Malla (Migration)

[2022] AATA 355

Malla (Migration) [2022] AATA 355 (18 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Bishal Malla

CASE NUMBER:  2003808

HOME AFFAIRS REFERENCE(S):          BCC2019/4577971

MEMBER:T. Quinn

DATE:18 February 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 18 February 2022 at 10:38am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – incentives to return or remain – applied soon after arriving on visitor visa – delayed but continuing study with new completion date – ill father in home country – consent to decision without hearing – closely balanced factors – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 500.211(a), 500.212(a)
Education Services for Overseas Students Act2000 (Cth), s 10

CASES
Baker v MIAC [2012] FCAFC 145
Cockrell v MIAC (2008) 171 FCR 345
Chen v MIBP [2017] FCA 46
FKP18 v MIBP [2018] FCA 1555
Jagroop v MIBP (2014) 225 FCR 482
Kaur v MHA [2019] FCCA 1372
Khan v Minister for Immigration [2019] FCCA 565
MIAC v Obele (2010) 119 ALD 358
Rathor v MICMSMA [2021] FCCA 1187
Tshering v MHA [2019] FCCA 2667
Williams v MIBP (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 11 February 2020 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 12 September 2019 (‘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 11 February 2020, 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 27 February 2020, 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. Approximately 2 years have elapsed since the making of the delegate’s decision and the applicant’s application for review with the Tribunal. 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 during that time. 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 10 September 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 14 September 2021 which was within the prescribed timeframe. In that response, the applicant indicated he consented to the Tribunal deciding the review without a hearing.

6. 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.

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

   STATUTORY FRAMEWORK

8. 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.

   Enrolment (clause 500.211)

9. Clause 500.211 relevantly requires that, at the time of decision, the student visa application in question be founded on evidence that the applicant is enrolled in a course of study.[1] The applicant does not claim to meet any of the alternative criteria in clause 500.211 of the Regulations.

   [1]Clause 500.211(a) of Schedule 2 to the Regulations.

10. ‘Course of study’ is defined as a ‘full-time registered course’ and a ‘registered course’ is a course provided by an institution which has been registered under the Education Services for Overseas Students Act2000 (Cth) (‘the ESOS Act’) to provide that course to overseas students.[2]

    [2]Regulation 1.03 of the Regulations.

11. 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.[3]  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.[4] 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.

    [3]Section 10 of the ESOS Act.

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

    Genuine Temporary Entrant (clause 500.212)

12. 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?

13. 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.

14. 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.

15. 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.[5]  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.

    [5]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

16. The applicant in this case is a 28-year-old male Nepalese citizen who first arrived in Australia in June 2019 on a tourist visa to celebrate his birthday with his twin sister who is living in Australia.[6]  Prior to his arrival in Australia, the applicant completed grade twelve equivalent in 2013 before serving the British Army, undertaking two years of a Bachelor of Business Studies in Nepal and then studying a Japanese language course in Japan for one year and six months.[7]  His history after completing high school was interrupted by periods of ill health in the applicant’s father requiring him to return to Nepal and/or remain in Nepal to care for his father.[8]  The applicant has supplied corroborating documents in relation to his Bachelor study, Japanese study and father’s medical circumstances which were clearly serious from the medical documents filed.

    [6]See delegate’s decision, applicant’s statement filed 28 February 2020 (document ID 6981710) (‘the Statement’) and the applicant’s response to the s359(2) letter.

    [7]See delegate’s decision, the Statement and the applicant’s response to the s359(2) letter.

    [8]See delegate’s decision, the Statement and the applicant’s response to the s359(2) letter.

17. The applicant then worked in Nepal from February 2018-May 2019 as a Japanese language instructor earning Rs38,000 per month.[9]

    [9]See the Statement, the applicant’s response to the s359(2) letter and corroborating letter from his employer.

18. The applicant’s application which is the subject of this review was to undertake a Diploma and Advanced Diploma of Leadership and Management with a cumulative completion date in November 2021.[10]  Due to delays in this matter coming before the Tribunal, the applicant ought now to have commenced and completed these courses.  Instead, he remains onshore without having completed any courses.  This deeply troubles the Tribunal.  However, the applicant has been forthright about the fact that he did not complete his Diploma which the Tribunal commends.  The applicant has also filed a statement of attainment from his course provider indicating he completed eight units towards his Diploma as of 4 October 2020 and he has been able to progress to studying his Advanced Diploma.  This Advanced Diploma has a new completion date in August 2022.  The fact that the applicant has continued to progress in his study during his time onshore, on the basis of a bridging visa, during a Global Pandemic which has significantly changed the educational landscape for students, while also managing the uncertainty of the outcome of this application is to his credit.  The Tribunal has placed considerable weight on this in coming to its conclusions in this case. 

    [10]          See delegate’s decision.

19. The Tribunal conducted a PRISMS search in relation to the applicant on 1 December 2021 which is consistent with the applicant’s submissions.  On this basis, along with emails from the applicant enquiring about his case progress where he states he is studying, the Tribunal has accepted that the applicant is continuing to progress in  his Advanced Diploma and due to complete his course on time in August 2022.  Should the applicant, upon reconsideration by the Department, not produce evidence of progress in this course it will clearly be relevant to any assessment as to whether he is a genuine student.

20. The applicant submits that he plans to seek work in leadership management in the tourism field and anticipates earning AUD5,000 equivalent per month using the qualifications gained.[11]  The Tribunal allows for reasonable changes to study and career pathways and notes the applicant’s study is consistent with his current level of education given he never completed his Bachelor of Business Studies.  The Tribunal is concerned by the vague and generic nature of the applicant’s goals and whether his submissions may be suggesting he intends to seek work experience in Australia before returning to Nepal.  This is not clear from his submissions.  Ultimately, the Tribunal accepts that the applicant’s courses are relevant to and may assist and improve his employment prospects but places only minimal weight in his favour in the circumstances. 

    [11] See delegate’s decision and applicant’s response to the s359(2) letter.

21. The applicant claims that in Nepal there are not specific courses of study like these and any study in Nepal would not offer him the same value or opportunities or offer him the same exposure as these Australian qualifications.[12]  The Tribunal considers that the applicant has provided reasonable reasons for not undertaking the study in his home country or region.

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

22. The applicant has not listed any working in Australia in his questionnaire filed in response to the s359(2) letter and has expenses onshore of AUD21,480 per annum.[13]  The applicant and his sister have filed documents indicating she is sponsoring him financially on his time onshore and has financial means to do so.[14]  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 Nepal as 142^nd in the world as compared to Australia’s ranking of 8^th in the world.[15]  The applicant’s father receives a pension and owns a house and land in Nepal and the applicant’s sister owns property in Australia but it does not appear the applicant himself owns any assets.[16]  The Tribunal is concerned that the applicant’s sister’s financial situation in Australia may constitute economic circumstances acting as a significant incentive for the applicant to remain onshore but does not consider it can make any firm findings to this effect given the limited information before it.  This factor will need to be reconsidered if the applicant makes a further application to remain onshore upon completion of his studies.

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

    [14]See applicant’s response to the s359(2) letter including bank statement from the applicant’s sister.

    [15]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].

    [16]See the Statement and applicant’s response to the s359(2) letter.

23. The applicant has left blank the section of the questionnaire filed in response to the s359(2) letter in relation to community ties to Australia.[17]  However, the applicant’s sister and brother-in-law and living in Australia and supporting him financially.[18]  On balance, the Tribunal does not consider the evidence supports a finding that the applicant’s community ties to Australia are acting as a strong incentive for him to remain onshore at this time.  This factor will become relevant, however, if the applicant makes a further application to remain onshore upon completion of his studies.

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

    [18]See the Statement and applicant’s response to the s359(2) letter.

24. The applicant has not returned to Nepal since his arrival onshore in 2019.[19]  However, the Tribunal notes that the COVID19 Pandemic and associated travel restrictions have made such travel virtually impossible since early 2020.  The applicant describes a close relationship with his family and in particular his father in his submissions.[20]  He describes his previous workplace as a community tie to Nepal.[21]  The Tribunal accepts that the applicant has community ties to his home country that are likely to be acting as an incentive for him to return but it does not consider it has sufficient information before it to conclude that those ties are acting a significant incentive for him to return.

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

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

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

25. The applicant travelled to Japan for a period of three years in November 2014 for study purposes.[22]  There is no evidence that the applicant has had any travel, visa or immigration issues in the past.[23]  The applicant does not have any potential military service obligations or political or civil unrest concerns in Nepal.[24]

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

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

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

26. The Tribunal is concerned by the way in which the applicant came to be onshore (being on a visitor visa and only then, once onshore, applying for a student visa).  It is difficult for the Tribunal to accept that the applicant, in such a short space of time after his arrival onshore as a visitor, could have then promptly researched all study and living options and decided to remain onshore for a further three-year period.  The Tribunal accepts that it is possible that an applicant may seek a change in plans or to further their skills for employment reasons and remuneration opportunities, but the Tribunal is puzzled when an applicant arrives on a visitor visa and then makes sudden changes to their plans within a short period of time after arriving.  The Tribunal considers it unlikely that a person travelling as a tourist would make such a significant change from their initial intentions to visit.  Such a significant change would necessarily include a greater level of planning and preparation before arriving in Australia considering the length of time (three years) that the applicant proposed to spend in Australia.  It raises concerns about his true intentions in seeking a student visa. 

1. 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.  The Tribunal has come to this conclusion in a large part due to the academic progress the applicant has made while onshore on a bridging visa and the proximity to his completion of same.  The Tribunal notes that the applicant is due to finish his course in August 2022 – just six months away.[25]  Should the applicant make a further student visa application on the basis of his intention to undertake further study after this, the evidence he gave in connection with this case will clearly be relevant to any assessment his intention to stay in Australia temporarily only to study.

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

2. 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.

3. 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

4. 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.