Kamboj (Migration)

[2020] AATA 459

Kamboj (Migration) [2020] AATA 459 (13 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Kamaljit Singh Kamboj

CASE NUMBER:  1814702

HOME AFFAIRS REFERENCE(S):          BCC2018/1215634

MEMBER:T. Quinn

DATE:13 February 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 13 February 2020 at 2:21pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study history – nine cancelled enrolments – unsatisfactory course attendance – changes to career and study pathways – length of time onshore – value of course – holds three tertiary qualifications already – personal ties in Australia – income disparity – decision under review affirmed

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

CASES
Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372
Khan v Minister for Immigration & Another [2019] FCCA 565
Tshering v Minister for Home Affairs [2019] FCCA 2667

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 Home Affairs (‘the delegate’) on 2 May 2018 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 14 March 2018 (‘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 2 May 2018, 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 21 May 2018, 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 6 November 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 applicant provided the requested information to the Tribunal on 20 November 2019 which was within the prescribed timeframe.

6. The applicant appeared before the Tribunal via telephone hearing on 7 February 2020 to give evidence and present arguments.  

7. 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.

8. The Tribunal has proceeded to a decision having regard to all the information before it, including the material and evidence provided by the applicant on the day of the hearing.

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

   STATUTORY FRAMEWORK

10. 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.

11. 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?

12. 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.

13. 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.

14. 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.[1]  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.  In this regard, the Tribunal also notes the decision of Judge McNab in Tshering v Minister for Home Affairs [2019] FCCA 2667, wherein his Honour referred to the decisions of Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]) and Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) in relation to the proper approach to the consideration of guidelines such as the Direction and most specifically, his Honour endorses the 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.  

    [1]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

15. The applicant in this case is a 35 year old male Indian citizen who first arrived in Australia on 19 May 2008 pursuant to a Student (TU 572) Vocational Education Sector Visa which was valid until 26 August 2010.[2]  The delegate’s decision outlines the applicant’s subsequent history being that he has remained onshore on the basis of three further student visas and one Skilled (Provisional) (Onshore) visa subclass VC-485 visa (‘the 485 visa’).  The delegate’s decision goes on to list a number of cancelled enrolments recorded in relation to the applicant.  The decision also indicates that the applicant has completed a Diploma of Hospitality Management, an Advanced Diploma of Hospitality Management, an Advanced Diploma of Management and English for Academic Purposes.  At the time of the delegate’s decision, the applicant was enrolled in a Bachelor of Business with a completion date of December 2019.  The applicant has given oral and documentary evidence that he has now completed this course but is persisting with his application for review before the Tribunal on the basis that he now wishes to also complete a Graduate Diploma of Management (Learning) which commences in March 2020 and has a completion date of March 2021.

    [2]See delegate’s decision.

16. Prior to coming to Australia, the applicant completed secondary school followed by a Bachelor of Arts in 2004 and a Bachelor of Physical Education in 2005 in India.[3]  The applicant then worked as a Physical Education Teacher for 8 months in India prior to travelling to Australia.[4] 

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

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

17. At hearing, the Tribunal enquired about the applicant’s nine cancelled enrolments in the Bachelor of Business.  The Tribunal also enquired about the two occasions, referred to in the delegate’s decision, when the applicant was reported by his course providers for not achieving satisfactory course attendance.  The applicant explained that a number of the cancelled enrolments were changes to course details by the course provider whereby his enrolment was cancelled and he was immediately re-enrolled in the new course without being informed.  He acknowledged that one of the cancellations related to having enrolled in and commenced a Bachelor of Business (Finance and Accounting) but he had not studied accounting before and it was too difficult and he could not pass the subjects.  The applicant’s acknowledgement and honesty in this regard is recognised and appreciated by the Tribunal.  The applicant stated he had a back problem in 2009 when he was reported for unsatisfactory course attendance and that in 2014 it related to the aforementioned accounting studies he was struggling with.  The Tribunal considers this evidence is plausible.

18. The Tribunal also noted at hearing that the applicant did not list the multiple cancelled enrolments in his response to the s359(2) letter and explained that this raises concerns for the Tribunal that the applicant is not being forthright in his evidence. The applicant stated he did not intend to conceal it but did not know he needed to write everything down. The questionnaire to be completed pursuant to the s359(2) makes it clear that all enrolments should be listed. The Tribunal was puzzled by the applicant’s response in this regard.

19. The form completed by the applicant in his application for the current student visa included a section to be completed by the applicant headed ‘Genuine temporary entrant’. It is a critical part of the form that requests the applicant to provide information demonstrating that they meet the genuine temporary entrant criteria prescribed by the Regulations. The applicant stated SOP attached and at hearing was adamant that this document had been supplied to the Department, despite the delegate’s statement that it had not. After hearing, the applicant made contact and apologised for this statement saying that his migration agent had in fact not submitted the document and he was not aware of this. The applicant indicated he had read and understood the delegate’s decision at the commencement of the hearing so it puzzles the Tribunal that the applicant would not have clarified this issue sooner in his proceedings, however, the Tribunal appreciates the applicant’s acknowledgment of his error. After the hearing, the applicant supplied a document which he states was from March 2018 but is an undated word document titled ‘Statement of Purpose’ (‘the GTE’). In the GTE, the applicant states ‘after completing my course and gaining international experience, I will go back to India and try to get job. Employment opportunities for managers are very common and span a variety of roles in many different industry settings such as public accounting practice, commercial, and government organisations. I could consider foreign affairs, international trade, a multinational organization or consulting. An International MBA is a perfect vehicle for career progression in various companies like: Consulting Companies; Foreign affair departments; international trade organizations; Multinational Enterprises etc.’ the Tribunal is somewhat confused by these submissions as his application related to a Bachelor of Business, not an MBA; he indicates he will return to his home country on completion but has remained to continue studying a Graduate Diploma; and no Graduate Diploma is referred to in the GTE. At hearing, the applicant stated that he had not been considering graduate studies at that time but as time went on his country and trends have changed and that he considered demands are now such that he also needs this qualification to obtain a better job. The Tribunal has difficulty accepting this submission; particularly given the Graduate Diploma is in Learning, not management.

20. The applicant stated at hearing that he was not achieving job satisfaction from his role as a Physical Education Teacher and wanted to travel to Australia to get more qualifications and get another job in India.  He indicated he would like to work in executive management as a manager and that he needs a specialised qualification in the form of a Graduate Diploma of Learning which will give him qualifications for senior executive positions.  He claimed that with the Bachelor alone he would likely to receive remuneration of 150-200,000 Rupees per year but with the Graduate Diploma he would be able to receive up to 250-300,000 Rupees per year and more job security.  The Tribunal finds it difficult to accept that Graduate Diploma in Learning could have such a significant impact on the applicant’s likely future remuneration in circumstances where he already holds three tertiary qualifications (Bachelor of Arts, Bachelor of Physical Education and a Bachelor of Business).

21. The Tribunal allows for reasonable changes to career and study pathways but is also perplexed by the applicant’s change from Physical Education Teacher to study in Hospitality to now studying Business and Learning with a view to management in the business industry. It raises concerns for the Tribunal about the true nature of the applicant’s intentions in residing onshore, particularly in circumstances where he has been onshore for approaching twelve years now. Such a significant length of time is of concern for the Tribunal: it is difficult to reconcile a period of twelve years with the meaning of temporary as required by the Act and Regulations.

22. The Tribunal acknowledges the Graduate Diploma is consistent with the applicant’s current level of study but considers it holds limited relevance to his future career goals in management and is only likely to offer marginal assistance and improvements to his future career prospects given his study experience to date.

23. The applicant has returned to India on four occasions since his arrival nearly twelve years ago: once to 2015 to visit family, once in 2017 for his mother’s surgery, once in December 2018 to get married and once in 2019 for his mother’s eye surgery (which he has supplied medical evidence in relation to).[5]  The applicant lives onshore with his wife, brother, sister in law and cousin.  His mother lives in India and he speaks to her nearly every day as well as maintaining contact with old friends in India.[6]  In circumstances where the applicant is living his wife and brother onshore and has been in Australia for nearly twelve years with only four trips to India and is seeking to further extend that stay, the Tribunal considers that the applicant’s personal ties to India are not serving as a significant incentive for him to return to his home country or region.

    [5] See applicant’s response to the s359(2) letter and evidence at hearing.

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

24. As mentioned, the applicant lives with his wife, brother, sister in law and cousin in Australia.  He works at a hotel and is attends work events.[7]  The Tribunal considers that these facts, in combination with the length of stay in Australia for approaching twelve years, in addition to his application to extend that stay for a further period, indicates that the applicant has a preference to remain onshore.  In the circumstances, the Tribunal considers that the applicant has cultivated and established strong ties to the Australian community.  As each day passes, those ties strengthen.

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

25. The applicant stated that an Australian qualification will have much more weight than the same in India and will give him a competitive advantage in the work force and he will be able to get a job easily.  The Tribunal accepts these submissions to some extent but considers that the applicant has had ample time onshore to gain experience and qualifications, being approximately twelve years, and in the circumstances where he already holds a Bachelor of Business from Australia, considers the reasons for not studying in his home country or region are not reasonable.

26. The applicant has been working as a ground servery officer in an aged care facility and in a hotel during his time in Australia.  He is currently earning $26 per hour, working casually approximately 20 hours per week.  On this basis, the applicant is earning approximately $27,000AUD per year; his expenses are $2,400AUD per annum.[8] The applicant states in his response to the s359(2) letter that he holds $950AUD in the Commonwealth Bank. The Tribunal notes that the United Nations Human Development Index ranks India as 130^th in the world as compared to Australia’s ranking of 3^rd in the world.[9]  The Tribunal considers that, particularly given the amount the applicant is earning in Australian Dollars in excess of his expenses onshore, the applicant’s economic circumstances in Australia relative to India are a significant incentive for him not to return.

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

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

    The applicant has indicated he has not undertaken any other international travel and has had no visa or immigration issues in the past and does not have any potential military service obligations or political or civil unrest circumstances in India.[10]  The Tribunal accepts this evidence.

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

1. Whilst overall the applicant appeared to be forthright in his evidence, taking responsibilities for his errors, which is to his credit, the Tribunal remains very concerned by the amount of time the applicant has been onshore for.  It is very difficult to reconcile a period of approximately twelve years with the meaning of ‘temporary’.  Further, the changes in study and career pathways as well as the limited relevance and assistance the Graduate Diploma of Learning is likely to offer the applicant in a career in management, together raise concerns for the Tribunal about the true nature of the applicant’s intentions in seeking a student visa and remaining onshore.  The Tribunal is also concerned about the applicant’s personal ties in Australia and the economic incentives he has to remain onshore.  The Tribunal considers 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.  The Tribunal cannot be satisfied on the material and evidence before it that the applicant genuinely intends to stay in Australia temporarily.

2. Having had regard to the applicant’s circumstances, his 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.

3. 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

4. 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.