Singh (Migration)

[2023] AATA 1368

Singh (Migration) [2023] AATA 1368 (9 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sandeep Singh

REPRESENTATIVE:  Mr Harsh Yadav (MARN: 2117646)

CASE NUMBER:  2200733

HOME AFFAIRS REFERENCE(S):          BCC2021/1615975

MEMBER:Peter Booth

DATE:9 May 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 09 May 2023 at 12:41 pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – applicant changed to vocational courses – impact of the COVID19 pandemic – multiple course cancellations – value of courses to future career – maintaining ongoing residence in Australia – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359, 363, 499; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212

CASES

Hasran v MIAC [2010] FCAFC 40

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 13 January 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 19 August 2021. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant was not a genuine temporary entrant.

4. The applicant was assisted in relation to the review.

5. On 24 March 2023 the Tribunal wrote to the applicant pursuant to s 359(2) of the Act, inviting the applicant to provide information about the review application in writing. The invitation was sent to the  applicant’s registered migration agent and advised that, if the information was not provided in writing by the prescribed period, being 5 April 2023 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 they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The applicant did not provide the information within the prescribed period and no extension of time was requested. In these circumstances, s 359C applies and pursuant to s 360(3) the applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to a decision without taking further steps to obtain the information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Genuine applicant for entry and stay as a student (cl 500.212)

9. 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?

10. 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.

11. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

12. In the absence of a hearing the Tribunal turns to consider the available evidence.

13.   The applicant was invited to provide information to the Tribunal in a comprehensive fashion by completing a “request to provide information” questionnaire on three occasions namely on 23 November 2022, 1 March 2023 and again on 24 March 2023. He has not done so. However, the applicant has provided some limited information to the Tribunal: two Confirmations of Enrolment have been provided; the first in respect of a Certificate III in Carpentry due to be conducted between 1 February 2021 and 28 January 2023. The second in respect of a Diploma of Building and Construction due to be conducted between 30 January 2023 and 28 January 2024. Next, a document titled “genuine temporary entrant”. This document is undated, unsigned and without page or paragraph numbers. Some information can be gleaned from this document as follows. The applicant was born in India in 1995 and is an Indian citizen holding a passport. He completed his senior secondary education in India in 2013. He then completed a Bachelor of Science in India in 2016. He came to Australia on 18 December 2017 as the holder of a “student visa (subclass 500)” with the intention of studying a Master in Information Technology. He withdrew from this course “due to different course content and too many subjects, I was unable to come up with my course work”. He does not state when he discontinued the course. He then enrolled in a Graduate Diploma of Management which commenced on 20 January 2020 “but due to Covid 19 pandemic I was unable to complete my coursework being all alone here I was feeling tensed (sic) in this world pandemic apart from my family”. He then states that he enrolled in a Certificate III in Carpentry due to be completed by 28 January 2023 and thereafter “I will be pursuing a Diploma of Building and Construction due to commence on 30 January 2023 and be completed by 28 January 2024”. He also states that he will return to India after the completion of the diploma course and intends to seek employment in the industry and to “operate my own business”. No further details of his career aspirations were provided.

14.   There is no evidence as to the applicant’s employment history in India, the whereabouts of his immediate family, whether he owns real property in India, his employment history in Australia and any other connections to Australia.

15.   By letter dated 1 March 2023 the applicant was informed that the matter would be heard by the Tribunal on 27 March 2023.

1. By email dated 23 March 2023 the applicant’s representative contacted the Tribunal requesting an adjournment in the following terms:

   The applicant has confirmed that he needs to travel to India on an urgent basis due to a family emergency. I request you to please postpone the hearing date which is 27 March 2023.I would be grateful for your kind consideration and will look forward to hearing from you soon. A reply to this e-mail thread at your earliest convenience would be much appreciated. Should you require further information, please contact us.

2. This email was accompanied by a copy of travel documents disclosing that the applicant intended to depart Australia at 10:15 am on 24 March 2023.

3. The Tribunal wrote to the applicant’s representative by email dated 24 March 2023 in the following terms:

   In considering the request for postponement, the presiding Member would like answers the following questions, please:

   ·     For what reason is the applicant leaving Australia?

   ·     When did the applicant purchase his plane ticket?

   ·     On what date does the applicant plan to return to Australia?

   Please respond as soon as possible, noting that the hearing presently remains scheduled for Monday 27 March 2023. [Emphasis in original.]

19.   Neither the applicant nor his representative had provided a response to the Tribunal’s email dated 24 March 2023 enquiring as to the purpose of the applicant’s trip to India and when he intends to return to Australia.

20.   On 24 March 2023 the applicant was informed that the matter would be rescheduled for a hearing to take place on 5 June 2023. The hearing did not proceed on 27 March 2023.

21.   The Tribunal conducted a search of the applicant’s study history and on 24 March 2023 wrote to the applicant informing him of adverse information and inviting him to comment in the following terms:

·     You completed a Master of Information Technology between 19 February 2018 and 31 October 2019.

·     You enrolled in a general English course due to commence on 7 October 2018 but on 9 November 2018 the enrolment was cancelled because "student notifies cessation of studies”.

·     You enrolled in a Master of Networking due to start on 12 November 2018, but this enrolment was cancelled on 9 January 2019 due to "non-commencement of studies”.

·     You enrolled in a Graduate Diploma of Management due to start on 20 January 2020 but this enrolment was cancelled on 3 May 2021 due to "non-payment of fees”.

·     You enrolled in a Certificate III in Carpentry due to start on 1 February 2021 but this enrolment was cancelled because of "Change to COE/student details" on 28 January 2021.

·     You completed a Certificate III in Carpentry between 1 February 2021 and 28 January 2023.

·     You enrolled in a Graduate Diploma of Management (Learning) due to start on 30 January 2023 that on 21 November 2022 but on 21 November 2022 but this was cancelled due to "Change of COE/student details". You enrolled in another Graduate Diploma of Management (Learning) due to start on 30 January 2023. This enrolment was cancelled on 1 December 2022 due to "Change to COE/student details".

·     You enrolled in another Graduate Diploma of Management due to start on 30 January 2023 but this enrolment was cancelled on 1 December 2022 due to "Change to COE/student details".

·     You enrolled in a Diploma of Building and Construction (Building) due to start on 30 January 2023 but on 12 December 2022 this enrolment was cancelled due to "Change to COE/student details".

·     You are currently studying a Diploma of Building and Construction (Building) which commenced on 30 January 2023 and is due to be completed on 28 January 2024.

The records of your study history disclose that since commencing study in Australia you have completed two courses of study, you have had various enrolments cancelled on eight occasions, you have changed the direction of your study from information technology to networking, to management, to carpentry, and now building and construction. You have also changed the level of your study from a Master course to vocational courses.

This information is relevant to the review because it indicates that you may not be a genuine applicant for entry and stay as a student and may be using the student visa program to prolong your stay in Australia and to circumvent the intention of the migration program.” The applicant was invited to respond on before 5 April 2023.

1. By letter dated 14 April 2023 the Tribunal wrote to the applicant informing him that he did not respond to the request for information within the stated time and accordingly lost his hearing rights.

23.   A search of the applicant’s movement records conducted on 1 May 2023 discloses that the applicant arrived in Australia on 18 December 2017 as the holder of a Subclass TU 500 Student visa. He has departed Australia once, on 24 March 2023, and has not returned to Australia.

24.   The application for the student visa in question was made on 19 August 2021.

1. The applicant provided a statement to the Department in support of his application for review. It is titled “to whom it may concern”, is unsigned, and undated and without page or paragraph numbers. The Tribunal makes a number of observations in relation to the statement. The applicant was born in 1995, he came to Australia to study a Master of Information Technology, however, “felt extremely homesick” and as a result “enrolled in a Master of Networking” but “soon after my initial days in MIT another instance of loneliness hit me”, “I felt lonely and depressed” but that “I now feel that I am back to my track now and that I am ready to take on the next challenge”. He enrolled in a Certificate III in Carpentry and that “I had always aspired to have my own business in innovation and development sector”. He then extols the virtue of completing a Graduate Diploma of Management. The Tribunal notes that the applicant has provided no medical opinion evidence to support the assertions of depression or other circumstances which caused him to have difficulty studying or to abandon courses of study; he provides no cogent career path or details of a career path, no evidence of his circumstances in India or his circumstances in Australia.

2. Some further information can be gleaned from the delegate’s Decision Record dated 13 January 2022. The applicant completed a Bachelor of Science degree in India in May 2016; he provided no evidence of his employment history in India, no events of ownership of assets in India or any other economic ties to India. The delegate acknowledged “the applicant has personal ties in their home country in the form of their parents and siblings”. At the time of the decision the applicant was proposing to undertake a Certificate III in Carpentry and a Graduate Diploma of Management. There was no evidence that the applicant had sought either medical assistance concerning his well-being or sought assistance from education providers before abandoning the higher education study attempts. The applicant had failed to show how the study of a Graduate Diploma of Management would assist him to become a successful business operator. Further, the applicant had failed to demonstrate how studying a Certificate III in Carpentry and a Graduate Diploma of Management linked to his future career plans. Finally, the delegate noted that the applicant had held two previous student visas.

   CONCLUSIONS

27.   Without diminishing the applicant’s evidence, it can be summarised as follows.

28.   The applicant completed a Bachelor of Science degree in India in 2016. There is no evidence of his employment history in India or of ownership of any assets in India. The delegate stated that the applicant’s immediate family resided in India. The Tribunal accepts this. He arrived in Australia on 18 December 2017 holding a Subclass 500 Student visa intending to study a Master of Information Technology. He has departed Australia on one occasion since arriving, on 24 March 2023 and has not returned. The delegate stated that the applicant had held two student visas. The application for the student visa in question was made on 19 August 2021.

29.   The applicant’s study history in Australia is poor. It is summarised in detail above. Since arriving in Australia in 2017 he has completed two vocational courses of study, he has changed the direction of his study from information technology, to networking, management, to carpentry, and now building and construction. He has also changed the level of his study from higher education courses to vocational courses. Despite arriving in Australia with the intention of completing a higher education course, he has not done so. He appears to blame his poor study history on depression or other medical related issues. However, he has provided no medical opinion evidence to support these vague assertions.

30.   He has provided a Confirmation of Enrolment in respect of a Diploma of Building and Construction due to be conducted between 30 January 2023 and 28 January 2024. There is no evidence that he had been attending this course.

31.   On the eve of the hearing of this application the applicant departed Australia suddenly on 24 April 2023 and has not returned to Australia. Despite being invited to do so he has not explained the reason for his sudden departure.

32.   There is no evidence as to his employment history in Australia or other circumstances in Australia.

33.   There is no evidence of his marital status.

34.   His evidence as to his career intentions is essentially aspirational, vague and without any cogent detail.

1. The applicant has not explained to the Tribunal’s satisfaction why he changed the purpose of his travel to Australia from higher education studies to vocational studies, why he has changed the direction of his study on numerous occasions, why he has failed to complete a variety of courses in which he was enrolled, why he has not pursued employment using his existing qualifications, why he has only returned to India once since arriving in Australia in 2017, why he did not return to India permanently having completed several courses of study in Australia, why he did not return to India when his student visa application was refused, why he chose to return to India suddenly on the eve of the hearing of this matter and has not returned, or cogent details of his future career path.

2. In considering whether the applicant has met the genuine temporary entry criterion, the Tribunal had regard to the following factors consistent with cl 500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether he has satisfied the genuine temporary entrant criterion.

3. The Tribunal has considered the applicant’s circumstances in his home country. The applicant has provided evidence of family ties to his home country but no other economic incentives to return. The Tribunal finds that he has been unable to demonstrate ties to act as an incentive to return to his home country at the completion of the actual or proposed study.  Whilst the Tribunal accepts that the applicant may have family ties to India, having regard to the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to India.

4. The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 18 December 2017 as a holder of Subclass 500 Student visa. The proposed study would extend the applicant’s stay until at least late 2023. The Tribunal considers that the length of the proposed stay suggests that the applicant is studying for the purposes of staying in Australia. Whilst plans can change, in the Tribunal’s view this is not the conduct of a genuine temporary student. On balance it is consistent with the applicant having decided to extend his stay in Australia by utilising the student visa programme.

1. The Tribunal does not place weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. There are several reasons for this. First, the applicant has provided extremely vague evidence. Secondly, he has no details of his vague and aspirational career path. Lastly, having regard to the applicant’s extremely poor history there exists reasonable doubt as to whether he will complete his current course on time or at all.

2. The Tribunal has considered the applicant’s study history since arrival and notes that he commenced study in Australia intending to complete a higher education course, a Master of Information Technology, but has failed to complete that course or any other higher education course. Further he has changed the direction of his study on numerous occasions and has not provided details of his vague and aspirational career path.

3. The Tribunal observes that the applicant’s current study path is inconsistent with the applicant’s qualifications obtained both in Australia and in India and is inconsistent with his plans when he entered Australia.

4. On balance the Tribunal is not satisfied that the applicant has established that study will provide him with significant benefits in his proposed career plan, considering the cost of the study and the fact that the applicant already has qualifications obtained both in Australia and in India. Accordingly, the Tribunal is not satisfied that the proposed additional study has a reasonable prospect of providing significant value to his career beyond the existing qualifications.

5. The Tribunal turns to consider whether there are any other relevant matters. The Tribunal finds that there are no other relevant matters to consider that may be beneficial or adverse to the applicant, and that this aspect is not relevant.

6. The Tribunal has considered the applicant’s economic circumstances in his home country relative to his potential circumstances in Australia. Having regard to the disparity in economic circumstances between India and Australia, the Tribunal is not satisfied that the applicant has significant incentive to return to India. The applicant has been unable to demonstrate substantial ties or personal assets in his home country which diminishes his incentive to return to India.

7. The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from his proposed study which will outweigh the significant time and monetary commitment this course will require. Accordingly, the Tribunal is not satisfied that the applicant has demonstrated the value of his proposed course to his future.

8. The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 18 December 2017 the applicant has spent more than five years in Australia and only returned to India on one occasion; there is no evidence of any work history in India or ownership of assets in India, all of which indicates that he does not appear to have strong personal ties to India. On balance, the Tribunal assesses the applicant’s incentive to return to India after the completion of his current course of study to be minimal.

9. The Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. Whilst the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant was previously granted two student visas specifically to enable him to achieve that goal. Having regard to the applicant’s extremely poor study history it appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study.

10. The Tribunal has considered all information provided by the applicant in support of his application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in his home country, potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.

11. On the contrary, the evidence suggests that the applicant has enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study. The Tribunal considers that the applicant is using the student visa programme as a means of maintaining ongoing residence in Australia, and does not have a genuine intention to stay in Australia temporarily.

12. There is no evidence before the Tribunal regarding the following factors indicated by Direction No.69: economic circumstances of the applicant; any potential military service in India; political or civil unrest circumstances in India; remuneration the applicant could expect to receive in India or a third country compared with Australia; circumstances in India relative to Australia or any other country; and the applicant’s circumstances in India relative to others in that country.

13. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).

14. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.

15. 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. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Peter Booth
    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;

    d.whether 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.