Kaur (Migration)

[2022] AATA 3569

Kaur (Migration) [2022] AATA 3569 (10 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Satbir Kaur
Mr Gurjit Singh
Master Sukhman Singh

CASE NUMBER:  2115981

HOME AFFAIRS REFERENCE(S):          BCC2020/345083

MEMBER:Penelope Hunter

DATE:10 August 2022

PLACE OF DECISION:  Sydney

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

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

Statement made on 10 August 2022 at 10:17am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine applicant for entry and stay in Australia as a student – numerous family members in home country – family and social ties to home country –updated COE provided –applicant is currently enrolled – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359, 499

Migration Regulations 1994, Schedule 2, cl 500.212

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 on 20 October 2021 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 7 February 2020. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The first named applicant is the primary visa applicant (the 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 the delegate was not satisfied that the applicant was a genuine applicant for entry and stay in Australia temporarily as a student.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CLAIMS AND EVIDENCE

5. The applicant is a 34-year-old citizen of India, and she arrived in Australia on a Visitor visa on 8 November 2019. She applied for the visa in order to undertake a study in a Diploma and Advanced Diploma of Leadership and Management at ALTEC College Melbourne concluding in November 2021. The applicant is married. The second named applicant is her husband. The third named applicant is their child, aged seven years. The applicant and second named applicant are also parents of a daughter aged four years who is situate in India. She was not included as an accompanying family member in the visa application.

6. In support of the application the applicant provided to the Department copies of her identity and marriage documents and those of her family, evidence of Overseas Student Health Cover, financial documents, and evidence of the applicant’s nurses registration in India, work references for the applicant from Dr Sidhu Dental care dated 21 August 2018 and Om Nursing Home Dated 30 September 2010, and documents regarding arrangements for her son’s schooling. In a statement provided in support of the visa application, the applicant also set out the following relevant information (in summary):

   i.In 2008 she had completed studies in Nursing and Midwifery and started working at Om Nursing Home in December 2008. She left the position in September 2010 after she had married and upon the birth of her first child. She then obtained employment as a staff nurse with Dr Sidhu Dental care and worked there from June 2011 to July 2018.

   ii.She came to Australia on a Visitor visa, with her husband and son to see her sister and family. After arriving she came to know about the Australian education system and her family suggested that she obtain some further education. She undertook research and decided to undertake the Diploma and Advanced Diploma in Leadership and Management. She chose Altec College as it offered students opportunities to integrate theory with practice and an internship program.

   iii.Although she worked as a staff nurse for almost 10 years in India she had very few chances to progress in the field. Higher studies were required for promotion, and these were expensive. She did not have the opportunity in India. However, after coming to Australia she felt motivated that she could fulfill her dreams. Her proposed course will prepare her to work in roles with management or senior management experience, such as General Manager, Senor Executive, Business Manager, Human Resources Manager or Sales Team Manager. Her course will assist her to develop various managerial and supervision skills. Further, the skills will be transferable across many roles and industries. She believed that the qualification would assist her if she wished to gain employment in high level management even in large hospitals.

   iv.Her sister and brother-in-law would support her and her family financially during her studies.

7. The delegate in their decision record, a copy of which the applicant has submitted to the Tribunal, set out the following reasons for the refusal of the visa:

   i.The delegate considered the applicant’s prior study and work experience, and her family ties in India. However, the delegate was more persuaded by the applicant’s failure to provide evidence that she or her spouse had property or employment to return to in India. It was considered that the applicant had been unable to demonstrate sufficient economic ties to her home country and this diminished her incentive to return upon the completion of her studies.

   ii.It was considered that the applicant had demonstrated limited knowledge of her proposed education provider and courses, or the cost of living in Australia. The delegate was not satisfied overall that the applicant had shown a realistic level of knowledge of her potential circumstances in Australia’.

   iii.The delegate also considered the applicant had significant ties in the form of her sister in Australia. Her spouse and son were travelling with her. The delegate found that these ties may provide the applicant with an incentive to remain in Australia.

   iv.It was further considered that the applicant had given no credible reasons why the study could not be pursued in her home country. Additionally, the future roles identified by the applicant for employment upon the completion of the course such as a General Manager, Senor Executive, Business Manager, Human Resources Manager or Sales Team Manager were unrealistic without a university degree.

   Tribunal application

8. The Tribunal received an application for review from the visa applicants on 6 November 2021. In addition to the delegate’s decision record the following documents were submitted:

   i.Confirmation of Enrolment (CoE) for the applicant in a Diploma of Leadership and Management, at Australian Learning, Training & Education Centre (ALTEC) with course dates from 17 February 2020 to 13 February 2021, created on 28 January 2020.

   ii.A Certificate of completion of the Diploma of Leadership and Management dated 14 February 2021, letter of completion and record of results.

   iii.A CoE for the applicant in an Advanced Diploma of Leadership and Management, at ALTEC, with course dates from 15 February 2021 to 13 February 2022, created on 28 January 2022.

   iv.Provisional results for the applicant in the Advanced Diploma of Leadership and Management issued on 4 November 2021.

9. In response to a request by the Tribunal pursuant to s.359(2) of the Act, on 4 April 2022, the applicant provided a completed Student Information Form. In this form the applicant disclosed that she had obtained further enrolments in a Graduate Certificate in Advanced Nursing and a Master of Nursing. In addition on 4 April 2022, the applicant also submitted the following documents:

   i.Financial documents including an ANZ Bank Statement for the applicant and second named applicant dated 1 April 2022, an ICICI Bank Statement for the second named applicant, balance as at 14 February 2022, letters from Punjab National Bank dated 29 March 2022 regarding an account balance for the second named applicant, the applicant, and the applicant’s parents, and a letter regarding post office accounts held by the applicant’s parents.

   ii.Affidavit of financial support from the applicant’s parents.

   iii.A Certificate of completion of the Advanced Diploma of Leadership and Management dated 13 February 2022, a letter of completion and record of results.

   iv.CoE for the applicant in a Graduate Certificate in Advanced Nursing at Institute of Health and Management Pty Ltd, with course dates from 4 April 2022 to 30 September 2022, created on 18 March 2022 (Cost $11,800).

   v.CoE for the applicant in a Master of Nursing at Institute of Health and Management Pty Ltd, with course dates from 7 November 2022 to 5 November 2024, created on 18 March 2022 (Cost $46,950).

   vi.Letter of confirmation of the third named applicant in a Western Australian primary school from 4 April 2022 to 5 November 2024 (Cost $11,800).

   vii.Statement by the applicant in support of the visa criteria.

10. In her statement the applicant provided the following relevant information in summary:

    i.She had chosen her former courses in leadership and management to enhance her skills in the administrative field in which she was working. She felt that she must enhance her education to progress and she had completed her course with the full intention and finalised every unit on time.

    ii.While studying in Melbourne she was curious to explore the field of Medicare. She had left study in India in 2009 and thought it would be difficult to start again but her Leadership and Management course got her back on track. She then came to know that she could do a masters course on the basis of her previous studies in nursing and midwifery.

    3. Higher studies in the nursing field is a good option for her for a better future. It is a field where she could earn an income according to her level of education and experience. She would have several opportunities for better employment and salary, in private, government or institutional sectors. After successfully completing her program she will return to India, and nursing is a field where she could earn well, with India facing a shortage of nurses. Some career opportunities were a nurse in-charge, nursing supervisor, clinical instructor, nursing executive, paramedic nurse, nursing tutor, assistant nursing superintendent, tutor (Psychiatric nursing), or occupational health nurse. The applicant also set out estimated salaries.
    4. When searching for a nursing program for her future endeavour she chose to study at the Institute of Health and Science rather than at a traditional university, because they provided the Masters in Nursing option to people who had completed a Diploma in Nursing and had relevant work experience. She claimed that various universities she had contacted would only offer the Masters option to those holding a Bachelor Degree. She had dreamt of holding a Masters in Nursing and to choose another pathway, either in Australia or India, would take her three to four years to complete. After completing her Masters she can excel in her field in multiple positions.
    5. She was in touch with her family every day in India as her daughter was living with her parents. She had a strong incentive to return to her home country as she was from a middle class family, with parents, in-laws and friends to support her. Her husband would also be the beneficiary of her in-laws estate, they have 15 acres of land and a family business. Her husband is the only one in the family to look after his mother, who is a widow.
    6. She was staying with her sister when the first arrived in Australia and later on they moved to share accommodation. The visa applicants have now moved to Perth so that applicant can undertake the Master’s program,

11. On 26 April 2022, the applicant provided an updated CoE in the Master of Nursing as she claimed the previous document was issued in error by her education provider.

12. On 3 June 2022, the applicant submitted further copies of her CoEs and evidence of Overseas Student Health Cover.

13. On 4 June 2022, the applicant submitted to the Tribunal a further copy of her statement received on 4 April 2022

14. The applicant only appeared before the Tribunal on 10 June 2022 via telephone to give evidence and present arguments. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

    RELEVANT LAW

15. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student.

    Genuine applicant for entry and stay as a student (cl 500.212)

16. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the applicant intend genuinely to stay in Australia temporarily?

17. In considering whether the applicant satisfies cl 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’, made under s 499 of the Act. This Direction, 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 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.

18. 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.

19. The Tribunal accepts that the applicant has completed her intended program of study in Leadership and Management in accordance with her proposed timetable. It is the general expectations of applicants in Australia on student visas that they will maintain their enrolment and undertake their proposed courses. The applicant has now enrolled in a further program of study that would see her remain in Australia until late 2024. When the Tribunal questioned the applicant as to whether she was extending her enrolment for the purposes of maintaining residence in Australia, she rejected the suggestion and maintained that she genuinely desired higher qualifications in nursing and her proposed course package provided a pathway to a Masters level qualification within a reasonable timeframe based on her existing qualifications and experience. 

20. The applicant claimed that a similar pathway to a Masters level qualification was not available in her home country. The evidence of the applicant was that there were also limited opportunities to undertake the course in Australia. She had relocated with her family to Perth in order to undertake the course. The Tribunal accepts the evidence of the applicant that her proposed program of study offers her the opportunity to obtain a Masters level qualification without the time an expense of a first obtaining a bachelors degree. Furthermore it is accepted that the applicant wishes to obtain a highly regarded international qualification. The applicant has reasonable reasons for not undertaking her proposed program of study in her home country.

21. As to the applicant’s circumstances in her home country, she has numerous family members including her daughter and parents. The applicant told the Tribunal that she did not intend for her daughter to accompany her in Australia, she was settled with her parents, and she was settled with her own schooling in India. The applicant also wished to focus on her own studies and it was her intention to return to India to be with her daughter at the completion of her course. Additionally, the applicant claimed that her husband had a responsibility to provide for her mother-in-law. It is accepted that the applicant has strong personal ties in India which would serve as an incentive for her to return. The applicant submitted that she enjoyed a middle class lifestyle in her home country, and relative to others she had a comfortable standard of living. Her parents have provided her and her family with financial support while she has been studying. Additionally, her mother-in-law has property including acreage which her husband is the primary beneficiary. There is no evidence of any economic circumstances that would service as a significant incentive for the applicant not to return.

22. The applicant does not have any military service commitments and she told the Tribunal that she has no fears about returning to India and intended to do so on the completion of her current program of study. There is no evidence of any civil or political unrest that may induce the applicant to apply for a student visa as a means of obtaining entry for the purpose of remaining indefinitely. The applicant’s circumstances in her home country are generally supportive of the grant of the visa.

23. As to the applicant’s circumstances in Australia, she has a sister who lives with her family in Melbourne. When the applicant initially determined to study, she was living with her family with her sister. The applicant told the Tribunal that this situation did not continue for the duration of her studies in Leadership and Management. She did not wish to be a financial burden on her sister and brother-in-law and she had moved with the second and third named applicants to share accommodation. The applicant is in Australia with members of her immediate family, her husband and son. As a family unit they have now relocated to Perth so the applicant can undertake her course and her sister does not provide her with any assistance. The applicant told the Tribunal that she has never worked in Australia, instead she has focussed on her studies. The second named applicant is currently working in a warehouse in Perth; in India, he worked in IT and managed farm property. The applicant claimed that he could return to working in IT when they went back to India. She maintained that there were better career opportunities for her husband in India. The circumstances of the applicant do not indicate that she is using the student visa program to circumvent the intentions of the migration program.

1. The applicant was able to discuss freely in her evidence to the Tribunal details of her course, her days of attendance, current units of study and is progress to date. The Tribunal accepts her claims that she is focussed on achieving satisfactory results to benefit her future. The applicant appeared to have a reasonable level of knowledge of her course of study.

2. With respect to the value of her course, the applicant claimed a Masters was one of the highest levels available in nursing qualifications and that there was a big demand in India for highly educated medical staff. With her previous qualifications in Leadership and Management the applicant expected that she would be able to access a number of senior roles. It is noted that the courses proposed by the applicant carry fees of over $56,000. Additionally the applicant is expending funds for the education of her son in Australia for the duration of his stay. It is accepted that the visa applicants would not commit to this expense unless the course had value to the applicant’s future. The applicant claimed that she had the potential to increase her monthly salary from INR800 to INR9000. The Tribunal also accepts that the applicant is seeking to undertake a course that is consistent with her previous level of education and work experience. On her evidence her course is relevant to her past and proposed future employment and it is also accepted that she could use the qualifications to improve her remuneration.

3. The Tribunal held greater concerns regarding the relevance of the applicant’s past studies, and questioned why if she had desired further qualifications in that field she had not started with related studies. The applicant repeated evidence in her submissions that when she initially travelled to Australia that she did not have the intention of studying, it was only on spending time with family and friends in Melbourne that she became aware of the opportunity. She was seeking to leverage off her studies in Leadership and Management to obtain higher level administrative positions in nursing in the absence of having a tertiary qualification. She only became aware of the opportunity to obtain a Masters in Nursing via the pathway offered by the Institute of Health and Management Pty Ltd in the last few months of her previous course and again the applicant impressed to the Tribunal that it was a rare opportunity to obtain coveted qualifications in a reasonable time at a reasonable price.  

4. There is no evidence that the applicant did not comply with the conditions of her previous Visitor visa. The applicant has provided a satisfactory explanation as to why she elected to apply for a student visa while in Australia, particularly that travel had been suspended due to the pandemic and opportunities to return to India were restricted. There was no restriction on her Visitor visa upon her applying for a student visa onshore. The applicant has not previously applied for a permanent visa, and there is no evidence that she has had previous visas refused or considered for cancellation. The Tribunal is satisfied on balance that the applicant does not have an unfavourable immigration history. The applicant assured the Tribunal in her evidence that she intended to return to her home country on the completion of her course.

5. The Tribunal did have some concerns about the applicant’s intentions considering that she had extended her proposed program of study, however she has presented to the Tribunal reasonable arguments as to the value of her courses for her future career. It is noted that she does have members of her immediate family with her in Australia, however the applicant has also left her daughter in India and it is considered that this and other family ties indicate a strong incentive for her to return. The applicant also has a sister in Melbourne, however she has relocated away from her to pursue her desired studies and this further indicates to the Tribunal that the proposed studies and future plans of the applicant corroborate her claims that she views Australia as a temporary place to study, obtain international experience and a well-regarded qualification.

6. Having regard to the evidence and findings set out above, and the relevant considerations pursuant to Direction No 69, the Tribunal accepts that the applicant genuinely intends to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a) of Schedule 2 to the Regulations.

7. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

8. As the Tribunal is remitting the application of the primary applicant, it is appropriate that the visa applications of the second and third named applicants, who are seeking to satisfy the secondary criteria for the visa on the basis of being a member of her family unit, also have their applications remitted for consideration of the remaining visa criterion.

   DECISION

9. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

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

   Penelope Hunter
   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;

   d.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

   e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

   Value of the course to the applicant’s future

   12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

   a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

   b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

   c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

   The applicant's immigration history

   13.An applicant’s immigration history refers both to their visa and travel history.

   14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

   a.Previous visa applications for Australia or other countries, including:

   i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

   ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

   b.Previous travels to Australia or other countries, including:

   i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

   ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

   iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

   iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

   If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

   15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

   Any other relevant matters

   16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.