Kim (Migration)

[2019] AATA 4827

Kim (Migration) [2019] AATA 4827 (13 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Youngdae Kim
Ms Misuk Han

CASE NUMBER:  1822830

HOME AFFAIRS REFERENCE(S):           BCC2018/3933016

MEMBER:Glenn O'Brien

DATE:13 October 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 13 October 2019 at 7:35pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa –genuine temporary entrant criterion not met –unsatisfactory course progress – only completed one course of study at a Certificate level  – using student visa to maintain ongoing residence –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212, 500.311

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 30 July 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 26 June 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa 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 applicant provided the Tribunal with a copy of the delegate’s decision record with the application for review. 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 the applicant intends genuinely to stay temporarily in Australia.

4. The applicants appeared before the Tribunal on 10 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

5. The applicants were assisted in relation to the review by their 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 from 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 first arrived in Australia on 6 January 2013 for the purposes of a working holiday. 

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.  The applicant told the Tribunal that there are no similar courses in South Korea and to study in college or university in South Korea the applicant would need to take a ‘suneng’ exam and he would have difficulty competing with more recent high school graduates for places.

14. The applicant completed his high school education in South Korea in 2014 and last worked as an engineer with Samsung from 2010 to 2012 and earned approximately AUD30,367 per annum.

15. The applicant told the Tribunal his mother, father and sister live in South Korea.  The applicant’s wife resides with him in Australia.  The applicant returned to South Korea in 2016 and 2018 and has been outside Australia for approximately 24 days since 2013.  The applicant told the Tribunal he has a house valued at approximately AUD120,000 in South Korea.  The applicant told the Tribunal his wife is getting old and wants to return to South Korea to start a family.

16. The applicant has worked relatively consistently in Australia through two working holiday visas and as a dependent student visa holder, however the applicant told the Tribunal he ceased employment in May 2019 to enable him to concentrate on his study.  The secondary applicant, who was previously the primary visa holder during the period in which the applicant was a dependent student visa holder, financially supports the applicant during his study.

17. The applicant told the Tribunal in written submissions he intends to return to South Korea to work in the computer industry and it is his dream to first obtain a higher position in a company and then to open his own business.  The applicant told the Tribunal he anticipates earning approximately KRW50,000,000 (AUD61,430) per annum but has taken no substantive steps in relation to obtaining employment.  The applicant told the Tribunal on his return to South Korea in 2018 he spoke to his former team leader and would apply for a position on completion of his course, but he did not discuss salary or a particular position as such.  At the hearing the applicant did not mention his intention to open his own business and stated this was a misunderstanding as he did not review the submissions of his education advisor.  The Tribunal does not accept this evidence, given the information was contained in the applicant’s personal genuine temporary entrant statement provided to the Department of Immigration and Border Protection at the time of the visa application.

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

19. In considering the applicant’s circumstances in his home country, on the basis of 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 through the residence of his parents and sister, a home, and desire to return to South Korea to start a family.  In considering the period of time the applicant has been in Australia, the applicant’s limited return travel since 2013, and the residence of his wife in Australia, these circumstances are not a significant incentive to return.

    c.The applicant is supported by the secondary applicant while studying in Australia and through his own savings.  The applicant does not currently work in Australia.  The applicant previously worked in South Korea in the computer industry and anticipates earning approximately AUD61,430, but has no arranged employment to return to.  In considering these matters as a whole, the applicant’s economic circumstances do not present as a significant incentive not to return home.

    d.The applicant does not have any 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.

20. Given the period of time the applicant has been in Australia both in study and in part-time employment, the Tribunal is satisfied that the applicant has developed friendships and social connections to Australia through both work and study.

21. The Tribunal was concerned in relation to the applicant’s visa applications and pattern of enrolment since arriving in 2013.  The applicant was initially granted a working holiday visa.  The applicant was granted a second holiday visa on 4 December 2013 valid to March 2015.  Shortly before the cessation of that visa the applicant applied for a dependent student visa which was granted on 11 February 2015.  Shortly before the cessation of the applicant’s dependent student visa the applicants changed roles and the applicant applied as the primary applicant for a student visa which was granted on 25 October 2016 for the purposes of studying English language courses which he did not complete. Shortly before the cessation of that visa the applicant applied for the current student visa under review to undertake a Certificate II in Retail Services and a Certificate III in Retail extending the applicant’s period of temporary residence in Australia to March 2020.  At the hearing the applicant provided evidence of his completion of the Certificate II in Retail Services and part completion of his English language courses.

22. The applicant told the Tribunal that his courses will improve his English and that his bilingual ability will increase his value as an employee.  The applicant told the Tribunal he selected his current courses of study as they were the same as his wife had completed. She provided him very good feedback and he believes he can get higher English communication skills.

23. The applicant’s future plans have changed since applying for the student visa.  The applicant told the Department that his plans to return to South Korea to obtain a higher position had changed and that he wanted to return to open his own business in mobile phone and computer repairs.  More recently the applicant has reverted to his original intention of returning to South Korea to obtain employment in the computer industry at a Samsung branch.

24. There does not appear to be any direct benefit in relation to the applicant completing retail services studies and his intention to return to the computer industry to work.  Notably the applicant worked in the computer industry for some four years prior to travelling to Australia without requiring qualifications in retail.  Given the timing of the applicant’s enrolment the Tribunal considers the applicant is enrolling in courses of study for the primary purpose of maintaining his residence in Australia rather than for the purpose of seeking specific skills and qualifications that will assist in obtaining employment.  The applicant’s stated reasons for undertaking courses in retail services appear formulated to justify the current course of study particularly given the applicant now stated he again intends to return to South Korea to seek employment rather than establishing his own business.

25. While the Tribunal accepts that applicants may change their career and study pathways, the applicant’s timing of his enrolment, the change from dependent to primary visa applicant, and enrolment in further courses of study shortly before the cessation of his student visa and the completion of his English language courses suggests to the Tribunal that the applicant is using the student visa to circumvent Australia’s migration programme.

26. Since applying for the student visa as a primary applicant in 2016 the applicant has only completed one course of study at a Certificate level.  The applicant’s proposed course of study is for a Certificate III in Retail which is anticipated to be completed in March 2020.  The Tribunal does not consider this represents reasonable academic progression. 

27. 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 and both his work and study.  The Tribunal is satisfied the applicant has developed friendships in Australia through work and study.

    b.The Tribunal accepts that applicants will change their career and study pathways.  In considering the timing of the applicant’s visa applications, enrolment in further courses of study not contemplated at the time of previous visa application after the non-completion of his then intended course of study, and changing intentions in relation to career goals and aspirations, the applicant is using the student visa programme to circumvent the intentions of Australia’s migration programme.

    c.In considering the matters set out in these reasons for decision, including the applicant’s period of time in Australia, timing of visa applications and enrolment, enrolment in further courses of study after the non-completion of a series of courses in English, change from dependent student visa holder to primary applicant, academic progression, and varying intentions in relation to future career goals and aspirations, the applicant is using the student visa primarily to maintain ongoing residence in Australia.

    d.The applicant has a good knowledge of living in Australia, primarily through the length of time the applicant has been in Australia and has a good understanding of the proposed course of study, education provider and his current study and living arrangements in Australia which he intends to continue.

28. The applicant’s proposed course of study is a progression from his high school education in South Korea and consistent with the Certificate II and III in Spoken and Written English which he did not complete.

29. The applicant’s proposed course of study is generally relevant to the previous employment of the applicant in South Korea and will provide the applicant with additional skills and qualifications.  The applicant told the Tribunal that his English skills will enable him to get a higher position in South Korea, more specifically as a team leader at his previous company; however the applicant did not complete his studies for a Certificate II and Certificate III in Written and Spoken English.  Given the applicant now intends to return to his previous employer, the proposed qualifications in retail provide the applicant with limited assistance in obtaining employment or improving his employment prospects. 

30. The applicant has been in Australia since 2013 and has been a student since 2016.  The Tribunal does not consider the attainment of only certificate level courses since 2016 represents reasonable academic progression.

31. 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 high school education and consistent with the Certificate II and III in Written and Spoken English the applicant did not complete in Australia.

    b.The course of study is generally relevant to both the previous employment and the applicant’s future career goals and aspirations. The proposed qualification will provide the applicant with further skills and qualifications. However, in considering the applicant’s previous experience in the computer industry in South Korea, and the stated intention of the applicant to return to the same employer, the proposed course of study will provide the applicant limited assistance in obtaining employment or improving his employment prospects.  Given the applicant’s changes to his stated career goals and aspirations, the Tribunal considers the applicant’s stated dream of opening his own business is formulated to justify the current course of study.

    c.The applicant does not consider the attainment of certificate level qualifications (and a further proposed Certificate III by 2020) represents reasonable academic progression. 

    d.The remuneration the applicant can expect in his home country is speculative and not based on any genuine offer of employment.

    e.There is no evidence before the Tribunal in relation to the comparative remuneration the applicant would receive in Australia and South Korea and the Tribunal makes no findings in that regard.

32. 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.

33. The applicant has not been subject to or considered for any visa cancellation or refusal other than the subject visa application presently before the Tribunal.

34. The applicant returned to South Korea in 2016 and 2018 and has been outside Australia for approximately 24 days since arriving in 2013. 

35. The applicant told the Tribunal he travelled to the Philippines in 2012 to undertake English studies prior to travelling to Australia.

36. 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.

    b.Other than the student visa under review, there are no undecided or refused visas to Australia or other countries.

    c.The applicant has not been considered for or subject to any visa cancellation.

    d.The applicant returned to South Korea in 2016 and 2018.  The applicant has not otherwise travelled from Australia or to Australia from other countries since first arriving in 2013.

    e.The applicant has been in Australia since 2013 and has been studying since 2016 upon changing roles with the secondary applicant from dependent to primary visa applicant.  The applicant enrolled in a series of English courses and shortly before the cessation of his then visa applied to undertake study in retail services and retail, as his stated intention had changed from returning to South Korea to seek employment, to opening his own business in mobile and computer repair.  The applicant more recently told the Tribunal he now intends to return to South Korea to seek employment with his former employer.  The Tribunal considers the applicant’s stated intention of opening his own business is formulated to justify his current course of study.  The Tribunal finds the applicant has enrolled in his current course of study for the primary purpose of maintaining his residence in Australia.

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

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

2. 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.

3. 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 is not satisfied that the applicant intends genuinely to stay in Australia temporarily.

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

5. Given the above findings, the Tribunal finds the criteria for the grant of a Subclass 500 (Student) visa are not met.  The applicant does not claim to meet the criteria for the Subclass 590 (Student Guardian) visa.  Accordingly, the decision under review must be affirmed. 

   Secondary applicant

6. Given the applicant does not satisfy the criteria for the grant of a Subclass 500 visa, the Tribunal finds the second-named applicant does not satisfy cl.500.311 because she is not a member of the family unit of a person who holds a Subclass 500 visa granted on the basis of satisfying the primary criteria.

   DECISION

7. The Tribunal affirms the decision not to grant the applicants 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.