Mohammed (Migration)

[2021] AATA 3945

Mohammed (Migration) [2021] AATA 3945 (12 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Moiz Mohammed

CASE NUMBER:  2002598

HOME AFFAIRS REFERENCE(S):          BCC2019/5640337

MEMBER:T. Quinn

DATE:12 October 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 12 October 2021 at 5:44pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – academic progress – only one course completed, at lower level than originally enrolled, and delayed progress in current course – physical health and loneliness – no reference to health in genuine temporary entrant statement – no evidence of course progress or health provided – continuing work and economic incentive to remain – vague, general plans for future employment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338(2), 347, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

CASE
Tshering v Minister for Home Affairs [2019] FCCA 2667

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 3 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 8 November 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 3 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 11 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 20 months 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 20 August 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 3 September 2021 which was within the prescribed timeframe.

6. The applicant appeared before the Tribunal via telephone hearing on 6 October 2021 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages, but the applicant elected to conduct the hearing primarily in English.  The interpreter remained present and available for the duration of the hearing.

7. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.

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

9. For the following reasons, the Tribunal has concluded that the decision under review ought to be affirmed in this case.  In reaching its decision, the Tribunal has had regard to:

   a.the oral evidence of the applicant given at the hearing;

   b.all written material filed by or on behalf of the applicant both before and after the hearing; and

   c.other relevant documents on the Tribunal and Department files.

   The Tribunal notes that not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference only to that information that the Tribunal has been found to be fundamental or materially significant to the determination of the issues in the case.

   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 32-year-old male Indian citizen who first arrived in Australia on 24 November 2015.[2]  He has remained onshore since that time without returning to his home country at all.[3]  Prior to coming to Australia, the applicant completed a Bachelor of Technology Computer Science and Education in August 2014 in India.[4] 

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

    [3]See delegate’s decision, applicant’s response to the s359(2) letter and Department File.

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

16. Since his arrival in Australia, the only course the applicant has completed is an Advanced Diploma of Business in January 2018.  The Tribunal does not consider this the sort of academic progress one would expect of a genuine student who has been onshore for nearly six years on the basis of student and associated bridging visas.

17. The applicant has previously been enrolled in a Master of Information Technology and a Bachelor of Business (Professional Accounting) but did not complete either of these courses.  The applicant gave evidence at hearing that he completed three subjects in his Masters course but changed his mind in relation to his career pathway and instead undertook the aforementioned Advanced Diploma of Business.  The applicant gave evidence that he did not complete any units in his Bachelor of Business as he was in so much pain in relation to his haemorrhoids condition (detailed further below)

18. The applicant’s application which is the subject of this review was to undertake a Master of Business Information Systems (‘MBIS’) with a proposed completion date in October 2021.[5]  Due to delays in this matter coming before the Tribunal, the applicant ought now be just days from completion of his courses and be preparing to return to his home country.  Instead, he remains onshore claiming that he has completed three semesters towards his MBIS but has failed to provide any corroborating evidence in this regard, despite the Tribunal allowing him extended time to do so, post-hearing. 

    [5]         See delegate’s decision.

19. 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.[6]  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.[7] 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’. The Tribunal undertook a PRISMS search in relation to the applicant which was consistent with his submissions that he is currently enrolled and studying and has formed no adverse conclusions in relation to the applicant in relation to that search and it has not formed part of the Tribunals’ reasons for this affirmation of refusal decision.

    [6]Section 10 of the ESOS Act.

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

20. The applicant’s current MBIS has a new completion date of December 2021.  Therefore, it is reasonable to assume the applicant would be able to obtain corroborating evidence of his course progress given he is so close to his completion date.  The Tribunal enquired at hearing as to whether the applicant was likely to finish his course on time in December 2021 and the applicant gave evidence that he was not likely to finish on time because he has had problems with his health and because of the COVID19 Pandemic.  He gave evidence that he ‘honestly can never focus on my studies’ because he has haemorrhoids and it is very painful – this was his explanation for not completing his Bachelor of Business, although there are no medical records in the Department file or submissions to this effect in the Department file.  In fact, his genuine temporary entrant statement in the Department file refers to loneliness and the challenging education system, not to any health difficulties.  He gave evidence at hearing that he could not sit or stand properly and cannot work and said this was why he had not returned to India in nearly six years.  He gave evidence at hearing that this was also the reason for the delay in his studies and that he has been dealing with this disease since 2017 until present.  This evidence deeply troubled by the Tribunal and raised concerns for the Tribunal about whether the applicant has been meaningfully engaging with his MBIS.  The applicant stated he would provide medical evidence of his haemorrhoids and of his course progress in the MBIS.  On pressing, the applicant gave evidence at hearing that he had completed eight or nine subjects in his MBIS and had three or four remaining.  The Tribunal gave the applicant until the close of business on Friday 8 October 2021 to provide further medical evidence and evidence of his course progress.  To date, the applicant has filed no further evidence or submissions.  This troubles the Tribunal.

21. Health issues are is an unkind life stressor that everyone must deal with at some point.  Non-Australian citizens on student visas in Australia are no exception.  Many student visa holders are forced to contend with such difficulties during their stay in Australia.  They are all burdened in a similar way in that they must deal with some degree of emotional turmoil while away from their families in their home country.  There is no medical evidence, beyond the evidence of the applicant himself, that provides an adequate account of his physical/medical state at the time. The Tribunal is therefore unable to form any view as to whether the applicant was suffering any clinically diagnosable health condition that puts his suffering into a category that goes beyond the ordinary difficulties that ordinary people generally suffer on a day to day basis, and that this may have been a cause of his limited academic progress in nearly six years onshore.

22. A particularly effective way for an applicant to demonstrate that they hold a genuine desire to study in Australia is to take positive steps towards achieving the educational qualification they proposed. That is to say, an applicant should progress with their proposed course of study in Australia.  Such evidence is compelling support for the submission that they are a genuine student.  In this case, the applicant has only completed one vocational level course in nearly six years.  The Tribunal does not consider this to be the kind of behaviour that is consistent with that expected of a genuine applicant for entry and stay as a student in Australia.  Notably, the applicant has remained in Australia, working but not satisfactorily progressing his study, whilst claiming he wishes to remain onshore as a genuine student.  This evidence raises concerns for the Tribunal about the true nature of the applicant’s intentions in applying for the student visa and, when taken as a whole with the timing of his application and the evidence outlined in this decision, appears to constitute evidence that the applicant is using the student visa programme to circumvent the intentions of the migration programme.

23. It seems to the Tribunal that if an individual is residing onshore on the basis of an intention to study, such study should take priority over work.  There are financial requirements before such visas are granted.  It raises concerns about an individual’s true intentions in residing onshore if when doing so they are working but not studying, despite claiming they wish to remain onshore with a genuine intention to study.

24. Further the applicant gave evidence later in the hearing that he has been working in customer service since 2015 and as a delivery driver since 2018.  He did not give any evidence that he had to cease this work due to any health condition.   This raised serious concerns for the Tribunal about the applicant’s credibility, particularly given his failure to produce corroborating evidence despite being given the opportunity post-hearing, and in relation to his true intentions in residing onshore.  One would consider an individual seeking to remain onshore on a student visa to progress their education would prioritise that study over work. 

25. The Tribunal found it difficult to ascertain the applicant’s actual goal with his study.  He initially gave evidence that he will ‘go back to India’.  He said, ‘I will get a good salary and get married’.  When asked again what sort of job the applicant would seek, he gave evidence ‘I will complete my Master and then return to India, I want to do job over there’.  Eventually he gave evidence at hearing that he would work in Information Technology and that there are many American companies and it is an Information Technology hub so he will see work in an international company where he anticipates earning AUD2-3,000 per month using the qualifications gained.  However, in written material, the applicant claimed that he plans to grow his family business so his father can retire.[8] The Tribunal allows for reasonable changes to study and career pathways but does not find these submissions persuasive. The applicant’s submissions in relation to his future employment plans are vague and do not reflect the level of detail and planning one would expect. Although the Tribunal accepts that a MBIS is relevant to working in Information Technology in an international company and notes the applicant’s lengthy submissions in his ‘Statement for Genuine Temporary Entrant’ filed together with his response to the s359(2), upon close reading, these submissions are vague, generic and general nature in relation to his future employment plans and the Tribunal does not consider it can form any firm conclusions in favour of the applicant in relation to the assistance and improvement this course will offer him.

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

1. This study is consistent with the applicant’s current level of education. 

2. The applicant speaks highly of Australian and its environment and education system in his submissions.[9]  The applicant has now been living in Australia for nearly six years, which has included time working and studying onshore (and necessarily engaged in those respective communities).  The length of the applicant’s stay in Australia, for nearly six years, indicates that the applicant has a preference to remain onshore.  It is reasonable to conclude that after nearly six years onshore, the applicant has cultivated a satisfactory life and established strong ties to the Australian community acting as a strong incentive for him to remain onshore.  As each day passes, those ties strengthen.

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

3. The applicant has not returned to India since his arrival.[10]  He gave evidence at hearing, as set out above, that this was due to his painful haemorrhoids condition but he has not provided any corroborating medical evidence in this regard and there does not appear to have been any previous suggestion to the Tribunal or Department in relation to this.  The Tribunal acknowledges that the COVID19 Pandemic has made international travel virtually impossible since early 2020 and does not place any weight against the applicant in relation to not travelling home since early 2020.  The applicant’s parents, three brothers and one sister live in India.[11]  The Tribunal accepts that the applicant has personal ties to India acting as an incentive for him to return but considers those ties are outweighed by his incentives and desires to remain onshore and are therefore not acting as a significant incentive for him to return. 

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

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

4. The applicant has provided detailed reasons for studying in Australia rather than India and displayed a thorough knowledge of his course and course provider.[12]  The Tribunal considers the applicant has provided reasonable reasons for undertaking his study in Australia as opposed to his home country or region.

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

5. The applicant has been working onshore: in customer service from December 2015- present, earning AUD16,000 per annum; and as a delivery driver from April 2018- present earning AUD10,000 per annum.[13]  The applicant has expenses onshore of AUD13,560 per annum.[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 India as 131^st in the world as compared to Australia’s ranking of 8^th in the world.[15]  Taking the evidence as a whole, including allowing for any taxation deductions and fluctuations in income generally, the Tribunal considers that, given the applicant is earning in Australian dollars in excess of his expenses onshore and the exchange rate between Australia and India, the applicant’s economic circumstances onshore are acting as a significant incentive for them to remain onshore.

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

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

   [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].

6. There is no evidence that the applicant has had any travel, visa or immigration issues in the past save for those outlined in this decision.  The applicant stated he does not have any potential military service obligations or political or civil unrest concerns in India.[16]

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

7. The Tribunal is concerned that the applicant is motivated by factors other than study and is using the student visa program as a means of maintaining residence in Australia.  The Tribunal cannot be satisfied on the material and evidence before it that the applicant genuinely intends to stay in Australia temporarily.

8. The applicants’ application and submissions do not satisfy the Tribunal that the applicant genuinely intends to stay in Australia temporarily.  The Tribunal is concerned that the visa is being sought primarily to maintain residence in Australia. 

9. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet clause 500.212 and the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by clause 500.212.

10. Having had regard to the applicant’s circumstances, his immigration history and all other relevant matters, the Tribunal cannot be 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 does not meet clause 500.212.

11. 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. Therefore, the decision under review must be affirmed.

DECISION

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

   T. Quinn
   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;

   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.