Pun (Migration)

[2022] AATA 823

Pun (Migration) [2022] AATA 823 (7 March 2022)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Pamaya Pun
Mr Ganesh Pun

CASE NUMBER:  2006450

HOME AFFAIRS REFERENCE(S):          BCC2019/6917371

MEMBER:Michael Biviano

DATE OF DECISION:  7 March 2022

DATE CORRIGENDUM

SIGNED:20 April 2022

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following correction is made to the decision:

1. The date of the decision which is recorded on the first page of the Tribunal’s decision record, 7 March 2021, should be replaced with 7 March 2022.

   Michael Biviano
   Member

   
   
   
   

   DECISION RECORD

   DIVISION:Migration & Refugee Division

   APPLICANTS:  Mrs Pamaya Pun
   Mr Ganesh Pun

   CASE NUMBER:  2006450

   HOME AFFAIRS REFERENCE(S):          BCC2019/6917371

   MEMBER:Michael Biviano

   DATE:7 March 2021

   PLACE OF DECISION:  Melbourne

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

   ·cl 500.212(a) of Schedule 2 to the Regulations.

   
   Statement made on 7 March 2022 at 4:40 pm

   CATCHWORDS

   MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – academic progress to benefit future career – lengthy stay in Australia – related change of career path – return visit to home country – family commitments in Nepal – decision under review remitted           

   LEGISLATION

   Migration Act 1958, ss 65, 359, 499; Direction No 69
   Migration Regulations 1994, Schedule 2 cls 500.212, 500.311

   STATEMENT OF DECISION AND REASONS

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 March 2020 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

3. The applicants applied for the visas on 30 December 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

4. The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) for the reason that she was not a genuine applicant for entry and stay as a student because she did not intend to stay in Australia temporarily.

5. The delegate also found that as the applicant had not met the requirements of cl 500.212 of Schedule 2 to the Regulations, then her spouse (the secondary applicant) did not meet the requirements of cl 500.311 of Schedule 2 to the Regulations, and he did not meet the criteria for the grant of a student visa.

6. The applicants appeared before the Tribunal on 21 February 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

7. It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary, to enable the examiner to establish the relevant facts.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 was a genuine applicant for entry and stay as a student.

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

10. 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?

11. 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.

12. 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.

13. The applicant is a 32-year-old Nepalese national who first came to Australia on 26 October 2013 with her first husband on a dependent student visa. She has since remained in Australia on temporary visas.

14. The Decision Record of the delegate of the Department of Home Affairs dated 20 March 2020, which was provided to the Tribunal by the applicant, confirms that the applicant made the current application for a Student (Class TU Subclass 500) visa on 30 December 2019 (Decision Record).

15. Further, the Decision Record confirmed that at the time of the application, she was enrolled to undertake an Advanced Diploma of Hospitality Management.

16. The Decision Record also set out the reasons for which the visa application was refused.

17. On 14 December 2021, prior to the hearing, the applicant filed with the Tribunal a Response within time pursuant to an invitation to supply student visa information about the courses she was studying and information about her entry and stay in Australia in accordance with s 359(2) of the Act (Response).

18. In addition to the Response, the applicant filed with the Tribunal the following documents:

    a.Letter from 7 December 2021 from Indreni Function Center confirming her employment since 1 October 2021 as a cook working 20 hours per week, together with payslip confirming her gross income to be $400 per week;

    b.Letter from Delta Engineering Consultancy valuing land owned by Mr Dek Prasad Gerbuja, the applicant’s father, to be A$83,977.54;

    c.Relationship Certificate of the applicant;

    d.Confirmation of Enrolment (COE No. B55EFD52) for the applicant to study an Advanced Diploma of Hospitality Management from Sydney School of Business and Technology (SSBT) for the period from 13 April 2020 to 10 April 2022 which was created on 18 February 2019;

    e.Diploma of Hospitality Management from Holmes Institute for the applicant dated November 2019 together with academic transcript and letter from Holmes Institute confirming studies took place between 18 March 2019 and 22 November 2019;

    f.Certificate IV of Commercial Cookery from Holmes Institute for the applicant dated April 2019 together with academic transcript, statement of attainment and letter from Holmes Institute confirming studies took place between 2 October 2017 and 15 March 2019;

    g.Letter from Holmes Institute dated 22 November 2019;

    h.Certificate IV in Business Administration from Hannay International College dated 28 August 2017 with statement of results;

    i.Certificate for General English from GEC College;

    j.High school results for the applicant.

19. At the hearing, an issue was raised regarding the applicant’s progress with her studies. She was given the opportunity to file additional evidence after the hearing and she submitted:

    a.Statement of attainment from SSBT confirming all the units she had undertaken were assessed as competent; and

    b.Statement from SSBT dated 28 February 2022 confirming the applicant has been enrolled in the Advanced Diploma of Hospitality Management on a full-time basis and the course end date is 10 April 2022.

20. The Tribunal has considered this documentation in conjunction with the applicant’s evidence and GTE Statement provided to the delegate.

21. The applicant in the GTE Statement claimed that she is studying the Advanced Diploma of Hospitality Management for the following reasons:

    I recently finished my course ‘Diploma of Hospitality Management’ as well as Cert iv in Commercial Cookery from Holmes Institute which helped me gain knowledge about hospitality industry, people management, financial management and customer service. I have learnt so much skills on cookery and hospitality industry and I found there is so much to learn. More doors will open with extra knowledge and skill in this very competitive world. Therefore, I have decided to pursue more knowledge and skill in depth in Hospitality industry. That is why after much consideration, I have decided to enrol at Sydney School of Business and Technology and further enhance my knowledge while I have a chance to do so.

    Therefore, I have got Offer letter from Sydney School of Business and Technology for the course ‘Advance Diploma in Hospitality Management. It will elevate my Hospitality Management skills as well as open the opportunities of management positions in variety of Hospitality industry. In this course, I will be able to learn in depth about hospitality industry, people management, financial management and customer service in broad way. I will be able to perform the duties of restaurant manager or operational manager of a hospitality operation.

22. The applicant gave evidence at the hearing and also by the content of the Response that:

    a.She first came to Australia on 26 October 2013 to support her then spouse who was undertaking studies in Information Technology and changed study pathways to Accounting;

    b.The applicant encountered marriage difficulties with her then spouse;

    c.Between August 2016 and February 2017, she studied General English at GEC College and obtained a Certificate;

    d.Between February 2017 and August 2017 she studied and completed a Certificate IV of Business at Hannay College;

    e.In October 2017, the applicant and her then spouse divorced;

    f.In 22 January 2018, she remarried, and her current spouse is the secondary applicant. She claimed that she had known him since 2008 and he was a famer in Nepal;

    g.She returned to Australia in early 2018 and in February 2018 she commenced a Certificate IV in Commercial Cookery leading to a Diploma of Hospitality Management at Holmes Institute, which she completed in November 2019;

    h.In February 2020, she enrolled in the Advanced Diploma of Hospitality Management at SSBT which is a 2-year course. The enrolment documentation and correspondence confirm that enrolment is expected to conclude on 10 April 2022, which is in approximately 6 weeks.

23. The applicant claims in the Response that her visa history in Australia was that she obtained:

    a.A student dependent visa in October 2013, prior to her arrival here;

    b.A student visa here in August 2016 to undertake the studies in English;

    c.A student visa in November 2017, to complete the Commercial Cookery and Diploma of Hospitality Management courses; and

    d.Since January 2020, she has been on a bridging visa awaiting this Tribunal’s determination.

24. Prior to coming to Australia, she had completed secondary school and had not worked in paid employment but undertook home duties.

25. The applicant claims the studies that she has undertaken in Australia, which include 2 Certificates and a Diploma, will improve her employment prospects as will the Advanced Diploma of Hospitality Management, which is the highest-level qualification she has studied. She claims she wishes to work as a chef at a high-level restaurant with the prospect of commencing her own restaurant. The Tribunal considers that studying such a course will also improve her level of remuneration back in Nepal.

26. The applicant has been in Australia since October 2013, and is approaching a stay of 8½ years, which is a very long period of time and inconsistent with the stay being temporary. However the Tribunal has taken into account that from October 2013 to August 2016, the applicant did not study as she was here supporting her then spouse and there were clearly marriage issues that arose. When considering her period of study in Australia, the Tribunal notes that the applicant has studied for just over 5½ years, and considering the courses she has completed and if she completes the Advanced Diploma and immediately returns home, the duration of her studies would be reasonable and consistent with the visa being temporary. However if the applicant were to pursue further studies, in light of her study history, then such a stay would not be temporary.

27. The applicant in the Response outlined the following reasons for studying at SSBT and in Australia rather than in her home country:

    I chose Sydney School of Business and Technology (SSBT) because SSBT is renowned and is well known and is operating since year 1999. It has multicultural environment with students from various backgrounds. I chose this course because I want to go back home and start my career in tourism and hospitality industry by working for sometime in hotels and restaurant and later plan to open my own restaurant and take the opportunity from Nepal’s suatainable tourism industry.

    Nepal is developing country where the education system is npt advanced as Australia. Nepal has traditional reservation system. Also Nepal’s hospitality course is available through CTVT system only and is not world recognised. On the other hand, in Australia, the teaching approach is practical along with the use of latest techniques and updated syllabus involving industry placements giving change to convert into careers. Also the classrooms are well furnished with latest resources such as smart class equipped projector pr other audio‑visual aids and so on.

28. The Tribunal notes that the applicant has completed more than one year and 10 months of study in the Advanced Diploma course, and as it further advances her knowledge and qualifications from her previous studies here and the Australian course is more practical and internationally recognised, based on the applicant’s circumstances, the Tribunal accepts that she has reasonable motives to undertake such study here in Australia rather than in Nepal.

29. The applicant has changed her career path initially from business to commercial cookery to hospitality management. The courses she has studied are not connected to each other, but the Tribunal accepts that the courses she is studying in Australia are complementary and do lead to a career path if she is intending to commence her own business or be a restaurant manager.

30. The Tribunal recognises that it is important to allow for reasonable changes to career and study pathways. It would appear that the applicant is seeking to do this by undertaking the commercial cooking and hospitality management courses. However reasonable changes to career and study pathways do not arise where an applicant has merely decided to change careers through undertaking short vocational education training (VET) courses. The courses in which the applicant has enrolled in Australia are all VET courses, but the Advanced Diploma she is currently studying is a long course and does reveal progression in her course of study, being the highest-level qualification that she is undertaking. Therefore her studies here are consistent with her level of education.

31. The applicant has currently lived in Australia for the last 8 years and 5 months and has a substantial degree of knowledge about living in Australia. The applicant has studied the Advanced Diploma at SSBT for just under the last 2 years and obviously by reason of the duration of those studies she has both a substantial degree of knowledge about the course and its provider.

32. The applicant has given evidence that whilst in Australia, she has been in limited employment. She claimed she was unable to work due to problems with her knees and back. She gave evidence that she worked as a cashier at a grocery for which she received a nominal amount of $1,184 per annum. From October 2021, she has worked as a cook and her income is $A23,920 per annum. Her spouse works as storekeeper in a fruit shop. His level of income is approximately $960 per fortnight which equates to A$23,000. Combined, they are earning A$46,000 per annum which is a high level of income and would provide them with an incentive to remain here, however that combined level of income has only been received for a short period of time.

33. The applicant claims that she and her spouse have been assisted by her husband’s sister, who lives more than an hour away from their residence here in Australia, and by her uncle, who lives in Australia. The applicant in evidence confirmed that the level of wages in Australia was higher than it was in Nepal. The applicant in evidence claimed that the level of income she could earn as a chef was between 51,800–79,200 Nepalese rupees per calendar month (which equates to A$590 to A$900). Further, the Tribunal notes that if the applicant is able to remain in Australia, then the minimum wage if she obtained full‑time employment as at 1 July 2021, as set out by the Fair Work Commission in Australia, is $772.60 per week which equates to A$40,175.20 per annum.[1] Accordingly, the higher level of wages in Australia would provide the applicant with an economic incentive to remain here rather than to return home.

    [1] National Minimum Wage Order 2021 – PR729671

34. The applicant also gave evidence that the economic conditions in Australia are more favourable than those in Nepal which would also present as a significant incentive to remain here rather than to return home.

35. The applicant has returned home to Nepal once since her arrival in Australia in October 2013 for a stay of 50 days. However the Tribunal notes that there have been Covid‑19 travel restrictions imposed by reason of the pandemic for 2 years of her stay. While the cost associated with returning home and marriage issues may have affected the number of visits back, the Tribunal considers that the fact she visited home once in more than 8 years is more consistent with her wanting to remain here permanently.

1. The applicant claimed in the Response that she and her spouse do not have any assets here in Australia or in Nepal. The applicant did not identify any siblings in Nepal and her father provided a valuation of a residential property he owns in Nepal worth approximately $83,977.54. However considering the level of income she and her husband are earning and can earn here in Australia, that asset would not provide a financial incentive to return home.

2. The applicant both in the Response and in evidence did not have any concerns about returning to Nepal and she had no concerns about military service commitments or political and civil unrest in her home country. The Tribunal finds they do not present as a significant incentive for her not to return home.

3. The Tribunal finds that based on the applicant’s evidence and circumstances in her home country, her education and the support from her family, that relative to others in that country, she is in a good position and it would not provide a significant incentive for her not to return home.

4. The Tribunal accepts that the applicant and her spouse have been married since 2018 and they are not in a relationship of concern for a successful visa outcome.

5. The applicant has both personal ties in Australia and at home in Nepal.

6. The applicant gave evidence that her mother, father, daughter and mother-in-law are in Nepal and that would ordinarily provide her with a strong incentive to return home. The applicant in the Response confirmed she had not seen them in person for a long time – since January 2018. The applicant claims she remains in contact with them 3–4 times per week on phone or Facebook. While the applicant’s daughter is in Nepal, she can make an application to bring her daughter to Australia as a dependant, which reduces her ties to Nepal. However this appears unlikely as her daughter has remained there since at least January 2018. However given the applicant’s circumstances in Australia, which include that she is here with her spouse and she has friends and distant relatives who are here in Australia together with the ability to earn a higher level of income coupled with her stable accommodation here in Australia, the Tribunal finds that her ties to Nepal do provide some incentive for her to return home.

7. Further, the applicant has substantial ties to Australia. In addition to her spouse, she has her sister‑in‑law and her uncle here, who have obviously been supportive, and a circle of friends from her studies and distant relatives who have been supportive. She claims she sees her sister‑in‑law between once per fortnight and once per month. She sees her distant relatives once every 2 months at gatherings. The applicant gave evidence that on the completion of the Advanced Diploma of Hospitality Management, she will either return home or potentially apply for a visa to gain work experience, but she has not made a decision. The Tribunal finds that her circumstances in Australia are such that they demonstrate that she has strong ties here which also provide her with some incentive to remain here rather than to return home.

8. The applicant in the Response has not identified any visa refusals or cancellations in Australia or elsewhere. There is nothing before the Tribunal from the delegate’s Decision Record to indicate that the applicant has experienced any other visa refusals or any immigration issues either in or outside of Australia.

9. The Tribunal notes that the applicant has been here for a long period of time and intends to stay for at least a further 6 weeks to complete a 2-year course which will improve her career prospects. While many of the matters the Tribunal considers support that the decision of the delegate be affirmed, considering her study history, her unusual circumstances, the benefit of the study to her career and that her current course is not a short VET course, the Tribunal considers that if she completes the course and returns home, the duration of her stay would be reasonable in the circumstances.

10. Based on the above matters, the Tribunal is satisfied that the applicant has made this application to gain a student visa to study temporarily.

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

12. 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 together with the secondary applicant’s application for a dependent student visa.

    DECISION

13. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl 500.212(a) of Schedule 2 to the Regulations.

    Michael Biviano
    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;

    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.