RODRIGUEZ SANCHEZ (Migration)

[2020] AATA 3213

RODRIGUEZ SANCHEZ (Migration) [2020] AATA 3213 (5 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr PEDRO JOSE RODRIGUEZ SANCHEZ

CASE NUMBER:  1804232

HOME AFFAIRS REFERENCE(S):          BCC2017/4337780

MEMBER:Peter Haag

DATE:5 August 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 05 August 2020 at 8:52am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student (Subsequent Entry)) – member of family unit – de facto relationship for 12 months before application made – dates of meeting, beginning of romantic relationship and beginning of de facto relationship – information in partner/primary applicant’s application – partner/primary applicant not called to give evidence – no compelling or compassionate circumstances for grant of visa – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5CB, 65

Migration Regulations 1994 (Cth), r 2.03A(3), Schedule 2, cl 500.311

CASE
Paduano v MIMIA [2005] FCA 211

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 2 February 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) (Subsequent Entrant) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 18 November 2017.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.311 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant was in a de facto relationship with the primary visa holder for 12 months prior to 18 November 2017, the date on which the application for the visa was made. Consequently, the applicant was found not to be a member of the family unit of the primary visa holder, hence he failed to satisfy a mandatory precondition prescribed in Regulation 2.03A of the Regulations for the grant of the visa.

4. The applicant appeared before the Tribunal on 23 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Alejandro Imery and Mr Paulo Santaella.  Both witnesses gave evidence on behalf of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a Subclass 500 (Student) (Subsequent Entrant) 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, at the time of application, the applicant was a member of the family unit of the primary visa holder.

8. Clause 500.311 requires as follows:

   The applicant is a member of the family unit of a person (the primary person) who holds a student visa, having satisfied the primary criteria for that visa, and either:

   (a)   the applicant became a member of the family unit of the primary person before;

   (b)   the grant of the student visa to the primary person, and was included in:

   (i)  the primary person’s application under subregulation 2.07AF(3); or

   (ii)  information provided in relation to the primary person’s application under

   subregulation 2.07AF(4); or

   (b)  the applicant became a member of the family unit of the primary person:

   (i)  after the grant of the student visa to the primary person; and

   (ii)  before the application was made.

9. Pursuant to s.366 of the Act, the Tribunal determined on the basis of the need for reasonable expedition in the determination of the review, and the prevailing restrictions implemented to contain the spread of the COVID-19 virus, that it was appropriate to conduct the proceeding by telephone, and for the applicant and his witnesses to give evidence by telephone. The Tribunal impressed upon the applicant that the hearing was not a closed hearing and that the presence of any person who wished to be present with the applicant and follow the proceeding was welcome. Consequently, the review was conducted by means of a telephone hearing.

10. The applicant contended that he satisfied the requirement that he be a member of the family unit of the primary visa holder before the application was made, because he was in a de facto relationship with the primary visa holder for the requisite period of 12 months ending immediately before 18 November 2017, the date on which the visa application was made: r.2.03A.

11. Persons claiming to be in a de facto relationship must meet the criteria in r.2.03A.

12. Both members of the couple must be at least 18 years old: r.2.03A(2). In this case, at the time of application, the applicant and the primary visa holder were at least 18 years old at all material times.

13. The applicant must have been in the de facto relationship for at least the 12-month period ending immediately before the date of the application: s.5CB of the Act and r.2.03A(3) of the Regulations. This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa.

14. There is no evidence that the relationship is registered under a relevant State or Territory law or that the sponsor held, holds or is applying for a permanent humanitarian visa, so they must meet the 12-month requirement.

15. In summary, the applicant claims in evidence to the Tribunal that he commenced a de facto relationship with the primary visa holder, Ms Munoz, on 23 March 2016; that they started going out with each other on a regular basis on 16 March 2016; and they began living together on an unspecified date in November 2016.

16. According to the applicant’s evidence to the Tribunal, 16 March 2016 is the beginning date of the de facto relationship with Ms Munoz because that was the date on which he met her at a hotel, he asked her to go out with him and they started going out together regularly. According to the applicant’s evidence, on 23 March 2017, the applicant and the primary visa holder celebrated their relationship together in a National Park. And in November 2016, he moved into the share house in Sydenham that Ms Munoz was sharing with two other people. 

17. The applicant conflates his asking Ms Munoz on 16 March 2016 to go out with him regularly, and her agreement to do so, with the commencement of a de facto relationship. The Tribunal finds the applicant’s evidence to the effect that the de facto relationship with Sara Munoz commenced on 16 March 2016, the occasion he asked her to go out with him on a regular basis, and her agreement to do so, in the context of meeting her at a hotel after getting to know her as a fellow student and sharing a mutual attraction and interest in each other, on its own, is unrealistic.

18. The credibility of the applicant’s evidence about the date on which the de facto relationship began is eroded by information submitted by Ms Munoz to the Department and the Tribunal in the Nomination of student dependants form (Form 919) (the Nomination form). The Nomination form was signed by Ms Munoz on 18 November 2017. Without explanation, Ms Munoz was not called as a witness to give evidence before the Tribunal.

19. The Nomination form and the information within it is information before the Tribunal that may be directly attributed to Ms Munoz. In the Nomination form, Ms Munoz was cautioned that “Giving false or misleading information is a serious offence.”  When Ms Munoz signed the Nomination form, a self-evidently important document that demanded careful consideration, she declared that: “the information supplied on and with this Nomination form is complete, true and correct in every particular”. According to what is stated in the document, upon pain of penalty, Ms Munoz declared on 18 November 2017 the status of her relationship with the applicant was that of de facto partner, and that 16 March 2017 is the date she began to cohabitate with the applicant.

20. The applicant in evidence to the Tribunal directly contradicted Ms Munoz: he asserted the 16 March 2017 date was an error; it was the date the applicant met Ms Munoz at a hotel and asked her to go out with him regularly; and that cohabitation began in November 2016 when he moved into the share house where Ms Munoz lived, and he began to share her bedroom with her.

21. In summary, the applicant gave evidence to the Tribunal that he knew 16 March 2017 was an error because he and Ms Munoz filled in the Nomination form together. In response to questions from the Tribunal, the applicant informed the Tribunal he was unable to explain the fact that Ms Munoz stated 16 March 2017 is the date on which cohabitation began with the applicant as her de facto partner. The applicant did not give evidence that Ms Munoz misunderstood the question, and Ms Munoz has not informed the Tribunal, either in writing or in evidence, that she misunderstood the question, or that 16 March 2017 was not the start date of her cohabitation with the applicant. The Tribunal is not persuaded to reject Ms Munoz’s statement that cohabitation began on 16 March 2017, and to accept the applicant’s evidence that the date is the result of Ms Munoz (and the applicant) making a mistake and that cohabitation began on an unspecified day in November 2016.

22. Furthermore, contrary to the applicant’s evidence that he completed the Nomination form jointly with Ms Munoz, is the declaration that Ms Munoz made in the Nomination form that she did not receive assistance in completing the form. This contradiction is a matter of concern to the Tribunal.

23. Additionally, the applicant’s evidence that cohabitation with Ms Munoz commenced in November 2016 is inconsistent with the evidence given to the Tribunal by his witness Mr Paulo Santaella. Mr Santaella informed the Tribunal that he shared a house at the relevant address with the applicant and Ms Munoz in 2017. The witness gave evidence that he began living in the share house in February or March 2017 and the applicant and Ms Munoz were living together in the house at that time. When the Tribunal reverted to the applicant about whether the witness shared the house with the applicant and Ms Munoz, he gave evidence that the witness began living in the house about two weeks after he started living in the house. The evidence of Mr Santaella weighs in favour of accepting 16 March 2017 to be the date on which cohabitation began. Moreover, the evidence of Mr Santaella undermines the reliability of the applicant’s evidence about the length of time the applicant and the primary visa holder were in a de facto relationship before the date of the visa application, being 18 November 2017.

24. On 21 July 2020, the applicant’s representative provided a bundle of documents to the Tribunal which included an undated and unsigned document described by the representative as a declaration. The applicant’s representative is referring to the undated and unsigned document the begins with the words “We declare that we are truly committed to each other”. The applicant’s representative informs the Tribunal that the applicant is the author of the document. No explanation has been provided for the document being undated and unsigned. The form of the document is unsatisfactory, and the credibility of the contents of the document has been significantly eroded by the form in which the document was presented to the Tribunal.

25. The author of the document is not identified in the document. The document speaks in the plural. The applicant did not refer to the document in his evidence. There is no evidence that Ms Munoz is aware of the existence of the document or that she adopted the document as a complete, true and correct record of the information it contains.

26. However, without deciding the applicant is the author of the document, in the text of the document the applicant purports to express for Ms Munoz her thinking, state of mind and knowledge of certain facts about her relationship with the applicant. It would have been better if the applicant called Ms Munoz to give evidence, or she had signed the document; but, without explanation, neither of those things occurred. In the circumstances, the Tribunal is not satisfied this document can be properly treated by the Tribunal as a document made with the knowledge or consent of Ms Munoz, or her agreement as to the accuracy of the contents of the document and that the document speaks for her.  Bearing these shortcomings in mind, and the fact that the document is written in the plural, it would be artificial to treat the document as a declaration or statement made only by the applicant. On balance, the Tribunal has decided to give the document and its contents neutral weight in this decision.

27. During the hearing, the applicant sought leave to provide additional evidence to the Tribunal being photographs and copies of online chats between himself and Ms Munoz. That application was acceded to and leave was granted, however the agreed time for the provision of information was extended, upon another request from the applicant for additional time, to 4.00 pm on Wednesday 29 July 2020. 

28. Within the total extended period, the applicant provided photographs and translations of online conversations been Ms Munoz and himself. The translated messages, according to the applicant’s representative, is the relevant evidence for the purposes of the review. The applicant provided a large body of untranslated messages in the Spanish language to which the Tribunal has given neutral weight in this decision because the Tribunal is unable to read the messages. This position appears to have been accepted by the applicant through his representative in the representative’s post-hearing correspondence with the Tribunal. The applicant provided no explanation for why the photographs and translated messages were not provided to the Tribunal before the hearing, nevertheless the Tribunal has fully considered the additional information.

29. The translated messages do not support the applicant’s evidence that he was sharing house with Ms Munoz in November 2016, or that he first began dating Ms Munoz on 16 March 2016.

30. The messages span a relatively short period of time being 29 October 2016 to 17 November 2016. The translated messages do not demonstrate that 16 March 2016 is the date the applicant asked Ms Munoz to go out with him regularly. Furthermore, the translated messages do not support the applicant’s evidence that he began living with the applicant on an unspecified date in November 2016. The messages indicate that as late as 17 November 2016, they were planning to spend three days together and, on a reasonable reading of all the messages, they indicate the applicant and Ms Munoz were not living together during the period covered by the messages, or that they commenced living together in 2016. If messages exchanged between the applicant and Ms Munoz established, they began living together in November 2016, it is reasonable to expect those messages would have been translated and provided to the Tribunal.

31. The translated messages and photographs considered together show the applicant and Ms Munoz were involved in a romantic sexual relationship in 2016 and 2017, however the messages and photographs and the evidence considered so far in this decision does not satisfy the Tribunal that the applicant and Ms Munoz had made a mutual commitment to a shared life to the exclusion of all others; and the relationship between them was genuine and continuing; and they lived together; or did not live separately and apart on a permanent basis in the 12 months ending immediately before the date of the visa application.  

32. The Tribunal has also considered the evidence Mr Imery gave to the Tribunal. In summary, according to Mr Imery’s evidence, the applicant met Ms Munoz in September 2014 or 2015 and they commenced dating in approximately September 2015, whereas the applicant claims he asked Ms Munoz to go out with him on 16 March 2016. The witness claimed he went on two camping trips with the applicant and Ms Munoz, and they were in a relationship at that time: one trip occurred in late 2015 and the second one occurred in 2016. When the Tribunal reverted to the applicant and asked him about the camping trips with Mr Imery, the applicant denied the trips had occurred. The high point of Mr Imery’s evidence is that the applicant and Ms Munoz cared for each other and they had a boyfriend/girlfriend relationship. The evidence given by Mr Imery in relation to dates and times is inconsistent with other evidence, it lacks satisfactory precision, and the Tribunal is not satisfied his evidence in relation to dates and times is accurate and reliable.

33. The Tribunal has had regard to all the documents in the bundle of documents the applicant provided to the Department and the Tribunal in support of the application. In evidence, a bank statement establishes the applicant and Ms Munoz opened a bank account on or about 12 May 2017.  The bank statement applies to the period 12 May 2017 to 30 June 2017. Further, there is only limited documentary evidence of the applicant and Ms Munoz sharing a limited range of expenses; apparently reimbursing each other for monies spent; and, minimal documentary evidence of the applicant sharing in 2017 the cost of their joint accommodation. There is documentary evidence that the applicant and Ms Munoz attended live music events and spent social time together. The documentary evidence relevant to showing that Ms Munoz and the applicant mutually committed to a shared life to the exclusion of all others, in a relationship that was genuine and continuing, when considered separately and in combination with the other information and evidence before the Tribunal, does not satisfy the Tribunal that Ms Munoz and the applicant lived in a de facto relationship together for the requisite 12-month period as required by s.5CB of the Act and cl.2.03A of the Regulations.

34. On balance, the Tribunal is satisfied the applicant began living with the Ms Munoz on 16 March 2017, but the Tribunal is not satisfied Ms Munoz committed herself to a de facto relationship with the applicant in 2016, or that the requisite mutual commitment to a shared life to the exclusion of all others was made in 2016. Relevantly, the Tribunal is not satisfied the applicant is a reliable witness, and that his evidence as to when the de facto relationship began is reliable evidence.

35. In relation to whether the applicant and Ms Munoz did not live separately and apart on a permanent basis during the 12-month period immediately before the date of the visa application, the evidence does not satisfy the Tribunal that prior to 16 March 2017, Ms Munoz committed herself to a shared life with the applicant, including living with him on a continuing basis.

36. Accordingly, upon consideration of the totality of the evidence, the Tribunal is not satisfied that the applicant was in a de facto relationship for the 12-month period ending immediately before 18 November 2017, the date of the application.

    Therefore, the issue before the Tribunal is whether the visa applicant can establish compelling and compassionate circumstances for the grant of the visa: r.2.03A(3). The expression ‘compelling and compassionate circumstances for the grant of the visa’ is not defined in the legislation. Having regard to the ordinary meaning of the words, ‘compassionate’ suggests ‘circumstances that invoke sympathy or pity’. ‘Compelling’ in its wide, ordinary meaning means ‘forceful’ and, therefore, convincing: see Paduano v MIMIA [2005] FCA 211. The written information provided by the applicant to the Tribunal does not contain evidence of compelling and compassionate circumstances that would justify the grant of the visa. In evidence to the Tribunal, the applicant acknowledged there are no compelling and compassionate circumstances that would justify the grant of the visa. Accordingly, the Tribunal is not satisfied that there are compelling and compassionate circumstances for the grant of the visa.

1. After considering the totality of the evidence before the Tribunal, the Tribunal is satisfied it has given regard to all the available information and relevant evidence, and that there is no other information or evidence provided by the applicant that is relevant to the determination of the issues in this review that has not been considered by the Tribunal.

2. Accordingly, the Tribunal is not satisfied the applicant became a member of the family unit of the primary visa holder, after the grant of her student visa, and before the application of the Student (Subsequent Entrant) visa was made, as required by r.2.03A and cl.500.311 of Schedule 2 of the Migrations Regulations.

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

   DECISION

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

   Peter Haag
   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.