a reasonably strong potential economic tie to India in the form of prospective employment there on his return and the more distant prospect of operating his own business in the hospitality field. 

6. On balance, the Tribunal is prepared to find that the applicant has a significant incentive to return to India on completion of the ADLM. He has given evidence that he and his wife will do so and the objective features of this case suggest that they will make good this assurance.

7. There is nothing in his or his wife’s immigration history of any concern. He has been here a reasonably long time for a vocational student, that much is clear, but on the evidence led, including what is available to the Tribunal in the department’s paper file, they have complied with their visa conditions, including work restrictions. Certainly, the delegate does not appear to have had any concerns about this aspect of their application.

8. The other relevant factor which I noted previously is that the applicant has now completed more than 60% of the ADLM and appears to be on track to finish the course on time, in October of this year. Although the fact that a review applicant may have a relatively short period of study remaining by the time an application can be determined will not in all cases be a weighty consideration, the Tribunal is prepared in this case to give this matter some weight. True it is that the applicant lost some time when his initial enrolment in the ADLM was cancelled, and indeed, he would likely have finished the course by now had that not occurred, but having accepted his explanation for this the Tribunal does see the relatively short time frame in this case as having some significance.

9. It would be unconscionable for the Tribunal to now stand in the way of the applicant given that he has come this far into the ADLM, is progressing well and in all probability will finish the course on time.

10. There are no other matters of relevance about which evidence has been given.

11. The applicant has stated in his Response Form that he has no concerns about military service commitments and the like in India and the Tribunal has no evidence that he should have any.

    Conclusion

12. The Tribunal has reached the view in this case that the GTE issue should be resolved in favour of the applicant. In some important respects the issue is a finely balanced one but, ultimately, having accepted the applicant’s substantive case on his intentions and motives for wanting to study the ADLM, and given his overall circumstances, the Tribunal finds that he is a genuine temporary student in Australia.  

13. This being so, the Tribunal also finds that the applicant meets the requirements of clause 500.212(a) of Schedule 2 to the Regulations at the time of this decision.

14. The appropriate course is thus to remit the applications with the usual direction.

    DECISION

15. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the criteria for a Subclass 500 (Student) visa set out in clause 500.212(a) of Schedule 2 to the Regulations.

    Michael Bradford
    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.