Nguyen (Migration)

[2021] AATA 1122

Nguyen (Migration) [2021] AATA 1122 (12 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Buu Minh Huong Nguyen

CASE NUMBER:  1922468

HOME AFFAIRS REFERENCE(S):          BCC2019/2482707

MEMBER:T. Quinn

DATE OF DECISION:  12 April 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 April 2021 at 1:21pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – member of family unit – de facto partner – appearance by telephone at hearing truncated and no further contact or evidence provided – limited medical evidence of ‘stress-psychosocial issue’ – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65, 338(2), 347, 363(1)(b)
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 500.312(a)

CASES
He v MIBP [2017] FCAFC 206
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Home Affairs [2019] FCCA 1372
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Khan v Minister for Immigration [2019] FCCA 565
Maharjan (No 2) v MHA [2020] FCCA 731
Manna v Minister for Immigration and Citizenship [2001] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
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 9 August 2019 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 (‘the applicant’) applied for the visa on 10 May 2019 as a Subsequent Entrant and as a member of the family to join her de facto partner who holds a Student Visa (‘the application’).   At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The applicant’s partner was the primary applicant for a Subclass 500 (Student) visa to undertake study in Australia and neither the applicant nor her partner claim to meet the criteria for a Subclass 590 (Student Guardian) visa. 

3. On 9 August 2019, the delegate refused to grant the applicant the visa on the basis that the applicant did not satisfy the requirements of clause 500.312(a) of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that he was not considered to be a genuine temporary entrant. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

4. On 13 August 2019, 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. The applicant was listed to appear before the Tribunal via telephone hearing on 24 March 2021 to give evidence and present arguments.  However, on 17 March 2021, the applicant wrote to the Tribunal from her personal email address requesting an adjournment of her hearing and stating she was suffering from stress and depression and also wished to withdraw her current migration agent.  Attached to this email was a change of contact form and a medical certificate.  The medical certificate stated that Dr Lam, a general practitioner, had examined the applicant on 15 March 2021 and that she is suffering from an acute psychosocial issue and would not be fit for work from 15-29 March 2021 and that she ‘should be cleared to resume normal duty on to be reviewed’.  No further information was given about the applicant’s symptoms, what impact the ‘psychosocial issue’ has or had on her ability to undertake particular tasks or whether the ‘issue’ would cause difficulty for her in giving evidence over the telephone in her current review proceeding.  The medical certificate referred only to unfitness for ‘work’.  This medical certificate was also lacking in information in relation to the applicant’s care plan such as psychological intervention/consultation and/or medication and/or general advice about management of this health issue.

6. Nonetheless, the Tribunal granted the applicant’s request for an adjournment.

7. The applicant’s hearing was listed before the Tribunal for a further telephone hearing on 12 April 2021 for the applicant to give evidence and present arguments.  On 6 April 2021, the applicant wrote to the Tribunal from the same personal email address stating ‘I am invited to the hearing on 12/4/2021, however i will not be able to attend because i don’t think my depression is going to get better soon. Is there any way you can postpone a couple more months for me? Preferably till Sep/Oct? I can send through to you the medical certificates later’. 

8. The Tribunal carefully considered this request. The Tribunal has given consideration to whether it should adjourn the review under section 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal has had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.  It has also had regard to Minister for Immigration and Citizenship v Li[3] regarding reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered analogous issues, as well as the decision of Kaur v Minister for Immigration and Border Protection.[5]

   [1] [2002] FCA 617.

   [2] [2001] FMCA 28.

   [3] [2013] HCA 18 (8 May 2013).

   [4] [2014] FCAFC 1 (4 February 2014).

   [5] [2014] FCA 915 (28 August 2014).

9. Cogent reasons are required for the postponement of a hearing, and not merely for the convenience of the applicant.  Sickness 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 have to deal with some degree of emotional turmoil while away from their families in their home country.  At the same time, they are obviously burdened with having to comply with visa conditions.  Many such visa holders are young adults, just like the Applicant.  There is no psychological evidence, beyond the evidence of the applicant himself, that provides an adequate account of her mental state as at 6 April 2021 or 12 April 2021.  Although the medical certificate provided by the applicant states ‘to be reviewed’, the value of the certificate is limited in several aspects as set out above: it does not state the applicant is unfit for a Tribunal hearing over the telephone; it does provide a range of dates beyond 29 March 2021; it does not state what the applicant’s symptoms are or what treatment is she is or is recommended to receive.  The Tribunal is therefore unable to form any view as to whether the applicant was or is suffering any clinically diagnosable mental health condition that puts her suffering into a category that goes beyond the ordinary mental difficulties that ordinary people generally suffer on a day to day basis in dealing with life’s stressors, and that this may be so severe that she could not receive a telephone call to give evidence to this Tribunal.

10. The Tribunal also notes that the Tribunal President’s Direction in relation to Conducting Migration and Refugee Reviews given under section 18B of the Administrative Appeals Tribunal Act 1975 (‘the President’s Direction’). Clause 5.2 of the President’s Direction states that requests for adjournment of a scheduled hearing will not be granted simply on the basis of the convenience of the review applicant or their representative. Where the Tribunal has given sufficient advance notice of a hearing, adjournments will not be granted on the basis of a need to gather further evidence unless cogent reasons can be shown. The Tribunal does not consider the applicant gave such cogent reasons. Whilst the Tribunal empathises with the difficulties faced by the applicant, the Tribunal does not consider it has sufficient information or evidence before it to warrant adjourning a hearing which relates to a decision of the Department from nearly two years ago. The Tribunal’s aim is to provide accessible, fair, just, economical, informal and quick review processes. Given the already extensive delays in this matter coming before it, the Tribunal considered a further delay was not appropriate or warranted in the circumstances.

11. Accordingly, the Tribunal has elected not to exercise its discretion under section 363(1)(b) of the Act to adjourn the review any further to allow the review applicant more time. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information it has before it, including the information previously provided by the applicant to the Department and the Tribunal.

12. The Tribunal invited the applicant to provide any further medical evidence in its correspondence refusing her request for an adjournment on 8 April 2021.  No further medical evidence has been received by the Tribunal at this time.

13. The applicant initially did not answer her telephone when the Tribunal called her for her hearing on 12 April 2021.  Then, when she did answer, she claimed that she was not aware of the hearing and unable to attend because she was busy, and her email address had changed.  The Tribunal explained that this was the applicant’s opportunity to have her case heard and the Member was ready and waiting to proceed with hearing.  The applicant was sworn in to give evidence and the Tribunal began preliminary statements, explaining how the matter would proceed and shortly thereafter the applicant left the hearing and all further phone calls were met with an automated voicemail saying the recipient was unavailable. 

14. The Tribunal received an email from the applicant, from the same personal email address as her previous emails has been sent from, at 10.19am on 12 April 2021, approximately five minutes after the applicant left the telephone hearing, stating that: ‘My apology but I will not be able to attend the hearing today. I cannot deal with this much stress.’

    The Tribunal received a further email from the applicant at 12.48pm on 12 April 2021 stating “[p]lease find attached the Medical Certificate of last time when I visited the doctor. I am currently having a flu so I cannot go for check up, but I will go there again to get another certificate after getting better.”  At no stage prior to this correspondence had the applicant mentioned that she had the flu.  Attached to this email was another medical certificate from Dr Lam stating he had examined the applicant on 6 April 2021 and that she is suffering from stress- psychosocial issue and would not be fit for work from 6-9 April 2021 and that she ‘should be cleared to resume normal duty on 10 April 2021’.  Again, no further information was given about the applicant’s symptoms, what impact the ‘stress-psychosocial issue’ has or had on her ability to undertake particular tasks or whether it would cause difficulty for her in giving evidence over the telephone in her current review proceeding.  The medical certificate referred only to unfitness for ‘work’.  This medical certificate was also lacking in information in relation to the applicant’s care plan such as psychological intervention/consultation and/or medication and/or general advice about management of this health issue.  It also states she would be fit for ‘work’ on 10 April 2021.  Today is 12 April 2021 and there is no medical evidence to support a conclusion that the applicant could have engaged in her hearing today.  The most recent medical report is actually to the contrary and suggests she would have been able to so engage.

15. The Tribunal empathises with the applicant but refers to and repeats the statements set out above and notes that the applicant has not provided sufficient medical evidence for the Tribunal to consider any further adjournment is called for in the circumstances.  The Tribunal also holds concerns, taking the circumstances as a whole, about whether the applicant has been forthright with this Tribunal.

16. 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.

17. 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.all written material filed by or on behalf of the Applicant; and

    b.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 the information that the Tribunal has found to be fundamentally or materially significant to the determination of the issues in the case.

    STATUTORY FRAMEWORK

18. 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. 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 satisfies the secondary criteria.

19. Clause 500.312 requires as follows:

    The applicant is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa, having satisfied the primary criteria for that visa 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?

20. In considering whether the applicant satisfies clause 500.312(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. These factors must be considered in relation to both the primary visa holder’s application at the time that a decision maker determines that application but also in relation to individuals such as the applicant, as members of the family unit of the primary visa holder. The exception in the applicant’s case in relation to the Direction factors is that matters relating to studying and the value of the course, namely the factors in paragraphs 9(a) and 12(a)–(c) of the Direction, are not directly relevant considerations unless there is some relevance to this information in the context of any of the other factors (for example, the applicant’s immigration history if the applicant previously held and breached a student visa condition).[6]  Therefore, in the present case, the Direction factors must be considered in relation to:

    ·the applicant’s circumstances in their home country and potential circumstances in Australia;

    ·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.

    [6]         Maharjan (No 2) v MHA [2020] FCCA 731

21. 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.

22. 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.[7]  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.

    [7]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

23. The applicant is a 24 year old female Vietnamese citizen who claims to be in a de facto relationship with the primary visa holder.[8] The applicant did not give evidence at hearing and, therefore, she did satisfy the Tribunal that she is in a genuine de facto relationship as defined by section 5CB of the Act with the primary visa holder. ‘De Facto’ is defined in section 5CB of the Act and provides that a person is the de facto partner of another where the two persons are in a de facto relationship. Persons in a de facto relationship must have a mutual commitment to a shared life to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis.[9] In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in clause 1.15A(3) of the Regulations are effectively questions which must be answered.[10] 

    [8]See delegate’s decision and marriage certificate on Tribunal file.

    [9] Section 5CB(2)(a)-(d).

    [10]        He v MIBP [2017] FCAFC 206.

1. The Tribunal holds concerns as to whether the requirements of clause 500.311 are met by this applicant in the circumstances but cannot form any firm conclusions in this regard based on the limited evidence before it. The delegate’s refusal was based on clause 500.312 and the Tribunal does not propose to change the determinative issue before it and merely raises these concerns as a matter of completeness to indicate that although it is satisfied that the primary visa holder holds a student visa, it does not make any findings as to whether the applicant meets the requirements of ‘member of the family unit’ as required by clause 500.311.

2. The applicant did not give evidence at hearing and so the Tribunal has limited information before it in relation to the Direction factors as set out in paragraphs 18 and 19 above.  The Tribunal sees no utility in setting each of these factors out but has considered each factor with specific reference to this applicant and the material it has before it.  In circumstances where the applicant has not given evidence that would demonstrate findings in her favour, the Tribunal does not consider it can make such findings.

3. In considering whether the applicant meets the genuine temporary entry criterion, the Tribunal has considered the requirements of clause 500.312(a) and all of the applicant’s circumstances, with specific regard to the relevant considerations in the Direction.

4. Having had regard to the applicant’s circumstances, her immigration history and all other relevant matters, the Tribunal is not satisfied that the applicant meets the requirements of clause 500.312 of Schedule 2 to the Regulations. 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

5. 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;

   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.