Sharma (Migration)

[2021] AATA 2327

Sharma (Migration) [2021] AATA 2327 (7 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Harkrishan Sharma

CASE NUMBER:  2004519

HOME AFFAIRS REFERENCE(S):          BCC2019/6168985

MEMBER:T. Quinn

DATE:7 May 2021

PLACE OF DECISION:  Melbourne

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

·Clause 500.312(a) of Schedule 2 to the Regulations.

Statement made on 07 May 2021 at 2:51pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine temporary entrant – applicant has completed two Diplomas – give the benefit of the doubt to the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 338, 347
Migration Regulations 1994, Schedule 2, cl 500.312(a)

CASES
Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372
Khan v Minister for Immigration & Another [2019] FCCA 565
Tshering v Minister for Home Affairs [2019] FCCA 2667

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 (‘the delegate’) on 17 February 2020 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicant (‘the applicant’) applied for the visa on 21 November 2019 as a Subsequent Entrant and as a member of the family to join his wife, Rubal Sharma (hereinafter referred to as Ms Sharma) who holds a TU-500 Student Visa (‘the application’).   At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The applicant’s wife was the primary applicant for a Subclass 500 (Student) visa to undertake study in Australia and neither the applicant nor his wife claims to meet the criteria for a Subclass 590 (Student Guardian) visa. 

3. On 17 February 2020, the delegate refused to grant the applicant the visa on the basis that the applicant did not satisfy the requirements of clause 500.312(a) of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that he was not considered to be a genuine temporary entrant. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

4. On 6 March 2020, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.

5. The applicant appeared before the Tribunal via telephone hearing on 5 May 2021 to give evidence and present arguments.  The applicant was assisted in relation to the review by their registered migration agent who also attended the hearing.

6. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.

7. For the following reasons, the Tribunal has concluded that the decision under review ought to be remitted in this case.  In reaching its decision, the Tribunal has had regard to:

   a.the oral evidence of the applicant given at the hearing;

   b.the oral submissions made by the applicant’s migration agent at hearing;

   c.all written material filed by or on behalf of the Applicant; and

   d.other relevant documents on the Tribunal and Department files.

   The Tribunal notes that not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference only to the information that the Tribunal has found to be fundamentally or materially significant to the determination of the issues in the case.

   STATUTORY FRAMEWORK

8. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 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 satisfies the secondary criteria.

9. Clause 500.312 requires as follows:

   The applicant is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa, having satisfied the primary criteria for that visa 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?

10. In considering whether the applicant satisfies clause 500.312(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (‘the Direction’), made under section 499 of the Act. The Direction requires the Tribunal to have regard to a number of specified factors. These factors must be considered in relation to both the primary visa holder’s application at the time that a decision maker determines that application but also in relation to individuals such as the applicant, as members of the family unit of the primary visa holder. The exception in the applicant’s case in relation to the Direction factors is that matters relating to studying and the value of the course, namely the factors in paragraphs 9(a) and 12(a)–(c) of the Direction, are not directly relevant considerations unless there is some relevance to this information in the context of any of the other factors (for example, the applicant’s immigration history if the applicant previously held and breached a student visa condition).[1]  Therefore, in the present case, the Direction factors must be considered in relation to:

    ·the applicant’s circumstances in their home country and potential circumstances in Australia;

    ·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.

    [1]         Maharjan (No 2) v MHA [2020] FCCA 731

11. 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.

12. The Direction is a lawful direction of the Minister made in accordance with section 499 of the Act. The Tribunal is therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[2]  Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before the Tribunal.  The Tribunal, however, recognises that it is an independent statutory body.  It must therefore reach its own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate.  In this regard, the Tribunal also notes the decision of Judge McNab in Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]), wherein his Honour referred to the decisions of Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]) and Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) in relation to the proper approach to the consideration of guidelines such as the Direction. Most pertinently, his Honour endorses the view espoused in those cases, that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The applicant is a 25-year-old male Indian citizen who is married to Ms Sharma (aged 24 years).[3]  The applicant first arrived in Australia on 7 August 2015 on a student visa which expired in March 2019.[4]  He then remained onshore on the basis of a second student visa from May 2019- November 2019, making the application which is the subject of the present review just nine days before the expiry of that student visa.[5]  He married his wife in December 2018 and she was a dependant on his second student visa.[6] 

    [3]See delegate’s decision and marriage certificate in the Department file.

    [4]See delegate’s decision.

    [5]See delegate’s decision.

    [6]See delegate’s decision.

14. The criteria that must be satisfied by the applicant is that he must be a member of the family unit of a person who holds a student visa, having satisfied the primary criteria for that visa.  The applicant has filed a marriage certificate dated 20 December 2018 with the Department and the couple has clearly satisfied the requirement of ‘member of the family unit’ in reverse roles in 2019.[7]  The Tribunal does not propose to change the determinative question in this case and accepts this marriage certificate on its face and that the applicant is a member of the family unit of his wife.  The Tribunal is also satisfied that his wife holds a student visa, having satisfied the primary criteria for that visa.

    [7]See delegate’s decision and Department file.

15. The applicant’s evidence at hearing in relation to his wife’s study and their future plans was somewhat concerning.  He stated that Ms Sharma plans on doing nursing upon completion of her Certificate IV in Disability.  When asked more about this he ultimately said, ‘we are not planning for her to do nursing here so far’.  Mr Sharma said that his wife will finish her study this year and once she has undertaken her placements they will return to India.  Overall, however, the evidence raised concerns that the applicant may have been wishing to appear to intend to return to India at  the end of this year for the purposes of a successful review application but that he may hold different intentions which will come to fruition upon completion of his wife’s Certificate at the end of the year.  The Tribunal makes no firm findings in this regard but merely raises this as a point of reference for any future decision makers should the applicant apply for a further temporary visa upon expiry of the Ms Sharma’s current student visa.

16. The applicant submits that his dad owns a transport business where he supplies road materials to local factories and is relying on the applicant to return and take over the business.[8] 

    [8]See submissions filed 26 April 2021, document ID 8350418.

17. The applicant’s father owns property (land, houses, trucks and cattle) in India which the applicant states he will inherit when his father passes, totalling approximately AUD2,830,180 equivalent.[9]  The applicant also owns a car in Australia worth AUD3,500.[10]  He worked as a motor mechanic from 6 March-31 July 2019 and as an uber eats driver from 7 July 2020-present and the household income is AUD600 per week (AUD31,200 per annum).[11]  The applicant states monthly expenses in Australia are AUD1,500 (AUD18,000).[12]  The Tribunal notes that the United Nations Human Development Index, which is a statistical comparison of life expectancy, education and per capita income indicators by country, ranks India as 131^st in the world as compared to Australia’s ranking of 8^th in the world.[13]  Ultimately, the Tribunal considers that the applicant’s economic circumstances in Australia relative to India appear to be presenting as a significant incentive for them to remain onshore.

    [9]See submissions filed 26 April 2021, document ID 8350418.

    [10]See submissions filed 26 April 2021, document ID 8350418.

    [11]See submissions filed 26 April 2021, document ID 8350418.

    [12]See submissions filed 26 April 2021, document ID 8350418.

    [13]See Table 1 of United Nations’ Human Development Report 2020 commencing at page 343 <>

    The applicant’s parents and three sisters live in India and he speaks to them every day.[14]  He claims to have strong ties to his home country and states that all of his sisters are married and his father’s health has been deteriorating for some years (requiring him to travel back to India urgently in 2018 and 2019 to help with the family and business) and his responsible for returning and taking care of his family obligations.[15]  The applicant has returned to India three times since his arrival: in September 2018 to help his family and the business when his father was diagnosed with coronary heart disease and hypertension; in 2018 to marry Ms Sharma; in 2019 when his father became unwell again and the applicant returned to take care of his family and business.[16]  The Tribunal accepts that the applicant has community ties to India that may be serving as a significant incentive for them to return but is concerned that they may still be outweighed by incentives and desires to remain onshore.

    [14]See submissions filed 26 April 2021, document ID 8350418.

    [15]See submissions filed 26 April 2021, document ID 8350418.

    [16]See submissions filed 26 April 2021, document ID 8350418.

18. The applicant is living onshore with his immediate family unit: his wife.  The Tribunal was very concerned that in his last application for his second student visa he stated he would return to India at the end of his visa period.  Instead, he remains onshore seeking a further period in Australia on the basis of a statement again that he will return to India when his wife finishes her studies.  The Tribunal has reservations that the applicant may be using the student visa migration programme as a means to maintain residence and/or to circumvent the intentions of the migration program.  The Tribunal put the previous statements he had made about departing Australia to the applicant at hearing, the applicant merely stated this was because of his wife and she needs to study for her career plans.  He stated he does not have any study or plans here and is just here because of his wife.  He has made written submissions about his desire to support his wife during her studies in the same way that she supported him during his.[17]  He refers to the support they gave each other during the COVID19 Pandemic period and claims that he wishes to return to India to start a family with his wife there.[18]  The Tribunal accepts these explanations are plausible but does not find them persuasive.  The applicant has been onshore for approaching six years now.  The length of the applicant’s stay in Australia, now in excess of five years, indicates that the applicant has a preference to remain onshore, particularly given he has been working and studying during that period and therefore engaging within the community.  It is reasonable to conclude that after nearly six years onshore, the applicant has cultivated a satisfactory life and established strong ties to the Australian community acting as a strong incentive for him to remain onshore.  As each day passes, those ties strengthen.

    [17]See submissions filed 26 April 2021, document ID 8350418.

    [18]See submissions filed 26 April 2021, document ID 8350418.

19. The Tribunal was troubled by the applicant’s immigration history in relation to his previous studies.  He has held fifteen different enrolments in a variety of different fields including automotive, business, hospitality, leadership and management and information technology.[19]  The applicant’s submissions of 26 April 2021 set out the reason for so many different enrolments which included having to return to India mid-course and obtain deferrals and or new enrolments.  The Tribunal accepts the applicant’s reasons for having so many different enrolments.  The Tribunal was still concerned about the variety of fields the applicant engaged in and his actual course progress.  The applicant has supplied certificates for completion of a Certificate IV in EAL (further study) from August-October 2015 ; a Certificate III in Light Vehicle Mechanical Technology from August 2017-Augsut 2018; and a Certificate IV in Automotive Mechanical Diagnosis from September 2018-February 2019.[20]  The Tribunal was concerned about the period from October 2015-August 2017.  The applicant was adamant at hearing that he had also completed a Diploma of Leadership and Management and a Diploma of Automotive Technology but that his course providers were not providing him with copies of certificate corroborating this and were asking for more money.  His migration agent also made submissions to this effect.

    [19]See delegate’s decision.

    [20]See submissions filed 3 May 2021.

20. All registered courses and course providers are listed in the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’), an online register kept in accordance with the requirements of the ESOS Act.[21]  Details of courses listed in CRICOS are integrated into the Provider Registration and International Student Management System (‘PRISMS’), a database maintained by the Australian government.[22]  The PRISMS database is the principal means by which registered course providers comply with legislative requirements relating to the monitoring of international students studying in Australia. 

    [21]Section 10 of the ESOS Act.

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

21. A search of the PRISMS records reflects the applicant’s evidence and that he has completed the two aforementioned Diplomas during his time onshore.  The Tribunal commends the applicant in this regard.  The applicant has made detailed submissions about why he changed study pathways so many times in his submissions of 26 April 2021 and the Tribunal allows for reasonable changes to study and career pathways and notes that the applicant  was only 19 years old when he first arrived in Australia and began studying.  Although the Tribunal had concerns about the applicant’s immigration history, ultimately on further exploration, it has determined it is not appropriate to place any weight against the applicant in this regard in the circumstances.

1. There is no evidence before the Tribunal that the applicant has had any other travel, visa or immigration issues in the past.[23] 

   [23]See submissions filed 26 April 2021, document ID 8350418.

2. There is no evidence before the Tribunal that the applicant has any potential military service in India or that he has any political or civil unrest concerns in India.[24]

   [24]See submissions filed 26 April 2021, document ID 8350418.

3. In considering whether the applicant meets the genuine temporary entry criterion, the Tribunal has considered the requirements of clause 500.312(a) and all of the applicant’s circumstances, with specific regard to the relevant considerations in the Direction.

4. The Tribunal notes that ‘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’ is also covered by the Direction.  The Tribunal considers it relevant that the Department has obviously found that the primary visa holder, Ms Sharma, is a genuine temporary entrant in granting her student visa.  The Tribunal considers in the context of the evidence before it that the applicant and his wife have joint future plans and that if either one of them intends to remain temporarily or permanently, the other is likely to also hold that intention.  The evidence and material before the Tribunal reflects a unified approach to a joint future.  In such circumstances, it seems to the Tribunal inappropriate to conclude that the applicant’s intention is not to remain temporarily while the primary visa applicant, Ms Sharma, has been found by the Department to be a genuine temporary entrant.  The Tribunal considers this must also be considered when deciding cases of this nature.

5. The Tribunal considers the factors for and against the applicant being a genuine temporary entrant are closely balanced in this case.  On balance, the Tribunal deems it appropriate to give the benefit of the doubt to the applicant.  In this regard, however, the Tribunal notes that the applicant had submitted and given evidence that upon completion of his wife’s study, they will return to India.  Should the applicant or his wife apply for a further visa upon expiry of her visa in 2022, the evidence and submissions given in connection with this case will clearly be relevant to any assessment of the true nature of their intentions onshore.

6. Having had regard to the applicant’s circumstances, his immigration history and all other relevant matters, the Tribunal is satisfied that the applicant meets the requirements of clause 500.312 of Schedule 2 to the Regulations.

7. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to reconsider.

   DECISION

8. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa: Clause 500.312(a) of Schedule 2 to the Regulations.

   Member

   T. Quinn

   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.