Rai (Migration)

[2022] AATA 1833

Rai (Migration) [2022] AATA 1833 (8 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Prabin Rai

REPRESENTATIVE:  Ms Pooja Rawal (MARN: 2117645)

CASE NUMBER:  2115320

HOME AFFAIRS REFERENCE(S):          BCC2020/296751

MEMBER:T. Quinn

DATE:8 June 2022

PLACE OF DECISION:  Melbourne

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:

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

Statement made on 08 June 2022 at 11:32am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – updated and further information provided out of time – visa, work and study history – arrived on working visa – COVID-19 restrictions, loss of employment and application for student visa – one course completed before enrolling in lower-level course in different subject area – reasonable change to study and career pathway – continuing study and satisfactory academic progress – COVID-related delays in work placements – value of course to future business plans – sibling in Australia and parents, friends, land and house in home country – decision under review remitted

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

CASES
Baker v MIAC [2012] FCAFC 145
Chen v MIBP [2017] FCA 46
Cockrell v MIAC (2008) 171 FCR 345
FKP18 v MIBP [2018] FCA 1555
Hasran v MIAC [2010] FCAFC 40
Huo v MIMA [2002] FCA 617
Jagroop v MIBP (2014) 225 FCR 482
Kaur v MHA [2019] FCCA 1372
Kaur v MIBP [2014] FCA 915
Khan v Minister for Immigration [2019] FCCA 565
Manna v MIAC [2001] FMCA 28
MIAC v Li [2013] HCA 18
MIAC v Obele (2010) 119 ALD 358
MIBP v Singh [2014] FCAFC 1
Tshering v MHA [2019] FCCA 2667
Williams v MIBP (2014) 226 FCR 112

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 4 February 2020, the applicant applied for a Student visa (the visa) to undertake study in Australia (‘the application’).[1]

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

2. On 12 October 2021, a delegate of the Minister for Home Affairs (‘the delegate’) refused to grant the application on the basis that the applicant did not satisfy the genuine temporary entrant requirements in relation to student visas.[2]

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

3. On 28 October 2021, the applicant applied to this Tribunal for a review of the delegate’s decision.[3]

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

4. The applicant was assisted in relation to the review.

5. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed since making their application. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information for the purposes of determining the outcome of their application for review. To this end, on 24 February 2022, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’). The s359(2) letter requests that a questionnaire (‘the questionnaire’) be completed by the applicant.

6. The applicant responded to the s359(2) letter, including filing the completed questionnaire, on 11 March 2022 which was not within the prescribed timeframe. Where an applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action.[4] 

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

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

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

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

9. I have considered whether I should adjourn the review under section 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, I have had regard to decisions where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.[6]  I have also had regard to other case law relevant in these situations.[7]

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

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

10. The applicant has had a fair opportunity to provide relevant information and I elect not to exercise my discretion to adjourn the review any further to allow the applicant more time.[8]  I therefore make my decision having regard to the information I have before me, including the information previously provided by the applicant to the Department and the Tribunal.

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

11. For the following reasons, the matter is remitted for reconsideration.

    STATUTORY FRAMEWORK

12. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant. Information in relation to Clauses 500.211 and 500.212 is attached to this decision.

    Does the applicant intend genuinely to stay in Australia temporarily?

13. In considering whether the applicant satisfies clause 500.212(a), I must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (‘the Direction’), made under section 499 of the Act. The Direction is attached in full to this decision but, broadly, it requires Tribunal Members to have regard to a number of specified factors in relation to:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

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

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

14. The Direction indicates that the factors specified should not be used as a checklist, but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

15. The Direction is a lawful direction of the Minister.[9]  I am therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[10]  Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before me.  However, I recognise that the Tribunal is an independent statutory body.  I must therefore reach my own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate.  In this regard, I note well established case authority as to the proper approach by decision makers to guidelines such as the Direction[11] and McNab J’s view that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.[12] 

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

    [10]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The applicant is a 34-year-old male Nepalese citizen who first arrived in Australia on 20 May 2019 on a Temporary Skill Shortage Visa Subclass 482 visa (‘the 482 visa’) and has remained onshore since that time.[13]

    [13]See delegate’s decision and the applicant’s response to the s359(2) letter.

17. The applicant was born in Singapore, completed his schooling  in Nepal and India and then worked and was trained as a sous chef from May 2013-May 2016 in Dubai.[14]  During his time in Dubai he earned AUD11,000 equivalent per annum.[15]  He then returned to Nepal and, prior to coming to Australia, the applicant worked as Head chef from June 2016-April 2018 and then as a sous chef from April 2018 until his arrival earning AUD4,800 equivalent per annum at both workplaces in Nepal.[16] 

    [14]See the applicant’s representative’s submissions dated 10 March 2022 filed 11 March 2022 (‘the Rep Submissions’).  

    [15]See the questionnaire.  

    [16]See the applicant’s response to the s359(2) letter.

18. The applicant’s original application to the Department was made well in advance of the 482 visa expiring and he explains in the Rep Submissions that the restaurant he was working at as part of the 482 visa closed down.  It is common knowledge that the COVID19 Pandemic had a devastating impact on the hospitality industry.  The applicant originally sought to undertake a Diploma and Advanced Diploma of Leadership and Management.[17]  However, prior to the delegate’s decision, the applicant filed new confirmations and enrolment and a new genuine temporary entrant statement indicating he wished to change his study and career pathway to undertake a Certificate IV in Disability and a Diploma of Community Service from April 2021-April 2022 and April 2022-April 2024 respectively.[18]  Unfortunately, in those submissions to the Department the applicant did not include a critical document: a copy of his Certificate of completion for his Diploma of Leadership and Management which he undertook from February 2020-May 2021 and which he has provided corroborating documents from his course provider for to the Tribunal.  This evidence is significant as it indicates the applicant continued to study whilst awaiting the outcome of his application to the Department and in fact completed the first of his proposed courses.  This is strong evidence he is a genuine student.

    [17]See delegate’s decision and the applicant’s response to the s359(2) letter.

    [18]Ibid.

19. The applicant has provided to the Tribunal a letter from his course provider dated 11 February 2022 stating that his academic progress is satisfactory but indicating that the COVID19 Pandemic has crated some delays in work placements and so his confirmation of enrolment may need to be extended.

20. The Tribunal undertook a PRISMS search on 11 April 2022 which confirms the applicant is enrolled with the same course dates as initially proposed to the Department in his submissions of May 2021. 

21. The applicant has made very good academic progress during his time onshore, on the basis of a bridging visa, during a Global Pandemic which has significantly changed the educational landscape for students, while also managing the uncertainty of the outcome of this application.  I consider this strong evidence that the applicant is a genuine student and commend the applicant.  It has been a significant factor weighing in his favour.

22. The applicant has explained in the Rep Submissions that the COVID19 pandemic and the impact it had on the hospitality industry and on humanity made him reconsider his future career path and feel a desire to be of service to his community.  I allow for reasonable changes to study and career pathways and accept this explanation.

23. The applicant plans to set up his own disability centre where he anticipates earning AUD1,000 using the qualifications gained.[19]  I consider these courses are relevant to and likely to assist and improve the applicant’s future career.  These courses are also relatively consistent with the applicant’s existing level of education. 

    [19] See applicant’s response to the s359(2) letter. He has not indicated the regularity of this income.

24. The applicant submits that Nepal’s education system is not advanced and does not cater for wide ranges of choices in courses and study in disability and community service would not be provided in Nepal at the level of quality that Australian education provides.[20]  He also notes that his study in Australia will be world class and advance his education.[21]  The applicant has provided reasonable reasons for not undertaking the study in his home country or region.

    [20] See applicant’s response to the s359(2) letter.

    [21] See applicant’s response to the s359(2) letter.

25. The applicant has not listed any work or income in Australia in the questionnaire.[22]  The applicant has expenses onshore of AUD21,600 per annum.[23]  He has assets (land and house) worth approximately AUD280,000 equivalent in Nepal.[24]  The applicant’s economic circumstances onshore do not appear to be acting as a significant incentive for him to remain at this time, although if he is working onshore and has not disclosed same in the questionnaire this factor will need to be reconsidered.

    [22] See applicant’s response to the s359(2) letter.

    [23]See applicant’s response to the s359(2) letter.

    [24] See applicant’s response to the s359(2) letter.

26. The applicant is a member of a ‘non-resident Nepalese association’ in Australia.[25]  His sister lives in Australia although he has not seen her since his arrival.[26]  He has now been onshore for over three years.[27]  I do not consider the evidence supports a finding that the applicant’s community ties to Australia are acting as a strong incentive for him to remain onshore at this time.  This factor will need to be reconsidered, however, if the applicant makes a further application to remain onshore upon completion of his studies.

    [25]See the questionnaire.

    [26]See the questionnaire.

    [27]See applicant’s response to the s359(2) letter.

27. The applicant has not returned to Nepal since his arrival in 2019.[28]  However, the COVID19 Pandemic and associated travel restrictions have made such travel virtually impossible since early 2020 and I place no weight against him in relation to the period since that time.  The applicant’s parents live in Nepal and he speaks to them regularly.[29]  He describes a close relationship with his family and friends in Nepal in submissions but has left blank the section of the questionnaire enquiring about his community ties to Nepal.[30]  I accept the applicant has community ties to his home country acting as an incentive to return but make no firm findings as to whether those ties are acting as a significant incentive for him to return.  This factor will need to be reconsidered if the applicant makes a further application to remain onshore upon completion of his studies.

    [28] See applicant’s response to the s359(2) letter.

    [29]See the questionnaire and the Rep Submissions.

    [30] See applicant’s response to the s359(2) letter.

28. The applicant travelled to the United Arab Emirates from May 2013-May 2016 for work, with three trips home to Nepal over the Christmas/New Year period.[31]  He has had no travel, visa or immigration issues in the past.[32]  The applicant does not have any potential military service obligations or political or civil unrest concerns in Nepal.[33]

    [31] See applicant’s response to the s359(2) letter.

    [32] See applicant’s response to the s359(2) letter.

    [33] See applicant’s response to the s359(2) letter.

29. Having had regard to the applicant’s circumstances, his immigration history and all other relevant matters, I am satisfied that the applicant is a genuine applicant for entry and stay as a student temporarily as required by clause 500.212. Accordingly, the applicant meets clause 500.212(a) of Schedule 2 to the Regulations and the applicant’s application for the visa must be remitted to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

30. 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:

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

    Member

    T. Quinn

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

    Enrolment (clause 500.211)

    ·Clause 500.211 requires that, at the time of decision, the student visa application in question be founded on evidence that the applicant is enrolled in a course of study.[34]

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

    ·‘Course of study’ is defined as a ‘full-time registered course’ and a ‘registered course’ is a course provided by an institution which has been registered under the Education Services for Overseas Students Act2000 (Cth) (‘the ESOS Act’) to provide that course to overseas students.[35]

    [35]Regulation 1.03 of the Regulations.

    ·All registered courses and course providers are listed in the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’), an online register kept in accordance with the requirements of the ESOS Act.[36]  Details of courses listed in CRICOS are integrated into the Provider Registration and International Student Management System (‘PRISMS’), a database maintained by the Australian government.[37] The PRISMS database is the principal means by which registered course providers comply with legislative requirements relating to the monitoring of international students studying in Australia. Upon enrolling an international student into a registered course of study, the course provider enters the details of that enrolment into the PRISMS database. The database then records a Confirmation of Enrolment (‘COE’) for the student. The COE functions as a record of the student’s enrolment status in the course and as proof of enrolment for the purposes of clause 500.211 of Schedule 2 of the Regulations.

    [36]Section 10 of the ESOS Act.

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

    Genuine Temporary Entrant

    Clause 500.212 requires as follows:

    The applicant is a genuine applicant for entry and stay as a student because:

    (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

    (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)any other relevant matter; and

    (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

    (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

    (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

    (c)of any other relevant matter.

    Attachment – Direction No.69

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

    (Section 499)

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

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

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

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

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

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

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

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

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

    Regulations mean the Migration Regulations 1994.

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

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

    Student visa means a Subclass 500 (Student) visa

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

    Application

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

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

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

    Preamble

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

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

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

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

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

    d.any other relevant matter.

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

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

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

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

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

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

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

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

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

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

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

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

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

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

    The applicant’s circumstances

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

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

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

    The applicant’s circumstances in their home country

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

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

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

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

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

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

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

    The applicant’s potential circumstances in Australia

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

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

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

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

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

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

    Value of the course to the applicant’s future

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

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

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

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

    The applicant's immigration history

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

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

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

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

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

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

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

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

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

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

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

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

    Any other relevant matters

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