Nagpal (Migration)

[2019] AATA 2884

Nagpal (Migration) [2019] AATA 2884 (11 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gaurav Nagpal

CASE NUMBER:  1712584

HOME AFFAIRS REFERENCE(S):           BCC2017/1005861

MEMBER:Meredith Jackson

DATE:11 April 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 11 April 2019 at 11:10am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant – applicant has registered a business in Australia – work ambitions conflict with stated intention to return to home country – effect of marriage breakdown – incentive to return to home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 359AA, 499
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 8 June 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 14 March 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 delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant intends genuinely to stay temporarily in Australia.

4.    The applicant appeared before the Tribunal on 9 January 2019 to give evidence and present arguments.

5.    The applicant was assisted in relation to the review by their registered migration agent. The applicant was assisted by an interpreter in the English and Punjabi languages.

6.    During the hearing, the applicant became highly distressed on two occasions. In response to the first instance, the Tribunal granted a brief adjournment. After the second adjournment, the Tribunal offered the applicant an opportunity to complete his evidence via a series of questions it was prepared to submit to him by letter under Section 359(2) of the Act. The applicant agreed to respond to questions and submit further documentary evidence.

7.    For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

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 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 applicant for entry and stay as a student.

Genuine applicant for entry and stay as a student (cl.500.212)

9. 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?

10. 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.

11.      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.

Summary of the case

The applicant, Mr Gaurav Nagpal, is a 34 year old citizen of India who first came to Australia in 2014 as a dependant on his wife’s Student visa. He submits that his marriage broke down in 2016 when his wife gave birth to a baby whom the applicant submits is not his son. He claims to have suffered severe mental distress due to the breakdown of his marriage but states that he has now remarried. His new wife is working in India and, he states, is hoping to get a job in Canada, having been refused a Tourist visa to join him in Australia. While on Bridging visas, he has completed a year-long English course, a Certificate III in Painting and Decorating and in January 2019 was offered admission into a Diploma of Building and Construction (Management) due to complete in April 2021. He submits these qualifications will allow him to work “anywhere in the world”. The applicant has registered a business in Australia named Nagpal Builders Cleaning and Painting Solutions.

Written submissions considered

12.      The applicant submitted and the Tribunal has considered in excess of 100 pages of written submissions. These included but were not limited to:

a)The delegate’s decision;

b)Identity documents, marriage and divorce certifications, DNA Test Report;

c)A Statutory Declaration by a friend concerning the applicant’s marital circumstances;

d)A statement from the applicant’s brother concerning his family interests;

e)Marriage certificates for the applicant’s two marriages;

f)Medical certificate and a letter from the Kuraby Wellness Centre regarding the applicant’s anxiety and depression condition and supporting his family circumstances claims;

g)Dowry dispute information;

h)Academic certificates and transcripts and Certificate of Enrolment (COE) documents;

i)ASIC Business Registration documentation; and

j)Personal submissions including a response to a list of questions the Tribunal put to the applicant in a letter following the hearing.

The hearing

13.      At the start of the hearing, the applicant said he wanted to talk about his wife and the “cheating she had done on me over here”. The Tribunal asked the applicant to explain how this aspect had affected his circumstances.

14.      The applicant submitted that he had come to Australia in February 2014 because his former wife wanted to study here. He stated he found out quickly that she already had “a boyfriend over here”. He said he had tried to focus on the marriage and accepted little sexual activity within it, but then she had told him she was pregnant. He said he told her it was not his child and said he wanted a DNA test, however she had refused on the basis of medical advice, although said she would do the test after the birth. 

15.      While the applicant was responding to the Tribunal’s questions about his circumstances and making submissions about his study and family history, he became highly distressed. The Tribunal granted the applicant a brief adjournment to allow him time to compose himself.

16.      The hearing resumed and a discussion continued of the applicant’s study record and intentions. The applicant stated that he was planning to gain valuable Australian skills through his current enrolment in a Certificate III in Painting and Decorating. He intended to apply these skills in India where construction activity was expanding rapidly.

17.      The Tribunal, under section 359AA of the Act, referred the applicant to information about him in the Provider Registration and International Student Management System (PRISMS) and explained its relevance, in that the information in the database might be the reason, or part of the reason, to affirm the delegate’s decision.

18.      The Tribunal outlined the information in the database, which captures a chronological record of the applicant’s academic history in Australia: his enrolments, commencements, cancellations and course finalisations. The Tribunal said it had not made up its mind about the information. The Tribunal referred to the information during the hearing and the applicant was invited to comment on it. The Tribunal asked the applicant if he wished to seek further time to consider it. The applicant said he was prepared to comment on the information immediately it was read to him and said he understood it and why it was relevant to his case.

19.      The Tribunal asked the applicant to confirm that he had completed the 52 week English course he initially enrolled in and he responded that he had done so. The Tribunal then asked why the applicant had enrolled in, then cancelled, a 14-month Certificate III in Painting and Decorating course in 2018 and further, asked if this had been related to him going home to remarry. The applicant responded that he had studied for only 10-15 days when his mother became ill and he had had to return to India. He submitted that while there, the family saw that he was not well and “that is why they got me married”. He stated that when he returned, a friend had told him the college had some issues and they had cancelled his COE. The applicant confirmed he had subsequently enrolled in a similar course due to start on 24 September 2018 and finish on 17 November 2019. The Tribunal noted this was cancelled on 5 December 2019 for the variation reason: “Deferment/suspension - compassionate or compelling circumstances”. The applicant said he had enrolled in the same course, this time from 28 January 2019 to 22 March 2020. The applicant said his plan now was to get the certificate qualification and return to India to work at a skilled level in the painting and decorating fields.

20.      The Tribunal asked about the applicant’s broader plans for his future and noted that he had registered a business in Australia and asked if it was getting work. The applicant responded that he was trying to find work cleaning in Australia and the business was just starting out.

21.      The Tribunal questioned the applicant about his family ties in India and Australia. The applicant said he had no family here and family in India, his wife, mother and siblings including a brother with whom he jointly owns a business. The Tribunal noted the applicant had earlier said he wanted to talk about his first wife and child and invited him to do so. He stated that he and his first wife were now divorced and he had not seen the child since soon after the birth because the child was not his. At this point the applicant became very distressed and the Tribunal said it was considering adjourning the hearing due to the applicant’s distress.

22.      The Tribunal said it had considerable information and evidence before it, and understood the applicant was struggling to remain composed. The Tribunal offered him an opportunity to respond to written questions. The Tribunal said it could make a decision on both the evidence given at the hearing and the responses to written questions, if that was acceptable to the applicant. The applicant and his migration agent agreed it was an acceptable process, stated that they would respond to a letter and the applicant said he would be happy for the decision to be made on that basis. A letter was duly sent on 10 January 2019 and the applicant responded on 25 January 2019.

Consideration of family issues and their impact

23.      The Tribunal has considered the impact the breakdown of the applicant’s first marriage on his study history. It has examined relevant written submissions regarding the circumstances of the breakdown and noted the applicant’s expressed wish to discuss its impact, and the fact that his evidence was limited by his distress when asked to describe how it had affected him.

24.      The Tribunal has noted the statutory declaration from a friend of the applicant, Mr Kamal Kishor submitted to the Tribunal. It states that the DNA test had been done in his presence. He and the applicant had submitted data online from swabs the friend claims were from the applicant and were taken from the newborn baby. It notes the applicant’s submission of a report from the global firm DNA Diagnostics Center, stating that the applicant was excluded as the biological father of the tested child and “the probability of paternity is 0%.” The submitted DNA report was dated 15 February 2016. The Tribunal does not have before it supporting clinical evidence as to the origin of the swabs or any other evidence concerning the reliability of the DNA evaluation.

25.      The Tribunal has also considered a letter from the Queensland Registry of Births, Deaths and Marriages dated 14 January 2019, certifying a search had been made in its records and that no trace can be found of the applicant as a father/parent in a registered Queensland birth. The Tribunal accepts the letter is correctly issued but has no information before it regarding the birthplace of the child.

26.      The Tribunal has also considered a submission from a medical practitioner at Kuraby Wellness Centre stating that the applicant had been anxious due to a relationship breakdown and that it had affected his studies.

The Tribunal’s letter following hearing: questions and responses

27.      The Tribunal wrote to the applicant after the hearing as described earlier. Among questions put were: as the applicant’s new wife had been refused a tourist visa to Australia, whether the applicant had made any commitments to her about coming to live in Australia. In response the applicant stated that his wife was working full time in a hotel in India with a contract to September 2019. He said she was also undertaking an IELTS tests and was hopeful of getting a job in Canada and “as of now” has no intention of coming and living in Australia. He stated that he intended to visit her two or three times a year during his “college vacations and breaks”.

28.      The Tribunal asked whether the applicant would seek to study further courses on completion of his Certificate III in Painting and Decorating. The applicant responded that he had been offered admission into a Diploma of Building and Construction. He stated he had researched construction trends in India and found the industry to be 11 per cent of GDP, and considered that with his Australian qualifications he would make at least $100,000-$200,000 per annum in some roles.

Conclusions

29.      The Tribunal has considered the applicants’ circumstances in relation to whether he is a genuine applicant for entry and stay as a student, as required by Direction No.69 and has concluded as follows:

a.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 Tribunal concludes the applicant is seeking to extend his stay in Australia using the student visa program. The applicant claims he is studying in order to increase his prospects in India, and potentially elsewhere, but the Tribunal notes he has registered a cleaning and painting business in Australia, has studied painting and decorating and is enrolling in a Diploma course in building and construction. He has sought unsuccessfully to bring his new wife to Australia on a Tourist visa and submits he will visit her in India “two or three times a year on college vacations and breaks”. The Tribunal accepts the applicant’s submission that he has researched the construction industry in India, and accepts that Australian qualifications provide potential for him to gain employment at a high level of income within it. However the Tribunal notes there is also a vibrant construction industry in Australia and a demand for skilled workers with Australian qualifications and a registered business. The construction industry in Australia also routinely creates significant income for skilled, Australian trained contractors. The Tribunal concludes the economic circumstances in India that the applicant describes do not outweigh his opportunities in Australia for skilled construction work, particularly if, as he submits, he continues to gain relevant qualifications here.

b.In further relation to his economic circumstances, the applicant submits that his new wife is completing her IELTS (English) test and is hopeful of getting a job in Canada. The applicant is also English qualified:  English is all he originally intended to study here and submitted in his visa application statement that he wished to complete an English course and return home to a good job. For reasons he claims were to do with the breakdown of his marriage, while on his Bridging visa awaiting this review decision, he extended his study plan to a Certificate IV in Painting and Decorating. He now intends to pursue a Diploma in Building and Construction. He submits to the Tribunal that after this construction diploma is completed he will return to India to be with his new wife. However the Tribunal notes that in his submission of 25 January 2019 he acknowledges that with trade qualifications from Australia, he can work “anywhere in the world”.  The Tribunal concludes the applicant’s study and claimed global work ambitions conflict with his statements about his intention to return to India to be with his wife and family and to get skilled work. The applicant submits he has a half share of a business in India and family there, including his second wife. But he is clearly in no hurry to return to India and moreover, is contemplating living abroad in Canada. He has already sought enrolment in two courses in Australia that he did not plan to do when he arrived, and he has started a business onshore. The Tribunal concludes that the applicant’s actions demonstrate he is using the student visa program to extend his stay in Australia.

c.In relation to information before the Tribunal that may be either beneficial or unfavourable to the applicant, the Tribunal accepts that he was deeply distressed by the circumstances surrounding the breakdown of his first marriage and that this affected his mental health. However the Tribunal concludes the issues he experienced as a result of the breakdown and the birth and the child did not, of themselves, prevent him from achieving his study plans. While on Bridging visas, he has completed a 12-month English language course, a Certificate III in Painting and Decorating course, and has secured an offer in a Diploma in Building and Construction (Management) course that would potentially take him until 2021 to complete. As difficult as his family issues may have been for the applicant, particularly issues surrounding the paternity of the child, the Tribunal considers these issues are similar to those experienced by many persons in a married relationship. Further, they do not appear to have profoundly altered his study course. With the exception of one period where he did not study due to what his education provider described as compassionate and compelling circumstances, he has studied successfully.

d.In relation to whether circumstances exists that may provide a disincentive to return to India, the Tribunal notes the applicant’s submission regarding the withdrawal of an application made in India for the recovery of dowry articles has been resolved. The Tribunal questioned in its letter whether the dispute over the dowry articles provides a disincentive for the applicant to return to India. The applicant responded that the matter has been settled by a resolution of the dowry claim and does not represent a disincentive for him to return home. The Tribunal does not have before it evidence of significant barriers to the applicant returning to India. In relation to any factors encouraging his return to India, while the applicant states his wife is there, and this is a reason to return, he has submitted she is considering a prospective job in Canada. In relation to his other family in India, the Tribunal notes the applicant has been in Australia since 2014 and is seeking to extend his stay, potentially, until 2021. The Tribunal concludes the applicant is not subject to compelling factors encouraging his return home.

e.In relation to the applicant’s immigration history, the Tribunal does not have before it substantial evidence that the applicant has failed to comply with visa conditions in Australia or elsewhere and makes no finding in this regard.

30. Having considered all the specified factors in Direction No.69, and 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 satisfy cl.500.212(a).

31. 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.

32.      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

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

Meredith Jackson
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.