Kevin (Migration)

[2024] AATA 3413

Kevin (Migration) [2024] AATA 3413 (30 August 2024)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Kevin

CASE NUMBER:  2302923

HOME AFFAIRS REFERENCE(S):           BCC2022/2236232

MEMBER:  David Thompson

DATE:  30 August 2024

PLACE OF DECISION:  Perth

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

·cl 500.212 of Schedule 2 to the Regulations.

Statement made on 30 August 2024 at 5:00pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No 108 – circumstances in home country – potential circumstances in Australia – value of the course – immigration history – intention to comply with visa conditions – decision under review remitted

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

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 February 2023 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 17 June 2022. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). 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 visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because they were not satisfied that the applicant intended genuinely to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 26 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.]

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 meets the requirements of cl 500.212.

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

1. 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.

Evidence

1. As well as giving oral evidence at hearing, the applicant provided the following items of documentary evidence to the Tribunal:

   a.the Delegate’s decision record and notification letter, both dated 13 February 2023;

   b.a completed Request for Student Visa Information form (M17), provided in response to a request for information made by the Tribunal pursuant to s 359(2) of the Act on 9 April 2024;

   c.Confirmation of Enrolment (CoE) CDF5B945, recording the applicant’s enrolment in a Certificate IV in Marketing and Communication scheduled to run from 4 July 2022 to 9 July 2023;

   d.CoE CDF5C883, recording the applicant’s enrolment in a Diploma of Marketing and Communication scheduled to run from 10 July 2023 to 6 July 2025;

   e.CoE CDF5CB26, recording the applicant’s enrolment in an Advanced Diploma of Marketing and Communication scheduled to run from 7 July 2025 to 4 July 2027;

   f.a certificate of completion of a Certificate IV in Marketing and Communication, issued to the applicant by Sydney Global College dated 19 July 2023 (with academic transcript attached);

   g.a statement of attainment issued to the applicant by Sydney Global College dated 12 April 2024, with respect to a Diploma of Marketing and Communication course;

   h.a business plan for a business to be known as ‘VIN’s Restaurant’, undated;

   i.3 untranslated documents, on their face relating to land titles in Indonesia;

   j.a document entitled ‘Research about Sydney Global College’, undated; and

   k.a Certificate (Proof of Land Title) issued by the National Land Agency of the Republic of Indonesia, recording the applicant’s interest in land in his home country.

2. Prior to constitution of this case, the Tribunal obtained the Department’s file on the applicant’s relevant student visa application. That file contained the following relevant documents not already list above:

   a.the applicant’s student visa application, lodged on 17 June 2022;

   b.identification pages from the applicant’s Indonesian passport;

   c.the applicant’s Genuine Temporary Entrant Statement, undated;

   d.an untranslated document, on its face concerning the composition of the applicant’s family;

   e.an untranslated document, on its face concerning title to land; and

   f.a flight itinerary, recording details of a journey to and from Indonesia to be taken by the applicant between 7 December 2022 to 7 February 2023.

3. Where in the course of these reasons I refer to any of the documents listed above, I do so by their paragraph numbers above. Thus, the document described in paragraph 8(a) is referred to simply as ‘document 8(a)’, and so on for the remainder of the documents listed.

4. Prior to hearing, I obtained copies of the applicant’s record from the Provider Registration and International Student Management System (PRISMS) and of the applicant’s movement record. Neither of these documents contained any relevant information not provided separately by the applicant. There was, therefore, no need to put any of the information they contain to the applicant at hearing pursuant to s 359AA of the Act.

Does the applicant intend genuinely to stay in Australia temporarily?

1. In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 108, ‘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.

2. 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.

   Background

3. The following paragraphs 15 to 27 set out my findings of fact on various relevant background matters.

4. The applicant is a citizen of the Republic of Indonesia. He is 28 years old at the date of these reasons.

5. The applicant first arrived in Australia on 19 June 2019, as the holder of a US-462 work and holiday visa valid until 24 January 2020.

1. The applicant applied, whilst still onshore, for a further US-462 work and holiday visa on 2 December 2019. He was granted such a visa, valid to 27 June 2020, on 24 January 2020.

2. On 12 May 2020, the applicant applied for a TU-500 student visa and was granted a Bridging Visa A pending a decision on his application.

3. The applicant was granted a TU-500 student visa on 27 June 2020, valid until 5 August 2022. At that time, he was enrolled in the following package of courses:

   a.Diploma of Leadership and Management, scheduled to run from 29 June 2020 to 6 June 2021; and

   b.Advanced Diploma of Leadership and Management, scheduled to run from 28 June 2021 to 5 June 2022.

4. On or about 5 April 2022, the applicant’s Advanced Diploma of Leadership and Management enrolment was varied, so that the course would finish on 31 July 2022.

5. On 17 June 2022 the applicant applied for a further TU-500 student visa. He was granted a further Bridging Visa A pending a decision on that application. At that time, the applicant was enrolled in the following package of courses:

   a.Certificate IV in Marketing and Communication, scheduled to run from 4 July 2022 to 9 July 2023;

   b.Diploma of Marketing and Communication, scheduled to run from 10 July 2023 to 6 July 2025; and

   c.Advanced Diploma of Marketing and Communication, scheduled to run from 7 July 2025 to 4 July 2027.

6. On 31 October 2022 the applicant was granted a Bridging Visa B, valid to 22 March 2023.

7. The applicant departed Australia on 7 December 2022, returning on 8 February 2023.

8. On 13 February 2023, the applicant’s most recent student visa application was refused. In consequence, on 2 March 2023 he lodged this review application.

9. On 22 March 2023, the applicant was granted a Bridging Visa A.

10. On 21 November 2023, the applicant was granted a further Bridging Visa B.

11. The applicant departed Australia on 11 December 2023, returning on 31 January 2024.

    The applicant’s circumstances in his home country

12. The applicant gave evidence at hearing that he has family in Indonesia, namely, his parents and two brothers. He stated that he contacts them 3 or 4 times each week, by means of WhatsApp audio and video calls, and text messages. He also gave evidence of community ties in Indonesia, saying that he had previously played in a basketball team, and engaged in regular scheduled meals with close friends. I note that the applicant has resided largely in Australia since June 2019. I am not convinced that community involvements of the kind of which the applicant gave evidence would survive such a period of physical absence. Nonetheless, I accept his evidence as to his family, and find that his family relationships give him personal ties to his home country that would provide him with an incentive to return there once he has finished his studies in Australia.

1. The applicant also gave evidence as to his economic position in his home country. He stated that he had completed a Bachelor of Economics degree in September 2018, and having done so worked in a sales position for approximately 1 year. As the applicant came to Australia in June 2019, I find that his employment did not last for 1 year, but rather lasted for approximately 9 months. I am not convinced that this short period of employment would give the applicant any particular advantage over other candidates were he to return to Indonesia and seek employment there.

2. The applicant stated that he owns property in Indonesia. He supported that claim with document 8(k), and I accept it. It would appear from the applicant’s evidence that the land in question is largely unimproved. I find that owning property in Indonesia gives the applicant an economic tie with his home country. I further find that that economic tie gives him some incentive to return to that country once he has finished his studies in Australia. I do not, however, find that incentive to be particularly strong.

3. The applicant stated at hearing that he had no military service obligations to perform on his return to Indonesia. Country information indicates that, while Indonesian law allows for compulsory military service, it is not in practice required. I accept the applicant’s evidence in this regard. He also stated that he has no concerns regarding civil or political unrest in Indonesia. There is no evidence before me to suggest otherwise, and I accept the applicant’s evidence on this point too.

4. The applicant gave evidence regarding the availability in his home country of courses similar or equivalent to those he is studying in Australia. His evidence was that although he had researched the possibility of studying in Indonesia, he was unable to find anything similar to his Australian courses. In document 8(b), he referred the reader to “my submission” on this issue. I take that to be a reference to document 9(c), as there is no other document in the evidence before me that addresses the issue, even tangentially. Document 9(c) contains a reasonably lengthy disquisition on the faults in the Indonesian education system, as well as a section dealing with the virtues of the Australian system. However, in both cases the applicant has quoted extensively from information available online, and has included hyperlinks to his sources in the body of his document. There is nothing in the evidence before me to suggest that the applicant conducted any focussed search for actual courses available in Indonesia. The applicant’s evidence on this point therefore amounts to a statement that he considered the option of studying in Indonesia, and undertook some online research into it, but decided to opt for the superior courses available in Australia. Whilst that is not an unreasonable position to take in itself, the applicant’s evidence gives the impression of being assembled after he had made his decision to study in Australia in order to justify that decision. It does not satisfy me that the applicant gave any real thought to the possibility of studying in his home country.

5. On the basis of the matters I have discussed above, find that the applicant’s circumstances in his home country lend some, although only moderately strong, support to his claim to intend genuinely to return there on completion of his studies in Australia.

   The applicant’s potential circumstances in Australia

6. The applicant gave evidence, both in writing and at hearing, that he has no family in Australia, and has formed no community ties in this country. There is nothing in the evidence before me to contradict either of those statements, and I accept them and find accordingly. I find that the applicant has no personal ties to Australia that would give him any incentive to remain in this country once he has finished his studies.

7. The applicant also gave evidence that he has no property in Australia. Once again, I accept that evidence on the basis set out in the preceding paragraph, and find accordingly. He did,

however, give evidence of some work history in Australia. He stated that he worked as a part-time chef in a business known as Vanilla Blue Catering. The length of time for which the applicant held that position is unclear, although he stated at hearing that he had earned approximately $450 per week. The applicant asserted at hearing that he had gained sufficient skills in that position to be able to open his own café in Indonesia (a matter I will discuss further below). The applicant stated that he is currently working for Coles as a part- time retail assistant, and is earning between $300 and $400 per week. I do not consider that this level of income, which would be scarcely adequate to pay the applicant’s living expenses during his stay in Australia, let alone his course fees, would amount to an economic tie to Australia, in that it would not give the applicant any real incentive to remain in this country once he has finished his studies. At best, it would open the way to more work of the same kind. I find that the applicant has no significant economic ties to Australia that would give him any incentive to remain in this country once he has finished his studies.

1. The applicant stated at hearing that he had not entered into any relationship whilst in Australia. There is nothing in the evidence before me to contradict this claim, and I accept it to be true. It follows that there is no evidence that the applicant has entered into any relationship of concern, in the sense in which that term is used in Direction No. 108. Nor is there any direct evidence before me that the applicant is simply attempting to use the student system to maintain residence in Australia, or that he is attempting to circumvent the intentions of the Australian immigration programme in any other way.

2. The applicant was resident in Australia on work and holiday visas for nearly 3 years before he applied for a student visa. He had, therefore, had extensive practical opportunities to learn about life and work in Australia before he applied for a student visa. I do not find in those circumstances that a consideration of the applicant’s level of preparation for life in Australia assists me to reach my decision in this case.

3. The applicant claimed to have undertaken broad research into possible course providers in Australia before lighting on his current course provider, Sydney Global College, but gave little detail, either at hearing or in his documentary evidence. He stated at hearing that he chose Sydney Global College because it had small classes and good trainers, and that it had received generally good reviews online. I accept these as good reasons to choose a course provider in and of themselves, but I find that the applicant’s researches into his course provider fall very much at the lower end of what one would reasonably expect of a person genuinely intending to remain in Australia as a student.

4. Nonetheless, I find that the applicant’s evidence as to his actual and potential circumstances in Australia gives reasonably strong support to his claim to be a genuine temporary entrant.

   The value of the applicant’s courses for his future

5. The applicant has previously been awarded a Bachelor of Economics degree, and is now studying a course of packages that will culminate in the award of an Advanced Diploma. He has therefore regressed in his level of studies. However, against that, he is now studying in a different area. In those circumstances, I do not consider that his regression in study level constitutes evidence that he is not a genuine student, using the student visa system to maintain residence in Australia.

6. The applicant gave evidence that he intends to open his own restaurant on his return to Indonesia, using the land he owns as a base for his operation. He provided a business plan for the proposed restaurant, which goes into considerable detail as to marketing and promotion (unsurprisingly, given the applicant’s current course of study), and contains some basic financial projections. The applicant gave evidence to the effect that his practical experience working for Vanilla Blue Catering would be sufficient to allow him to work as the

business’s chef. The applicant’s business plan is clearly aimed at a business offering “a unique vegetarian dining experience in Pontianak”, but at hearing the applicant spoke of the proposed restaurant as serving a brunch menu, including such dishes as bacon and eggs. While these statements are not necessarily directly contradictory, they indicate that the applicant’s plans are in a state of flux, and suggest practical implementation is at a very early stage, at best.

1. The applicant’s financial projections as set out in his business plan provide figures for 2028, 2029, and 2030. This reflects the fact that he still has some 3 ½ years before he finishes his current package of courses. His projections see his business making a net loss in its first year of operation, in the order of A$50,000, and net profits of A$90,000 and A$230,000 for 2029 and 2030 respectively. When asked for the basis for the figures used in the business plan for such items as gross revenue, cost of goods sold, and operating expenses, all of which feed into the applicant’s net profit figures, the applicant stated that he had found these figures online, and by speaking with friends who have opened their own businesses. I find this unconvincing. I observe that the level of detail and accuracy one would expect from a business plan would naturally be greater the closer the date of execution of that plan is. The applicant will not be executing his business plan for at least 3 ½ years, if all goes as he intends.

2. I find that the applicants’ courses have some value for his future in his home country. This supports the applicant’s case to some extent.

   The applicant’s immigration history

3. The applicant gave evidence that he has travelled to Japan, Thailand, Malaysia, and Singapore, as well as to Australia. He stated at hearing that he had never previously been refused a visa, had never had a visa cancelled, and has no other Australian visa application on foot. There is no evidence before me to the contrary, and I accept the applicant’s evidence on these points. I find accordingly.

4. There is no evidence before me to suggest that the applicant has ever breached any immigration law, whether of Australia or of any other country.

5. The applicant has now been resident in Australia for approximately 5 years. In that time, he has left the country only twice, first in December 2022 and then again in December 2023. On each occasion was he absent from Australia for slightly less than 2 months. The applicant appears to have made good progress in his studies since he commenced them, but has some 3 ½ years left before he finishes his course package, as noted above.

6. The length of the applicant’s stay in Australia, both to date and as projected, is relatively long for a person intending to remain in Australia temporarily. However, the applicant appears to be making reasonably good use of his time in this country, and I am not prepared to find that the length of his stay gives rise to an inference that he intends to stay permanently or indefinitely.

7. Overall, I find that the applicant’s immigration history contains nothing that throws doubt on his claim to intend to remain in Australia temporarily.

   Conclusion on cl 500.212(a)

8. On the basis of the above, I am satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).

Does the applicant intend to comply with visa conditions?

1. For the applicant to meet cl 500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

2. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl 500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed in some cases (cl 500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).

3. In giving his oral evidence at hearing, the applicant satisfied me that he is aware that conditions will be placed on any student visa he may be granted, and is aware of the general nature of those conditions. He stated that he would comply with any such conditions, and there is nothing in the evidence before me to suggest that he has any history of non- compliance that would cast doubt on that statement.

4. On the basis of the above, I am satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl 500.212(b).

Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

1. For the applicant to meet cl 500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl 500.212(a) and (b)).

2. No other relevant matter arises on the evidence before me, either supporting or detracting from the applicant’s case.

3. Accordingly, I am satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.

4. 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.

DECISION

1. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

   ·cl 500.212 of Schedule 2 to the Regulations.

David Thompson Member

Attachment – Direction No.108

DIRECTION NUMBER 108 - ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

(Section 499)

I, CLARE O’NEIL, Minister for Home Affairs and Minister for Cyber Security, give this Direction under section 499 of the Migration Act 1958 (the Act).

Dated: 21 March 2024

Clare O’Neil

Minister for Home Affairs and Cyber Security

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 - Preliminary Name of Direction

This Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

It may be cited as Direction No. 108.

Commencement

This Direction commences on 23 March 2024.

Revocation

Direction No. 69, given under section 499 of the Act, is revoked.

Interpretation

Act means the Migration Act 1958.

Finally determined has the same meaning as is set out in subsections 5(9) and (9A) of the Act.

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 against the genuine temporary entrant criterion for Student visa applications and Student Guardian visa applications (as applicable).

This Direction also applies to members of the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; who review the decisions of primary decision-makers in relation to a Student visa or Student Guardian visa application.

This Direction applies in relation to Student visa applications and Student Guardian visa applications made before 23 March 2024 but not finally determined on that date, including such visa applications that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.

The genuine temporary entrant criterion must be satisfied by all applicants who make an application for a Student visa and seek to satisfy the primary or secondary criteria, or an application for a Student Guardian visa and seek to satisfy the primary criteria.

Note: Direction No. 106 applies in relation to Subclass 500 (Student) visa applications and Student Guardian visa applications made on or after 23 March 2024, including visa applications made on or after that date that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.

Preamble

The Australian Government operates a student visa program 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 program 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 - 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 or Student Guardian 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 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.

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

iv.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;

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

vi.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

vii.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 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.