Singh (Migration)

[2020] AATA 6003

Singh (Migration) [2020] AATA 6003 (18 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Prabhjot Singh Singh

CASE NUMBER:  2007330

HOME AFFAIRS REFERENCE(S):          BCC2017/717883

MEMBER:T. Quinn

DATE:18 November 2020

PLACE OF DECISION:  Melbourne

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

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

Statement made on 18 November 2020 at 6:01pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– Federal Circuit Court remittal – Tribunal failed to provide the applicant with a meaningful hearing –genuine temporary entrant for study – significant downgrade in education level – positive study progress  – applicant is currently enrolled– decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 338, 347, 359, 360
Migration Regulations 1994, r 1.03, Schedule 2, cl 500,212

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

ORIGINAL APPLICATION FOR REVIEW

1. This is the return of an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (‘the delegate’) on 4 May 2017 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 applied for the visa on 22 February 2017 (‘the application’).   At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The applicant applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. On 4 May 2017, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that the applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

4. On 17 May 2017, 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. On 18 August 2018, the Tribunal conducted a hearing where the applicant gave evidence and presented arguments and the Tribunal handed down an oral decision affirming the delegate’s decision.  This decision was reduced to writing on 13 September 2018 (‘the First Tribunal Decision’).

6. The applicant made application to the Federal Circuit Court of Australia (‘FCCA’) for the FCCA to order that, inter alia, the First Tribunal Decision to be quashed the Federal Circuit Court of Australia (‘FCCA’)

7. On 16 April 2020, the FCCA made orders (by consent) that, inter alia, the First Tribunal Decision be quashed, and that this Tribunal be required to determine the application of 17 May 2017 according to law. The parties agreed that a jurisdictional error was made in the First Tribunal Decision in that the Tribunal failed to provide the applicant with a meaningful hearing as required by section 360 of the Act.

   RECONSIDERATION

8. More than three and a half years have elapsed since the making of the delegate’s decision and fifteen months have passed since the First Tribunal Decision. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed during that time. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information to the Tribunal for the purposes of determining the outcome of their application for review. To this end, on 16 November 2020, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’). The applicant responded to the s359(2) letter on 17 and 18 November 2020.

9. The applicant appeared before the Tribunal via telephone hearing on 18 November 2020 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.  The applicant was assisted in relation to the review by their registered migration agent who also attended the hearing.

10. The Tribunal has proceeded to a decision having regard to all the information before it, including the material and evidence provided by the applicant on the day of the hearing.

11. For the following reasons, the Tribunal has concluded that the decision under review ought to be remitted for reconsideration 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.all written material filed by or on behalf of the applicant in both Tribunal files (for the present proceeding and the proceeding relating to the First Tribunal Decision);

    c.the FCCA decision and related materials;

    d.the submissions made by the applicant’s migration agent; and

    e.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 that information that the Tribunal has been found to be fundamental or materially significant to the determination of the issues in the case.

    STATUTORY FRAMEWORK

12. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant.

13. 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?

14. In considering whether the applicant satisfies clause 500.212(a), the Tribunal must have regard to the Direction as set out above pursuant to section 499 of the Act. The Direction 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.

15. 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.

16. 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.[1]  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.

    [1]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

17. The applicant is a 35-year-old male Indian citizen who first arrived in Australia on 3 August 2014 on a Higher Education Sector visa which was due to expire on 15 March 2017.[2]  He has remained onshore since the expiry of that visa on a bridging visa awaiting the outcome of this student visa application and associated review/remittal proceedings.[3]  Prior to arriving in Australia, the applicant completed a Diploma in Computer Application in 2004, a Computer Hardware and Networking course in 2006 and a  Bachelor of Science (Information Technology) in 2010 in India.[4]  He worked as an Assistant Hardware Engineer in 2007 earning 1100AUD equivalent per annum and as a Supervisor with the same organisation from the time he completed his degree in 2010 until July 2014 earning 1500AUD equivalent per annum.[5] 

    [2]           See delegate’s decision.

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

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

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

18. The applicant initially arrived in Australia with an intention to undertake a Master of Information Technology, but he has made submissions that he found this study too big a change from the study he had undertaken in his home country and too difficult for him.  He has enrolled in a number of different courses set out in the delegate’s decision, these courses were in various fields and the only course he had actually completed at the time of the First Tribunal Decision was a Diploma in Business in 2016.[6]  This understandably raised concerns for the delegate and the Tribunal at first instance about the true nature of his intentions onshore, particularly given his right to such residence was based on a Higher Education Sector visa and at that time he had not completed any Higher Education Sector courses.  However, since the time of the First Tribunal Decision, the applicant has completed the Bachelor of Business Management which he was seeking to undertake (in 2018) and gone on to make the decision to pursue a career in the automotive field where he hopes to run his own business.[7]  On this basis, the applicant has completed a Certificate III in Mechanical Technology and is weeks away from completion of his Certificate IV in Mechanical Diagnosis and is due to complete his Diploma of Automotive Technology in November 2021, at which time the applicant has given evidence that he will return to his home country.

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

    [7] See applicant’s response to the s359(2) letter and evidence at hearing.

19. The Tribunal was troubled by the significant downgrade in education level that these courses represent for the applicant.  The Tribunal was also concerned by the significant change in career pathways undertaken by the applicant (although the Tribunal does allow for reasonable changes to study and career pathways, the applicant’s changes in fields of study and enrolments raises concerns).  The applicant gave evidence that he has been working as an assistant mechanic since 2018, while he was also studying his Bachelor of Business Management and it was during this time he felt he learnt that he could become a successful business man and that this would be in the field of mechanics.  The applicant has made submissions that the area in which he would set such business up in his home country has competition from only un-qualified individuals and that he would have a competitive advantage in this regard.  The applicant also explained that he pursued study and work in the field of Information Technology when that field was flourishing in India but now the automotive field is a more successful industry to work in.  The applicant submitted that with these qualifications he will earn AUD1000-1500 equivalent compared to AUD600-1000 equivalent (per month).[8]  The Tribunal is concerned by the applicant’s study history and the downgrade in study level but found the applicant’s explanation plausible and accepts that the qualifications gained are relevant to and likely to assist and improve his career prospects in running an automotive mechanic business in his home country.

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

20. The applicant has made excellent progress in his study since the First Tribunal Decision and this is to his credit, particularly given he has been residing onshore without holding a student visa, managing the uncertainty of the outcome of this application.

21. The Tribunal is also conscious that the COVID19 Pandemic restriction and conditions have created challenges globally and must be accounted for in considering the applicant’s circumstances as a whole.

22. The applicant states that skilled mechanics in India are in high demand but India lacks the infrastructure and basic facilities in the industry and the number, and state of technology, of vocational institutes offering the courses are not as advanced as in Australia, including safety standards and quality of training.[9]  The Tribunal considers the application has provided reasonable reasons for undertaking the proposed study in Australia.

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

23. The applicant has been working onshore. There was some confusion about the applicant’s work prior to the delegate’s decision at hearing – he gave evidence that he had been working as a cleaner prior to the delegate’s decision earning AUD500-600 per week but when questioned about why he did not disclose this to the Department and to the Tribunal in his response to the s359(2) letter he stated he was working as a cleaner at the same place he has been working as an Assistant Mechanic but he did not have sufficient space in the questionnaire filed in response to the s359(2) letter to write it. The Tribunal does not accept this evidence. The applicant’s response to the s359(2) letter states he has been working as an Assistant Mechanic from June 2019-October 2019 earning AUD8,000 per annum and as an Assistant Mechanic and Driver from November 2019-current earning AUD31,000 per annum.[10]  Neither of these roles commenced prior to June 2019 which was well and truly after the delegate’s decision.  The Tribunal is very troubled by this evidence and considers it likely that the applicant has not been forthright in the information he provided to the Department in relation to his work and income during 2017.  This raises concerns about his reliability generally.  The applicant was also working from December 2018-May 2019 earning AUD13,000 per annum as a driver.[11]  The applicant’s expenses onshore are AUD15,540 per annum and he owns a car in Australia worth AUD1,500.[12]  The applicant has been earning thousands of Australian Dollars in excess of his expenses onshore each year.  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 129^th in the world as compared to Australia’s ranking of 6^th in the world.[13]  The Tribunal considers that the applicant’s economic circumstances in Australia relative to India are presenting as a significant incentive for him not to return to his home country or region.

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

    [11] See applicant’s response to the s359(2) letter and evidence at hearing.

    [12] See applicant’s response to the s359(2) letter and evidence at hearing.

    [13]See Table 1 of United Nations’ Human Development Report 2019 commencing at page 300 <>

    The applicant states he does not have any connections (in terms of community ties) in Australia.[14]  However, the applicant has now been living onshore for in excess of six years, including working and studying.  It is reasonable to conclude that after a period of in excess of six years the applicant has formed strong ties to the Australian community.

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

24. The applicant has returned to India three times since his arrival: in 2015 for 32 days to visit his family and celebrate Diwali Festival; in 2018 for 35 days to visit his family and celebrate his marriage anniversary; and in 2019 for 20 days to visit his family and celebrate his sister’s marriage.[15]  Both of his parents, his wife and brother and sister live in India.[16]   He speaks to them every day.[17]   He states that his is very connected to his family, cousins and friends in his home country and often connects with them virtually on special occasions and for religious ceremonies.[18]  The Tribunal accepts that the applicant may have personal ties to India serving as an incentive for him to return but does not consider it has sufficient information to make any firm conclusions as to whether such ties are acting as a significant incentive for him to return, particularly given he has now been onshore for in excess of six years. 

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

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

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

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

25. The applicant has had no travel, visa or immigration issues in the past and does not have any potential military service obligations or political or civil unrest circumstances in India. 

26. The Tribunal has had regard to all relevant information provided by the applicant and his migration agent (or information otherwise available to the Tribunal), including all submissions, when assessing the applicant’s intention to temporarily stay in Australia, including information that may be either beneficial or unfavourable to the applicant. 

1. The Tribunal is concerned about the applicant’s study history prior to the First Tribunal Decision and his failure to complete any Higher Education Sector courses while residing onshore on the basis of a Higher Education Sector visa from August 2014-May 2018.  The Tribunal is also concerned about the applicant’s economic incentives to remain onshore and his troubling evidence in this regard, the downgrade in education level this represents and the significant change in career pathway.  However, the applicant made persuasive submissions in writing and at hearing about his future career goal and how these qualifications will assist him and has demonstrated his commitment to his studies since the time of the First Tribunal Decision with impressive vigour. 

2. The Tribunal considers the factors for and against the applicant being a genuine applicant for entry and stay as a student temporarily are finely balanced in this case.  Ultimately, the Tribunal has determined to give the benefit of the doubt to the applicant, particularly given the applicant’s recent study progress and the fact that he is now only twelve months from completion of his studies and the COVID19 Pandemic conditions at present.  The Tribunal notes that the applicant stated he is due to finish his course in November 2021 and he intends to then return to his home country.  Therefore, one would expect that by that time next year, the applicant will have completed his study, returned to India and put into motion his future career plan.  Should the applicant instead make a further application for a student visa after this time, the evidence he gave to the contrary in connection with this case will clearly be relevant to his true intentions.

3. Having had regard to the applicant’s circumstances, his immigration history and all other relevant matters, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student temporarily as required by clause 500.212. Accordingly, the applicant meets clause 500.212(a) of Schedule 2 to the Regulations.

4. 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

5. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa: Clause 500.212(a) of Schedule 2 to the Regulations.

   T. Quinn
   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.