Kalongo (Migration)

[2019] AATA 6921

Kalongo (Migration) [2019] AATA 6921 (5 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Charity Farai Kalongo

CASE NUMBER:  1725906

HOME AFFAIRS REFERENCE(S):          BCC2017/2793435

MEMBER:T. Quinn

DATE:5 July 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 05 July 2019 at 2:17pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa, study and work history – multiple short vocational courses – multiple confirmations of enrolment cancelled and gaps in enrolment – changes of subject area – new enrolment two days before providing further information one day out of time – income in Australia compared with potential income in home country – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 338, 347, 358, 359, 359C, 360, 363A

Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

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

Hasran v MIAC [2010] FCAFC 40

Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482

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 6 October 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 5 August 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 6 October 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 23 October 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. More than 20 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 27 March 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 10 April 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 she 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.

6. The Tribunal received submissions on 11 April 2019. The requirement was that the information requested be ‘received by 10 April 2019’. Therefore, review applicant did not provide the information within the prescribed period 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.

7. The Tribunal finds that the review applicant did not provide further information within the prescribed period 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.

8. 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.

9. 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 and the multiple submissions forming the applicant’s response to the s359(2) letter filed on 11 April 2019.

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

11. STATUTORY FRAMEWORK

12. 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.

13. Clause 500.212 requires as follows:

    The applicant is a genuine applicant for entry and stay as a student because:

    (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

    (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)any other relevant matter; and

    (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

    (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

    (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

    (c)of any other relevant matter.

    Does the applicant intend genuinely to stay in Australia temporarily?

14. In considering whether the applicant satisfies 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.

15. The Direction indicates that the factors specified should not be used as a checklist, but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

16. 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.[3]  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.

    [3]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

17. The applicant in this case is a 38 year old female Zimbabwean citizen who first arrived in Australia on a TU572 Student Visa on 2 July 2010 which was valid until 18 July 2011.[4]  The applicant has only departed Australia once for three weeks in November 2014 since her arrival in 2010.[5]

    [4] See delegate’s decision and applicant’s response to the s359(2) letter.

    [5] See delegate’s decision and applicant’s response to the s359(2) letter.

18. Prior to coming to Australia, the applicant completed secondary school in December 1998.  It is not clear how she spent her time from the completion of her schooling until January 2005.  In January 2005, the applicant completed a six month Secretarial course and then worked for four months as a Secretary earning $10,000AUD equivalent per annum.  There is no evidence before the Tribunal as to how the applicant spent her time from December 2005 until January 2010.  In January 2010, the applicant worked as a teacher’s assistant for six months earning $15,000AUD equivalent per annum.[6]   

    [6]See applicant’s response to the s359(2) letter.

19. The delegate’s decision outlines the applicant’s visa and enrolment history being that she has held four student visas, associated bridging visas and has had nine confirmations of enrolments cancelled. This troubles the Tribunal as the applicant’s response to the s359(2) letter does not list any cancelled enrolments, despite a specific request for all courses that the applicant has been enrolled in while in Australia followed by bullet points indicating ‘cancelled enrolments’ ought be included.  The failure of the applicant to list her cancelled enrolments raises concerns for the Tribunal about whether she is being forthright in her evidence. 

20. In her undated, untitled genuine temporary entrant statement[7] (‘the GTE’), the applicant claims that she intends to graduate with a Bachelor of Registered Nursing but had difficulty gaining acceptance into this course because of the English score requirements and ‘could not bear the thought of enrolling into a different course other than Nursing’. She states she intends to pursue her career in Zimbabwe. The Tribunal accepts that the applicant’s goal is to work in nursing. However, her study history is not consistent with this goal and raises concerns for the Tribunal about the applicant’s true intentions in her residence in Australia. The Tribunal allows for reasonable changes to career and study pathways, however, the applicant has undertaken the following courses (as listed in her response to the s359(2) letter):

    a.A Certificate IV Tertiary Preparation Program from June 2010 to January 2012;

    b.A Diploma of Science (Health Studies) from February 2012 to June 2013;

    c.An Academic English Course from August 2013 to September 2013;

    d.A General English Course from March 2014 to April 2014;

    e.A Certificate IV in Spoken and Written English from August 2015 to February 2016;

    f.A Diploma of Nursing which she states she undertook from February 2016 to July 2018 (however, see note below);

    g.A Certificate IV in Work Health and Safety which she is ‘studying now’ (from April 2019 to October 2019).

    [7]           See page 34 of Department File and delegate’s decision.

21. The applicant also states she has a future enrolment in a Diploma of Work Health and Safety from November 2019 to May 2020 and she has listed a Bachelor of Nursing at Edith Cowan University or Curtin University from August 2020 to August 2022.  She does not have a confirmation of enrolment for the Bachelor of Nursing.  The Tribunal is troubled by the applicant’s evidence in relation to this and the preceding paragraphs for a number of reasons:

    a.There are several gaps in the applicant’s study history, indicating she has been in breach of the condition of her visa that she remains enrolled, engaged with her studies and making adequate course progress.  It appears that the applicant was not engaging with her studies from September 2013 to March 2014, April 2014 to August 2015 (a period of in excess of 15 months), July 2018 to April 2019.  It is of serious concern for the Tribunal when an individual resides onshore holding a student visa and then fails to engage with their studies for considerable periods of time.  It raises questions about the true nature of the applicant’s intentions in residing in Australia as it is not the conduct one would expect of a genuine student.

    b.The confirmation of enrolment for the Diploma of Nursing provided by the applicant provides a commencement date of 29 January 2018 and completion date of 29 June 2018[8] – this is not consistent with the dates provided by the applicant in her response to the s359(2) letter. If the confirmation of enrolment dates are correct, then the applicant’s failure to be engaging with her studies is more extensive than the periods listed above – this appears to indicate that from February 2016 to January 2018 she was not studying in a registered course of study as required by the conditions of her student visa – a period of nearly two years. This is of significant concern for the Tribunal. The Tribunal acknowledges that the applicant has provided a certificate for an online English program specifically for nurses to the Department which took place from March to September 2016[9], however, it is not clear whether this qualifies as a registered course from a registered course provider and, in any case, it does not explain the remainder of lack of study over that 23 month period.

    c.The courses listed reflect a period of in excess of nine years onshore without progression beyond the vocational sector.  When a visa holder undertakes a series of short, relatively inexpensive courses in the lower level sector it raises concerns that the student visa programme may be being used primarily for maintaining ongoing residence.  This issue is aggravated by the fact that the applicant has been onshore pursuant to a Higher Education Sector visa from 2012 to 2016, yet has not engaged in the Higher Education Sector at all.  The Tribunal appreciates that the applicant had issues with her English test results but also notes that it is the applicant’s responsibility to ensure she is complying with her visa conditions at all times.

    d.The breaches of her enrolment, study progress and higher education sector visa conditions demonstrates a lack of intention to adhere to and abide by the conditions of any visa granted.  This is of concern for the Tribunal.

    e.The workplace health and safety enrolments appear inconsistent with and irrelevant to the applicant’s career goal in nursing. They were enrolled in on 8 April 2019, just two days prior to the applicant filing her response to the s359(2) letter and raise concerns that the applicant has obtained such enrolments purely to ensure she is now complying with the conditions of regulation 500.211 in order that the Tribunal hear her matter on the basis of the Genuine Temporary Entrant requirements of regulation 500.212. This suggests to the Tribunal that the applicant may be using the student visa programme to circumvent the intentions of the migration programme.

    [8]           See page 35 of Department File and delegate’s decision.

    [9]           See page 36 of Department File and delegate’s decision.

22. To her credit, the applicant has conceded in her response to the s359(2) letter that she was not enrolled from July 2018 to March 2019, stating she was ‘self studying’ for her English test to gain entry into a Bachelor of Nursing. The Tribunal empathises with the applicant’s difficulties with her English tests but also notes she has not provided any explanation for the other periods of time during which she was not studying, she has been onshore, in an English speaking country for over nine years now and, importantly, it is the applicant’s responsibility to ensure she is at all times complying with the conditions of her visa.

23. The Tribunal accepts that a degree in Nursing is relevant to and will assist and improve the applicant’s employment prospects.  However, the applicant is not engaged in a degree in Nursing, she does not have an enrolment in a degree in Nursing and does not intend to have such enrolment for a period of in excess of another twelve months.  In circumstances where the applicant has been onshore for in excess of nine years and for a considerable period of that time on the basis of a Higher Education Sector Student visa, the Tribunal considers the applicant has had ample time to engage in such study but failed to do so.  In particular, the workplace health and safety, vocational level courses appear to have only limited, if any, relevance to the applicant’s stated career goal and are unlikely to assist or improve her employment prospects in the field of nursing, certainly any such assistance is outweighed by the considerable time and monetary expenses incurred in undertaking such study in Australia.

24. The delegate’s decision also highlights other inconsistencies in the applicant’s submissions in that her application was seeking only a further twelve months to complete the Diploma of Nursing – this is consistent with the visa application being for a vocation sector level visa but not consistent with the applicant’s statement in the GTE and in her response to the s359(2) letter that she intends to complete a Bachelor of Nursing. This again raises concerns that the applicant may be using the student visa programme to circumvent the intentions of the migration program.

25. In the GTE, the applicant provides reasonable reasons for not undertaking the study in her home country, including the quality of teaching in Australia and the benefits an overseas qualification could bring to her future.  The Tribunal accepts these submissions.

26. The applicant puts forward very little material regarding her personal ties to Australia other than that she focusses on her work and studies and goes to church whenever she gets the chance.[10]  The length of her stay in Australia for in excess of nine years, with only one trip back to her home country in that time, suggests that she has a preference to remain.  It is reasonable to conclude that, after more than nine years, the applicant has cultivated a satisfactory life and has established strong ties to the Australian community.  As each day passes, those ties strengthen.

    [10] See applicant’s response to the s359(2) letter.

1. The applicant has been working as an Assistant in Nursing since January 2011 earning $55,101AUD per annum.  [11]Her expenses living in Australia are $30,960AUD per annum.[12]  She has provided considerable material from her father indicating his financial support for her which appears to demonstrate he has approximately $30,000USD equivalent in bank accounts in Zimbabwe.[13]  She has also provided her own bank statements demonstrating she is meeting her own day to day living expenses.[14]  She also states she has the financial support of her sister who lives in the United Kingdom.[15] The applicant also states in her response to the s359(2) letter that she holds assets in Australia to the value of approximately $2,000AUD. The Tribunal accepts this evidence. The Tribunal notes that the United Nations Human Development Index ranks India as 156^th in the world as compared to Australia’s ranking of 3^rd in the world.[16]  This, in combination with the excess income compared to expenses that the applicant is earning in Australian dollars, causes the Tribunal to consider that the applicant’s economic circumstances in Australia are acting as a significant incentive for her to not return to his home country.

   [11] See applicant’s response to the s359(2) letter.

   [12] See applicant’s response to the s359(2) letter.

   [13]See pages 21-33 and 38-44 of the Department File which includes bank statements and a letter of support from the applicant’s father.

   [14]          See pages 58-64 of the Department File.

   [15]          See the GTE.

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

   The Tribunal notes that the applicant has both parents, and one brother in Zimbabwe, a brother in South Africa, a sister in Poland/Zimbabwe and a sister in the United Kingdom.  She states she communicates almost every day in various ways and that they love each other.[17] The applicant returned home for three weeks in November 2014 to see her family.  The Tribunal accepts that the applicant’s family members may serve as a significant incentive for the applicant to return to her home country but, given the length of time she has been onshore for and her limited travel home, it appears to the Tribunal that any such incentive is outweighed by the applicant’s desires and incentives to remain onshore.

   [17] See applicant’s response to the s359(2) letter.

2. 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 in relation to her visas in coming to Australia outlined above. 

3. The applicant states she does not have any potential military service or political or civil unrest concerns in Zimbabwe.[18] The applicant does however refer in her response to the s359(2) letter about relatives who lost their loved ones through political violence. The Tribunal does not place any weight, either favourable or unfavourable, in relation to the applicant’s application in this regard in the circumstances.

   [18] See applicant’s response to the s359(2) letter.

4. The applicant states that she expects to receive approximately $65,000 per annum in her home country using the qualifications.[19]  The Tribunal refers again to the matters raised above – that the Bachelor of Nursing qualification would be likely to improve the applicant’s employment prospects but the workplace health and safety qualifications are likely to add limited, if any, value to the applicant in obtaining the stated remuneration in a Registered Nursing role. The Tribunal considers that the applicant has not demonstrated any clear and substantial improvement arising from the Workplace Health and Safety courses that will outweigh the significant time and monetary commitment required.

   [19] See applicant’s response to the s359(2) letter.

5. The applicant’s application and submissions do not satisfy the Tribunal that the applicant genuinely intends to stay in Australia temporarily. In making this comment, the Tribunal places weight on the significant length of the applicant’s time onshore, being in excess of nine years, the failure to progress academically beyond the vocational sector in that period of item, the significant periods of failure to complete any qualifications and/or engage with her studies as required by the Act and Regulations, the breaches of her enrolment and higher education sector visa conditions, the lack of relevance of the Workplace Health and Safety courses to her stated career goal and the inconsistent nature of her submissions. The Tribunal is concerned that the visa is being sought primarily to maintain residence in Australia.

6. Having had regard to the applicant’s circumstances, her 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.

7. 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

8. 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.