Plucienniczak (Migration)

[2019] AATA 2031

Plucienniczak (Migration) [2019] AATA 2031 (19 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Natalia Plucienniczak

CASE NUMBER:  1803712

HOME AFFAIRS REFERENCE(S):           BCC2017/4050151

MEMBER:Genevieve Cleary

DATE:19 June 2019

PLACE OF DECISION:  Perth

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

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 19 June 2019 at 9:37am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – reasons for undertaking study in Australia – value of course – English courses – skills-based education – beauticians course – limited personal ties in Australia – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 January 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 1 November 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because they were not satisfied that the applicant genuinely intends to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 17 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Polish and English languages.

5. Prior to the hearing, the applicant submitted the following items to the Tribunal:

   ·The decision of the delegate of the Department;

   ·Confirmations of Enrolment;

   ·A letter of offer from Milner International College of English dated 30 April 2019;

   ·Other letters of offers from other education institutions and a transfer of provider request form from AICT;

   ·A response to the Tribunal’s request for student visa information;

   ·A newspaper article detailing the closure of AICT dated 9 November 2018;

   ·Submissions dated 10 June 2019.

6. The applicant was assisted in relation to the review by their registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant intends genuinely to stay temporarily in Australia.

Enrolment (cl.500.211)

1. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.

2. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

3. The applicant has provided the Tribunal with a Confirmation of Enrolment showing that she is enrolled in Comprehensive English at Skilled Services Australia Pty Ltd, having commenced on 27 May 2019 and to be completed on 24 November 2019. Therefore, the Tribunal is satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is met.

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

1. 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?

1. 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.

2. 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.

The applicant’s history of travel to Australia, her reasons for studying here and the value of the courses to her future

1. The applicant came to Australia 3 years ago for a holiday.  She stayed nearly 3 months, staying mainly with her aunt and uncle, who live in Perth.  She wanted to travel, however had limited English.  Her aunt and uncle were unable to accompany her to assist her as they had employment to attend to:   her uncle is a gardener, and her aunt works in care. After she had spent some time in Australia she left, travelling first to Italy and then back home to Poland.  However, the applicant wanted to see more of Australia, and decided to return.    

2. While she told the Tribunal that she wished to travel when she returned, and returned on a visitor-tourist visa, she also said that she wanted to use the opportunity to improve her English.  She had been particularly affected by the loss of her employment before she had come to Australia the first time.  She told the Tribunal that she had been a baby sitter in Poland, and had worked for a family since their son was a baby.  When he reached school age he was sent to an English-speaking school, and his parents decided that he should have an English-speaking carer.  As a result, they hired another baby sitter, and no longer required the applicant.

3. She was also affected, she told the Tribunal, by her efforts in finding work in Poland in her desired career, which was as a beautician.  She completed a qualification as a Cosmetic Services Technician in 2008 in Poland, however found that without English, she struggled to gain employment in that field.  She was looking for work in Warsaw, a city she says which has recently opened up to tourists and conferences.   

4. After she returned to Australia, she again found that her aunt and uncle were unable to assist her in her travels and she decided that she would like to formally study English here. It is as a result of that decision that she sought a student visa, which was then refused, and is the subject of this review.  The applicant commenced study anyway and, aside from her course at Australian Institute of Commerce and Technology (AICT), which is discussed below in these reasons, has completed all the subjects she has attempted so far, with little gap in between courses. 

5. With respect to her English studies, the applicant told the Tribunal she has 2 goals:

   a.To be able to study in English, and

   b.To be able to properly converse in English.

6. Although she has already completed a Certificate II in Spoken and Written English, and a course in General English, she is of the view that she is yet to achieve either goal, and wishes to continue studying to improve her English.  She is now enrolled in and in the process of completing a further course, being Comprehensive English, which is an intermediate level course, and then wishes to complete an advanced English course.  She said that she will commence such a course once her current course is complete, however given that her current course will not be complete until the end of 2019, she has not made any formal applications anywhere for that further study.

7. In relation to her study, the applicant was originally enrolled in a Certificate II in Spoken and Written English at the Australian Institute of Commerce and Technology (AICT).  She completed that course, however while studying the next course in which she had enrolled, a Certificate III in Spoken and Written English, AICT fell into difficulties and she was unable to complete that course there. The Tribunal therefore notes that part of the applicant’s course of study has been interrupted by the failure of the education institution AICT, and her inability to complete their course was through no fault of hers.  The Tribunal also notes that while she subsequently received a letter of offer from Milner College offering her enrolment in General English, she instead took up an enrolment at Skills Institute Australia (SIA), although did not lose any time in progressing through her studies for doing so.  The applicant’s representative explained to the Tribunal that that was because she felt the course was better at SIA.  The Tribunal finds that there is nothing in the change of course which can be taken as a negative factor in the applicant’s application for review.

8. The Tribunal accepts that there has been a continuous course of study and an increase in levels of study since the applicant first decided to study in Australia, and that that course of study is, and will be, an increase in the level of study from the levels she achieved before she came to Australia. 

9. The reason for wanting to pursue her English studies in Australia, she told the Tribunal, is that she felt that although courses are available throughout Europe, they were generally provided by non-native speakers, and her experience here so far is that she found it much easier to learn when she is immersed in the language itself and being taught by native speakers.  She described her learning here as more ‘fluid’ than what it would be in Poland or elsewhere in Europe.

10. Once the applicant has completed the advanced English course, she said that she would like to formalise her training in beauty, although given her experience as a baby sitter, she is also attracted to some form of care-based study, possibly in disabilities.  When pressed, she told the Tribunal that she would like to pursue a career, and therefore further study, in beauty.

11. The applicant accepted that both courses in learning English and courses in beauty are available in Poland.  Further, she said that the courses in Poland would cost about the same as they do here. Her view is that to gain a qualification in both English and another skill, such as a beautician, at an Australian institution would assist her greatly in being employed in Warsaw, both because of the language benefits and also the reputation Australian education institutions have around the world.

12. The Tribunal is satisfied that the applicant has reasonable reasons for wanting to study English in Australia, and that her knowledge of English will assist her in gaining employment in Poland, and the Tribunal gives weight in her favour to those reasons.  Further, the Tribunal is satisfied that the applicant wanting to combine a skills-based course, such as a beauticians course, with English, is a reasonable goal to pursue to increase her chances of employment in Poland.  The Tribunal accepts that the applicant’s current and future proposed study will be of value to any future career in Poland, and the fact that the study is in Australia, as an English-speaking country, increases that value.  The Tribunal also finds that the applicant could set out clearly her reasons for wanting to study, and the places at which she wished to study, such that the Tribunal is satisfied that her submissions on her education were reasonable and cogent, and that she had a reasonable level of knowledge of her education, her prospects and her current circumstances.  Each of these factors reflect positively in favour of the applicant’s genuine intent to study and on her being in Australia temporarily to do so, and the Tribunal places weight in favour of the applicant on those factors.

13. The Tribunal asked the applicant whether there would be any further study or desire to stay once she had completed the beauticians course, and she emphatically said that she would have been away from home long enough, and would want to return then.  The Tribunal also gives this response weight in her favour.

The applicant’s circumstances in Poland

1. For the reasons set out below, the Tribunal finds that when assessing the applicant’s circumstances in both Australia and Poland, and comparing those circumstances with each other, while the applicant does not have a significant incentive to return to Poland, the applicant has some incentive to return.  Further, the Tribunal finds that, in that comparison, neither does the applicant have a strong incentive to remain in Australia.  In effect, she neither has a significant incentive to return to Poland, nor a strong incentive to remain in Australia beyond her planned courses of study. However, on balance, for the reasons explained below, the Tribunal finds that the incentive to return to Poland is more significant than the incentive to remain in Australia.  That being the case, the Tribunal has given weight in the applicant’s favour to the question of whether she will return to Poland at the completion of her planned study. 

2. The applicant’s mother and father live in Poland, as does her brother.  Her brother is 36.  He was a soldier, and now works in Poland.  He lives with his girlfriend in Warsaw, which is approximately 80km from the family’s town.  Her father works with her uncle doing renovations.  The applicant accepted that in Poland people do not earn as much as they do in Australia, however she described her family’s economic circumstances as middle class, and said that she could not complain about their status and circumstances.   The Tribunal accepts that the applicant’s circumstances in Poland relative to the circumstances of others in Poland are relatively good.  The Tribunal gives weight to those circumstances, and that comparison, in favour of the applicant.

3. Once her parents die, the applicant will receive a portion of her family home.  In addition, her brother has recently moved out of an apartment owned by her family.  She understands that the arrangement is that once she returns to Poland the apartment will be hers, and that paperwork will be signed to transfer it to her.   At the moment her parents are in good health.  There are no military service requirements upon her, and there are no political reasons, or civil unrest, which would cause her to not wish or be able to return to Poland.  These factors provide an incentive to the applicant to return to Poland, and the Tribunal gives them weight in her favour.

The applicant’s circumstances in Australia

1. The applicant does not have ties in Australia such that it can be inferred that she has a reason to stay beyond her intended study period.  She lives with her aunt and uncle; they do not have any children.  They have been generous with their resources, charging her a limited rental so that she can pay for her studies.  Because she has been on either a tourist or bridging visa, she has been unable to work, and has relied on money from her savings from her previous work in Poland, or her parents, to support her in Australia.  She is not in a relationship here.

2. Given the applicant has not been able to work in Australia, or live independently, she has not built wider community ties here.   If she is granted a student visa she said she will look for work, she hopes in a beautician’s, to assist in paying for her living and study expenses.   She understands that once she completes her English courses, any further courses in beauty will be more costly.  Given any work will be part time, and for a limited period, and may still not enable her to live independently,  the Tribunal does not form the view that by taking up a part time job once she is able will enable her to form closer ties in Australia such that her incentive to stay will increase significantly.

3. The applicant was last in Poland in 2017, before she came to Australia.  She has not been back to see her family because, as she is contributing to the payment of her courses from her savings, she said, it is too expensive to travel.  Neither have her family come to Australia to see her, and she has not travelled from Australia to anywhere else, largely because of the cost.   The Tribunal accepts that the applicant has been here for a relatively short time, and on limited funds, and has good reason not to have returned to Poland in that time. 

4. It does not appear that the applicant’s uncle and aunt provide any alternative visa pathways for her, and they do not provide any excuse or justification for her to wish to remain in Australia.   While they have been generous to her, the Tribunal cannot be satisfied that they present a close family tie such that they provide a significant or strong reason for her to remain in Australia; no weight can be given to the fact that the applicant’s aunt and uncle are here.

5. The applicant accepts that she has limited ties to Poland, however given she is young, that is not surprising.  The Tribunal finds that the applicant’s circumstances in Poland are not such that there is no incentive to return once she has completed her studies.  Compared to living with her aunt and uncle, or on limited funds from a part time job, returning to a middle class life style, close to her parents and brother, to live in her own apartment, may offer more of an incentive than remaining in Australia without any real support from her immediate family and limited support from other relatives.  As has been expressed above, on balance, the Tribunal gives weight in the applicant’s favour to her circumstances in Australia and Poland.

The applicant’s immigration history

1. As has been explained elsewhere in these reasons, the applicant first came to Australia as a tourist with a class TV subclass 651 Visitor-Tourism visa.  She left the country within the time allowed by the visa she held at that time.  She then returned on a similar visa, but applied for a student visa once here.  She applied for the student visa approximately 28 days prior to her second tourist visa expiring and 2 months after arriving here.  The applicant has not applied for any other visas either in Australia, or elsewhere and therefore has not had any other visas cancelled or considered for cancellation, either in Australia or elsewhere.  While it appears she has travelled to another country from Poland, there is no evidence before the Tribunal that she contravened any migration laws in doing so.  The applicant confirmed this at the hearing.

1. It appears that she has complied with all visa conditions to which she has been subject; there is no evidence before the Tribunal to the contrary.  In addition, she pursued her chosen course of study despite the fact that her student visa had been refused, even though she was unable to work or live independently of family.  While the English courses she has undertaken may have been relatively short and inexpensive, she has maintained her studies throughout her time here, despite one provider closing.  She has, as the Tribunal has found, reasonable and explicable aspirations to pursue a skills-based education in Australia once she has achieved her goal of being able to study in English, and she has complied with migration laws to date.  On that basis, the Tribunal is satisfied that she is not using the Student visa primarily for maintaining ongoing residence, and gives that finding weight in her favour.

2. There are no other outstanding visa applications yet to be finally determined.

3. There are no other relevant factors, either in favour or against the applicant.   The applicant is not a minor, and therefore the intentions of any other person are not relevant.

4. The Tribunal is not satisfied that the applicant is using the student visa program to circumvent the intentions of Australia’s migration program, or maintain ongoing residence in Australia.

5. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

Does the applicant intend to comply with visa conditions?

1. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

2. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider).  As the visa application was made between 18 November 2017 and 5:56pm AEDT on 5 December 2017, the following conditions were also imposed: 8303 (no dangerous/disruptive/violent activities), 8304 (must use the same name), 8564 (no criminal conduct) and 8602 (no outstanding public health debt).

3. There is no evidence before the Tribunal that the applicant has failed to comply with any of the above conditions. As has been described elsewhere in these reasons in relation to the applicant’s immigration history, the applicant has within time either left Australia, or applied for a further visa.  She has stated that she intends to comply with all further visa conditions imposed upon her.   The Tribunal can find no reason to suggest that the applicant does not intend to comply with visa conditions.

4. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

1. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)). There are no other relevant matters to consider.

Conclusion on cl.500.212

1. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

2. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

DECISION

1. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

   ·cl.500.212 of Schedule 2 to the Regulations.

Genevieve Cleary
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

1. Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

2. For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

3. 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

1. 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.

2. 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

1. 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

1. 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

1. An applicant’s immigration history refers both to their visa and travel history.

2. 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

1. 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

1. 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.