Lok (Migration)

[2022] AATA 691

Lok (Migration) [2022] AATA 691 (2 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Jian Xiong Lok

REPRESENTATIVE:  Ms Jie Zhan (MARN: 0639485)

CASE NUMBER:  2114475

HOME AFFAIRS REFERENCE(S):          BCC2020/1151000

MEMBER:T. Quinn

DATE:2 March 2022

PLACE OF DECISION:  Melbourne

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

·Clause 500.212 (a) of Schedule 2 to the Regulations.

Statement made on 02 March 2022 at 10:33am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – lengthy stay in Australia – multiple courses completed – delays from changes in the course structure – employment in Australia – COVID19 pandemic travel restrictions – decision under review remitted          

LEGISLATION

Education Services for Overseas Students Act 2000, s 10
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, Schedule 2 cls 500.211, 500.212

CASES

Baker v Minister for Immigration and Citizenship [2012] FCAFC 145
Chen v Minister for Immigration and Border Protection [2017] FCA 46
Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345
FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555
Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482
Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372
Khan v Minister for Immigration & Another [2019] FCCA 565
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Rathor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1187
Tshering v Minister for Home Affairs [2019] FCCA 2667
Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112

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 (‘the delegate’) on 1 October 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicant applied for the visa on 13 March 2020 (‘the application’).   At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The applicant applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. On 1 October 2021, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that the applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

4. On 18 October 2021, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.

5. The applicant was assisted in relation to the review.

6. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed since he made his initial application. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information to the Tribunal for the purposes of determining the outcome of their application for review. To this end, on 2 December 2021, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’). The applicant responded to the s359(2) letter on 15 December 2021 which was within the prescribed timeframe. In that response the applicant completed the questionnaire which the s359(2) letter requested he complete (‘the questionnaire’).

7. The applicant was listed to appear before the Tribunal via telephone hearing on 2 March 2022 to give evidence and present arguments.  However, upon considering the material filed by the applicant, the Tribunal determined that it could make a decision without the need for a hearing.  

8. The Tribunal has proceeded to a decision having regard to all the information before it, including the Department file and all material and evidence provided by the applicant to the Tribunal.

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

   STATUTORY FRAMEWORK

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 clause 500.211 to clause 500.218 must be satisfied by at least one applicant.

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 clause 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’ (‘the Direction’), made under section 499 of the Act. The Direction 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.

14. The Direction is a lawful direction of the Minister made in accordance with section 499 of the Act. The Tribunal is therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[1]  Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before the Tribunal.  The Tribunal, however, recognises that it is an independent statutory body.  It must therefore reach its own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate.  In this regard, the Tribunal also notes the decision of Judge McNab in Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]), wherein his Honour referred to the decisions of Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]) and Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) in relation to the proper approach to the consideration of guidelines such as the Direction. Most pertinently, his Honour endorses the view espoused in those cases, that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.

    [1]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The applicant in this case is a 24-year-old male Malaysian citizen who first arrived in Australia on 5 September 2017 on a visitor visa before applying for and being granted a student visa which expired in March 2020.[2]  The applicant made the application which is the subject of this review the same month as the expiry of his previous visa.  This timing raises concerns for the tribunal about the true nature of the applicant’s intentions onshore and whether he may be using the student visa migration programme as a means of maintaining residence.

    [2]           See delegate’s decision and the questionnaire.

16. Prior to coming to Australia, the applicant completed High School in 2015 and then worked as an accountant from March 2016-July 2017 in Malaysia earning MYR84,000.[3]  The applicant initially sought to undertake a package of English courses in Australia on his first student visa.[4]  He has supplied evidence of completion of a Certificate II in EAL dated July 2018 and a statement of attainment for completion of two units in a Certificate III in EAL dated April 2019 and a Statement of Attainment for completion of three units in a Certificate IV in EAL dated January 2020.[5] The Tribunal is troubled by the fact that it appears the applicant did not actually complete his Certificate III and IV in EAL.  However, the applicant has filed submissions indicating he thought he had completed these courses but that the ELICOS program was changed in 2019 and documents were delayed.[6]

    [3]           See delegate’s decision and the questionnaire and applicant’s submissions of 1 March 2022.

    [4]           See delegate’s decision and the questionnaire.

    [5] See applicant’s response to s359(2) letter.

    [6]           See applicant’s submissions of 1 March 2022.

17. All registered courses and course providers are listed in the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’), an online register kept in accordance with the requirements of the ESOS Act.[7]  Details of courses listed in CRICOS are integrated into the Provider Registration and International Student Management System (‘PRISMS’), a database maintained by the Australian government.[8] The PRISMS database is the principal means by which registered course providers comply with legislative requirements relating to the monitoring of international students studying in Australia. Upon enrolling an international student into a registered course of study, the course provider enters the details of that enrolment into the PRISMS database. The database then records a Confirmation of Enrolment (‘COE’) for the student. The COE functions as a record of the student’s enrolment status in the course and as proof of enrolment for the purposes of clause 500.211 of Schedule 2 of the Regulations. The PRISMS record also lists the status of particular enrolments, such as having been ‘cancelled’ or ‘studying’ or ‘finished’ or ‘future enrolment’.

    [7]Section 10 of the ESOS Act.

    [8]See generally, Department of Education and Training, Provider Registration International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018).

18. The Tribunal undertook a PRISMS search in relation to the applicant on 1 March 2022 which appears consistent with the applicant’s submissions and appears to indicate he completed both the Certificate III and IV in EAL courses.

19. The applicant’s application which is the subject of this review was to undertake a General English course, a Diploma and Advanced Diploma of Leadership and Management for a period of two years.[9]  Due to delays in this matter coming before the Tribunal, the applicant has now commenced and completed his General English course and his Diploma of Leadership and Management.  He has supplied corroborating documents in this regard, including a Certificate of completion for his Diploma dated 5 July 2021.[10]  The applicant has also supplied a letter from is course provider in relation to his Advanced Diploma dated 14 February 2022 indicating that his course progress is satisfactory and that he is due to complete his course in January 2023 (on time).[11]  He has also filed a statement of attainment for his Advanced Diploma dated 14 February 2022 indicating he has completed three units in this course.[12]  The completion date for the applicant’s Advanced Diploma has been extended but the applicant has explained in submissions together with corroborating materials that this was due to changes in the course structure, not any delays on the applicant’s part.[13]

    [9]           See delegate’s decision.

    [10]See applicant’s response to the s359(2) letter.

    [11]See applicant’s response to the s359(2) letter and submissions of 15 February 2022.

    [12]See applicant’s response to the s359(2) letter.

    [13]         See applicant’s submissions of 1 March 2022.

20. The Tribunal considers the applicant has made very good academic progress since he commenced studying and particularly over the last two years.  The Tribunal commends him in this regard, especially in circumstances where he has been onshore during a Global Pandemic, on the basis of a bridging visa, managing the uncertainty of the outcome of this application.  This has been a strong factor weighing in the applicant’s favour in this case.

21. The applicant plans to seek a manager position in the construction industry upon completion of his courses where he anticipates earning RM65,000-120,000 growing to RM160,000 as his experience increases.[14]  The Tribunal allows for reasonable changes to study and career pathways and accepts that these courses are relevant to and likely to assist and improve the applicant’s future career.  The Tribunal also accepts that this study is consistent with the applicant’s current level of education.

    [14]See applicant’s response to the s359(2) letter.

22. The applicant left blank the section of the questionnaire enquiring about his work in Australia.  Upon direct questioning, however, he indicated he has been working in Australia as a plasterer earning AUD15,145-28,255 per annum and more recently as an uber driver earning AUD1,500.[15]  The Tribunal is troubled by this.  It raises concerns about whether the applicant has been selective in the information he has provided regarding his economic incentives to remain in Australia.  The applicant has expenses in Australia of AUD20,400 per annum.[16]  The Tribunal notes that the United Nations Human Development Index, which is a statistical comparison of life expectancy, education and per capita income indicators by country, ranks Malaysia as 62^nd in the world as compared to Australia’s ranking of 8^th in the world.[17]  The Tribunal is concerned that the applicant’s economic circumstances onshore may be acting as a significant incentive for him to remain. 

    [15]         See applicant’s submissions of 1 March 2022.

    [16]See the questionnaire.

    [17]See Table 1 of United Nations’ Human Development Report 2020 commencing at page 343 < See also: Rathor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1187 at [42]-[44].

23. The applicant states he has some classmates at his college and some Malaysian friends who are studying in Australia in relation to his community ties to Australia.[18]  However, the applicant has now been living onshore for over four years and in his submissions of 1 March 2022 suggests he may seek to remain onshore to complete a Bachelor level course.  The Tribunal is concerned that the applicant’s community ties to Australia may be acting as a strong incentive for him to remain onshore but does not consider there is sufficient evidence to make any firm findings in this regard.  If the applicant makes an application for a further temporary visa upon completion of his study in January 2023, this Direction factor may need to be reconsidered.

    [18]See the questionnaire.

24. The applicant has returned to Malaysia once since his arrival – for five weeks in 2018 to visit his family.[19]  The Tribunal notes that the COVID19 Pandemic and associated travel restrictions have made such travel virtually impossible since early 2020.  The applicant’s parents and two brothers live in Malaysia and he speaks to them every two to three days.[20]  The applicant describes a close relationship with his family, in particular his parents, in the questionnaire including expressing a sense of responsibly to care for his parents.[21]  He also refers to personal deposits and family assets in Malaysia and claims that Australia is only a gateway for his personal and career development in Malaysia where he will have his friends and family around him.[22]  The Tribunal accepts the applicant has ties to his home country acting as an incentive for him to return but does not consider the evidence supports a conclusion that these ties are acting as a significant incentive for him to return.

    [19] See applicant’s response to the s359(2) letter.

    [20]See applicant’s response to the s359(2) letter.

    [21]See applicant’s response to the s359(2) letter.

    [22]See applicant’s response to the s359(2) letter.

25. The applicant states, inter alia, that: Australia is one of the most popular destinations for international students; Australian schools are well known for their academic reputation and focus on comprehensive learning and are more advanced than those offered in Malaysia; Malaysian education is less rigorous on content and assessment style meaning the qualifications are not as highly valued in the workplace in Malaysia.[23]  The Tribunal considers that the applicant has provided reasonable reasons for not undertaking the proposed study in Malaysia.

    [23]See the questionnaire.

26. The applicant has had no travel, visa or immigration issues in the past.[24]  The applicant does not have any potential military service obligations or political or civil unrest concerns in Malaysia.[25]

    [24]See applicant’s response to the s359(2) letter.

    [25]See applicant’s response to the s359(2) letter.

27. The Tribunal considers the factors for and against the applicant being a genuine temporary entrant for study in Australia are closely balanced in this case.  Ultimately, the Tribunal deems it appropriate to give the benefit of the doubt to the applicant, particularly given his course progress over the last two years.

28. Having had regard to the applicant’s circumstances, his immigration history and all other relevant matters, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student temporarily as required by clause 500.212. Accordingly, the applicant meets clause 500.212(a) of Schedule 2 to the Regulations.

1. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

   DECISION

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

   ·Clause 500.212(a) of Schedule 2 to the Regulations.

   Member

   T. Quinn

   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;

   d.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

   e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

   Value of the course to the applicant’s future

   12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

   a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

   b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

   c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

   The applicant's immigration history

   13.An applicant’s immigration history refers both to their visa and travel history.

   14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

   a.Previous visa applications for Australia or other countries, including:

   i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

   ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

   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.