Ranabhat (Migration)

[2020] AATA 4637

Ranabhat (Migration) [2020] AATA 4637 (25 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Apurba Ranabhat
Mrs Rupa Mahat

CASE NUMBER:  1924778

HOME AFFAIRS REFERENCE(S):          BCC2019/1684610

MEMBER:Meredith Jackson

DATE:25 January 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 25 January 2020 at 11:28am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – lack of academic progress – no study at higher education level – first qualification at lower level gained by recognition of prior learning – no further completed study – re-enrolment in first qualification – claim that current education provider did not recognise first qualification to allow for higher-level study – status of recognition of prior learning – enrolment in current course cancelled because of unsatisfactory progress – plans to return to home country after completing current courses – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA

Migration Regulations 1994 (Cth), Schedule 2, cl 500.212, Schedule 8, Condition 8202

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 9 August 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2.    The applicants applied for the visas on 4 April 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.

3. The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.500.215 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant had not provided evidence of Overseas Student Health Cover (OSHC) for the full duration of their study period.

4.    The first named applicant appeared before the Tribunal on 22 January 2020 to give evidence and present arguments.

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

Summary of the case

6.    The primary applicant is Apurba Ranabhat, a citizen of Nepal. The secondary applicant is his spouse, Rupa Mahat. Mr Ranabhat first came to Australia in October 2013 on a TU 573 (Student) visa issued for the higher education sector. He did not study in higher education, but sought a vocational Certificate IV in Commercial Cookery qualification, eventually issued, he claims, on the basis of recognition of his prior learning. Between 2015 and 2019 he enrolled in a number of courses from degree to certificate level, but did not complete any. In April 2017 he successfully sought a temporary work visa. At the time of its expiry in 2019, he applied for the student visa under review. He again enrolled in a Certificate IV in Commercial Cookery, a qualification he already held. That enrolment was cancelled on the basis of unsatisfactory progress in November 2019; the visa having been refused in August of that year. Since arriving in Australia he has attained only that one qualification, the initial Certificate IV in Commercial Cookery, which he acknowledges he did not study for. In consideration of this study record, the Tribunal has weighed his status as a genuine temporary entrant and genuine student.

CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.

8.    The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student (cl.500.212).

9.    In the hearing, the Tribunal explained to the applicant that while the delegate had refused to grant the visa on the basis of him having not satisfied the health insurance requirement,  that requirement was separate from the genuine temporary entrant criteria and as the Tribunal was making a fresh decision it could consider his case against any relevant criterion. The Tribunal said it would be asking him some questions relating to whether he was a genuine applicant for entry and stay as a student.

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

1. Clause 500.212 requires as follows:

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

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

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

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

   (iv)any other relevant matter; and

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

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

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

   (c)of any other relevant matter.

Does the applicant intend genuinely to stay in Australia temporarily?

1. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:

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

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

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

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

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

Documents submitted and considered

1. The applicant made documentary submissions prior to and to at the hearing. These were:

   a.The delegate’s decision;

   b.A copy of the Certificate IV in Commercial Cookery issued by Meee College on 22 January 2016;

   c.A record of results for the above certificate, showing all units were credited and stating “these units/modules have been delivered and assessed in English”;

   d.A statement from Gaindakot Polyclinic in Nepal dated 6 January 2019 supporting the claim that his parents were injured in a bike accident in May 2019 and treated by the clinic over a period of a month;

   e.OSHC vertification from Bupa Australia dated 6 December 2019 showing coverage active until midnight 5 January 2022;

   f.A letter to the Tribunal laying out claims regarding OSHC status, financial distress, his parents’ situation post the accident; his family’s support; his intention to return to Nepal after 13 January 2022, personal stress; his career plans in the Nepal hospitality industry;  his commitment to study;

   g.Information regarding his mother’s financial situation in support of his claim that his parents can now afford to support him.

The hearing

1. The applicant said at the hearing

   a.He had not been able to pay his OSHC when required due to the accident which affected his parents financially; they were not able to afford him; when his work visa was expiring, his agent suggested he just pay one month of OSHC which meant he would still be able to lodge his visa application; but at the time he thought he might go home;

   b.His father encouraged him to stay on in Australia and get “a piece of paper” (qualification);

   c.His parents decided to sell a piece of land for him to raise funds; they managed to send him so money by the end of December 2019 so things were going well because his family could support him; he now had health insurance;

   d.While he already had a Certificate IV of Commercial Cookery, it was issued in January 2016 on the basis of recognition of prior learning and his agent said it was not an official certificate; so now he was doing it again; his new provider had not recognised it;

   e.In response to the Tribunal’s questions he stated he did not have any evidence of his provider not recognising his existing Certificate IV in Commercial Cookery qualification;

Section 359AA

1. Adopting the procedure of s.359AA of the Act, the Tribunal said it had some information to put to the applicant: a copy of his study record in the Provider Registration and International Student Management System (PRISMS). The Tribunal provided the applicant with a copy of the record and gave him time to consider it. The Tribunal said if he needed extra time the Tribunal would consider such a request. The Tribunal outlined that information in PRISMS was relevant to the review because it might point to issues related to his enrolment and academic progression, including being enrolled in courses that are not consistent with his current attainment level, or show that he has had major gaps in his studies and other progression issues. It might cause the Tribunal to find the applicant did not appear to be progressing academically,  and if the Tribunal were to identify this or other academic or enrolment issues, while the Tribunal had not made up its mind, it is information that would be the reason, or part of the reason, for affirming the decision under review. The applicant stated that he believed he understood the relevance of the information. He did not request additional time to consider it and provided comments immediately after reading it. The applicant stated that the record appeared correct.

2. The applicant responded to Tribunal questions with the following comments.

3. Initially, when he first came to Australia, he had not coped with the sophisticated level of study and his agent encouraged him to do something at a lower level. He chose to enrol in cookery in an industry for which he had a passion.  The reason he did not finish this course was that he was in a relationship with a girl in Nepal and thought he would go home and start a business. He could not focus, it was his own fault.

4. Meanwhile he was working in a restaurant and the chef suggested he seek recognition for prior learning and this helped him get the first Certificate IV in Commercial Cookery;

5. As to whether he had studied at all since arriving, the applicant said he had sometimes attended class but did not finish anything. Between 2013 and 2017 there was only the certificate earned on the basis of his work experience.

6. The applicant said (in summary) that this certificate in turn helped him get a work visa sponsorship and was successful in getting a work visa;

7. When his work visa was ceasing in April 2019 he applied for the student visa under review. The Tribunal said the Certificate IV he already had was a formal qualification in the context of the Australian Qualifications Framework (AQF) and asked whether he might have enrolled in the same course in order to easily extend his stay in Australia, because it had a concern this might be his motivation. The applicant said no, it was so he could go home with a certificate. That is why he wanted to study now for two years and then go back. He could not go back empty handed, without a qualification. Also, since he had spent his entire time in the hospitality industry in Australia he could polish his skill more by continuing to study. The same courses are not yet available in Nepal.

8. His family in Australia comprised his sister and his wife. His sister was studying accounting. The rest of his family were in Nepal.

9. In Nepal, he would be able to get a job because tourism was growing, and he saw an opportunity to use his skills from Australia. His situation looked good because of his experience in restaurants. There was nothing preventing him from going back.

10. The Tribunal said it seemed that the applicant was currently enrolled in a Certificate IV in Commercial Cookery, which, according to the PRISMS record, led to a qualification that he already held; and that might cause the Tribunal a concern because he had not actually studied in Australia, despite having come on a student visa to do so, but had spent his entire time working in restaurants, and attaining a certificate based on his work experience. Now, having finished his working visa period he was still working but had enrolled in a course in which he already had qualified. The Tribunal might not be convinced about that. The applicant said he was aware of all the circumstances of what he was doing and he saw where the Tribunal was coming from, but if he could have a chance to finish the Certificate IV and the Diploma he would be grateful.

11. He had a plan to start a business in Nepal but he was not ready, he had been home twice but he needed further time here. In Australia he was working about 30-32 hours a week casually, earning $600 to $700. His agent had told him his hours were based on the conditions of his work visa. His wife was also working in a restaurant.

12. The applicant said he had not applied for other visas in Australia or elsewhere, had not travelled elsewhere and did not intend to apply for any more visas here.

13. The Tribunal said its remaining concern was the record indicated that the applicant had been here a long time, and while some time was while on a working visa, he was repeating a course he had already graduated from, and that and the proposed diploma course were short, inexpensive courses. This may be an indicator that he was not a genuine student and genuine temporary entrant, but was using the student visa program to extend his stay in Australia. The applicant said he realises he did not study while on his initial student visa, and he accepts this was a big mistake; he was aware that he should be studying, and no, he did not discuss it with the department or seek advice from anyone but his agent at the time.

Analysis and conclusions

1. The Tribunal has given careful consideration to all the evidence submitted by the applicant before and during the hearing against the factors in Direction 69. The Tribunal has considered the applicant’s circumstances in his home country, potential circumstances in Australia, and the value of the course to his future, and considered other relevant information provided by the applicant, or information otherwise available to the Tribunal, including information that may be either beneficial or unfavourable to the applicant.

2. The Tribunal concludes that the applicant is using the Student visa program to extend his stay in Australia, and does not intend genuinely to remain in Australia temporarily. The Tribunal reaches the conclusion for the following reasons:

   a.The applicant has not progressed academically since his arrival in Australia on a student visa. He has been in Australia since August 2013 and, having come here to study in higher education, his sole academic achievement in more than six years has been to secure a vocational level certificate in cookery granted through credit for working an Australian restaurant during his stay. Further, from August 2013 to April 2017, while subject to student visa conditions including condition 8202 (remain enrolled and progress academically) he did not study at all. When this record was put to him in the hearing, the applicant said he had no explanation for it other than that it was a “big mistake”. The Tribunal has considered the applicant’s claim that in the beginning, he could not adjust to the sophistication of the Australian study experience, and he took his migration agent’s advice and sought to study an easier course. The Tribunal notes that the applicant states he did not discuss the difficulties he was having with anyone other than his migration agent, which means he did not discuss the difficulties with his education provider, with the department or any other body or otherwise seek advice on his options. The Tribunal notes that in the end, the applicant did not study at even the lower end of the AQF framework for any sustained period. He did not study effectively at any time and has enrolled again only days prior to the review hearing. The Tribunal is unconvinced that, in the light of his record, the applicant was and is genuinely trying to succeed at study. The Tribunal weighs this lack of academic commitment and progress strongly against him.

   b.The applicant is using the visa program to extend his stay in Australia. He told the hearing that a chef at the restaurant he worked in urged him to gain the Certificate IV in Commercial Cookery by seeking recognition of prior learning that was gained through work he performed instead of studying. After he was granted the temporary work visa, he continued working, with the extra hours permitted by that visa meaning he is able to earn $600-$700 a week. He now states he intends to commit to study, and has provided some evidence his parents have come up with funds for sponsorship, but the Tribunal notes he remains employed at a significant salary and the Tribunal notes he has prioritised work over study previously, and he emphasises the importance of his work experience in any future prospects he has for employment. On the whole, and coupled with the fact that he is enrolled in a course he has already qualified in, the Tribunal considers that the applicant is using the visa program to circumvent the migration program is clear. The Tribunal notes the applicant denied this is the case. The applicant’s actions indicate otherwise. The Tribunal weighs this consideration against the applicant.

   c.The applicant is choosing short, inexpensive courses to extend his stay and is currently studying below his previous attainment (a described above, he already has the qualification in which he is enrolled, a Certificate IV in Commercial Cookery granted in 2016). He enrolled in the duplicated course on 13 January 2020. He claims that his new education provider required him to repeat the course in order to study the next one, a Diploma of Hospitality Management course. He provides no evidence that this was the case, instead relies on his argument that because the certificate was gained through credit, it is not an equivalent qualification. The Tribunal notes the applicant’s existing Certificate IV states that the qualification is recognised within the Australian Qualifications Framework, and it is a genuine qualification, regardless of the basis on which it was issued. Because of this, and because the Tribunal does not have before it evidence that the repeat study was required or warranted, it considers the alternative put to the applicant to be more likely: that is, he is choosing short, inexpensive courses to extend his stay for the least investment of time and funds. The Tribunal weighs this consideration strongly against the applicant.

   d.The applicant states that his circumstances in Australia are that he has a sister studying here, his wife is working here in a restaurant, and he is earning $600-$700 a week working his 30-32 hours as a casual employee while his wife earns front of house rates. The applicant claims that he intends to finish the studies he commenced on 13 January 2020 and then return to Nepal to work in hospitality. He claims he can expect to earn up to NPR 85,000 monthly to begin with. This amount equates to approximately AUD 1,081 per month. The Tribunal accepts this may be a reasonable starting wage in Nepal, and while there is some clear benefit to him continuing to work in Australia, where he earns up to three times that amount, the Tribunal accepts the proposed wages in Nepal will be offset by lower living costs. The Tribunal notes the applicant has done some research into his employment potential in Nepal. The Tribunal weighs this consideration somewhat towards the applicant.

1. On balance, and taking into account the factors listed above, the Tribunal finds the weight of the evidence supports its finding in paragraph 29 that the applicant is using the Student visa program to extend his stay in Australia, and does not intend genuinely to remain in Australia temporarily.

2. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

3. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

4. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

Secondary applicant

1. The entitlement of the secondary applicant, Rupa Mahat to a visa is initially dependent on whether the primary applicant is the holder of a visa, having satisfied the primary criteria for that visa, and then on whether she, as the secondary applicant meets any additional visa criteria applicable (cl.500.311). As the primary applicant does not satisfy the criteria for the grant of a Subclass 500 (Student) visa (cl.500.212), Rupa Mahat cannot satisfy cl.500.311.

DECISION

1. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Meredith Jackson
Member

Attachment – Direction No.69

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

(Section 499)

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

Dated: 18 April 2016

Peter Dutton

Minister for Immigration and Border Protection

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

Part 1 of Direction No. 69 - Preliminary

Name of Direction

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

It may be cited as Direction No. 69.

Commencement

This Direction commences on 1 July 2016.

Interpretation

Act means the Migration Act 1958.

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

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

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

Regulations mean the Migration Regulations 1994.

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

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

Student visa means a Subclass 500 (Student) visa

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

Application

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

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

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

Preamble

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

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

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

a.the applicant’s circumstances; and

b.the applicant’s immigration history; and

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

d.any other relevant matter.

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

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

Part 2 of Direction No. 69 - Directions

Assessing the genuine temporary entrant criterion

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

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

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

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

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

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

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

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

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

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

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

The applicant’s circumstances

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

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

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

The applicant’s circumstances in their home country

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

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

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

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

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

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

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

The applicant’s potential circumstances in Australia

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

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

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

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

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

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

Value of the course to the applicant’s future

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

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

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

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

The applicant's immigration history

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

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

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

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

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

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

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

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

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

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

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

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

Any other relevant matters

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