Singh (Migration)

[2019] AATA 3538

Singh (Migration) [2019] AATA 3538 (16 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Jaswinder Singh

CASE NUMBER:  1719544

HOME AFFAIRS REFERENCE(S):           BCC2017/1911561

MEMBER:T. Quinn

DATE:16 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 16 April 2019 at 5:39pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine student – genuine temporary entrant – enrolment in a registered course – limited course progress – lengthy residence in Australia – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2 cl 500.212

CASES

Baker v Minister for Immigration and Citizenship [2012] FCAFC 145
Chen v Minister for Immigration and Border Protection [2017] FCA 46
Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345
FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555
Hasran v MIAC [2010] FCAFC 40
Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112

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 Immigration and Border Protection (‘the delegate’) on 9 August 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 30 May 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 9 August 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 27 August 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. The applicant was assisted in relation to the review by their registered migration agent.

6. More than 17 months have elapsed since the making of the delegate’s decision and the applicant’s application for review with the Tribunal. 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 his application for review. To this end, on 17 January 2019, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting him to provide information in writing about the course(s) of study the applicant was undertaking and his entry and stay in Australia as a student (‘the s359(2) letter’). The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by the prescribed date, being 31 January 2019, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The Tribunal is satisfied that the applicant was properly sent an invitation to provide further information under section 359(2) of the Act.

7. The review applicant did not provide the information within the prescribed period or otherwise and no extension of time was requested. Where a review applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action.[1] 

   [1] Pursuant to section 359C(1) of the Act.

8. The Tribunal finds that the review applicant did not provide further information as requested. In these circumstances, section 359C of the Act applies and pursuant to section 360(3) of the Act the review applicant is not entitled to appear before the Tribunal. The effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear.[2]

   [2]           Hasran v MIAC [2010] FCAFC 40.

9. The Tribunal, therefore, has no additional information relating to the applicant’s visa application beyond that which was before the delegate on 9 August 2017 and is otherwise discernible from the delegate’s decision and Department file.

10. 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.

11. The Tribunal has proceeded to a decision having had regard to all the information before it, including the information previously provided by the applicant to the Department and the Tribunal’s previous decision from 2015 in relation to the applicant but without taking further steps to obtain the additional information sought by this Tribunal under section 359(2) of the Act.

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

    STATUTORY FRAMEWORK

13. 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.

14. 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?

15. In considering whether the applicant satisfies clause 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’ (‘the Direction’), made under 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.

16. 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.

17. 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.[3]  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.

    [3]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].

    APPLICANT’S PREVIOUS CASE BEFORE THE TRIBUNAL – 1411557

18. On 10 July 2015, the applicant appeared before this Tribunal before Member Mercer, seeking a review much the same as that before the Tribunal presently.  It related to the instruments applicable in 2015, but the substance was a review of a decision of the Department to refuse to grant a student visa, based on failure to meet the genuine temporary entrant criteria.

19. Member Mercer, in her decision of 17 September 2015 (case number 1411557, Department reference BCC2014/158881) outlined a difficult emotional and health history of the applicant.  This included the applicant arriving in Australia in November 2007 as a dependant on his wife’s visa, later divorcing and suffering resultant emotional and mental health difficulties as well as, unrelated but temporal, concerns with his mother being unwell in his home country.

20. Notably, Member Mercer gives the following summary:

    a.on 6 June 2015, the applicant’s agent provided additional material, which included a letter dated 4 June 2015 confirming that the applicant was enrolled in a Diploma of Business at Sunshine College of Management, that he commenced on 13 October 2014 and was due to finish on 10 January 2016…; and

    b.[at hearing t]he applicant stated that when he finished his Diploma, he would return to India. He showed the Tribunal a one-way ticket to India booked for 3 December 2015, for which he had already paid….  The applicant reiterated that he intended to return to India and use his Diploma to re-enter the family [rice export] business and improve it.  He also stated that it is planned that he will re-marry again and that is another incentive for him to return to India.

21. Member Mercer also raised the following concern for the applicant’s case at that time:

    The Tribunal has considered the applicant’s explanation that he would be able to contribute to the expansion of the [family] business [in India] more effectively if he is fluent in English and holds an Australian qualification.  However, the Tribunal considers that the applicant would be suitably experienced to do so now, if that were his genuine intention, as he already has experience working in the family business in India and has now completed an ELICOS course.  It does not consider that the course that the applicant is presently enrolled in would add substantial value to his career prospects.

22. Most significantly, Member Mercer provides as follows:

    The Tribunal considers that the factors for and against the applicant being a genuine temporary entrant for study in Australia only, or is seeking through his current study to simply maintain ongoing residence, to be closely balanced in this case.

    On balance, the Tribunal considers it appropriate to give the benefit of the doubt to the applicant, and it finds that he genuinely does intend to complete the Diploma course and return to India at its conclusion.  The Tribunal notes that the PRISMS records indicate that this course is due to finish in January 2016 and that the applicant is currently studying. He is therefore close to completing the Diploma course.  Should the applicant make a further student visa application on the basis of his intention to undertake further study after this, the evidence he gave to the contrary in connection with this case will clearly be relevant to any assessment his intention to stay in Australia temporarily only to study.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The applicant in this case is a 31 year old male Indian citizen whose sister is an Australian citizen (see Tribunal case number 1411557 where the applicant’s sister gave evidence at hearing), living here with her husband.  The delegate’s decision indicates that the applicant first arrived in Australia on 19 November 2007 on a Student visa (TU 572) as a dependant on his wife’s student visa.  The applicant has been onshore on either a Student visa or associated bridging visas for over 11 years.  The delegate also indicated that at the time of the delegate’s decision, the applicant had on spent 223 days offshore compared to 3257 days in Australia.

24. Prior to coming to Australia, the applicant completed secondary school with Punjab School Education Board.[4]

    [4]           See Department File page 53.

25. Since his arrival in Australia, the applicant has completed a Diploma of Business and Management.[5]  The applicant also provided to the Department a Statement of Attainment from his course provider reflecting competence in 6 subjects in his Advanced Diploma of Business.[6]

    [5]See Department File pages 35 (being a certificate recording this), 34 (being a record of results for 8 subjects, dated 27 January 2016) and 53 (being the applicant’s application to the Department).

    [6]           See Department File page 33.

26. The applicant’s application is to complete his Advanced Diploma of Business and undertake a Bachelor of Business.[7]  There is insufficient evidence before the Tribunal to ascertain whether the applicant has now completed his Advanced Diploma and/or commenced the Bachelor of Business or any other study.  The Tribunal therefore cannot conclude further in relation to the applicant’s academic progress since making his application in 2017.  The Tribunal does, however, note that it appears from the delegate’s decision that since his arrival in 2007, the applicant has only completed two English courses and a Diploma of Business.  The Tribunal acknowledges that until January 2014, the applicant was in Australia as a dependant and not studying but, on the material before the Tribunal, it appears that the applicant has been on his own student visa (or associated bridging visa) for in excess of five years now has made limited substantive academic progress. 

    [7]           See delegate’s decision.

27. In a critical part of the Department’s application form, whereby an applicant is asked to provide a genuine temporary entrant statement demonstrating that they meet the genuine temporary entrant criteria prescribed by the Regulations, the applicant stated ‘please find it attached’.[8]  However, the Tribunal has not found a genuine temporary entrant statement in any of the current case materials.  The applicant states, in his application to the department, ‘[a]fter completion of my studies, I will return back to India and look after my family business’.[9]  The Tribunal notes, however, that the applicant gave evidence before this Tribunal in 2015 that upon completion of his Diploma studies in early 2016, he would return to India to work in his family business.  This has not occurred.  The Tribunal, therefore, has difficulty accepting the applicant’s stated goal to return to India and look after his family business.

    [8]           See Department File page 52.

    [9]           See page 52 Department File.

28. The applicant has listed only his mother in relation to family living outside Australia.  The Tribunal acknowledges from reading the previous case before the Tribunal that the applicant returned to India when his mother was unwell in 2014/2015.  This is consistent with the applicant’s travel to India from 12 December 2014 to 24 February 2015.  The applicant also indicated he returned to India from 1 October 2008 to 15 January 2009 and 20 November 2014 to 27 January 2014.[10]  The applicant has not put forward any other evidence in relation to his ties with his home country and the Tribunal considers such ties are not serving as a significant incentive for him to return to his home country, given his limited travel home and the length of time he has been onshore for.

    [10]          See applicant’s application at Department File page 55.

29. As at 2015, the applicant’s sister was an Australian citizen and was living with her husband in Australia and assisting in financial and emotional support of the applicant.  The applicant has not mentioned his sister in his present application to the Department but it is clear that he had a close relationship to his sister in 2015 and that she was supporting him, including giving evidence in support of his application before this Tribunal at that time.  The applicant states that he is in a defacto relationship in his application to the Department (page 49).  The applicant has not put forward any other evidence in relation to his personal ties to Australia but the length of his stay in Australia for in excess of 11 years suggests that he has a preference to remain.  It is reasonable to conclude that, after more than 11 years, the applicant has cultivated a satisfactory life and has established strong ties to the Australian community.  As each day passes, those ties strengthen.

30. The applicant has not provided any information in relation to: his circumstances in his home country; his reasons for not undertaking this study in his home country (and the Tribunal notes that Member Mercer had concerns about his reasons for not undertaking the study in his home country in 2015); his reasons for choosing his current course provider; how this study is relevant to his employment or remuneration he could expect to receive using the qualifications gained.  The paucity of information in support of the applicant’s application makes it difficult for the Tribunal to find factors weighing in his favour.

31. The Department file contains a document in which the applicant sought permission to travel to Thailand for two days in June 2017 for a holiday (see pages 38-41) which appears to be the only other travel the applicant has undertaken outside of the three trips he has taken to India described above.  There is otherwise no evidence before the Tribunal that the applicant has had any travel issues, visa or immigration issues in the past.  The Tribunal is, however, troubled by the applicant’s previous application to this Tribunal in relation to his previous student visa and the evidence he gave there described above, in that it is not consistent with the applicant’s current status in applying for a further student visa, rather than returning home at the start of 2016.

1. The applicant has listed ‘student’ in his application to the Department when asked about his employment situation.  The Tribunal has insufficient information before it in relation the applicant’s economic circumstances in Australia and cannot make a finding in this regard in the circumstances.

2. The applicant has not presented information regarding any potential military service in India, political or civil unrest circumstances in India or circumstances in India relative to others in that country.  Accordingly, these Direction 69 factors are not relevant and have no bearing, either favourable or unfavourable, in the present application for review.

3. The applicant’s application and submissions do not provide sufficient detail, nor is there sufficient evidence before the Tribunal, to satisfy the Tribunal that the applicant genuinely intends to stay in Australia temporarily.  Indeed, the material before the Tribunal indicates that the student visa programme is being used to circumvent the intentions of the migration programme to maintain ongoing residence.  The Tribunal is particularly vexed by the applicant’s evidence given to this Tribunal nearly four years ago that he intended to depart after his Diploma, producing a one-way ticket to India in support.  The Tribunal heeds Member Mercer’s comments outlined above when she found in the applicant’s favour in that application and considers the applicant’s conduct since that hearing indicate that he is not, in fact, a genuine student.  It would appear to the Tribunal that if the applicant was a genuine student he would have completed his studies and returned to India by this time to set in motion his plan to look after his family business.

4. Having had regard to the applicant’s circumstances, his immigration history and all other relevant matters, the Tribunal cannot be 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 does not meet clause 500.212.

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

   DECISION

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

   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.