Pham (Migration)

[2023] AATA 3874

Pham (Migration) [2023] AATA 3874 (10 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ba Chau Pham

CASE NUMBER:  2206202

HOME AFFAIRS REFERENCE(S):          BCC2020/2438077

MEMBER:T. Quinn

DATE: 10 November2023

PLACE OF DECISION:  Melbourne

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

Statement made on 10 November 2023 at 8:37pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – no response to invitation to comment – applicant’s responsibility to provide relevant facts in necessary detail – applied soon before previous visa due to expire – no evidence of study progress or completion – unexplained new enrolment in different subject area after tribunal’s inquiry about non-enrolment – family members in home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338(2), 347, 359(2), 359A, 359C(1), 360(3), 363(1)(b), 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.212(a)

CASES
Baker v MIAC [2012] FCAFC 145
Chen v MIBP [2017] FCA 46
Cockrell v MIAC (2008) 171 FCR 345
FKP18 v MIBP [2018] FCA 1555
Hasran v MIAC [2010] FCAFC 40
Huo v MIMA [2002] FCA 617
Jagroop v MIBP (2014) 225 FCR 482

Kaur v MHA [2019] FCCA 1372

Kaur v MIBP [2014] FCA 915

Khan v Minister for Immigration [2019] FCCA 565

Kumar v MIBP [2020] FCAFC 16
Manna v MIAC [2001] FMCA 28
MIAC v Li [2013] HCA 18
MIAC v Obele (2010) 119 ALD 358

MIBP v Singh [2014] FCAFC 1

Tshering v Minister for Home Affairs [2019] FCCA 2667

Williams v MIBP (2014) 226 FCR 112

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 8 October 2020, the applicant applied for a Student visa (the visa) to undertake study in Australia (‘the application’).[1]

   [1]Specifically, a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).  At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The applicant applied for the former and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

2. On 11 April 2022, a delegate of the Minister for Home Affairs (‘the delegate’) refused to grant the application on the basis that the applicant did not satisfy the genuine temporary entrant requirements in relation to student visas.[2]

   [2]See clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) which requires that student visa applicants be genuine applicants for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application

3. On 27 April 2022, the applicant applied to this Tribunal for a review of the delegate’s decision.[3]

   [3] Pursuant to sections 338(2) and 347 of the Act.

4. 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 since making their application. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information for the purposes of determining the outcome of their application for review. To this end, on 31 July 2023, 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 s359(2) letter requests that a questionnaire (‘the questionnaire’) be completed by the applicant.

5. The applicant did not provide the information requested in the s359(2) letter within the prescribed period or at all. He did, however, respond to correspondence from the Tribunal in relation to his non-enrolment on 17 September 2023. This email and the attached new confirmation of enrolment were not filed within the prescribed timeframe set out in the s359(2) letter. Where an applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action.[4] 

   [4] Pursuant to section 359C(1) of the Act.

6. I find that the applicant did not provide further information as requested. In these circumstances, section 359C of the Act applies and pursuant to section 360(3) of the Act the applicant is not entitled to appear before the Tribunal. The effect of section 363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear.[5]

   [5]           Hasran v MIAC [2010] FCAFC 40.

7. I have considered whether, in the circumstances of this case, information that the applicant meets the requirements of the Act and Regulations is likely to be forthcoming and whether the applicant has had a fair opportunity to provide relevant information already.

8. I have considered whether I 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, I have had regard to decisions where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.[6]  I have also had regard to other case law relevant in these situations.[7]

   [6]See Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2001] FMCA 28.

   [7]See Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013) regarding reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (4 February 2014) which considered analogous issues, as well as the decision of Kaur v Minister for Immigration and Border Protection [2014] FCA 915 (28 August 2014).

9. I consider that the applicant has had a fair opportunity to provide relevant information and elect not to exercise my discretion to adjourn the review any further to allow the applicant more time. [8] In these circumstances, I make my decision having regard to the information I have before me, including the information previously provided by the applicant to the Department and the Tribunal but without taking further steps to obtain the additional information sought by this Tribunal under section 359(2) of the Act.

   [8]under section 363(1)(b) of the Act.

10. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. A 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.

11. For the following reasons, I have concluded that the decision under review ought to be affirmed in this case.  In reaching its decision, I have 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.

    Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in my reasons as set out below. The reasons incorporate reference only to that information that I have found to be fundamental or materially significant to the determination of the issues in the case.[9]

    [9]In this regard, please see Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (24 February 2020) at [82] and [96].

    STATUTORY FRAMEWORK

12. 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. Information in relation to Clauses 500.211 and 500.212 is attached to this decision.

    Does the applicant intend genuinely to stay in Australia temporarily?

13. In considering whether the applicant satisfies clause 500.212(a), I 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 is attached in full to this decision but broadly it requires Tribunal Members 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.

14. 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.

15. The Direction is a lawful direction of the Minister.[10]  I am therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[11]  Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before me.  However, I recognise that the Tribunal is an independent statutory body.  I must therefore reach my 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, I note well established case authority as to the proper approach by decision makers to guidelines such as the Direction[12] and McNab J’s view 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.[13] 

    [10] In accordance with section 499 of the Act.

    [11]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].

    [12]Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]), Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) and Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]).

    [13]Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47] per McNab J).

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The applicant is a 47-year-old male Vietnamese citizen who first arrived in Australia in or around early 2020, having been granted a student visa which expired on 8 October 2020.[14]  The applicant has remained onshore since his arrival.[15]  The timing of the applicant’s application which is the subject of this review raises concerns being less than two weeks before his previous student visa expired – it suggests he may be using the student visa migration programme as a means of maintaining residence which is in circumvention of the intentions of the migration programme.

    [14]See delegate’s decision. 

    [15]See pages 20-21 of the applicant’s application in the Department file. 

17. Prior to coming to Australia the applicant completed a Bachelor of General Business Administration in Vietnam in 2009.[16]  The applicant worked as Head of Business Operations from 1997-2017 for two different employers and then as a Sales Manager from January 2017-December 2019 in Vietnam.[17]

    [16]See page 16 of the applicant’s application, copy of completion certificate (including translation) and ‘letter statement for GTE requirement’ (‘the GTE’) – all in the Department file.

    [17]See pages 17-19 of the applicant’s application and the GTE– in the Department file.

18. The applicant has not provided any evidence of any progress or completion of any study in Australia (such as transcripts, statement of attainment, certificate of completion or a letter from his course provider) save for a letter dated 8 October 2020 in relation to one English course.  I am very troubled by this.

19. The applicant has not filed any evidence that he has completed any course(s) in Australia since September 2020.[18]  This raises serious concerns about whether he can be considered a genuine student. 

    [18]See Department and Tribunal files.

20. The applicant’s application which is the subject of this review was to undertake a Certificate IV in Accounting and Bookkeeping and a Diploma and Advanced Diploma of Accounting with cumulative course dates from November 2021-November 2025.[19]  Due to delays in this matter coming before the Tribunal, the applicant ought now to have made considerable progress in his studies.  The applicant has not completed the questionnaire which enquires about course progress or provided any corroborating evidence of course progress or completion of any of these courses.  This is puzzling.

    [19]See delegate’s decision and confirmations of enrolment in the Department file.

21. The Tribunal undertook a PRISMS search on 1 September 2023 which indicated that the applicant was not enrolled. The Tribunal wrote to the applicant on 5 September 2023 pursuant to section 359A of the Act, making enquiries about his non-enrolment. On 17 September 2023, the applicant a new confirmation of enrolment for an entirely new course: a Diploma of Leadership and Management with course dates from October 2023-October 2024. I am very troubled by this. The confirmation of enrolment was created on 15 September 2023, two days before the applicant’s response of 17 September 2023. I am concerned that the applicant has recommenced study at this time to ensure he satisfies the requirements of clause 500.211 of the Regulations. This in turn raises questions about whether he may be using the student visa migration programme as a means of maintaining residence in Australia, which is in circumvention of the intentions of the student visa migration program. The applicant’s new confirmation of enrolment was accompanied by an email stating he has faced personal challenges resulting in his temporary suspension from his school.

22. I allow for reasonable changes to study and career pathways but am perplexed by the applicant’s sudden and significant change in field of study without proper explanation. 

23. A particularly effective way for an applicant to demonstrate that they hold a genuine desire to study in Australia, while awaiting a review determination following an initial student visa refusal, is to take positive steps towards achieving the educational qualification they had proposed in their original application. That is to say, an applicant should progress with their proposed course of study in Australia notwithstanding that their visa application has been refused.  In doing so, by the time the application on review proceeds to a decision by the Tribunal, an applicant will be a position to produce compelling evidence that shows they are a genuine applicant for a student visa.  In this case, there is no such evidence.  I do not consider this to be the kind of behaviour that is consistent with that expected of a genuine applicant for entry and stay as a student in Australia.  In fact, if the applicant had engaged with the courses which he proposed in October 2020, he would have made considerable progress.  Instead, he has remained in Australia and provided no evidence of any study progress since September 2020, whilst claiming he wishes to remain onshore as a genuine student.  This evidence raises concerns about the true nature of the applicant’s intentions in applying for the student visa and, when taken as a whole with the timing of his application and the evidence outlined in this decision, appears to constitute evidence that the applicant is using the student visa programme to circumvent the intentions of the migration programme.

24. On 13 October 2023, the Tribunal undertook a further PRISMS search which indicated that the applicant remains enrolled in his new courses.  I place no weight against the applicant in relation to this search.

25. The applicant has not filed new submissions in relation to his new study pathway.  The applicant states in the GTE filed with the Department that he plans to undertake accounting courses to secure work in Vietnam as a Professional Accountant at a real estate company in Vietnam and provided a range of possible remuneration using his proposed qualifications.  I do not consider these submissions apply to the applicant’s new proposed study in Leadership and Management.  I do not consider I have sufficient information about the applicant’s current career goal or how his new proposed course is relevant to and will assist and improve his career prospects such that I can make any findings in his favour in this regard.

26. I am concerned that this study represents a considerable downgrade from the applicant’s current Bachelor level of education.

27. The applicant has not completed the questionnaire which asks directly about community ties in Australia.  The applicant has now been living onshore for over three years and speaks very highly of Australia in the GTE filed with the Department.  I am concerned he may have formed strong ties to the Australian community.  However, I do not consider I have sufficient information before me to form any firm conclusions in this regard. 

28. The applicant has not completed the questionnaire which asks directly about income and expenses in Australia and any asset holdings.  His application to the Department states that he has sufficient funds to support himself onshore.[20]  He has provided minimal other information regarding his economic circumstances.  I do not consider I have sufficient information to form any firm conclusions about whether the applicant’s economic circumstances are acting as a strong incentive for him to remain onshore.

    [20]See page 15 of the applicant’s application in the Department file.

29. The applicant’s spouse, three children, parents, two brothers and sister (and their spouses) live in Vietnam.[21]  The applicant has not provided updated information in relation to whether he has returned to Vietnam since he made his application to the Department.  The COVID19 Pandemic has made international travel virtually impossible from early 2020 to early 2022 and I place no weight against the applicant in relation to that period.  The applicant had not returned to Vietnam at the time of making his application to the Department.[22]  The applicant has not completed the questionnaire which asks directly about community ties to his home country.  I acknowledge that the applicant has community ties to Vietnam acting as an incentive for him to return but do not consider the evidence supports a finding that those ties are acting as a significant incentive for him to return.

    [21]See applicant’s application in the Department file at pages 3, 6-10 and 12-15.

    [22]See applicant’s application in the Department file at pages 20-21.

1. The applicant has listed extensive reasons for studying accounting courses in Australia in the GTE filed with the Department including (inter alia) that: Australia offers a safe and enjoyable studying environment and that there are benefits to his future career in holding an international qualification and having improved English proficiency.  Whilst I accept these submissions to some extent, I do not consider the applicant has provided reasonable reasons for studying a Diploma of Leadership and Management in Australia rather than his home country or region.

2. The applicant has undertaken considerable international travel between 2015-2019, including to Cambodia, China, the Lao Peoples Democratic Republic, Singapore, the United Arab Emirates and Japan.[23]  There is no information before me that the applicant has had any travel, visa or immigration issues in the past, save for the applicant’s email of 17 September 2023 stating that he was temporarily suspended from his studies – I do not consider I have sufficient information about this to place any weight on this statement.  There is no evidence that the applicant has any potential military service obligations or political or civil unrest circumstances in Vietnam.[24]

   [23]See applicant’s application in the Department file at pages 20-21.

   [24]See applicant’s application in the Department file.

3. I am very troubled by the fact that the applicant has not provided any corroborating evidence from any course provider(s) such as a transcript or statement of attainment regarding any of his study in Australia to the Tribunal or the Department save for one English course in 2020. 

4. There is not sufficient evidence to satisfy me that the applicant genuinely intends to stay in Australia temporarily. Accordingly, the applicant does not meet clause 500.212 and I am not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by clause 500.212.

5. The criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Therefore, the decision under review must be affirmed.

   DECISION

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

   T. Quinn
   Member

   Attachment – Clauses 500.211 and 500.212 of Schedule 2 of the Regulations

   Enrolment (clause 500.211)

   ·Clause 500.211 requires that, at the time of decision, the student visa application in question be founded on evidence that the applicant is enrolled in a course of study.[25]

   [25]Clause 500.211(a) of Schedule 2 to the Regulations.

   ·‘Course of study’ is defined as a ‘full-time registered course’ and a ‘registered course’ is a course provided by an institution which has been registered under the Education Services for Overseas Students Act2000 (Cth) (‘the ESOS Act’) to provide that course to overseas students.[26]

   [26]Regulation 1.03 of the Regulations.

   ·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.[27]  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.[28] 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.

   [27]Section 10 of the ESOS Act.

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

   Genuine Temporary Entrant

   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.

   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.