Khakh (Migration)

[2019] AATA 5367

Khakh (Migration) [2019] AATA 5367 (10 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Virenderpal Singh Khakh

CASE NUMBER:  1813590

HOME AFFAIRS REFERENCE(S):         BCC2018/1226061

MEMBER:Glenn O’Brien

DATE:10 September 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 10 September 2019 at 6:44pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – family ties to home country – limited travel home – lack of substantive business plan – pattern of enrolment – series of similar or identical courses – cancelled for non-commencement of studies – period of non-enrolment – unsatisfactory academic progress – decision under review affirmed

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 1 May 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 March 2018. 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 applicant provided a copy of the delegate’s decision record with the application for review. 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 (the Regulations) because the delegate was not satisfied the applicant intends genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 6 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicant was assisted in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 temporary applicant for entry and stay as a student.

8. 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?

9. 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.

10. 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.

11. Adopting the procedure in s.359AA of the Act, the Tribunal put to the applicant that it had on the Tribunal file a copy of the applicant’s enrolment records from the Provider Registration International Student Management System (PRISMS) database. For completeness, the Tribunal provided the applicant with a copy of the PRISMS summary of enrolment. The Tribunal explained to the applicant the relevance of the records to the review before the Tribunal. The Tribunal explained the consequences of relying on the information and confirmed the applicant understood the consequences of the information being relied upon. The Tribunal offered the applicant an opportunity to seek an adjournment to consider the information and comment on or respond to the information. The applicant did not seek an adjournment and elected to respond to the information during the course of the hearing.

12. The applicant arrived in Australia on 14 November 2015.

13. The Tribunal considered whether the applicant had reasonable reasons for not undertaking the proposed course of study in his home country if a similar course is already available there. In the applicant’s response to the Tribunal’s letter sent pursuant to s.359(2) of the Act the applicant told the Tribunal that it was his dream to come to Australia and that he can get good knowledge from here.

14. The applicant told the Tribunal that his parents are in India and he has a brother in Canada who is studying. The applicant also has a first cousin described by the applicant as a ‘cousin brother’ in Australia.

15. Since arriving in Australia in 2015 the applicant has returned to India once in 2017 to visit his parents and attend his cousins’ weddings.

16. The applicant told the Tribunal he keeps in contact with his family regularly by telephone once or twice a day.

17. The applicant completed secondary education in India and did not work prior to travelling to Australia. The applicant has no substantive assets in India or Australia. His parents have substantial assets, including agricultural land which the applicant anticipates inheriting as the eldest son.

18. The applicant previously worked in Australia for Uber Eats on a part-time basis earning approximately AUD250 to AUD300 on the basis of working approximately 17 to 18 hours per week. The applicant told the Tribunal that he stopped working about six months ago and is supported financially by his cousin-brother in Australia with whom he lives.

19. The applicant told the Tribunal that his plan is to be a great chef and open his own restaurant back home and attract tourism. He wants to be able to offer Thai food to make tourists feel comfortable in India. The applicant does not have a business plan and has taken no substantive steps in relation to establishing his own business. The applicant told the Tribunal that he talks about his plan with his father on the phone but has nothing in writing. The applicant told the Tribunal he anticipated earning approximately IR50,000 (AUD1,000) per month.

20. The applicant told the Tribunal he does not have any military service commitments and there are no circumstances of civil or political unrest in India that would induce him to apply for a visa to stay in Australia indefinitely.

21. In considering the applicant’s circumstances in his home country, on the basis of the matters set out above and the evidence before the Tribunal, the Tribunal finds:

    a.The applicant provided reasonable reasons for not undertaking the proposed course of study in his home country.

    b.The applicant does have family ties to his home country, in particular the residence of his parents, family assets, an obligation to assist his parents as the eldest son, and a potential inheritance which provide incentives to return. In considering the period of time the applicant has been in Australia, the absence of travel to India since 2017, the lack of any arranged employment or substantive business plan, and the fact the applicant is financially supported in Australia and resides with his cousin-brother who is a permanent resident, these circumstances are not a significant incentive to return.

    c.The applicant is supported financially during his study in Australia by his cousin-brother. The applicant did not previously work in India. The applicant previously earned AUD250 to AUD300 per week in Australia on the basis of working approximately 17 to 18 hours per week part time. In considering the absence of any arranged employment or substantive business plan in India, the applicant’s limited personal assets, the applicant’s previous income in Australia and the financial support he receives while in Australia, and the speculative nature of the applicant’s likely income in India upon his return, the applicant’s economic circumstances as a whole present as a significant incentive not to return home.

    d.The applicant does not have military service commitments which would provide a significant incentive not to return home.

    e.There is no evidence before the Tribunal of political and civil unrest in the applicant’s home country of such a nature that may induce the applicant to apply for a student visa to obtain entry to Australia to remain indefinitely.

    f.There is no relevant evidence regarding the applicant’s circumstances in his home country relative to others in that country and the Tribunal makes no findings concerning the applicant in that respect.

22. The applicant told the Tribunal he lives with his cousin-brother who is a permanent resident. His cousin-brother provides him financial support in Australia. Given the period of time the applicant has been in Australia, both since 2015, and his limited travel home the Tribunal is satisfied that the applicant has developed friendships and social connections to Australia.

23. The Tribunal was concerned in relation to the applicant’s pattern of enrolment since arriving in 2015. The applicant completed general English studies in 2016 and then completed a Certificate III in Accounts Administration in July 2016. The applicant’s subsequent enrolments in a series of accounting courses were never commenced and a Certificate III in Commercial Cookery was not completed, followed by a Certificate IV in Commercial Cookery and Diploma of Hospitality that were never commenced. The applicant has held 16 confirmations of enrolment that have been cancelled.

24. The applicant’s more recent enrolment in a Diploma of Hospitality and Advanced Diploma of Hospitality was cancelled for non-commencement of studies. The applicant has now obtained a confirmation of enrolment for a Diploma of Hospitality Management commencing on 2 September 2019 with an anticipated completion date of 1 March 2020.  On 10 September 2019 after the hearing the applicant filed a letter from Kings Institute of Management and Technology confirming the applicant has received credit transfer for 18 units from his Certificate IV in Commercial Cookery.  Upon commencing the course the applicant is required to complete 10 further units of study to attain the Diploma of Hospitality Management.

25. The applicant told the Tribunal that the large number of cancellations was due to him being enrolled in a suite of courses and when one course enrolment changed this had a flow-on effect to other courses. Further, the applicant told the Tribunal that he found accounting very difficult and changed from TAFE to Stanley College before moving to be with his cousin-brother and enrolling in courses at the American College. While the Tribunal notes the changes to one course can flow through to other enrolments, the applicant had cancellation in a number of colleges and was unenrolled from at least 21 January 2019 to his most recent enrolment commencing on 2 September 2019 at the Kings Institute of Management and Technology being the fourth education service provider the applicant has obtained enrolment from.

26. The applicant initially told the Tribunal the period of non-enrolment was due to his visa refusal but later stated that his non-enrolment was due to financial difficulty. The applicant did not seek to defer his study and told the Tribunal that at the time his cousin-brother was also having personal issues during this period and could not assist him. Notably, the applicant told the Tribunal that his cousin-brother no longer has such difficulty and provided financial support in relation to obtaining his most recent confirmation of enrolment.

27. The Tribunal considers that an applicant who is genuinely in Australia temporarily for the purpose of study would not remain unenrolled in any course of study without seeking to obtain the qualification they seek to assist them in obtaining employment or improving their employment prospects for some nine months given the investment both financially and in time in remaining in Australia.

28. While the Tribunal accepts that students will change their career aspirations and study pathways, the applicant’s travelled to Australia to complete accounting studies. The applicant then changed his field of study to commercial cookery and has not successfully completed any course of study since completion of a Certificate IV in Commercial Cookery on 27 July 2018. The Tribunal does not consider the applicant’s changes to his career and study pathways, and the applicant’s period of non-enrolment reasonable.

29. Notwithstanding the applicant has been in Australia since 2015, the highest level of qualification obtained is at Certificate level. The Tribunal does not consider this represents reasonable academic progression.

30. The applicant demonstrated a reasonable knowledge of his proposed course of study and told the Tribunal that it would give him experience in how to run a business and it would be better for him.

31. In considering the applicant’s potential circumstances in Australia the Tribunal finds:

    a.The applicant has ties to Australia through the period of time the applicant has spent living in Australia, his study and part-time employment. The Tribunal is satisfied the applicant has developed friendships in Australia through study and work and considers this social and emotional connection to Australia provides a strong incentive to remain.

    b.The applicant’s pattern of enrolment, periods of non-enrolment, the applicant’s lack of progression beyond Certificate level since 2015, the cessation and re-enrolment in the same or similar courses of study, evidence the student visa programme is being used to circumvent the intentions of Australia’s migration programme.

    c.The matters set out in these reasons for decision including the applicant’s period of time in Australia, part-time employment in Australia, absence of steps taken in relation to employment or substantive plans in relation to establishing a business, pattern of enrolment, changes to the applicant’s field of study, periods of non-enrolment, and academic progression evidence the applicant is using the student visa primarily to maintain ongoing residence in Australia.

    d.The applicant has a reasonable knowledge of living in Australia, primarily through the length of time the applicant has been in Australia and his continuing residence with his cousin-brother who is a permanent resident and has a reasonable understanding of the proposed course of study, education provider and his current study and living arrangements in Australia which he intends to continue.

32. The applicant’s proposed course of study is for a Diploma of Hospitality Management. This is a progression from the qualifications attained by the applicant in Australia.

33. The applicant does not have prospective employment arranged or a substantive business plan and the applicant’s career goals and aspirations are in food and hospitality with the stated intention of pursuing his dream to open his own restaurant specialising in Thai food.

34. The applicant did not previously work in India. The proposed course of study is generally relevant to the applicant’s stated career goals and aspirations however given the applicant intends to establish his own business he will not necessarily compete with other applicants for jobs. The Tribunal considers that the proposed Diploma-level qualification will provide the applicant with additional skills and qualifications; however his Certificate IV in Commercial Cookery will enable him to work as a chef.

35. While the Tribunal accepts that students will change their career aspirations and study pathways the Tribunal does not consider the applicant’s change from accounting studies to cookery and hospitality management reasonable particularly when considering the applicant’s rate of academic progression and period of non-enrolment. The applicant has taken no steps in relation to obtaining employment and has a general ambition to open his own restaurant. The Tribunal considers the applicant’s stated intention of opening his own restaurant has been formulated to justify the current course of study, being a course identical or similar to one the applicant previously held four different confirmations of enrolment for.

36. The applicant’s evidence in relation to the remuneration he expects to receive in India is speculative. The applicant has no arranged employment or substantive business plan to return to and previously earned approximately AUD250 to AUD300 per week on the basis of working 17 to 18 hours per week on a part-time basis. The applicant anticipates earning approximately AUD1,000 per month on establishing his business which is speculative and uncertain given the applicant has not previously been employed in India and the restaurant is yet to be established. While the applicant’s living expenses in India are likely to be less than in Australia the applicant is supported financially in Australia and lives with his cousin-brother.

37. In considering the value of the proposed course of study to the applicant’s future the Tribunal finds:

    a.The applicant’s current course of study is a progression from the applicant’s already attained qualifications since arriving in Australia in 2015.

    b.In considering the absence of any arranged or prospective employment and the lack of a business plan in relation to the applicant’s stated intention to open his own restaurant, the applicant’s proposed courses of study will provide general benefit to the applicant in obtaining or improving his employment prospects however the Tribunal considers the applicant’s current course of study will have limited value in circumstances where the applicant intends to open his own restaurant and will not compete with others for advertised positions.

    c.The course is not relevant to the applicant’s original intentions in relation to travelling to Australia or previous work experience. The Tribunal does not consider the applicant’s changes to his career and study pathways reasonable particularly when considering the applicant’s poor rate of academic progression and period of un-enrolment in any course of study. The Tribunal considers the applicant is using the student visa for the primary purpose of maintaining his residence in Australia rather than being undertaken to assist the applicant in obtaining employment or improving his employment prospects or business ambitions.

    d.The remuneration the applicant can expect in his home country on completion of his course is uncertain and speculative. The applicant previously earned AUD250 to AUD300 per week in Australia on a part-time basis.

    e.There is no evidence before the Tribunal in relation to the comparative remuneration the applicant would receive in Australia and India utilising the qualifications sought to be obtained by the applicant and the Tribunal makes no findings in that regard.

1. Other than the applicant’s immigration history set out in the delegate’s decision record, the applicant has not applied for any other visas in Australia or any other country.

2. The applicant returned to India in 2017 for his cousins’ weddings. The applicant has not otherwise travelled from Australia since 2015 and has not travelled to Australia from any other country. The applicant told the Tribunal he previously travelled from India to Nepal as a school student.

3. The applicant told the Tribunal he has not been subject to or considered for any visa cancellation or refusal in Australia or any other country other than the subject visa application presently before the Tribunal.

4. Prior to arriving in Australia in 2015, the applicant did not previously travel to Australia.

5. The applicant has spent a long period of time in Australia and has been undertaking a series of vocational-level courses since 2015 and has not progressed beyond two Certificate-level qualifications since 2015. The applicant does not have arranged employment nor has he made substantive plans in relation to his stated intention of opening his own restaurant. The Tribunal was concerned that the applicant was enrolling in a series of similar or identical vocational-level training courses, many of which have not been completed, for the primary purpose of maintaining his residence in Australia.

6. In considering the applicant’s immigration history for the purposes of this application, the Tribunal finds:

   a.Other than the matters set out in the delegate’s decision record the applicant has not applied for other visas to Australia and (other than the student visa under review by the Tribunal) there are no instances where visa applications have been undecided, or considered for refusal or cancellation to Australia.

   b.The applicant has not applied for visas to other countries. Other than the student visa under review the applicant has not had a visa refused in other countries.

   c.Prior to arriving in Australia in 2015 the applicant did not previously travel to Australia.

   d.The applicant has not held a visa that has been cancelled or considered for cancellation.

   e.Other than the applicant’s return travel to India in 2017 the applicant has not travelled to other countries from Australia or to Australia from other countries since arriving in 2015.

   f.The applicant has spent a long period of time in Australia and has been undertaking a series of vocational-level courses since 2015 and has not progressed beyond two Certificate-level qualifications since 2015. The applicant was not enrolled in any course of study for more than six months. The applicant does not have arranged employment nor has he made substantive plans in relation to his stated intention of opening his own restaurant. The Tribunal was concerned that the applicant was enrolling in a series of similar or identical vocational-level training courses, many of which have not been completed, for the primary purpose of maintaining his residence in Australia.

   g.The applicant has complied with the immigration laws of other countries to which the applicant has travelled.

7. The applicant is not a minor and it was not necessary to consider the intentions of his parent, legal guardian or spouse. There was no evidence before the Tribunal in relation to these matters and the Tribunal makes no such findings.

8. As required by Ministerial Direction No.69, the Tribunal invited the applicant to make submissions in relation to any other relevant matter for the purposes of assessing the application. No other relevant matters were raised by the applicant at the hearing.

9. The Tribunal had regard to all the factors in Ministerial Direction No.69 in considering the applicant’s circumstances as a whole and in making its findings and is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

10. For cl.500.212 to be satisfied, paragraphs (a), (b) and (c) must all be satisfied. Given the Tribunal has found that paragraph (a) is not met, it is not necessary to consider paragraphs (b) and (c). Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

11. 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. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Glenn O’Brien
    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.