Labor (Migration)

[2020] AATA 1944

Labor (Migration) [2020] AATA 1944 (10 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Amor Charllette Labor
Mr Nelson Juaton

CASE NUMBER:  1822738

HOME AFFAIRS REFERENCE(S):          BCC2017/4050133

MEMBER:Darren Renton

DATE:10 June 2020

PLACE OF DECISION:  Perth

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

Statement made on 10 June 2020 at 11:53am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – no response to s 359(2) invitation – agent claimed email bounced back – not entitled to appear before the Tribunal – unsatisfactory academic progress – lack of clear pathway – family ties in the Philippines – economic incentives – ongoing employment in Australia – value of course – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

CASES
Hasran v MIAC [2010] FCAFC 40
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16

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 24 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 1 November 2017. 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 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 applicant was not a genuine applicant for entry and stay as a student. A copy of the decision was provided to the Tribunal by the applicants.

4. The applicants were assisted in relation to the review.

5. The Tribunal wrote to the applicant on 2 March 2020 pursuant to s.359(2) of the Act, inviting her to provide information to satisfy it that she met her visa requirements regarding enrolment in a registered course of study and being a genuine applicant for entry and stay as a student and to give, in writing, all relevant information about the course(s) of study she was undertaking and her entry and stay in Australia as a student. The invitation was sent to the email address of the applicant’s migration agent as set out in the applicant’s review application form lodged with the Tribunal dated 7 August 2018 and advised that, if the information was not provided in writing by the prescribed period, being 16 March 2020, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.  There was no evidence that the email was not received.

6. The applicant did not provide the information within the prescribed period and no extension of time was requested.  In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

7. The requested information was subsequently supplied by the applicant’s migration agent on 24 March 2020.  The agent claimed that they had only just realised that their earlier email attaching the requested information had “bounced back due to a huge attachment file”.  The Tribunal asked the agent to supply proof of this earlier email, but they advised that they were unable to do so, claiming that they had deleted the email to reduce the size of their mailbox.  To support that claim the agent provided screen shots showing only recently sent emails in their sent email box, together with an email noting that they would soon be no longer able to use their email service as it was nearly full and they needed to upgrade it, dated 3 June 2020.   While the agent claimed to no longer have the sent email, they should still have had the incoming email advising that the email they had sent to the Tribunal was undeliverable.  The Tribunal also notes that the message regarding the agent’s mailbox was that it was “nearly full”, not that it was full or otherwise unable to operate.

8. In the absence of independent, objective evidence of the earlier attempt to provide the requested information within the prescribed period, the Tribunal is not satisfied on the present evidence before it, that an earlier attempt was made.  While the applicants have lost their entitlement to a hearing before the Tribunal, the supplied information has been considered in determining this matter.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

11. Clause 500.212 requires as follows:

    The applicant is a genuine applicant for entry and stay as a student because:

    (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

    (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)any other relevant matter; and

    (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

    (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

    (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

    (c)of any other relevant matter.

    Does the applicant intend genuinely to stay in Australia temporarily?

12. In considering whether the applicant satisfies 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.

13. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.  The Tribunal has also had regard to the decision in Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 and the principles emerging from that decision in its application to the Tribunal’s consideration of Direction No. 69.

14. The applicant arrived in Australia from the Philippines on 5 April 2014 pursuant to a subclass 572 student visa, which according to the applicant, was granted in December 2013.  That visa was valid from January 2014 until December 2015.  In November 2015 the applicant advised that they applied for a further subclass 572 student visa which was granted and valid between January 2016 and December 2017.  The visa the subject of this review was applied for on 1 November 2017.

15. Following an initial review of the decision to refuse to grant the visa based on the applicant not meeting cl.500.215, the Tribunal remitted the matter for reconsideration on 14 April 2018.

16. A review of the PRISMS extracts in the delegate’s decision, combined with the applicant’s response to her hearing invitation, establishes that her enrolments and studies in Australia are as follows:

Course Name	Dates	Status
Certificate III Children’s Services[1]	4/14 – 10/14	Never started
Certificate III Aged Care	4/14 – 10/14	Completed
Diploma Children’s Services[2]	10/14 – 10/15	Never started
Certificate IV Aged Care[3]	10/14 – 4/15	Never started
Advanced Diploma Management	10/14 – 10/15	Completed
Certificate III Disability	10/15 – 3/16	Completed
Certificate IV Disability	4/16 – 10/16	Completed
Diploma of Disability[4]	10/16 – 10/17	Never started
Diploma of Mental Health[5]	8/16 – 2/17	Not completed
Diploma of Mental Health[6]	4/17 – 10/19	Not Completed
Diploma of Community Service	12/19 – 11/20	Currently studying

[1] Originally enrolled to commence on 21 January 2014 but changed this to 21 April 2014 before changing her enrolment to a Certificate III in Aged Care.

[2] Originally enrolled to commence on 14 July 2014 but changed this to 6 October 2014 before changing her enrolment to a Certificate IV in Aged Care.

[3] Originally enrolled to commence on 6 October 2014 but changed this to an Advanced Diploma of Management.

[4] Changed course to Diploma of Mental Health on 22 July 2016.

[5] Enrolment cancelled 30 January 2017 after applicant notified cessation of studies.

[6] Originally enrolled to commence 24 April 2017 but course deferred on compassionate grounds 18 July 2017 (applicant went overseas for pregnancy check-up and to visit daughter), a further deferment on compassionate grounds on 1 December 2017 (applicant flew home to give birth) and a third deferment on compassionate grounds on 11 January 2019 (applicant was overseas seeing her daughter and her mother who was going through a medical procedure) until 1 February 2019 with the enrolment subsequently expiring. 

1. The applicant holds a Bachelor of Science (Nursing) awarded to her in 2010 in the Philippines.  She is presently enrolled in a Diploma of Community Services.  According to the Confirmation of Enrolment (CoE) provided by the applicant, this course commenced on 2 December 2019 and is scheduled to conclude on 27 November 2020. 

2. The applicant also claimed to be enrolled in an Entry Program for Internationally Qualified Registered Nurses which commenced on 9 March 2020.  The applicant did not provide a CoE for that course or any other proof of enrolment.  The Tribunal notes that the Entry Program for Internationally Qualified Registered Nurses is the pathway for successful applicants to apply to the Nursing and Midwifery Board of Australia (NMBA) for registration as a Registered Nurse in Australia.  The applicant’s claim to be enrolled in such a course gives rise to an inference that she intends to practice as a Registered Nurse while in Australia.  Such an inference is inconsistent with the applicant’s stated intention to return to her country of origin or otherwise remain in Australia temporarily. 

3. A review of the table at [16] reflects a general lack of academic progress.  The applicant has moved between completing Certificates and an Advanced Diploma and then back to a Diploma.  The applicant has also enrolled in course which she either has not started or completed and moved between courses within the same or similar sector.  Having studied in Australia since 2014, it is reasonable to expect that the applicant would have progressed in her studies beyond the levels she has or otherwise completed courses that would lead to a substantial increase in her occupational skills.   While there are synergies in the courses studied by the applicant, there has also been a lack of rational career path evident from them.

4. In the applicant’s Statement of Purpose (SoP), she claimed that she changed courses from children’s services to aged care because it “crossed on my mind” that aged care was more interesting and she felt she had to go for it and give it a try.  The applicant further claimed that she wanted to showcase her skills and enhance her capability in dealing with aged people as her homeland was putting up nursing homes.

5. In explanation for studying the Advanced Diploma of Management, the applicant stated in her SoP that it was to continue enrolment under her remaining visa, with her subsequent student visa being used to study Certificates III and IV in Disability and thereafter the Diploma in Disability.  However, due to a change in the curriculum, the applicant claimed that the Diploma course became obsolete, so she decided to take up a Diploma in Mental Health.

6. The applicant claimed that she studied the Diploma in Mental Health at the same college where she had previously studied but subsequently decided not to finish the course and transferred to a new school that had cheaper fees and a course, that was in her opinion, the same or better.  The evidence indicates; however, that the applicant did not complete those studies, despite the applicant indicating that she had completed this course in her s.359(2) response.  No proof of completion was submitted by the applicant.

7. The applicant said in her SoP that she chose to study in Australia because it had “a great and a good education, especially if you want to specialize expertise”.  In the hearing notice returned by the applicant after the prescribed period, she indicated that her attached further statement of purpose (FSoP) would provide further details regarding how and why she chose the education provider for her course, why it was that did not want to study a similar course in her home country and what her anticipated remuneration would be post-qualifications from her present course of study.  Despite this, a review of that FSoP statement indicates that none of those matters were addressed.

8. The reasons articulated by the applicant in her SoP and set out at [23] above, do not, in the Tribunal’s view, establish reasonable reasons for not undertaking the study in the applicant’s home country. The applicant was able to obtain her Bachelor degree in nursing in her home country and she has provided no persuasive or detailed evidence demonstrating that further courses there could not provide the additional knowledge or skills she seeks. This is a matter that weighs against the applicant.

9. The applicant advised that both her daughters (aged nine and two) resided in the Philippines and that she has almost daily video calls with them and her other family members.  Both of the applicant’s parents and her five siblings also resided in the Philippines.  She claimed to be a part owner of the family business (MJK Construction Supply) and that she owned property in Thailand with an estimated value of AUD$150,000. 

10. In support of her claims, the applicant produced a certificate of title for her property (but no valuation documentation).  No other supporting documentation was submitted.  The applicant provided no details of the family business or of her share in that business.  She provided no details of any other ties to the Philippines and noted that she was unemployed in the Philippines.

11. While the Tribunal accepts that the applicant’s children present as an incentive to return home (and that the applicant has returned home to visit them and other members of her family on three occasions – December 2018, July 2019 and January 2020), the applicant’s defacto spouse presently resides with her in Australia and is a secondary applicant in the present review matter.  When balanced against the lack of supporting evidence of the applicant’s business interests, her lack of employment in the Philippines and the lack of evidence of other community ties, the Tribunal is not persuaded that the applicant’s children and family present as a significant incentive to return home.  This is a further factor that weighs against the applicant.

12. The applicant advised in her s.359(2) response that while in the Philippines she had been employed with MJK Construction Supply between February 2012 and February 2013.  Thereafter, she was employed as a full-time registered nurse with Cortes Municipal Health between March 2013 and December 2013.  These dates were inconsistent with those provided by the applicant in her visa application which indicated she worked for Cortes Municipal Health between January 2012 and January 2013 and with MJK Construction Supply between February 2013 and February 2014.  No explanation for the discrepancy was provided by the applicant.

13. The applicant provided no details of her earnings from her employment in the Philippines.  In contrast, the applicant advised in her visa application that since being in Australia she has been employed by Just Better Care as a community support worker since September 2014.  According to the applicant’s s.359(2) response, her earnings from this employer are AUD$20,000 pa.  Prior to this, the applicant’s visa application indicated that she was employed by Ark Health Care Parramatta as an assistant in nursing between May and August 2014.  No details of any remuneration from this employer were provided and the applicant failed to list this employment when providing her s.359(2) response. 

14. In view of the applicant’s ongoing employment in Australia over a significant period and the lack of employment in the Philippines, the Tribunal considers the applicant’s economic circumstances would present as a significant incentive for her not to return home.  This matter also weighs against the applicant.

15. There was no evidence before the Tribunal that the applicant held any concerns regarding military service commitments or in relation to the political/civil situation in her home country that would present as a significant incentive for her not to return home.  The Tribunal gives this some weight in favour of the applicant.

16. The Tribunal considers the applicant to have significant ties to Australia.  She has been here for a considerable period since 2014 and has been in gainful employment since shortly after her arrival.  The applicant also claimed to be a member of the Association of Pinoy Students in Australia (APSA) as well as being a supporter of the Philippine Community Council of NSW.  The Tribunal is satisfied that these matters establish that the applicant’s ties with Australia would present as a strong incentive to remain.

17. As noted previously, the applicant’s study history has been somewhat disjointed and lacking in academic progress.  In her FSoP, the applicant said that while she was already working in the community field, she wanted to take the next step in her career to understand and help the community more.  The applicant claimed that she enrolled in the Diploma of Community Service to continue learning and deepen her knowledge of how to work in the community field.  She claimed to want to learn high level skills to work autonomously under broad supervision from senior management and to develop skills in implementing service programs, analysing sociological impacts on clients and workplace debrief and support processes.  The applicant said that she was focusing more on case management roles like working with the aged, people with disabilities or those in need of refuge or advocacy.

1. The applicant further claimed that she wanted to take her new knowledge home and share it with her country to help it improve the way it supports people in need of assistance to broaden the perspective way on reading people in the community, noting that her country needed advocates to speak out.

2. The lack of a clear pathway in the applicant’s studies since arriving coupled with her changes of courses and lack of academic progress, suggests that the applicant has been using the student visa program to circumvent the intentions of the migration program and to maintain ongoing residence in Australia.  That the applicant has been employed throughout the time she has been enrolled to study is a further factor supporting the inference that the applicant is seeking to remain in Australia other than as a genuine student.  These matters weigh against the applicant.

3. As noted previously, despite the applicant indicating that her FSoP would indicate how and why she chose her present education provider for her course, no such evidence was included in that document or otherwise provided to the Tribunal.  While it is to be expected that someone who has lived and worked in Australia since 2014 would have a good knowledge of living in Australia, the applicant did not address her knowledge of living in Australia nor did she present any sufficient, reliable and persuasive evidence that she possessed a realistic level of knowledge expected of an applicant regarding her proposed course of study.  The Tribunal gives this consideration weight against the applicant.

4. The Tribunal notes that the applicant has studied VET level courses since arriving in Australia and has not progressed beyond an Advanced Diploma.  Each course completed has been below the applicant’s Bachelor degree that was obtained in her home country.  While the Tribunal accepts that the proposed course has some practical benefits to the applicant’s overall knowledge, it is not persuaded that the applicant’s proposed study is consistent with her current level of education.  The applicant has also failed to produce sufficient reliable and persuasive evidence that the proposed course will assist her to obtain employment in the Philippines or otherwise improve her employment prospects there.  The applicant presented no evidence that she had any offer of employment to take up upon completion of her studies nor did she adequately address how her new knowledge and skills would be utilised in her ongoing employment endeavours.  This is a further consideration that weighs against the applicant.

5. The Tribunal does not have sufficient evidence before it to conclude that the applicant’s proposed course of study has relevance to her past or proposed future employment in the Philippines or a third country beyond a marginal level.  While there are synergistic benefits between the proposed course of study and the applicant’s previous experience as a registered nurse, the extent of that relevance cannot be determined on the current evidence nor can the Tribunal quantify the relevance to the applicant’s future employment when she has failed to adequately articulate what that employment would be.  In light of those matters, the Tribunal gives this consideration limited weight in favour of the applicant.

6. The applicant did not address what her anticipated remuneration would be upon completion of her proposed studies nor did she address what her previous earnings were in the Philippines.  The only evidence of remuneration provided by the applicant related to her employment in Australia.  Accordingly, the Tribunal cannot be satisfied that the expected remuneration would represent a greater quantum than that which the applicant was earning pre-completion of her studies.  In those circumstances, the Tribunal gives this matter some weight against the applicant.

7. There is no evidence before the Tribunal that would support a conclusion that the applicant’s immigration history operated adversely against her when regard is had to her previous visa applications or previous travels, whether in relation to Australia or elsewhere.  Accordingly, the Tribunal gives this matter some weight in favour of the applicant.

8. There is no evidence of any other relevant matters either beneficial or unfavourable to the applicant, before the Tribunal.  The Tribunal notes that the current COVID-19 pandemic has caused considerable disruption worldwide and has resulted in travel bans and restrictions, social isolation and numerous other impacts on society aside from the obvious health ramifications.

9. There is no evidence before the Tribunal that the COVID-19 pandemic has any special application to the applicant.  In the circumstances, the Tribunal gives no weight to this matter either in favour of or adverse to, the applicant.

10. Based on the above, and taking all matters into account, both in favour of and adverse to the applicant, on balance, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

11. 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.

12. 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.

13. Further, as the applicant does not meet the criteria for a grant of a student visa, it follows that the secondary applicant does not meet cl.500.311.

    DECISION

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

    Darren Renton
    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.