LEKHAK (Migration)

[2020] AATA 6142

LEKHAK (Migration) [2020] AATA 6142 (20 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rajendra Kumar Lekhak

CASE NUMBER:  1818253

HOME AFFAIRS REFERENCE(S):          BCC2016/2633759

MEMBER:Glenn O’Brien

DATE:20 April 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 20 April 2020 at 12:00pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– Federal Court remittal –the course is inconsistent with his previous educational level– genuine temporary entrant criterion not met –regression in course studies –use the student migration program to maintain ongoing residence – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 11 January 2017 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 9 August 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant intends genuinely to stay temporarily in Australia.

4. The decision was affirmed by the Tribunal on 12 March 2018.  The applicant sought a review of the decision in the Federal Court of Australia and on 20 June 2018 the matter was remitted to the Tribunal to determine the application according to law.

5. The applicant appeared before the Tribunal on 6 March 2020 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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?

8. 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.

9. 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.

10. The applicant first arrived in Australia on 3 February 2007.

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 and International Student Management System (PRISMS) database and a movement record detailing the applicant’s movements in and out of Australia and the grants, variations, and cessation of visas.  The Tribunal explained to the applicant the relevance of the records that are reviewed 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 and 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 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 has completed his post high school education in Australia since 2007 and is therefore familiar with the teaching methods and courses offered in Australia.

13. The applicant completed high schooling in Nepal and did not engage in paid employment before travelling to Australia in 2007.

14. The applicant travelled to Australia to undertake studies in accounting.  The applicant enrolled in a series of courses and completed an Advanced Diploma of Accounting which was awarded on 5 November 2009 and a Bachelor of Accounting that was awarded on 14 October 2011.  The applicant subsequently completed a Master of Business Administration on 27 June 2014.  The applicant also completed his Professional Year Program in Accounting in 2015.  The applicant incurred delays in his studies during the period from October 2011 to January 2013 due to medical issues.

15. The applicant’s parents, three sisters and a younger brother reside in Nepal.  The applicant told the Tribunal he comes from a wealthy family which holds significant assets including land.  The applicant told the Tribunal that his parents had gifted land and houses to the applicant and his brother and he speaks with his family regularly.  The applicant does not have significant personal assets in Australia.

16. The applicant completed high school in Nepal prior to travelling to Australia.  The applicant did not engage in paid employment prior to travelling to Australia to study.

17. The applicant told the Tribunal that he receives financial support from his family while studying in Australia.  The applicant has worked in Australia since arriving and currently has two part-time positions working at McDonald’s and in aged care.  The applicant told the Tribunal he earns approximately AUD600 to AUD700 per week.   

18. Since arriving in Australia in 2007 the applicant has returned to Nepal in 2009, 2013, and 2014.  The applicant has not returned to Nepal since 2014.  The applicant told the Tribunal he was married on his return to Nepal in 2014 but has not again returned as he separated from his wife as court proceedings were commenced against him in relation to a matrimonial dispute.  The applicant told the Tribunal these matters have recently been resolved and he is required to give property to his former wife as part of a settlement.

19. The applicant told the Tribunal he intends to return to Nepal to open a hardware business.  The applicant told the Tribunal he has a budget of AUD200000 for that business which will be provided by his father or through the sale of land.  The applicant does not have a written business or financial plan but told the Tribunal he speaks with his father on the phone in relation to those plans.  The applicant told the Tribunal he plans to go back and do some learning and establish his business.  The applicant told the Tribunal his income in Nepal will be dependent upon the success of that business.

20. In considering the applicant’s circumstances in his home country on the basis of the matters set out in these reasons for decision, 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 through the residence of his parents and siblings, an obligation to care for his parents, family and personal assets, an expected inheritance and intention to return to open his own family business.  In considering the period of time the applicant has been in Australia since 2007, the applicant’s intentions on travelling to Australia, the limited return to Nepal and absence of travel since 2014, and the financial support received from the applicant’s family in Australia, these circumstances are not a significant incentive to return. 

    c.The applicant is supported financially during his study in Australia by his family. The applicant did not engage in paid employment prior to travelling to Australia and currently earns approximately AUD600 to AUD700 per week through part-time employment in Australia.  The applicant has an intention to open a hardware business and his income in Nepal will be dependent upon a business yet to be established.  The Tribunal accepts the applicant’s living expenses in Nepal are likely to be less than in Australia, however the applicant has been working part time in Australia since 2004 and apart from discussions with his father and basic planning has not taken substantive steps in relation to establishing his own business.  In considering these matters as a whole, the Tribunal considers these circumstances do not demonstrate a significant incentive for the applicant to return.

    d.The applicant does not have any military service commitments which would provide an 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.

21. The applicant travelled to Australia to complete accounting studies.  Having completed an Advanced Diploma of Accounting and a Bachelor of Accounting the applicant then enrolled in and completed a Master of Business Administration. 

22. The applicant told the Tribunal he applied for a Temporary Work (Skilled) (Subclass 457) visa which was withdrawn due to the fact the position nominated was not appropriate.  The applicant also held a Temporary Graduate (Subclass 485) visa which ceased on 10 August 2016.  The applicant applied for the current student visa under review on 9 August 2016 to complete a Diploma of Information Technology commencing on 3 October 2016 with an anticipated completion date of 29 September 2017.  The applicant did not complete that course of study. 

23. The applicant subsequently enrolled in an Advanced Diploma of Management (Human Resources) and is currently enrolled in an Advanced Diploma of Leadership and Management. 

24. The Tribunal was concerned in relation to the applicant’s pattern of enrolment since arriving in Australia.  While the Tribunal accepts that students may change their career and study pathways, the applicant travelled to Australia for the purposes of completing accounting studies and has completed an Advanced Diploma and Bachelor of Accounting.  The applicant completed a Master of Business Administration but did not commence his Master of Professional Accounting and regressed to enrol in an unrelated area of study for a Diploma of Information Technology.  The applicant did not commence that course of study and changed his field of study to Management (Human Resources) before enrolling in an Advanced Diploma of Leadership and Management.

25. Since arriving in 2007 the applicant has completed a number of qualifications including a bachelor and master’s qualification. The applicant has also undertaken work and completed his professional year in accounting.  The applicant told the Tribunal he had a number of issues including medical issues, stress related to the breakdown of his marriage and court proceedings and a gambling and drinking problem in Sydney.  While the Tribunal accepts these issues caused delay, particularly in relation to the medical issues, in totality the applicant has not demonstrated reasonable academic progression over 13 years.

26. The Tribunal was also concerned in relation to the timing of the applicant’s visa application and regression in study.  The applicant applied for the visa on 9 August 2016 one day prior to the cessation of his then Graduate Temporary (Subclass 485) visa to undertake a vocational training course in an unrelated field of study which he did not complete.  The applicant has not utilised his Bachelor of Accounting or Master of Business Administration in Nepal and subsequently enrolled in an Advanced Diploma of Management (Human Resources) and an Advanced Diploma of Leadership and Management.  The Tribunal considers the applicant did so for the primary purpose of maintaining his residence in Australia.

27. In considering the applicant’s potential circumstances in Australia on the basis of the matters set out in these reasons for decision, and on the evidence before the Tribunal, the Tribunal finds:

    a.The applicant has ties to Australia through the period of time the applicant has been living in Australia (since 2007.  The Tribunal is satisfied the applicant has developed friendships in Australia through study and work, and considers the social and emotional connection to Australia to provide a strong incentive to remain.

    b.The applicant’s pattern of enrolment, change in migration intentions, application for a further student visa one day prior to the cessation of his then Subclass 485 visa, and regression in study;  is evidence the study visa program is being used to circumvent the intentions of Australia’s migration program.

    c.In considering the matters set out in these reasons for decision, including the applicant’s period of time in Australia, pattern of enrolment, change in migration intentions, regression in study, and timing of his student visa application one day prior to the cessation of the applicant’s then Subclass 485 visa; the student visa is being used 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 she intends to continue. 

28. The applicant’s proposed course of study is a regression to the qualifications the applicant has already obtained in both India and Australia.

29. The applicant did not previously work in Nepal and the applicant’s current course of study is not relevant to the applicant’s original intentions in travelling to Australia.  The proposed Advanced Diploma of Leadership and Management is generally relevant to the applicant’s now stated intention of opening a hardware business.  Notably, the applicant previously told the Tribunal at the first review that his intention was to open a big hotel.

30. The proposed courses will provide the applicant with further skills and qualifications however in considering the tertiary qualifications the applicant has already obtained in Australia, at a bachelor and master level, the proposed qualification will provide the applicant with limited further assistance in obtaining employment or improving his employment prospects.

31. If the applicant genuinely holds the career goals and aspirations claimed, his existing Bachelor of Accounting and Master of Business Administration combined with his work experience in Australia would enable the applicant to return to Nepal to pursue those goals and aspirations without remaining in Australia for an advanced diploma level qualification which will provide the applicant with limited further benefit.

32. Additionally, as the applicant’s now stated intention is to open a hardware business with the assistance of his father he will not have to compete with other applicants in a competitive job market.  In these circumstances the proposed qualification will provide limited assistance to the applicant in obtaining employment or in improving his employment prospects.

33. 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 regression to the qualifications he has already obtained in Australia.

    b.The applicant did not engage in paid employment in Nepal before travelling to Australia.  The proposed Advanced Diploma of Leadership and Management is generally relevant to the applicant’s stated intention of establishing his own business.

    c.The applicant’s proposed courses will provide the applicant with additional skills and qualifications but considering the applicants already attained qualifications and work experience they will provide the applicant with limited further assistance to obtain employment or improve his employment prospects.

    d.The remuneration the applicant can expect in his home country is uncertain.  The applicant currently earns AUD600 to AUD 700 per week in Australia on a part-time basis.

    e.There is no evidence before the Tribunal in relation to comparative remuneration the applicant would receive in Australia and in Nepal in utilising the qualifications the applicant seeks to obtain, and the Tribunal makes no findings in that regard.

34. Other than the applicant’s immigration history set out in the delegate’s decision record, the applicant has applied for other visas to Australia including a Temporary Work (Skilled) (Subclass 457) visa which was withdrawn and a Temporary Graduate (Subclass 485) visa which ceased on 10 August 2016.

35. 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. 

36. Prior to travelling to Australia in 2007, the applicant did not previously travel to Australia.  Since arriving in 2007 the applicant has not travelled to Australia from other countries or from Australia to other countries other than return travel to Nepal in 2009, 2013 and 2014.

37. 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 and these reasons for decision the applicant has applied for a Temporary Work (Skilled) (Subclass 457) visa which was withdrawn and a Temporary Graduate (Subclass 485) visa which ceased on 10 August 2016.

    b.There are no other instances where visa applications have been undecided or considered for refusal or cancellation to Australia other than the present student visa under review.

    c.Prior to travelling to Australia in 2007 the applicant had not previously travelled to Australia.  The applicant has not held a visa that has been cancelled or considered for cancellation. 

    d.The applicant has not travelled to Australia from countries and has not travelled from Australia to other countries since 2007 other than return travel to Nepal in 2009, 2013 and 2014.

    e.The applicant travelled to Australia in 2007 to undertake tertiary studies.  The applicant completed an Advanced Diploma and Bachelor of Accounting and a Master of Business Administration.  Following the grant of a Temporary Graduate (Subclass 485) visa the applicant applied for a student visa to undertake a Diploma of Information Technology that, being a regression in study) that he did not complete.  The applicant subsequently enrolled in an Advanced Diploma of Management (Human Resources) and an Advanced Diploma of Leadership and Management.   The Tribunal considers the applicant enrolled in this course of study for the primary purpose of maintaining his residence in Australia. 

    f.Since arriving in Australia the applicant has not travelled to countries other than Nepal and Australia and the Tribunal makes no findings in regard to the applicant’s compliance with the migration laws of any other country.

1. 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.

2. As required by Ministerial Direction No.69 the Tribunal asked 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 of the factors in Ministerial Direction No.69 in considering the applicant’s circumstances as a whole, and in making these findings, and is not satisfied the applicant intends genuinely to stay in Australia temporarily. 

4. Accordingly, the applicant does not meet cl. 500.212(a). 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 a grant of 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

6. 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.