Pottabathini (Migration)

[2019] AATA 5371

Pottabathini (Migration) [2019] AATA 5371 (7 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sai Anirudh Pottabathini

CASE NUMBER:  1813001

HOME AFFAIRS REFERENCE(S):         BCC2018/1217993

MEMBER:Glenn O’Brien

DATE:7 September 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 07 September 2019 at 5:16pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – job offer in home country – income disparity – pattern of enrolment – regression in level of study – change in field of study – unsatisfactory academic progress – decision under review affirmed

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 27 April 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 14 March 2018. 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 applicant provided the Tribunal with a copy of the delegate’s decision record with the application for review. 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 the delegate was not satisfied the applicant intends genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 5 September 2019 to give evidence and present arguments.

5. The applicant was assisted in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 is a genuine temporary applicant for entry and stay as a student.

8. 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?

9. 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.

10. 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.

11. Adopting the procedure in s.359AA of the Act, the Tribunal put to the applicant that it had on the Tribunal file a copy of the applicant’s enrolment records from the Provider Registration International Student Management System (PRISMS) database. For completeness, the Tribunal provided the applicant with a copy of the PRISMS summary of enrolment. The Tribunal explained to the applicant the relevance of the records to the review before the Tribunal. The Tribunal explained the consequences of relying on the information and confirmed the applicant understood the consequences of the information being relied upon. The Tribunal offered the applicant an opportunity to seek an adjournment to consider the information and comment on or respond to the information. The applicant did not seek an adjournment and elected to respond to the information during the course of the hearing.

12. The applicant arrived in Australia on 7 February 2015.

13. The Tribunal considered whether the applicant had reasonable reasons for not undertaking the proposed course of study in his home country if a similar course is already available there.

14. The applicant told the Tribunal he decided to pursue study in Australia as it was safe and the course fee structure was competitive and that geographically it was closer to India than other locations which he considered. At the hearing the applicant told the Tribunal that the quality of education in Australia was better and that he always wanted to study abroad.

15. The applicant completed his high school education in India prior to travelling to Australia. The applicant did not work in India prior to travelling to Australia.

16. The applicant’s mother and father and brother live in India. The applicant has another brother who is in Adelaide studying and an uncle who runs a restaurant in Adelaide.

17. The applicant does not have substantial fixed assets in India or Australia but told the Tribunal his father is a gold merchant and has properties and business in India. The applicant told the Tribunal he keeps in contact with his mother in India every day and his father at least twice a week mainly through Facetime.

18. The applicant works in Australia as a Vodafone sales representative and earns approximately AUD500 per week on the basis of approximately 20 hours’ part-time work per week.

19. The applicant told the Tribunal he wants to return to India to work in hospitality prior to opening his own restaurant. The applicant provided to the Tribunal an offer of employment from Poornima Catering and Smart Solutions dated 3 March 2018 for the position of chef with an income of IR75,000 (approximately AUD1500) per month. The applicant told the Tribunal that this was from a good friend of his father. Notably the offer of employment refers to and is conditional upon the courses the applicant sought the student visa for and was obtained by the applicant 11 days prior to submitting the visa application. The applicant was also unable to articulate why the position of chef required the completion of a Diploma of Hospitality Management. The applicant’s registered migration agent told the Tribunal that a Certificate IV does not make you a restaurant manager. Whether or not that is correct, the applicant’s offer of employment is for a chef. In considering these factors as a whole the Tribunal places limited weight on the offer of employment.

20. While the applicant told the Tribunal he does have set plans for his return to India which include his ultimate goal of establishing his own restaurant these are at best in general terms. The applicant told the Tribunal he has a business plan but it is not on paper and he intends eventually to start his own business in a property owned by his parents.

21. The applicant told the Tribunal his family provides him financial support during his study in Australia.

22. The applicant told the Tribunal that he returned to India for good in April 2017 because of his lack of academic progress but returned to Australia to undertake study for an Advanced Diploma of Business. The applicant has not returned to India since again travelling to Australia in 2017. The applicant’s parents and younger brother visited him and his other brother in Australia in May 2019.

23. The applicant told the Tribunal he does not have any military service commitments and there are no circumstances of civil or political unrest in India that would induce him to apply for a visa to stay in Australia indefinitely.

24. In considering the applicant’s circumstances in his home country, on the basis of the matters set out above and the evidence before the Tribunal, the Tribunal finds:

    a.The applicant provided reasonable reasons for not undertaking the proposed course of study in his home country.

    b.The applicant does have family ties to his home country through the residence of his parents, younger brother, family assets, an offer of employment and a potential inheritance which evidence an incentive to return. In considering the period of time the applicant has been in Australia, the residence of his brother and uncle in Australia, the return to Australia in 2017 after the applicant decided to leave for good, the absence of travel since 2017 (noting his family visited him in 2019), and the financial support received by the applicant while in Australia, these circumstances are not a significant incentive to return.

    c.The applicant is supported financially during his study in Australia by his family. The applicant did not previously work in India. The applicant works in Australia as a sales representative for Vodafone and earns approximately AUD500 per week on the basis of 20 hours’ part-time work. The applicant intends to pursue a career in hospitality and ultimately open his own restaurant. The applicant’s offer of employment includes an anticipated salary of AUD1500 per month. In considering these matters as a whole, the applicant’s economic circumstances present as a significant incentive not to return home.

    d.The applicant does not have any military service commitments which would provide a significant incentive not to return home.

    e.There is no evidence before the Tribunal of political and civil unrest in the applicant’s home country of such a nature that may induce the applicant to apply for a student visa to obtain entry to Australia to remain indefinitely.

    f.There is no relevant evidence regarding the applicant’s circumstances in his home country relative to others in that country and the Tribunal makes no findings concerning the applicant in that respect.

25. The applicant told the Tribunal he rents a house with two other persons.

26. Given the period of time the applicant has been in Australia both in study and in part-time employment, and the limited travel to the applicant’s home country, the Tribunal is satisfied that the applicant has developed friendships and social connections to Australia through both work and study.

27. The applicant travelled to Australia to complete tertiary studies leading to a Bachelor of Business. The applicant did not complete those courses of study and told the Tribunal because of his inability to progress he decided to leave Australia for good. The applicant subsequently returned to Australia on the same visa and enrolled in an Advanced Diploma of Business which he did not complete prior to enrolling in a Certificate IV of Commercial Cookery and Diploma of Hospitality Management.

28. The Tribunal was concerned in relation to the applicant’s pattern of enrolment since arriving in 2015 to complete a series of courses leading to a Bachelor of Business. While the Tribunal accepts that applicants may struggle at a tertiary level, the applicant changed his enrolment to vocational-level courses and did not complete those courses of study. The applicant then departed Australia and returned to enrol in an Advanced Diploma of Business which was again not completed prior to changing his field of study and regressing to a Certificate-level qualification shortly before cessation of the applicant’s then student visa. The applicant’s registered migration agent told the Tribunal he did this from India as if he did not hold a current confirmation of enrolment his visa may have been cancelled upon arrival. Whether or not that is correct (and the Tribunal makes no finding in that regard), the applicant chose to again travel to Australia to undertake business-related courses and provided no evidence that he sought to enrol in food and hospitality courses until after again arriving in Australia to pursue business qualifications in the vocational training sector.

29. The applicant told the Tribunal that he was only 17 when he travelled to Australia and was guided by his parents in relation to his field of study. The applicant suggested that his agents misguided him on a number of issues including the courses for which he applied from India in 2017, and in enrolling him in Sero Institute to undertake his Certificate IV in Commercial Cookery when it could have been undertaken at Stanley College where he was completing his Advanced Diploma of Business. The Tribunal considers that an applicant has responsibility for his course selection and enrolment and the decision to cease or commence courses of study ultimately rests with the applicant.

30. While the Tribunal accepts that students may change their career and study pathways, the change from tertiary qualifications to vocational studies in business, to commercial cookery and now hospitality management, and reversion in courses is concerning.

31. Since arriving in Australia in 2015 the applicant has not progressed beyond a Certificate IV in Commercial Cookery with the applicant’s current course of study being at diploma level. The Tribunal does not consider this represents reasonable academic progression over four years.

32. In considering the applicant’s potential circumstances in Australia on the basis of the matters set out above and the evidence before the Tribunal, the Tribunal finds:

    a.The applicant has ties to Australia through the period of time the applicant has spent living in Australia, and both his work and study since 2015. The Tribunal is satisfied the applicant has developed friendships in Australia through work and study and considers this social and emotional connection to Australia provides a strong incentive to remain.

    b.The applicant’s pattern of enrolment, change in field of study, period of study, the regression in study, the limited academic progression to diploma after some four years since 2015, the enrolment in a field of study not contemplated when he arrived in Australia, and the timing of the applicant’s visa application shortly before the cessation of the applicant’s then visa evidence the student visa programme is being used to circumvent the intentions of Australia’s migration programme.

    c.In considering the matters set out in these reasons for decision including the applicant’s period of time in Australia, part-time work, pattern of enrolment, changes in areas of study, academic progression, and the qualifications already obtained by the applicant in Australia, the applicant is using the student visa primarily to maintain ongoing residence in Australia.

    d.The applicant has a good knowledge of living in Australia, primarily through the length of time the applicant has been in Australia and has a good understanding of the proposed course of study, education provider and his current study and living arrangements in Australia which he intends to continue.

33. The applicant’s proposed course of study is a progression from the applicant’s Certificate IV in Commercial Cookery but a regression from the applicant’s original intention of pursuing a tertiary-level qualification in a different field of study.

34. The applicant has an offer of employment from a family friend and intends to work in hospitality prior to opening his own restaurant.

35. The applicant did not contemplate pursuing studies in commercial cookery or hospitality and told the Tribunal his business studies were due to the desire of his parents. Notably however when the applicant returned to Australia in 2017 he again enrolled in business-related qualifications.

36. The Tribunal does not consider the changes to the applicant’s pattern of enrolment and career and study pathways reasonable. The applicant has taken no substantive steps in relation to seeking employment and appears to be undertaking the courses for the primary purpose of maintaining his residence in Australia, particularly considering the applicant enrolled in his current courses shortly prior to the cessation of his then student visa.

37. The applicant’s proposed course of study for a Diploma of Hospitality Management will provide the applicant with further skills and qualifications in relation to his aspirations to be employed in hospitality and to ultimately open his own business, however the Tribunal considers that had the applicant genuinely sought to obtain that qualification in Australia he could have pursued enrolment in those courses earlier, in particular upon his return to Australia in 2017.

38. While the proposed course of study will assist the applicant in obtaining employment and improving his employment prospects it is not a necessary qualification to work as a chef. Further, in the event the applicant seeks to open his own restaurant he will not compete with other applicants for employment and the qualifications he now seeks will provide the applicant with limited further value in terms of obtaining employment or improving his employment prospects in circumstances where the applicant would be self-employed.

39. The applicant’s evidence in relation to the remuneration he expects to receive in India is based upon an offer from a family friend and is approximately AUD1500 per month. The applicant receives financial support while studying in Australia and earns approximately AUD500 per week in part-time employment.

40. In considering the value of the proposed course of study to the applicant’s future the Tribunal finds:

    a.The applicant’s current course of study is a progression from the Certificate IV in Commercial Cookery but a regression in relation to the applicant’s intention in travelling to Australia to pursue tertiary qualifications.

    b.In considering the applicant’s absence of previous employment in India, the reasons the applicant travelled to Australia in 2015 and in 2017, the offer of employment and the applicant’s business plan, the period of time the applicant has been in Australia, the limited academic progression since 2015, the current proposed course of study will assist the applicant in obtaining employment or improving his employment prospects.

    c.The course is not relevant to the applicant’s original intentions in relation to travelling to Australia to complete tertiary qualifications in business. The proposed course of study is generally relevant to the applicant’s stated desire to work in hospitality and to ultimately open his own restaurant. However, the Tribunal considers the applicant’s pattern of enrolment and academic progression are inconsistent with the applicant’s intentions of travelling to Australia to pursue tertiary qualifications, and he has regressed to lower level qualifications. The Tribunal does not therefore consider the applicant’s change in career and study pathways reasonable.

    d.The remuneration the applicant can expect in his home country is based upon the offer of employment from a family friend as a chef of approximately AUD1500 per month. The Tribunal accepts the applicant’s living expenses in India may be less than in Australia, the applicant’s income in Australia is likely to be comparatively higher than the income the applicant may receive on initially being employed given the lack of previous experience in India and the fact that the applicant would return to full-time work and not receive the financial support he currently receives while studying in Australia.

    e.There is no evidence before the Tribunal in relation to the comparative remuneration the applicant would receive in Australia and India and the Tribunal makes no findings in that regard.

1. Other than the applicant’s immigration history set out in the delegate’s decision record the applicant has not applied for any other visas in Australia or any other country.

2. The applicant returned to India in 2017. The applicant told the Tribunal he has not been subject to, or considered for any visa cancellation or refusal other than the subject visa application presently before the Tribunal.

3. Prior to travelling to Australia in 2015 the applicant has not previously travelled to Australia, and other than the applicant’s return travel to India has not travelled to Australia from other countries or to other countries from Australia.

4. The applicant has been in Australia since 2015 with the original intention of completing tertiary qualifications in business which he did not complete prior to returning to India and then returning in 2017 to enrol in further business-related courses. The applicant then changed his field of study and regressed to certificate-level qualifications before pursuing the Diploma of Hospitality Management. Notably the applicant enrolled in these courses shortly prior to the cessation of the applicant’s then student visa. The Tribunal was concerned that the applicant was enrolling in courses for the primary purpose of maintaining his residence in Australia.

5. In considering the applicant’s immigration history for the purposes of this application, the Tribunal finds:

   a.Other than the matters set out in the delegate’s decision record the applicant has not applied for any other visa to Australia. There are no other instances where visa applications have been undecided, or considered for refusal or cancellation to Australia.

   b.The applicant has not applied for visas to other countries and the applicant has not had a visa refused in other countries. The applicant did however tell the Tribunal that he travelled to Indonesia in 2019 on an employer-sponsored holiday and obtained an entry permit upon arrival.

   c.Prior to arriving in Australia in 2015 the applicant has not previously travelled to Australia. The applicant has not held a visa that has been cancelled or considered for cancellation.

   d.The applicant travelled to India from Australia in 2017 and returned again in 2017. The applicant travelled to Indonesia from Australia in 2019. The applicant has not otherwise travelled to other countries from Australia or to Australia from other countries since arriving in 2015.

   e.The applicant has been in Australia since 2015 with the original intention of completing tertiary qualifications in business which he did not complete prior to returning to India and then returning in 2017 to enrol in further business-related courses. The applicant then changed his field of study and regressed to certificate-level qualifications before pursuing the Diploma of Hospitality Management. Notably the applicant enrolled in these courses shortly prior to the cessation of the applicant’s then student visa. The Tribunal was concerned that the applicant was enrolling in courses for the primary purpose of maintaining his residence in Australia.

   f.The applicant has complied with the immigration laws of other countries to which the applicant has travelled.

6. The applicant is not a minor and it was not necessary to consider the intentions of his parent, legal guardian or spouse. There was no evidence before the Tribunal in relation to these matters and the Tribunal makes no such findings.

7. As required by Ministerial Direction No.69, the Tribunal invited the applicant to make submissions in relation to any other relevant matter for the purposes of assessing the application. No other relevant matters were raised by the applicant at the hearing.

8. The Tribunal had regard to all the factors in Ministerial Direction No.69 in considering the applicant’s circumstances as a whole and in making its findings and is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

9. For cl.500.212 to be satisfied, paragraphs (a), (b) and (c) must all be satisfied. Given the Tribunal has found that paragraph (a) is not met, it is not necessary to consider paragraphs (b) and (c). 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.

10. 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.

    DECISION

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

    Glenn O’Brien
    Member

    
    

    Attachment – Direction No.69

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

    This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

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

    d.any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

    2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

    3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; and

    d.apparent inconsistencies in information provided by the applicant in their Student visa application.

    5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

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

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

    8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

    The applicant’s circumstances in their home country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

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

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.