Rahman (Migration)

[2020] AATA 6159

Rahman (Migration) [2020] AATA 6159 (18 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Md Raffi Rahman

CASE NUMBER:  1825165

HOME AFFAIRS REFERENCE(S):          BCC2018/2585997

MEMBER:Frank Russo

DATE:18 October 2020

PLACE OF DECISION:  Sydney

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 18 October 2020 at 5:40pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – genuine temporary entrant – undertaken two Masters degrees while in Australia – proposing completing an Advanced Diploma of Leadership and Management – current studies relevant to his existing qualifications and intended career plan – evidence that previously studied Leadership courses as part of his Masters degrees – maintained consistent study pathway – good academic record – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 15 August 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 10 July 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 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 that the applicant was a genuine applicant for entry and stay as a student.

4. The applicant is a 32-year-old national of Bangladesh. The Student visa application was in respect of his enrolment in a Diploma of Leadership and Management.

5. The applicant appeared before the Tribunal on 15 July 2020 to give evidence and present arguments.

6. The applicant was assisted in relation to the review by his 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

8. 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.

9. In addition to the application form and copy of the delegate’s reasons for decision, the applicant provided the Tribunal with a number of additional documents including a s.359(2) response, a GTE statement, Confirmation of Enrolment (CoE) for the Advanced Diploma of Leadership and Management, certificates for a Master of Professional Accounting (MPA), Master of Business Administration (MBA) and Diploma of Leadership and Management, transcript of results for the Diploma of Leadership and Management, an employment offer letter from Albion Laboratories and role profiles for manager and assistant manager roles in Bangladesh. Following the hearing the applicant provided the Tribunal with his transcript for the MBA.

10. The Tribunal has had regard to these documents. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file.

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

11. 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?

12. 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.

13. 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.

14. The applicant first arrived in Australia on 11 February 2011. He confirmed at the hearing that he had completed the Diploma of Leadership and Management which was the subject of his visa application. At the time of the hearing that applicant had enrolled in an Advanced Diploma of Leadership and Management at Western Sydney College, which started on 20 April 2020 and he is due to complete on 10 October 2021.

15. The applicant has a Bachelor of Business Administration, with a major in Marketing that he was awarded in Bangladesh. He stated that after arriving in Australia he completed a Master of Professional Accounting at Holmes Institute in 2013. The applicant explained that his education provider offered the opportunity for him to obtain a second Masters degree with some course exemptions. In 2016 he completed an MBA at Holmes Institute.

16. The applicant stated that after this he was granted a Temporary Graduate (Subclass 485) visa in 2016. While holding this visa he worked for a finance company for almost 18 months. The applicant stated that he gave up this job after applying for the Student visa under review, as he was unable to work more than 20 hours per week.

17. The applicant told the Tribunal that he enrolled in the Diploma of Leadership and Management because when he worked for the finance company he realised that he needed to further develop his leadership skills as he was lacking in this area. He stated that while he has completed an MBA, that qualification was focused on finance and largely theoretical. He stated that he realised his management skills were not developed and he did some research into how he could improve them, and found he could do so through studying Leadership.

18. The applicant gave evidence that after he completes the Advanced Diploma of Leadership and Management, he plans to return to his home country. He stated that he has tried to find jobs in Bangladesh and that he has a ‘kind of offer letter’ from one company (from Albion Laboratories). He stated that he also intends to apply to banks in Bangladesh and in other countries. He gave evidence that in March 2018 he returned to Bangladesh for 3 weeks, during which he spoke with a few companies and did some research on the employment situation, and as a result he believes he needs more skills in leadership and management to obtain the jobs he wishes to obtain.

19. Further information about the range of jobs the applicant is interested in is contained in his GTE statement, which concentrates on jobs within the banking and pharmaceutical sectors.

20. The applicant stated that prior to arriving in Australia he had completed a 6-month internship in a bank, as well as worked with his father’s business, which consisted of packaging for international shipping of goods. The applicant explained that his father has now passed away and that his mother became a sleeping director of the company for a while, but that his family no longer have part-ownership of this business.

21. As to the value of his current course of study to his future, the applicant gave evidence that his intention was always to return to his home country after completing the MBA and MPA to work with his father’s business. He stated however that his circumstances have now changed with the death of his father and the family no longer having an interest in his father’s previous business. He stated that he has undertaken research into the qualifications needed in his country. He stated that while skills in Accounting and Marketing are useful, without leadership skills he will not be able to build up the career that he wants. He stated that his current studies in Leadership and Management are more practical than his previous studies, and that he has now done business plans and other plans, which will be helpful to him and build his career skills for the future.

22. The Tribunal questioned the applicant in some detail about the value of his current Advanced Diploma course when his existing qualifications at the Masters level were considered. The applicant gave further examples of the practical things that he is learning through his current course, such as healthy working relationships and ensuring that laws and regulations are complied with. He stated that it would help him in managing people, as well as provide skills in starting his own business in his home country. When questioned whether he had any specific pans for a business, he stated that he once had a plan to start a clothing business, but has now decided he wishes to start a consumer products company selling food and medicines. He stated that he is doing some research at this point. He stated that he does not have any plans in place as at this stage he needs to complete his course. He stated that a friend of his is also doing some online research and after this they intend to put a proposal to a bank.

23. The applicant stated that as part of the MPA and MBA he did not undertake any leadership or management units. He stated that the MPA consisted of mainly units in finance and law, and the MBA, with some exceptions, consisted mainly of units in marketing. Following the hearing the applicant provided a copy of his academic transcript for these courses, which confirms that with the exception of ‘Management & Organisations in a Global Environment’, he did not undertake any units in management or leadership as part of his Masters degree studies.

24. The applicant explained that his 18 months of work under the 485 visa was important to his decision to study Leadership and Management. He stated that it wasn’t just that he wanted to study further, but that he believes that if he obtains skills in this area he will gain benefits in applying for jobs in his home country. He stated that the employment situation in his home country is difficult and he wishes to gain further management skills, as he has recognised through his practical work experience that his skills are not as developed as they need to be for management roles.

25. As to his reasons for wishing to study in Australia rather than Bangladesh, the applicant stated that he completed a Bachelor degree in Bangladesh and found the education system is text book-based. He stated that the education system is more practical in Australia, and of a higher standard. He stated that he does not have the opportunity to do similar vocational courses in his home country. He stated that trade courses are offered, but these are not related to the work places he aspires to work for.

26. The applicant stated that he has ‘6 or 7’ units left to complete of his course, which he was doing online at the time of the hearing, due to the COVID-19 pandemic.

27. While the Tribunal has some concerns regarding the vocational studies which the applicant is now undertaking and his previous award of two Masters qualifications and a Bachelor degree, overall the Tribunal considers there is some evidence of the value of the applicant’s current studies to his future. The Tribunal found the applicant to be a credible witness, who gave his evidence in a matter-of-fact manner and did not withhold information which might potentially be adverse. The Tribunal is satisfied that the applicant has advanced a reasonable explanation for wishing to obtain further qualifications in Leadership and Management, and accepts his evidence about the limitations in his experience in this area to the opportunities he wishes to apply for in his home country.

28. The applicant provided evidence of jobs he researched by way of role descriptions for manager and assistant manager roles in Bangladesh, which indicate that they require leadership and management skills. The Tribunal notes however that where these job descriptions refer to leadership or management skills, they refer to ‘proven’ leadership skills, rather than qualifications in Leadership, and therefore the Tribunal gives them only little weight. The Tribunal however accepts that the job adverts are evidence of the applicant’s research into roles in Bangladesh, and of his awareness that leadership skills are required for some of these roles.

29. The Tribunal has considered the offer letter from Albion Laboratories, but gives it only very little weight. The letter is in English and appears to have been prepared for the purposes of supporting the visa application, rather than being a genuine offer letter. The letter states that after the applicant completed the Advanced Diploma of Leadership and Management, the company ‘may consider him for the high-level management position if he wishes to work for us.’ When questioned about this letter, the applicant indicated that the director of the company is a family friend. He understood the Tribunal’s concerns and noted that it was not intended to be a formal job offer, but that he provided the document as an indication that he could have opportunities to work for companies such as this.

30. The Tribunal is satisfied that the course the applicant is studying is relevant to his proposed future employment in Bangladesh.

31. The Tribunal makes no adverse findings regarding the applicant’s reasons for wishing to study in Australia, and finds he has advanced a reasonable explanation. The Tribunal notes the applicant’s progress with his current studies and therefore makes no adverse findings regarding his knowledge of his proposed course or education provider.

32. As to his personal ties to his home country, the applicant’s mother and sister continue to live in Bangladesh. His father has passed away. Although the applicant does not have any property in his name, his family has land in Bangladesh, which the applicant stated he will inherit. He stated that he was previously a shareholder in his father’s business, but his family is not currently running a business. He stated that his father sold some of the land he owned in order to keep his former business running. He stated that he intends to return to Bangladesh to look after his mother as his father has passed away.

33. The applicant stated that he has no ‘blood relations’ in Australia, although he has second cousins. He confirmed that he is single and not in a relationship.

34. The applicant gave evidence that he had previously worked as a property consultant and investment consultant. At the time of the hearing he was working part-time at Woolworths as a sales assistant, although he stated that he was not getting shifts at that point because of the impact of COVID-19.

35. The Tribunal accepts that the applicant has personal ties to his home country which would serve as a significant incentive to return to Bangladesh following the completion of his course. While the Tribunal notes the concern raised by the delegate regarding the number of days the delegate has spent offshore (as at the time of the delegate’s decision), compared to his arrival in Australia on 9 February 2011, the Tribunal notes the applicant returned to Bangladesh on two occasions in 2018, one for family reasons and the other to explore the employment market. The Tribunal therefore does not have concerns that his travel history may indicate a lack of incentive to return to his home country.

36. I have considered the applicant’s personal ties to Australia. While the length of his stay in Australia and his previous 485 visa may indicate that the applicant has now applied for the Student visa in order to maintain ongoing residence, I consider that the applicant has put forward a reasonable explanation for his decision to undertake his current studies. There is no evidence of any strong personal ties to Australia. While the applicant has previously been employed in professional roles while holding his 485 visa, there is nothing to indicate that his current work as a part-time sales assistant is acting as an incentive for him to remain in Australia. I have considered the applicant’s economic circumstances as a whole and do not make any adverse findings regarding this factor.

37. The applicant confirmed at the hearing that there are no civil or political issues that would act as an incentive for him to remain in Australia. There is no evidence of any military service requirements. There is nothing to suggest that the applicant has entered into a relationship of concern. There is insufficient evidence before the Tribunal regarding the applicant's circumstances in Bangladesh, relative to others in that country, and the Tribunal makes no adverse findings in relation to these factors.

38. The applicant’s immigration history refers to both her travel and visa history. The applicant first arrived in Australia on 9 February 2011. The visa application was in respect of his enrolment in a Diploma of Leadership and Management which would have extended his stay in Australia until at least 30 April 2019. The applicant has now completed this course and commenced the Advanced Diploma of Leadership and Management, which will extend his stay until 10 October 2021, extending his stay to a period of over ten-and-a-half years. The applicant has previously been granted three Student visas and associated Bridging visas, as well as a 485 visa and a Criminal Justice Stay (Subclass 951) visa. The length of the applicant’s stay in Australia raises concerns regarding whether he is using the Student visa program as a means to maintain ongoing residence.

39. The Tribunal notes however that the applicant has completed two Masters degrees while in Australia and is now proposing completing an Advanced Diploma of Leadership and Management. The applicant was able to explain how his current studies are relevant to his existing qualifications and his intended career plan. He has provided evidence that he has not previously studied Leadership courses as part of his Masters degrees. He has not enrolled in a range of unrelated courses. He has maintained a consistent study pathway. He has continued to pursue his studies in Leadership and Management, despite the visa refusal decision. Overall, he has a good academic record and continues to behave in a manner consistent with that of a genuine student.

1. The applicant gave several undertakings at the hearing regarding his intention to return to his home country following completion of his current course of study. He stated that he has no intention to stay in Australia as his family is in Bangladesh and he believes there will be good opportunities for him in the future. He stated that he used to be a businessperson in his home country. He stated that he did not apply for permanent residency in Australia as he has no intentions to obtain it.

2. Were the applicant not to return to his home country after completing the Advanced Diploma of Leadership and Management, this may raise further concerns about his true intention. However, at the present moment the Tribunal considers there is evidence to support the applicant’s claims that he intends to stay in Australia temporarily for the purpose of his studies. In light of the applicant’s progress with his current course and the findings regarding the value of this course to his future, the Tribunal considers the applicant should be given the opportunity to complete this course.

3. The Tribunal notes that the applicant has now provided a number of documents which were not available to the delegate, including evidence that he has not previously undertaken studies in Leadership. The Tribunal has also had the benefit of hearing evidence directly from the applicant, as well as evidence of the applicant’s engagement with his proposed studies despite the visa refusal.

4. The Tribunal has also given regard to whether there are any other relevant matters and finds there are no other relevant matters to the assessment of the applicant's intentions to stay in Australia temporarily in addition to the matters covered above. The Tribunal has considered all the information provided by the applicant in support of the application.

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?

6. 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.

7. 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). The following conditions may also be imposed in some cases (cl.500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).

8. The applicant has provided with his visa application an undertaking to comply with any conditions the subject of which the visa is granted. There is no evidence to demonstrate that this would not be the case, and based on the applicant’s stay in Australia to date and his progress with his studies, 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).

9. 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?

10. 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)).

11. There is no evidence before the Tribunal of any other relevant matter that gives rise to a concern by the Tribunal that the applicant is not a genuine applicant for entry and stay as a student.

12. 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.

13. 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

14. 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.

    Frank Russo
    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.