Nguyen (Migration)

[2021] AATA 4034

Nguyen (Migration) [2021] AATA 4034 (21 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Hoang Huyen Tran Nguyen
Quyet Tien Quang Nguyen

CASE NUMBER:  1915095

HOME AFFAIRS REFERENCE(S):          BCC2019/1326363

MEMBER:T. Quinn

DATE:21 October 2021

PLACE OF DECISION:  Melbourne

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

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

Statement made on 21 October 2021 at 10:17am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – after completing only one course in five years, applicant has now completed degree course – future career goals in home country – no evidence of community ties in Australia or home country provided – work in Australia – closely balanced factors and benefit of doubt – member of family unit – decision without hearing – decision under review remitted

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

CASE
Tshering v MHA [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 30 May 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicants applied for the visa on 15 March 2019 (‘the application’).   At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The primary applicant (‘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 30 May 2019, 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 applicants’ review application.

4. On 12 June 2019, the applicants applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.[1]

   [1]There was a technical issue which was rectified prior to this decision in relation to both applicants seeking a review.

5. Over two years have elapsed since the making of the delegate’s decision and the applicants’ 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 21 June 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 2 July 2021 which was within the prescribed time period.

6. It was very difficult to contact the applicant after this date and she had not provided a contact telephone number, despite request by the Tribunal.  The Tribunal therefore listed the applicant to appear before the Tribunal on 22 October 2021 for a telephone hearing, whereby she would have to dial in to the Tribunal as she had not supplied a telephone number, to give evidence and present arguments.  However, on 6 October 2021 the applicant responded to the Tribunal and upon further request for information sent by this Tribunal on 18 October 2021, the applicant supplied further information and a contact telephone number.

7. Upon considering all of the material filed by the applicant, the Tribunal determined that it could make a decision without the need for a hearing.

8. The Tribunal has proceeded to a decision having had regard to all the information before it, including the information previously provided by the applicants to the Department and all submissions filed with the Tribunal by the applicants.

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

   STATUTORY FRAMEWORK

10. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant.

11. Clause 500.212 requires as follows:

    The applicant is a genuine applicant for entry and stay as a student because:

    (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

    (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)any other relevant matter; and

    (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

    (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

    (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

    (c)of any other relevant matter.

    Does the applicant intend genuinely to stay in Australia temporarily?

12. In considering whether the applicant satisfies clause 500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (‘the Direction’), made under section 499 of the Act. The Direction requires the Tribunal to have regard to a number of specified factors in relation to:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

13. The Direction indicates that the factors specified should not be used as a checklist, but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

14. The Direction is a lawful direction of the Minister made in accordance with section 499 of the Act. The Tribunal is therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[2]  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.

    [2]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 primary applicant is a 26-year-old female Vietnamese citizen who is the mother of the second applicant (aged 3 years).[3]  The applicant first arrived in Australia on 23 March 2016 and has remained onshore since that time.[4]    

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

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

16. Prior to coming to Australia, the applicant completed a three-year course in English at University in Vietnam.[5] 

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

17. Since her arrival in Australia, the applicant has been enrolled in but not completed many courses including in the field of Commercial Cookery, Community Services, Hospitality Management and Tourism and Hospitality Management.  This concerns the Tribunal.  It appears that in a period of over five years the only course the applicant has completed is a three month English course.[6]  The Tribunal allows for reasonable changes to study and career pathways but is deeply troubled by the applicant’s varied and changing fields of study and limited academic progress from June 2016-March 2019.  However, the applicant has made submissions about the difficulties she faced in her pregnancy with the second applicant and the Tribunal has made some allowance in this regard.  Further, the applicant has now completed the course she initially proposed to the Department – which is a tertiary level course – and this has been a significant factor in the Tribunal’s decision.

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

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

    [7]Section 10 of the ESOS Act.

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

19. The applicant has made submissions that after she completed her English course in June 2016 she commenced a Bachelor of Business (Tourism and Hospitality) (although PRISMS suggests that this was a Bachelor of Tourism and Hospitality) and found it too difficult and her enrolment in that course ceased in January 2018.[9]  She has submitted in an email of 6 October 2021 that she attempted six subjects in this course but only completed three.  She submits that she then commenced a Certificate III in Commercial Cookery in February 2017 but ceased this study due to her pregnancy in early 2018.[10] This timing is consistent with the date of birth of the second applicant. However, these submissions do not appear to be consistent with the PRISMS report in terms of timing or enrolments. In fact, in her questionnaire filed in response to the s359(2) letter, the applicant failed to list a number of her previous enrolments. This raises concerns for the Tribunal about whether the applicant has been forthright with the evidence and submissions she is making to the Tribunal.

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

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

20. The applicant’s application which is the subject of this review was to complete a Bachelor of Community Services.[11]  At the time of her application to the Department she had completed 33% of this course.[12]  She has now completed this course and is awaiting receipt of her formal certificate later this year.[13]  The Tribunal considers the applicant has made very good academic progress over the last two years while residing 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.  The Tribunal considers this is persuasive evidence that the applicant is a genuine student and commends the applicant in this regard.  It has been a significant factor weighing in favour of the applicant in the Tribunal’s decision.

    [11]See delegate’s decision.

    [12]See delegate’s decision.

    [13]See applicant’s response to the s359(2) letter and submissions of 20 October 2021.

21. The applicant’s study is consistent with her current level of education. 

22. The applicant plans to engage in community work in Vietnam for the benefit of the community and will consider working as a volunteer to gain experience.[14]  She anticipates earning USD60-80,000 per annum equivalent using the qualifications gained but her submissions make clear her goals are not financially driven.[15]  The Tribunal accepts that the applicant’s proposed qualification is relevant to and likely to assist and improve her future career goals.

    [14]See applicant’s response to the s359(2) letter and submissions of 20 October 2021.

    [15]See applicant’s response to the s359(2) letter and submissions of 20 October 2021.

23. The applicant is currently living with her immediate family unit: her husband and son.[16]  She also states she has relatives in Australia.[17] She has left blank the section in her questionnaire filed in response to the s359(2) letter in relation to her community ties to Australia.[18]  The applicant has now been living in Australia for in excess of five years and gave birth to the second applicant in Australia and he has known no other place than Australia as home.  The length of the applicant’s stay in Australia, for over five years, indicates that it is likely she has a preference to remain onshore.  It is reasonable to conclude that after more than five years onshore the applicant has cultivated a satisfactory life and established strong ties to the Australian community acting as a strong incentive for her to remain onshore.  As each day passes, those ties strengthen.

    [16]See applicant’s response to the s359(2) letter and submissions of 6 October 2021.

    [17]See applicant’s response to the s359(2) letter and submissions of 6 October 2021.

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

24. The applicant has not returned to her home country since her arrival and has left blank the section of the questionnaire regarding her community ties to Vietnam filed in response to the s359(2) letter.[19]  The Tribunal notes that the COVID19 Pandemic and associated travel restrictions have made international travel virtually impossible since early 2020 and does not place any weight against the applicant in relation to that period.  The applicant’s parents and brother live in Vietnam and she contacts them two or three times per week.[20]  The Tribunal accepts that the applicants have personal ties to Vietnam acting as an incentive for them to return but does not consider the evidence supports a conclusion that those ties are acting as a significant incentive for them to return. 

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

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

25. The applicant submits that study in social work or community service are not major that are focussed on or popular in Vietnam and therefore jobs in that field are not held by trained professionals and there is a shortage of suitable labour in that field in Vietnam.[21]  She claims that the actual services offered in community service/social work in Vietnam are not suitable or functional.[22]  The Tribunal considers the applicant has provided reasonable reasons for undertaking this study in Australia as opposed to her home country or region.

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

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

26. The applicant has been working onshore: in a restaurant from March 2016-December 2017 and from July 20180-April 2019 earning AUD150 per week (AUD7,800 per annum).[23]   From February 2019-present she has been working as a Manager at a restaurant earning AUD18,500 per annum.[24]  The applicants’ expenses onshore are AUD17,320 per annum.[25]  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 Vietnam as 117^th in the world as compared to Australia’s ranking of 8^th in the world.[26]  Taking the evidence as a whole, the Tribunal is concerned that the applicants’ economic circumstances onshore may be acting as a significant incentive for them to remain onshore but does not consider it can make any firm findings in this regard.

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

    [24]See applicant’s response to the s359(2) letter and submissions of 20 October 2021.

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

    [26]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].

27. There is no evidence that the applicant has had any travel, visa or immigration issues in the past save for those outlined in the immediately preceding paragraph.[27]  The applicant does not have any potential military service obligations or political or civil unrest concerns in her home country.[28]

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

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

28. The Tribunal is troubled by several of the aspects of the applicant’s case as set out above.  The Tribunal considers the factors for and against the applicant being a genuine temporary entrant for study in Australia are very closely balanced in this case.  Ultimately, the Tribunal deems it appropriate to give the benefit of the doubt to the applicant primarily based on the applicant’s completion of her proposed course and her assurance that she will return to Vietnam early next year when borders are open.[29]  Should the applicant make a further visa application after this, her submissions and evidence to the contrary in connection with this case will clearly be relevant to any assessment of her credibility and any stated intention to stay in Australia temporarily.

    [29]See applicant’s response to the s359(2) letter and submissions of 20 October 2021.

1. Having had regard to the applicant’s circumstances, her 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.

2. 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.

3. Consequently, as the decision in relation primary applicant’s review has been remitted, the Tribunal considers the Minister should also reconsider whether clause 500.311 in Schedule 2 of the Regulations is met by the second applicant as a member of the family unit of a person who satisfies, or has satisfied, the relevant primary criteria.

4. Therefore, the decision in relation to the second applicant’s review must also be remitted.

   DECISION

5. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa: clause 500.212(a) of Schedule 2 to the Regulations.

   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.