Niroula (Migration)
[2021] AATA 232
•29 January 2021
Niroula (Migration) [2021] AATA 232 (29 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Ms Prerana Niroula
Mr Bhaskar KhadkaCASE NUMBER: 1909801
HOME AFFAIRS REFERENCE(S): BCC2019/592625
MEMBER:D Triaca
DATE:29 January 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Statement made on 29 January 2021 at 12:23pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – previous secondary applicant on husband’s visa now applying as primary applicant – unsuccessful study, changes of subject areas and enrolment in lower-level courses – continuing employment in Australia – plans for employment or business in home country – value of course to applicant’s future – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)CASES
Kaur v Minister for Immigration [2020] FCCA 2606
Kumar v Minister for Immigration and Border Protection (2020) FCAFC 16
Singh [2019] (Migration) AATA 2993
Vu Vu (Migration) [2019] AATA 5740
Vu Vu v Minister for Immigration [2020] FCCA 2292STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 April 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 22 February 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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.
The delegate in this case refused to grant the visas 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).
The applicants appeared before the Tribunal on 22 January 2021 to give evidence and present arguments.
The applicants were assisted in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Genuine applicant for entry and stay as a student (cl.500.212)
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?
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.
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.
This is made plain from the following statement of Logan J in Kumar v Minister for Immigration and Border Protection (2020) FCAFC 16 at [4], ‘Of course the Minister’s directions were a relevant consideration. How could it be otherwise in light of s 499 of the Act? But they were guidelines. Reading them as a whole, the Minister did not purport to elevate them beyond that, only to offer guidance to the end of consistency in public administration. Moreover, as Derrington and Thawley JJ explain, the Minister explicitly counselled against a mechanical, “checklist” approach. He recognised that factors might not be all one way; hence his reference to, “on balance”. All this was done in respect of a visa eligibility for which has as a criterion a subject which inherently involves, “a matter of opinion or policy or taste” in terms of satisfaction as to whether an applicant is a genuine student.’
Whilst not defined in the Regulations, the word genuine may be taken to mean ‘authentic, real or true’ in according with its ordinary and natural meaning. The Regulations specify two constituent elements of a genuine student visa applicant. First, a genuine applicant is one who intends genuinely to stay in Australia temporarily. The applicant must demonstrate an intention to stay in Australia for a limited time only, not permanently. That intention must be unqualified. This requirement reflects the temporary nature of being a student.[1] Secondly, a ‘genuine applicant’ is a person who intends to comply with any conditions to which the visa may be subject.[2]
[1] See Singh [2019] (Migration) AATA 2993 at [13]
[2] See the discussion of the meaning of ‘genuine applicant’ in Vu Vu (Migration) [2019] AATA 5740 (18 December 2019) [22] – [25] upheld on appeal in Vu Vu & Ors v Minister for Immigration and anor [2020] FCCA 2292
The main applicant is a 34 year old citizen of Nepal (applicant). There is a Secondary Applicant on the application, the applicant’s Husband. The applicant first arrived in Australia on 20 February 2013. She has resided here since that time on a series of temporary visas. She has been the dependent to her Husband’s student visa during this period. On 22 February 2019 she applied for a student visa. On 5 April 2019 a delegate of the Department refused her application (delegate’s decision). She provided the Tribunal with a copy of that decision.
The Tribunal has read and had regard to documents provided by the applicant to the Department and the Tribunal.
The applicant arrived in Australia for the purpose of studying a Master of Research. Prior to arriving in Australia, she had completed a Bachelor of Business Administration at Thames International College and a Master of Business Administration at Sikkim Manipal University in 2012. Her academic record in her home country is excellent. In Australia she was unable to complete the Masters of Research. She found the course difficult. She elected to support her Husband in his academic pursuits. He holds a Masters of Professional Accounting from Western Sydney University. She appears to have held dependent student visas during that time.
At the time of her application for a student visa, she enrolled to study a Diploma of Nursing at the Tasmanian Tafe. She commenced this course in early 2019 and successfully completed it in December 2020. To her credit, she undertook her studies despite the delegate’s decision and the uncertainty surrounding the outcome of her application. This is in her favour.
She is now enrolled in a Diploma of Leadership and Management at the at the Frontier Leadership. She is due to commence this course on 25 January 2021 and complete it on 23 January 2022. She says that she will return to Nepal at the conclusion of this course and open a business in aged care. In her statement of purpose she says she hopes to open a nursing home or allied health service and care agency in Nepal focusing on the aged and disabled with a similar modality of operation like Australia. In her evidence, she said that she had worked in similar businesses in Australia and believed she could replicate the business models in her home country.
The Tribunal considers that there no apparent value to the applicant’s future in undertaking the Diploma of Leadership and Management in Australia. It appears to the Tribunal that she is already sufficiently well qualified to return home to Nepal and either start a business or find suitable employment. I do not accept her argument that she is somehow lacking in leadership and management skills to the extent that she requires further, specific study in these areas in order to realise her ambitions.
The Tribunal considers that the courses the applicant has previously undertaken, in particular the Master of Business Administration course, is specifically designed to Provide the applicant with my knowledge base that may be used to solve challenges in business, including managing her own business. As such, the tribunal does not consider that the course proposed will really assist the applicant to obtain employment or improve her employment prospects in Nepal. It follows that the tribunal does not consider the proposed study will increase the remuneration the applicant could expect to receive in her home country or a third country.
The Tribunal considers the Diploma of Leadership and Management is at a level below the applicant's University qualifications and it considers the proposed study is not consistent with the applicant’s level of education. The Tribunal considers the Bachelor of Business Administration and Master of Business Administration are designed to provide a student with skills in critical thinking and analysis that may redeployed to solve many different challenges. It is concerning to the tribunal that the applicant is seeking to study a vocational level course at a level below her University accomplishments.
The proposed study may be relevant to her future plans, in the sense that she intends to manage a workforce. However, the tribunal places only minor weight on this point as it appears that she is already qualified to do so by reasons of her successful completion of a Bachelor and Master of Business Administration.
Further, if the current course really represents significant value to her future, she has had every opportunity to complete such a course during her seven years in Australia.
In these circumstances, the Tribunal considers the proposed study offers no real value to the applicant’s future.
The Tribunal considers the applicant has a reasonable understanding of living in Australia. This is not surprising given that she has resided here since 2013. I place minor weight on this matter.
The applicant states that she says that she has made enquiries and there is not an equivalent course available in Nepal to study a Diploma of Leadership and Management. She has now lived here for over 7 years, has successfully completed a Diploma of Nursing. It is understandable that she wishes to continue her studies here if she is to undertake further study. Accordingly, the Tribunal accepts she has reasonable reasons for seeking to continue her studies here. However, it places only minor weight on such a matter, noting the lack of value in the applicant’s proposed further study.
There is no evidence in relation to the applicant’s circumstances in her home country relative to others there.
The applicant states, and the Tribunal accepts that she has no concerns in relation to political or civil unrest in her home country.
The applicant states, and the Tribunal accepts, that she has no concerns in relation to military service commitments in her home country.
The applicant’s family is
There is no evidence in relation to the applicant’s circumstances in her home country
The applicant’s stated family in Nepal are her parents and parents in law. She says she speaks to her family on alternate days via telephone and social media and video calls. In Nepal she was a member of community groups, including an active member of the Rotary Club of Thamel in Kathmandu, Nepal. She has returned home on two occasions since arriving here. The applicant submitted that both her and her Husband have immediate family in Nepal and as eldest children will be responsible for caring for their ageing parents. It is suggested that the applicant’s husband’s responsibilities are greater as he is the eldest one and will be responsible for managing an entire household. I have taken these submissions into account. However, they are against the weight of evidence that suggests the applicants are happy and comfortable in Australia and whatever incentives they may have to return home, these incentives are not operating as significant incentives. The applicant has resided here for 7 years and not yielded to any such incentive. It seems that she is managing her relationships adequately via telephone and social media and in these circumstances, given the length of time she has resided here and the fact she is seeking to further extend her stay, the tribunal does not consider her family ties to Nepal operate as a significant incentive for her to return home.
There is no specific evidence to suggest that the applicant’s personal ties to Australia operate as a strong incentive for her to remain here. The Tribunal notes the presence of the applicant’s Husband and sister in Australia. Her sister lives in Melbourne on a temporary graduate visa. Noting she lives in another state, the Tribunal does not consider this tie operates as a strong incentive for the applicant to remain here. The applicant’s Husband is to be a dependent on her visa and there is no evidence to suggest he will remain here independently of the applicant.
The Tribunal is concerned by the applicant’s economic circumstances in Australia. It seems to the Tribunal that the applicant has a significant economic incentive to remain in Australia. The applicant’s evidence in relation to her economic circumstances may be summarised as follows. The applicant and her Husband work in Australia. She works as a Personal Care Worker for Southern Cross Care. She earns approximately $25,000AUD per annum. She has worked in Australia consistently since first arriving here various jobs including as a client service co-ordinator at Australian Homecare Service between 2017 and 2019 with an annual salary of $62,000AUD and a rostering co-ordinator earning $45,000AUD in 2017. She states her annual expenses in Australia is $11,760AUD per annum. When asked about her living expenses, she confirmed this was accurate and noted the reduced cost of living in Tasmania. The applicant confirmed her Husband worked here as a catering assistant. He works approximately 20 hours per week, earning ‘a little bit less’ than the applicant. The applicant owns property in Nepal and the Tribunal accepts her evidence in relation to her family property. In addition to property she also has cash, savings and approximately $40,000AUD in superannuation.
The Tribunal has carefully considered the evidence in relation to the applicant’s economic circumstances. The United Nations Human Development Index (‘UNHDI’) ranks Australia sixth in the world in terms of social and economic development.[3] It is an objective measure that shows that the standard of living and quality of life in Australia is relatively high, as compared to the rest of the world. Residents enjoy high levels of material wealth, a high life expectancy and significant social benefits. The general conditions in the Applicants’ home country are not nearly as attractive. The UNHDI ranks Nepal 142nd.
[3] United Nations Development Program, Human Development Report 2019 – Beyond Income, Beyond A, Beyond Today: Inequalities in Human Development in the 21st Century (UNDP, 2019) 326-31.
Whilst the Federal Circuit Court has cautioned the Tribunal in relation to the use of the UNHDI,[4] I consider that the Tribunal may infer from the comparative rankings on the UNHDI that the economic circumstances of the applicant in Australia are generally superior to those in her home country. The applicant offered no evidence to suggest this was not the case. She has provided no evidence to suggest that her specific economic circumstances in her home country are superior to those she has found in Australia.
[4] See Kaur v Minister for Immigration (2020) FCCA 2606
When viewed through this prism, the Tribunal considers the ability of the applicant, and her Husband, to earn Australian dollars in the course of ordinary employment in Australia must operate as a significant incentive for them not to return home. This is particularly the case where from the applicant’s evidence it is apparent that the applicant and her Husband earn significantly more in Australia than their cost of living here.
The applicant’s evidence in relation to her property ownership in Nepal does not alter the Tribunal’s view. The Tribunal does not consider ownership of such property operates as an incentive for the applicants to return to Nepal. Real property may be readily sold or retained and utilised to produce income. Neither scenario requires the applicant to return home.
The Tribunal has taken into account submissions to the effect that the applicant’s family is financially well off. These submissions suggest that the applicant’s financial position is such that the applicants have ‘no intention to remain in Australia to enrich themselves financially.’ The Tribunal does not accept this submission for the following reasons. The applicant and her Husband are both very well qualified academically. The applicant’s Husband holds a Master of Professional Accounting from Western Sydney University. The applicant holds a Masters and Bachelor degree as stated above, in addition to a Diploma of Nursing. In these circumstances, the tribunal considers that it is likely their preference to remain in Australia and work in relatively low paying menial employment rather than return home and embark upon their respective careers utilising their degrees, suggests that their wish to remain in Australia is motivated by reasons other than the potential benefits of the applicant completing a Diploma of Leadership and Management.
In these circumstances, the Tribunal has formed the view the applicant’s economic circumstances in Australia operate as a significant incentive for her not to return home.
The Tribunal has considered the applicants’ travel and immigration history. She appears to have travelled between Australia and Nepal without any issues. This is in her favour. She appears to have complied with the various conditions of her visas since arriving here. In these circumstances, the Tribunal makes no adverse findings in relation to her travel or immigration history.
The Tribunal notes that the applicants may face some difficulties in returning home to Nepal immediately, given the COVID-19 crisis. It appears they may remain for a period in Australia prior to being able to return home, and on bridging visas, although it is impossible to know for how long this will be the case. The Tribunal notes that nothing in these reasons should be interpreted as meaning that the tribunal considers that the applicant ought not be permitted to continue to study in Australia whilst on a bridging visa waiting to return home.
The applicant came to Australia intending to study a Master of Research at Macquarie University. She struggled with that course. It is submitted that, ‘the discrepancies between the way education is provided in Australia compared to that of Nepal, directly affected the way the applicant performed, and as a result she could not pass one of her subjects.’ It was submitted that this course failed to meet her expectations. In all the circumstances, the tribunal does not consider the applicant’s inability to complete her initial course weighs against the application. Much has transpired since that time. It is also not against her that she appears to have changed her course direction during her time here, moving from Master of Research to Diploma of Nursing to Management studies. Direction 69 contemplates that change in career and study pathway ought to be allowed where they are reasonable and the applicant’s changes to her study pathway is not a matter that weighs against the application.
The tribunal has regard to the applicant’s submission to the effect that her ongoing employment with Australia Home Care led to a finding that she is not a genuine temporary entrant. The tribunal does not consider that the mere fact the applicant is employed in Australia leads to a conclusion that she is not a genuine applicant. Many international students are employed during her studies and the tribunal does not consider such employment means a student is not genuine. In this case, the tribunal’s is not concerned by the mere fact that the applicant is employed in Australia. The Tribunal’s concern is that she is seeking to study a course that appears to have little or no value to her future and at the same time maintain her employment, which appears to provide her with significant economic incentives to remain in Australia.
There do not appear to be any other matters relevant to the application.
The Tribunal has considered all the evidence before it and considers the applicant is not a genuine applicant. It appears far more likely than not that the applicant is motivated by reasons other than study and is seeking to utilise the student visa as a means of maintain an ongoing residence in Australia for herself and her Husband. She is very well qualified to return home and find suitable employment in her home country including run a business in accordance with her stated plans. She has not demonstrated in any meaningful way that the Diploma of Leadership and Management is likely to add any value to her employment prospects. These matters, particularly noting her economic incentives to remain and her lack of incentive to return home lead the tribunal to refuse the application.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
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.
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.
Secondary Applicant
In circumstances in which the main applicant fails to meet the criteria for the granting of a student visa, the Secondary Applicant also fails to meet the said criteria.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
D Triaca
MemberAttachment – 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.
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