Singh (Migration)

[2019] AATA 4831

Singh (Migration) [2019] AATA 4831 (16 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Satwinder Singh

CASE NUMBER:  1823766

HOME AFFAIRS REFERENCE(S):           BCC2018/3918955

MEMBER:Glenn O'Brien

DATE:16 October 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 16 October 2019 at 10:56am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– study is not relevant to the applicant’s previous employment –genuine temporary entrant criterion not met – change of career path – a series of low level courses  – using student visa to maintain ongoing residence –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 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 30 July 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 25 June 2018. 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 applicant provided the Tribunal a copy of the delegate’s decision record with the application for review. 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 11 October 2019 to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a Subclass 500 (Student) 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. The applicant arrived in Australia on 8 April 2013 as the holder of a student visa to undertake study in English for Academic Purposes, a Certificate IV in Business, a Diploma of Business, and a Bachelor of Business.

12. 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 present summary of enrolment. The Tribunal explained to the applicant the relevance of the records that are reviewed 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 and respond to the information. The applicant did not seek an adjournment and elected to respond to the information during the course of the hearing.

13. 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.  The applicant told the Tribunal that to Australia offered the applicant much more practical training and that lectures are also very different in terms of the manner of teaching, with better student facilities such as computers.

14. The applicant completed high school in India in 2011 and did not undertake any paid employment in India before travelling to Australia.

15. The applicant’s wife, sister and parents reside in India.  The applicant has returned to India on four occasions since 2013 for the purposes of visiting family.   The applicant’s parents and wife also visited him in Australia in 2019.  The applicant told the Tribunal his father supports him financially while he is studying in Australia.

16. The applicant has worked part-time in Australia since November 2013 and since November 2014 has worked as a taxi driver.  The applicant currently earns approximately AUD400 to 500 per week on the basis of 20 hours work per week.  The applicant told the Tribunal he intends to seek part-time work in his now chosen industry in automotive while studying.

17. The applicant told the Tribunal on completion of his courses he intends to return to India to pursue a career as a mechanic.  The applicant told the Tribunal that his Certificate IV will enable him to work as a mechanic and his Diploma will enable him to establish and run his own business.  The applicant has not applied for any positions and has made no substantive plans in relation to establishing his own business.  The applicant told the Tribunal he anticipates earning approximately IR60,000 to IR80,000 (AUD1,250 to AUD1,650) per month.  He obtained this information from a friend who works in India.

18. The applicant does not have significant assets in India or Australia but expects to inherit property from his parents.

19. In considering the applicant’s circumstances in his home country on the basis of the matters set out in these reasons for decision, 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 through the residence of his wife, parents and sister, and an obligation as the only son to care for his parents, and an expected inheritance.  In considering the period of time the applicant has been in Australia, the limited return travel to India since 2013 and the financial support received from the applicant’s family while he has been in Australia, these circumstances are not a significant incentive to return. 

    c.The applicant is supported financially during his study in Australia by his family.  The applicant has worked part-time in Australia and earns approximately AUD400 to AUD500 per week.  The applicant did not hold paid employment in India and has taken no substantive steps in relation to seeking employment or establishing his own business in his home country.   The applicant’s anticipated income is speculative and not related to any specific position.  The Tribunal accepts the applicant’s living expenses in India are likely to be less than 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 any military service commitments which would provide an 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.

20. The applicant told the Tribunal he rents a house with two other people.  Given the period of time the applicant has been in Australia, and the absence of return travel to India, the Tribunal is satisfied the applicant has developed friendships and social connections to Australia, through his residence and study in Australia. 

21. The applicant travelled to Australia in 2013 to undertake a series of courses leading to a Bachelor of Business.  After completing English for Academic Purposes, the applicant did not commence his intended courses of study and regressed to the vocational education sector to undertake a Diploma of Business, Advanced Diploma of Business, and a Bachelor of Business.  The applicant completed the Diploma and Advanced Diploma and but did not complete the Bachelor of Business.  The Tribunal accepts that students may struggle at a tertiary level and the regression to vocational training in the first instance was reasonable.  The applicant was granted a further student visa on 22 November 2016 to undertake a Diploma and Advanced Diploma of Leadership and Management.  The applicant completed those courses along with a Certificate IV in Marketing.  Two days before the cessation of that student visa the applicant applied for the current student visa under review to undertake an Advanced Diploma of Hospitality Management and told the Department of Immigration and Border Protection that this course of study offered the applicant a pathway to work in hospitality with employers including restaurants, hotels, motels, and other clubs.  The applicant did not complete that course of study and has now enrolled in a Certificate III in Light Vehicle Mechanical Technology, Certificate IV in Automotive Mechanical Diagnosis, and a Diploma of Automotive Technology, extending the applicants period of temporary residence in Australia until October 2020.   The applicant told the Tribunal he changed to automotive as the college cancelled his confirmation of enrolment due to his visa refusal and he was told he did not have to study until the outcome of the review.  The applicant also told the Tribunal that his friend told him to seek enrolment in automotive studies.  Notably the applicant’s enrolment in an Advanced Diploma of Hospitality Management and his current automotive courses were with the same education service provider and he enrolled in his automotive studies shortly after his previous confirmation of enrolment was cancelled. 

22. While the Tribunal accepts that applicants may change their career and study pathways, the applicant travelled to Australia to undertake study in business related courses leading to a tertiary qualification at TAFE.  The applicant reverted to vocational sector training, and has changed his field of study from business, to leadership and management, to marketing, hospitality management, and now automotive.

23. The applicant has completed a number of courses in the vocational education sector including:

    English for Academic Purposes

    Diploma of Business

    Advanced Diploma of Business

    Diploma of Leadership and Management

    Advanced Diploma of Leadership and Management

    Certificate IV in Marketing

24. The applicant’s change in fields of study has on several occasions coincided with the applicant completing his intended courses of study shortly before the cessation of his then student visa.  At no stage has the applicant sought to return to India to utilise the qualifications obtained to seek employment. 

25. The Tribunal does not consider the applicant’s change in fields of study or career paths reasonable.  The applicant has changed from business, to leadership and management, to marketing, hospitality and automotive and has not at any stage sought to return to India on completion of any course of study to utilise those qualifications in a particular field. 

26. The applicant’s registered migration agent told the Tribunal it was normal to only progress to advanced diploma level qualifications, to change fields of study on a number of occasions, and to only apply for another visa shortly before the cessation of an applicant’s then visa.   While in some instances these matters may be reasonable, in considering the applicant’s circumstances as a whole the Tribunal does not consider the applicant’s academic progression, changes to his career and study pathways, or the timing of his visa applications reasonable.  The applicant’s registered migration agent also told the Tribunal that the applicant had a vocational education visa and QUT should not have initially offered him enrolment in a Bachelor level qualification because of his English level and ability.  While the Tribunal accepts the applicant’s more recent visa has been for study in the vocational training sector, the applicant’s changes in fields of study and limited progress to advanced diploma since 2013 is neither reasonable nor demonstrable of reasonable academic progression.

27. The applicant has not since 2009 progressed beyond an advanced diploma level qualification.  While the applicant has obtained skills in a number of different fields, those skills have not been utilised for the purposes of employment and the Tribunal does not consider the applicant has evidenced reasonable academic progression since 2013.

28. In considering the applicant’s potential circumstances in Australia, on the basis of the matters set out in these reasons for decision, and on the evidence before the Tribunal, the Tribunal finds:

    a.The applicant has ties to Australia for the period of time the applicant has been living in Australia to study since 2013.  The Tribunal is satisfied the applicant has developed friendships in Australia through his study, and considers the social and emotional connection to Australia to provide a strong incentive to remain.

    b.The applicant’s pattern of enrolment, timing of his visa applications on completion of his then intended courses of study shortly before the cessation of his then visa, changes in fields of study, regression in study, and enrolment in further courses of study not contemplated at the time of travelling to Australia or at the time of his then current visa, evidence the study visa program is being used to circumvent the intentions of Australia’s migration program.

    c.The Tribunal accepts that applicants will change their career and study pathways, however the applicant’s changes over a period of seven years on a number of occasions is not reasonable.  In considering the matters set out in these reasons for decision, including the applicant’s period of time in Australia, academic progression, the enrolment in  courses of study not contemplated at the time of travelling to Australia, the enrolment in a number of different fields of study and the change in career and study pathways at the completion of an intended course of study prior to the cessation of the applicant’s then visa, the student visa is being used 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. 

29. The applicant’s proposed course of study is a regression from the tertiary qualifications the applicant travelled to Australia to obtain.  The courses are also a regression from the advanced diploma level qualifications already obtained in Australia.

30. The proposed qualification is not relevant to the applicant’s previous employment and is generally relevant to his future career goals and aspirations.  The proposed course of study will provide the applicant with additional skills and qualifications.  Notably, the applicant has already attained a Diploma and Advanced Diploma in Business, and in Leadership and Management.  

31. The proposed course of study will provide some additional skills and qualifications and will assist the applicant to obtain employment or improve his employment prospects in the automotive industry.   However, in considering the limited steps taken by the applicant in relation to his future employment and previous pattern of enrolment the Tribunal considers the applicant’s stated career goals and aspirations are formulated to justify the current course of study – rather than the applicant pursuing qualifications for the purpose of obtaining employment in his now chosen field.  Notably the applicant has not sought to utilise any qualification previously obtained in Australia for the purposes of obtaining employment in India.

32. 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 regression from the applicant’s previously attained qualifications in Australia.

    b.The applicant’s proposed course of study is not relevant to the applicant’s previous employment but is of general relevance to his future career goals and aspirations.

    c.The proposed course of study will provide the applicant with assistance in seeking employment or improving his employment prospects in the automotive industry.  The Tribunal considers that the applicant’s most recently stated career goals and aspirations to be a mechanic or to open his own business in automotive have been formulated to justify his current courses of study.

    e.The remuneration the applicant can expect in his home country is uncertain. The Tribunal accepts the applicant’s living expenses in India are likely to be less than in Australia. The applicant is financially supported in Australia and has consistently engaged in part-time employment in Australia since 2013.

    f.There is no evidence before the Tribunal in relation to comparative remuneration the applicant would receive in Australia and in India, in utilising the qualifications the applicant seeks to obtain, 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 otherwise applied for visas to Australia.

2. The applicant has not been subject to or considered for any visa cancellation or refusal, other than the subject visa application presently before the Tribunal and his previous dependent student visa that was cancelled. 

3. Prior to travelling to Australia in 2013, the applicant had not previously travelled to Australia from other countries or from Australia to other countries.

4. Other than travel to India in 2016, 2017 (twice), and 2018 the applicant told the Tribunal he has also travelled to New Zealand on three occasions in 2015, 2018, and 2019 to visit family.

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

   a.Other than the matters set out in the delegate’s decision record and these reasons for decision, the applicant has not applied for any other visas to Australia. 

   b.There are no other instances where visa applications have been undecided or considered for refusal or cancellation to Australia other than the current student visa under review.

   c.Prior to travelling to Australia in 2013 the applicant had not previously travelled to Australia.  The applicant has not held a visa that has been cancelled or considered for cancellation. 

   d.The applicant has travelled to India in 2016, 2017 (twice), and 2018 and New Zealand in 2015, 2018, and 2019. 

   e.The applicant travelled to Australia in 2013 to undertake a series of courses in business leading to a Bachelor of Business.  The applicant reverted to vocational educational training and has subsequently completed a series of courses in business, leadership and management, and marketing.  The applicant did not complete the course in hospitality in which he was enrolled and is now enrolled in automotive studies.  Notably, the applicant has not sought to utilise the qualifications previously obtained in Australia to obtain employment and his change in fields of study to hospitality (and now automotive) coincided with the cessation of his then student visa.  The Tribunal considers the applicant enrolled in his current courses of study for the primary purpose of maintaining his residence in Australia. 

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

6. 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.

7. As required by Ministerial Direction No.69, the Tribunal inquired of the applicant as to whether he wanted to make submissions in relation to any other relevant matter for the purposes of assessing the application.  No other relevant matters were raised by the applicant at the hearing. 

8. The Tribunal had regard to all of the factors in Ministerial Direction No.69 in considering the applicant’s circumstances as a whole, and in making these findings, and is not satisfied the applicant intends genuinely to stay in Australia temporarily. 

9. Accordingly, the applicant does not meet cl.500.212(a). For cl.500.212 to be satisfied, paragraphs (a), (b) and (c) must all be satisfied. The Tribunal has found that paragraph (a) is not met and it is not necessary to consider paragraphs (b) and (c). Accordingly, the Tribunal is not satisfied the applicant is a genuine applicant for entry and stay as a student, as required by cl.500.212.

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

    DECISION

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

    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.