Ruiz De Arbulo Bartolome (Migration)

[2019] AATA 5327

Ruiz De Arbulo Bartolome (Migration) [2019] AATA 5327 (5 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jon Zuzen Ruiz De Arbulo Bartolome

CASE NUMBER:  1807196

HOME AFFAIRS REFERENCE(S):          BCC2017/4865426

MEMBER:Glenn O’Brien

DATE:5 August 2019

PLACE OF DECISION:  Brisbane

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

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 05 August 2019 at 7:42pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – reasons for studying in Australia – family ties in home country – income disparity – pattern of enrolment – changes in fields of study – value of course – specific trade qualifications – complementary to existing qualifications and work experience – improvement to employment prospects – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 February 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 19 December 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant intends genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 1 August 2019 to give evidence and present arguments. 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 matter should be remitted for reconsideration.

   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. The issue in the present case is whether the applicant is a genuine temporary applicant for entry and stay as a student.

8. 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?

9. 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.

10. 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.

11. Adopting the procedure in s.359AA of the Act, the Tribunal put to the applicant that it had on the Tribunal file a copy of the applicant’s enrolment records from the Provider Registration International Student Management System (PRISMS) database.  For completeness, the Tribunal provided the applicant with a copy of the PRISMS summary of enrolment.  The Tribunal explained to the applicant the relevance of the records to the review before the Tribunal. The Tribunal explained the consequences of relying on the information and confirmed the applicant understood the consequences of the information being relied upon. The Tribunal offered the applicant an opportunity to seek an adjournment to consider the information and comment on or respond to the information.  The applicant did not seek an adjournment and elected to respond to the information during the course of the hearing.

12. The applicant arrived in Australia on 3 October 2014.

13. At the time of the application the applicant was enrolled to undertake a Certificate III in Painting and Decorating.

14. The Tribunal considered whether the applicant had reasonable reasons for not undertaking the proposed course of study in his home country if a similar course is already available there. 

15. The applicant told the Tribunal that in Spain painters usually do an apprenticeship and while there was a proposal in 2010 to formalise training the courses that exist are not as comprehensive and well organised.  The applicant also told the Tribunal that this course would put him a step ahead of his competitors and equip him with new and innovative training methods.

16. The applicant told the Tribunal his parents, two brothers, and his sister reside in Spain. The applicant’s partner is resident with him in Australia.  The applicant returned to Spain in May 2016 for a period of approximately two weeks to visit family.  The applicant told the Tribunal he intended to go to Spain again in 2017 however with the changes and deferment of his TAFE course he did not do so.

17. The applicant told the Tribunal he keeps in contact with his family by way of video calls at least once a week for his parents and once a month to his siblings.  The applicant also keeps in regular contact with his niece.

18. The applicant told the Tribunal he does not have substantial assets in Spain.  The applicant expects to inherit property from his parents.

19. The applicant did not complete formal education in Spain and left school at 16 years of age and worked in various occupations from June 2002 as a waiter, plumber, welder, mechanic, roof maker, and barman.  From January 2012 to August 2014 the applicant worked as a waiter earning approximately AUD34,000.  Notably, the applicant did not previously work as a painter in Spain.

20. On completion of his studies the applicant told the Tribunal that he intends to establish his own painting business in Vitoria and his parents will assist him to do so.  The applicant told the Tribunal he has drafted a business plan but did not provide the Tribunal with a copy of it.  The applicant told the Tribunal he has a list of steps to follow once he returns to Spain and opens his business including; comparing his work to other painting businesses in the area, checking all the legal aspects relating to his profession with legal authorities, applying for tax registration, preparing a budget, and purchasing tools and supplies.  The applicant told the Tribunal he anticipates earning an annual profit of approximately AUD35,000 but accepted he was unlikely to do so during the establishment phase of the business.

21. The applicant told the Tribunal the average salaries for painters in Spain range from EUR1790 to EUR2632 based on a number of factors including gender, whether working in the public or private sector, and experience.  Since arriving in Australia the applicant has worked as a professional painter earning from AUD30,000 to AUD60,000 per annum.  The applicant currently works for Urban Sector earning AUD30,000 on the basis of 20 hours part-time work per week.  While the Tribunal accepts the applicant’s living expenses are likely to be less in Spain than in Australia, comparatively the applicant earns more in Australia considering his Australian earnings are on the basis of part-time work whereas he would return to full-time employment in Spain.

22. The applicant told the Tribunal he is not supported financially by his family in relation to his education expenses. 

23. The applicant told the Tribunal he does not have any military service commitments and there are no circumstances of civil or political unrest in Spain that would induce him to apply for a visa to stay in Australia indefinitely.

24. In considering the applicant’s circumstances in his home country, on the basis of the matters set out above and the evidence before the Tribunal, the Tribunal finds:

    a.The applicant provided reasonable reasons for not undertaking the proposed course of study in his home country.

    b.The applicant does have family ties to his home country including the residence of his parents and siblings, an expected inheritance, and an intention to return to establish his own business which provides an incentive to return. In considering the period of time the applicant has been in Australia, the residence of his partner in Australia, the applicant’s part-time employment and income in Australia, and the limited return travel to Spain, these circumstances are not a significant incentive to return.

    c.The applicant is not supported financially during his study in Australia by his parents.  The applicant works part-time in Australia and earns approximately AUD30,000 per annum on the basis of working approximately 20 hours per week part-time.  The applicant has no personal assets in Spain (notwithstanding a potential inheritance), and no offers of employment.  The applicant has a business plan, however the applicant has taken no substantive steps in relation to implementing that plan to date.  The applicant’s anticipated income in Spain is comparatively less than his part-time earnings in Australia.   In considering the applicant’s economic circumstances as a whole they present as a significant incentive not to return home.

    d.The applicant does not have military service commitments which would provide a significant incentive not to return home.

    e.There is no evidence before the Tribunal of political and civil unrest in the applicant’s home country of such a nature that may induce the applicant to apply for a student visa to obtain entry to Australia to remain indefinitely.

    f.There is no relevant evidence regarding the applicant’s circumstances in his home country relative to others in that country and the Tribunal makes no findings concerning the applicant in that respect.

25. The applicant told the Tribunal he rents a house and lives with his partner.

26. In considering the significant period of time the applicant has been in Australia, since 2014, and the applicant’s part-time work and study, the Tribunal is satisfied that the applicant has developed friendships and social connections to Australia.

27. The Tribunal was concerned in relation to the applicant’s pattern of enrolment since 2014.  The applicant travelled to Australia and studied intensive English language courses and a Certificate II in Business.  The applicant then enrolled in further English language courses and Business courses.  The applicant told the Tribunal he intended to complete a Certificate III in Painting and Decorating at TAFE in 2016 but due to a lack of enrolments the course was cancelled and he was informed it would be deferred for approximately six months.  The Tribunal accepts the applicant’s education service provider was unable to deliver this course.  The applicant subsequently completed a Certificate III in English Proficiency and a Certificate III in Business Administration.  The applicant again enrolled in the Certificate III in Painting and Decorating commencing on 11 July 2016 but the TAFE was unable to deliver this course.  The applicant did not commence his enrolment in a Certificate IV in Business and instead commenced the Certificate III in Painting and Decorating at another institution.  The applicant’s enrolment in his current course of study was two months prior to the cessation of his then visa.

28. As the applicant was unable to commence his study at TAFE, the applicant told the Tribunal that he found a similar course at ANIB in Brisbane which was only one year and did not offer the same quality as the TAFE course.  For this reason the applicant decided again to pursue business qualifications.  The applicant then located an education service provider that offered a Certificate III in Painting and Decorating which was for a duration of approximately 94 weeks.

29. The applicant did not travel to Australia to undertake painting related courses and has not previously worked as a painter in Spain.  Since arriving in 2014 the applicant has been employed as a professional painter.  The applicant has worked in that position without holding any such qualifications.  Notably however the applicant first sought to enrol in this course in February 2016.

30. The changes in fields of study from English to business to painting, is relevant to establishing the applicant’s own painting business.  The applicant’s change in career is also consistent with the applicant’s work experience in Australia.  While the changes in the applicant’s field of study raise concerns, in considering the applicant’s intention to study for a Certificate III in Painting and Decorating in February 2016 and the delays in commencing that course, in large part caused by the inability of the education service provider to deliver the course, the Tribunal considers those changes reasonable and not evidence of the applicant seeking to use his student visa for the for the primary purpose of maintaining his residence in Australia.

31. The applicant demonstrated a good knowledge of his proposed course of study and his Education service provider.

32. In considering the applicant’s potential circumstances in Australia the Tribunal finds:

    a.The applicant has ties to Australia through the period of time the applicant has spent living in Australia, the residence of his partner, his part-time employment and study.  The Tribunal is satisfied the applicant has developed friendships in Australia through study and work and considers this social and emotional connection to Australia provides a strong incentive to remain.

    b.The applicant’s pattern of enrolment, changes in fields of study, and successive enrolment in relatively short vocational level courses at certificate level are reasonable in circumstances where the applicant was unable to commence his study for a Certificate III in Painting and Decorating on two separate occasions and sought to undertake studies related to his intention to open his own business.  The applicant’s pattern of enrolment does not suggest to the Tribunal the applicant is using the student visa programme to circumvent the intentions of Australia’s migration programme.

    c.In considering the matters set out in these reasons for decision including the applicant’s period of time in Australia, the applicant’s part-time employment in Australia, residence of his partner in Australia, and reasons for the change in fields of study and pattern of enrolment; the Tribunal is satisfied this does evidence the applicant is using the student visa primarily to maintain ongoing residence in Australia.

    d.The applicant has a good knowledge of living in Australia, primarily through the length of time the applicant has been in Australia, and has a good understanding of the proposed course of study, education provider and his current study and living arrangements in Australia which he intends to continue.

33. The applicant’s proposed course of study is at certificate level.  This is consistent with the qualifications already completed in Australia and a progression to the applicant’s education obtained in Spain.

34. The applicant has no offer of employment and intends to return to Spain to establish his own painting business with the assistance of his family.   

35. The applicant’s proposed course of study is not relevant to the applicant’s previous employment in Spain but is relevant to his employment in Australia since 2014.  The Tribunal accepts that students will change their career aspirations and study pathways.  Notably, the applicant’s proposed course of study is not relevant to the applicant’s wide ranging employment experience in Spain.  The applicant’s proposed course of study will provide the applicant with specific qualifications in painting which will complement the applicant’s already attained qualification in business and his significant work experience as a professional painter in Australia.  The Tribunal considers the course will provide the applicant with specific trade qualifications and assist the applicant in obtaining employment or improving his employment prospects in Spain.

36. The applicant’s evidence in relation to the remuneration he expects to receive is based upon a range of average incomes for a painter in Spain.  The applicant intends to establish his own business and his income will be dependent upon the success of a business yet to be established in an industry in which the applicant has never previously worked in Spain.  While the Tribunal notes the applicant’s living expenses are likely to be less in Spain, the applicant’s comparative income in Australia is likely to be higher considering the speculative nature of the applicant’s anticipated income which is based upon his return to full-time work in Spain.

37. In considering the value of the proposed course of study to the applicant’s future the Tribunal finds:

    a.The applicant’s current course of study is a progression to the applicant’s education in Spain and is consistent with the qualifications the applicant has already obtained in Australia. 

    b.The applicant’s proposed course of study provides the applicant with industry specific skills and assists the applicant to obtain employment or improve the applicant’s employment prospects. 

    c.The course of study is not relevant to the applicant’s original intentions in travelling to Australia or the applicant’s previous work experience in Spain.  The Tribunal considers the applicant’s changes in career and study pathway reasonable given the applicant first sought to undertake his current course of study in February 2016, and has since 15 January 2018 continued to progress in that course with only four weeks of a 94 week course remaining.  In those circumstances the Tribunal does not consider the applicant is using his student visa for the primary purpose of maintaining the applicant’s residence in Australia.

    d.The remuneration the applicant can expect in his home country on completion of his course is speculative and comparatively less than what the applicant earns in Australia on a part-time basis.

    e.There is no evidence before the Tribunal in relation to the comparative remuneration the applicant would receive in Australia and Spain utilising the qualifications sought to be obtained by the applicant and the Tribunal makes no findings in that regard.

1. Other than the applicant’s immigration history set out in the delegate’s decision record, the applicant has not applied for any other visas in Australia.

2. The applicant arrived in Australia on 3 October 2014.  The applicant was granted a further Student (Class TU Subclass 572) visa onshore.   Approximately two months before the cessation of the applicant’s visa the applicant commenced his current course of study.

3. The applicant returned to Spain in 2016.  Other than the matters set out in these reasons for decision, the applicant told the Tribunal he has not been subject to or considered for any visa cancellation or refusal in Australia.

4. The applicant told the Tribunal he has not been subject to or considered for any visa cancellation or refusal in any other country.

5. Prior to arriving in Australia in 2014, the applicant has not previously travelled to Australia.

6. The applicant has been Australia since 2014 undertaking a series of vocational training courses in different fields of study and has not progressed beyond certificate level qualifications.  At the same time the applicant has obtained significant experience as a professional painter in Australia.  The applicant’s proposed course of study would extend the applicant’s period of residence to approximately five years for a qualification not contemplated at the time of travelling to Australia.  The applicant’s course of study will provide the applicant with industry specific qualifications which is complementary to the applicant’s work experience in Australia.  Notably the applicant has been studying continuously in his current course of study since January 2018 and anticipates completing that course of study on time in September 2019 – with approximately four weeks of a 94 week course remaining to be completed.  In considering these matters the Tribunal does not consider the applicant is using his student visa for the primary purpose of maintaining his residence in Australia.

7. In considering the applicant’s immigration history for the purposes of this application, the Tribunal finds:

   a.Other than the matters set out in these reasons for decision there are no other instances where visa applications have been undecided, or considered for refusal or cancellation to Australia.

   b.The applicant has not applied for visas to other countries and the applicant has not had a visa refused in other countries.

   c.Prior to arriving in Australia in 2014 the applicant has not previously travelled to Australia.

   d.Other than the applicant’s returned to Spain in 2016 the applicant has not travelled to other countries from Australia or to Australia from other countries.

   e.The applicant has been in Australia since 2014 undertaking studies at the vocational level in English, business, and painting and has not progressed beyond certificate level qualifications.  However, on the basis of the matters set out in these reasons for decision the Tribunal finds that the applicant’s proposed course of study offers the applicant specific trade qualifications and will assist him in obtaining employment or improving his employment prospects and his enrolment in the current course of study is not therefore for the primary purpose of maintaining his residence in Australia.

   f.The applicant has complied with the immigration laws of other countries to which the applicant has travelled.

8. The applicant is not a minor and it was not necessary to consider the intentions of his parent, legal guardian or spouse.  There was no evidence before the Tribunal in relation to these matters and the Tribunal makes no such findings.

9. As required by Ministerial Direction No.69, the Tribunal invited the applicant to make submissions in relation to any other relevant matter for the purposes of assessing the application.  The applicant told the Tribunal that on completion of his current course of study he did not intend to pursue another course of study in Australia and to return to Spain.  The Tribunal considered that favourably to the applicant in making its decision.  No other relevant matters were raised by the applicant at the hearing.

10. The Tribunal had regard to all the factors in Ministerial Direction No.69 in considering the applicant’s circumstances as a whole and in making its findings and is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

    Does the applicant intend to comply with visa conditions?

11. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

12. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependants’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider).

13. The applicant told the Tribunal that he intended to comply with any imposed visa conditions and his compliance with previous visa conditions did not cause the Tribunal to consider this was unlikely. There was no evidence before the Tribunal to suggest that the applicant had not complied with immigration requirements for other countries to which he has travelled extensively.

14. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

    Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

15. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

16. The applicant was invited to present evidence of any other relevant matter.  No other relevant matters not already considered in these reasons for decision were raised by the applicant at hearing.

17. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

18. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

19. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations.

    Glenn O'Brien
    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.