LOPES DA SILVA (Migration)

[2019] AATA 2630

LOPES DA SILVA (Migration) [2019] AATA 2630 (29 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Aline LOPES DA SILVA

CASE NUMBER:  1722339

HOME AFFAIRS REFERENCE(S):           BCC2017/2597128

MEMBER:Glenn O'Brien

DATE:29 May 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 29 May 2019 at 11:40am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – pattern of enrolment – short inexpensive courses – regression in level of study – income disparity – offer of employment not conditional on Australian qualification – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 30 August 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 21 July 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The applicant provided the Tribunal with a copy of the delegate’s decision record. 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 that the applicant intends genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 9 May 2019 to give evidence and present arguments. The Tribunal consented to the applicant providing further submissions after the conclusion of the hearing, which was received by the Tribunal on 13 May 2019. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

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

11. The applicant arrived in Australia on 19 March 2017 as a holder of an offshore TU-500 ELICOS student visa, valid until 23 July 2017.  The applicant subsequently applied onshore for a Student (Temporary)(Class TU)(Subclass 500) student visa.

12. The Tribunal considered whether the applicant has reasonable reasons for not undertaking the proposed study in her home country if a similar course is already available there. The applicant told the Tribunal there are no similar courses in Brazil that provide sport and education specific to outdoor sports such as climbing, kayaking, and fishing.  The applicant told the Tribunal that safety standards in Australia are considered best practice globally and the English language delivery of the course enhances her future career options in Brazil.

13. The applicant told the Tribunal her mother, step-father, aunt and grandmother live in Brazil and she speaks with her mother every day and other family members often by video call, messages, and texts.  The applicant told the Tribunal she also has cousins and uncles in Brazil and as an only child she will inherit her mother’s home and everything that is in it.  The applicant told the Tribunal the family home was valued at approximately $150,000.  The applicant told the Tribunal that when she was in Brazil she was a member of running groups and functional training groups.

14. The applicant completed her high school education in Brazil and completed a Bachelor of Physical Education in 2013, and also completed bodybuilding and functional training in Brazil in 2013 and 2014.

15. The applicant told the Tribunal that in the past her mother assisted her financially with studies but at present she pays with her own resources.  In response to the Tribunal’s letter sent pursuant to s.359(2) of the Act, the applicant told the Tribunal that her aunt is going to support her financially in her future courses as they require a bigger investment.

16. Prior to travelling to Australia the applicant worked as an instructor and personal trainer from February 2013 to February 2017.  At the hearing the applicant told the Tribunal she earned approximately AUD$18,000 per annum.  The Tribunal put to the applicant its concern this was less than the amount the applicant currently earns in Australia, which the applicant told the Tribunal was approximately AUD$24,000 per annum on the basis of part-time work as a professional cleaner.  The applicant told the Tribunal that ‘when I go back to my home country I will earn more.’

17. The applicant subsequently made written submissions after the hearing on 13 May 2019 that:

    My salary was as follows:

    -Bodytech Academy - 7 hours at R$25 per hour = R$9,100 per year (AUD $3,300)

    -Bodytech Academy – personal trainer - 10 hours at R$120 per hour = R$62,400 per year (AUD$22,600)

    -Privately – personal trainer – 25 hours p/w at R$70 per hour = R$91,000 per year (AUD$32,900)

    My total annual salary was approximately AUD$58,800.

18. The Tribunal has some difficult accepting the applicant’s changed evidence in relation to her previous income in Brazil after the Tribunal raised its concerns about the comparative income the applicant earns in Australia and that which she previously earned in Brazil. 

19. The applicant told the Tribunal that she had a permanent job at the Body Tech Academy in Brazil where she worked for seven years and now has much more substantial, hands-on experience.  The applicant told the Tribunal she worked her way up to be a senior trainer and has an excellent relationship with the firm’s top management and has a job waiting for her when she returns to Brazil.  In addition, the applicant told the Tribunal she will provide private classes for personal clients at their condominiums.

20. The applicant has not returned to Brazil since arriving in Australia, however applied to change her visa from a Bridging Visa A to a Bridging Visa B.  The applicant told the Tribunal that she missed a return trip to Brazil in February 2018 because of her then Bridging Visa A conditions.   The applicant subsequently applied for and was granted a Bridging Visa B but has not travelled due to being informed of the invitation for hearing from the Tribunal. 

21. The applicant told the Tribunal she had no military service obligations in Brazil and there are no circumstances of political or civil unrest that would induce her to apply for a visa to remain in Australia indefinitely.

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

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

    b.The applicant does have family ties to her home country including her mother and other family.  Being an only child and having an expected inheritance is an incentive to return.  Considering the period of time the applicant has been in Australia, the absence of travel home, the applicant’s change in her original plan to study English and return to Brazil, and the applicant’s submissions that her aunt will fund future courses that require a bigger investment, these circumstances are not a significant incentive to return.

    c.The applicant is supported financially during her study in Australia by family in her home country and she currently uses her own resources.  The applicant does have an anticipated inheritance in Brazil but does not have personal assets.  The applicant has a prospective offer of employment with her previous employer for whom she worked for seven years and told the Tribunal her aunt will support her financially for future courses.  The Tribunal does not accept the applicant’s most recent submissions in relation to her previous salary which are inconsistent with her previous written submissions and her oral evidence but accepts that the applicant anticipates earning more than she does in Australia on a part-time basis when she returns to work in Brazil on a full-time basis.  The applicant’s economic circumstances as a whole present as a significant incentive not to return home.

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

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

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

23. The applicant told the Tribunal that she has no family in Australia.  The applicant shares a house with other students and residents and told the Tribunal she has formed friendships with an Australian family she has lived with previously and she maintains contact with them.  The applicant told the Tribunal she attends church and is involved in groups in relation to English conversation.

24. The applicant told the Tribunal she travelled to Australia to study English as this would significantly improve her practice as a personal trainer.   The applicant completed a general English course in June 2017 and at the time of applying for the student visa enrolled in a series of three further general English courses (which have now been completed) and a Certificate III in Sport and Recreation with an anticipated completion date of November 2019.

25. The Tribunal was concerned that the applicant’s pattern of enrolment suggested the applicant was using her student visa to circumvent Australia’s migration programme and primarily for the purpose of maintaining her residence in Australia.  The applicant told the Tribunal that studying English was her focus and her choice was to do these courses as they are complementary for when she returns to Brazil and it will open many doors.

26. The applicant told the Tribunal that she had completed four units of her Certificate III in Sport and Recreation and there were seven remaining units.  The applicant told the Tribunal that the course was assessed on both participation and completing process blocks or assessment and she anticipated completing the course on 3 November 2019.   The applicant told the Tribunal that her current course of study was different to her already attained Bachelor of Physical Education as the applicant’s proposed course of study focussed on outdoor sports, group-facilitation, safety within sports practice and customer/social engagement.  In reviewing the applicant’s academic transcript for her Bachelor course provided to the Tribunal, that course was four years in duration and covered a wide variety of subjects including first aid, supervision, teaching practice, children’s physical education, and physical education in middle school as well as others.

27. The Tribunal was concerned that the applicant will have spent almost three years in Australia having only obtained general English qualifications and a Certificate III level course in the same field of study in which she already has a Bachelor level qualification.

28. The applicant told the Tribunal that when the course was completed she would move back to Brazil and return to her previous gym (and employer) and offer further recreational and group courses for adults and children as well as working with foreign English speaking clients.

29. In considering the applicant’s potential circumstances in Australia and the matters set out above, the Tribunal finds:

    a.The applicant has ties to Australia.  Considering the period of time the applicant has been in Australia, the absence of travel to Brazil, the friendships she has made through work and study, participation in English conversation groups, and the remuneration the applicant earns on a part-time basis, the applicant’s social, financial, and emotional connections to Australia provide a strong incentive to remain.

    b.In considering the applicant’s pattern of enrolment and changed intention to continue further English studies, enrolling in specific qualifications in fitness at a lower level than the Bachelor level qualification already attained not originally contemplated by the applicant, and the applicant’s period of study and residence in Australia, the student visa programme is being used to circumvent the intentions of Australia’s migration programme.

    c.For the reasons and findings set out above, the applicant’s student visa application is being used primarily to maintain ongoing residence in Australia.

    d.The applicant has a good knowledge of her living arrangements in Australia which she proposes to continue for the period of study.

    e.The applicant has a good understanding of the proposed course of study, education provider and her current study.

30. The applicant told the Tribunal she will return to her previous employer in Brazil to work as a personal trainer.  The applicant provided to the Tribunal a letter from Body Tech dated 25 March 2019, notably after the applicant received the Tribunal’s invitation for hearing which confirms the applicant’s previous employment and states an intention to offer the applicant a position on her return to Brazil on completion of her studies.  The offer of employment does not stipulate the course the applicant is studying and states that the company values international experience.  The Tribunal does not consider the offer conditional on completion of the applicant’s current course of study.

31. The applicant’s current course of study is a regression to the applicant’s already attained Bachelor of Physical Education.  The applicant told the Tribunal that this course will provide her with new skills and help her stand out amongst other candidates as it has a strong health and safety approach and her remuneration will be greater than other candidates and it will open many doors.  While the Tribunal accepts that vocational level training may provide the applicant with specific industry skills, given the applicant’s stated intention of returning to her former employer of some seven years as a gym instructor/personal trainer, the course is of limited further value to the applicant in relation to improving her employment prospects.

32. The applicant states her intention is to return to Brazil to work for her previous employer and to provide additional and improved training at the facility including expanding services to children and English speaking foreigners.  The applicant has already completed tertiary level studies in relation to children’s physical education and completed a number of general English courses while in Australia.  The Tribunal considers if the applicant genuinely holds the career aspirations and goals as told to the Tribunal her existing qualifications and skills attained in Australia would enable her to return to Brazil to pursue those goals and aspirations without further delaying her return for a qualification which has limited additional value.

33. The applicant’s current course of study is relevant to her past and future employment goals.  While the Tribunal accepts that vocational level training may provide the applicant with additional sector specific skills, the Tribunal does not consider the applicant’s current course of study to be necessary to return to Brazil to take up a position and is of limited overall value to the applicant in relation to her stated career goals and aspirations.

34. The Tribunal has considered the applicant’s comparative remuneration at paragraphs 16 to 18 of these reasons for decision.

35. In considering the value of the proposed course of study to the applicant’s future and the matters set out above, the Tribunal finds:

    a.The course is not consistent with the current level of education and is a regression to the Bachelor of Physical Education already attained by the applicant in Brazil.

    b.Considering the applicants previous history of employment and the qualifications already obtained in Brazil and Australia, the applicant’s intention to return to her previous employer, and the Body Tech letter of intention to employ the applicant, the Tribunal finds the current proposed course of study is of limited value to the applicant in relation to her stated future goals and aspirations.

    c.The course is relevant to both the past and proposed future employment of the applicant in her home country. The Tribunal does not consider the applicant’s pattern of study evidences a change in career paths.  While the course appears relevant to the applicant’s stated career aspirations, when considering the applicant’s existing qualifications and prospective employment the Tribunal finds that the applicant is able to pursue her chosen career without delaying her return to Brazil to obtain a qualification that offers the applicant limited further value in improving her prospects of employment.

    d.The remuneration the applicant can expect in her home country is likely to be more that the applicant currently earns in Australia on a part-time basis.

    e.There is no evidence before the Tribunal of the comparative salary between Brazil and Australia using the qualifications to be gained from the applicant’s current course of study and the Tribunal makes no findings in that regard.

1. The applicant’s immigration history to Australia is set out in the delegate’s decision record.  The applicant told the Tribunal she had not travelled to Australia prior to arriving on 19 March 2017.  The applicant told the Tribunal she applied to the Department of Immigration and Border Protection to vary her bridging visa from A to B, which has been approved.

2. The applicant has not travelled to any other country from Australia since arriving on 19 March 2017 and has not otherwise travelled to Australia from any other country.  The applicant told the Tribunal that she travelled to Chile in 2016 for the purposes of tourism and had an eight hour stopover in South Africa en route to Australia in 2017.

3. The applicant told the Tribunal that other than the student visa currently under review by the Tribunal there are no undecided, suspended or cancelled visas and the applicant has complied with the immigration laws of other countries to which she has travelled.

4. The applicant has been in Australia since 19 March 2017 undertaking a series of relatively short and inexpensive courses which are a regression in study to the Bachelor of Physical Education already attained by the applicant.  The Tribunal was concerned that the applicant was enrolling in these courses for the primary purpose of maintaining her residence in Australia.  The applicant told the Tribunal this was not the case and she has a high attendance rate in her studies and is here to learn.  The applicant told the Tribunal that she had a permanent job at the Body Tech Academy in Brazil where she worked for seven years and now has much more substantial hands-on experience.  In considering the applicant’s existing qualifications, her evidence in relation to her experience and her intention to return to her former employee, the Tribunal considers the applicant’s pattern of enrolment evidences her student visa may be being used for the primary purpose of maintaining residence in Australia.

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

   a.Other than the Australian visa applications set out in the delegate’s decision record and the application to change from Bridging Visa Class A to Bridging Visa Class B the applicant has not applied for other visas to Australia or any other country.

   b.Other than the current application for a visa under review by the Tribunal the applicant has not had any visas refused, cancelled or undetermined.

   c.Prior to the applicant first travelling to Australia in 2017 the applicant has not previously travelled to Australia. 

   d.The applicant has not travelled to other countries from Australia or to Australia from other countries since arriving in 2017.  The applicant has complied with the immigration laws of other countries to which she has travelled prior to arriving in Australia.

   e.The applicant has been in Australia since 19 March 2017 undertaking a series of short and inexpensive courses which are a regression to her existing Bachelor of Physical Education. In considering the applicant’s existing qualifications, her evidence in relation to her experience and her intention to return to her former employee, the Tribunal considers the applicant’s pattern of enrolment evidences her student visa is being used for the primary purpose of maintaining her residence in Australia.

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

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

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

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

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

    DECISION

11. 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.