Sittipan (Migration)

[2022] AATA 755

Sittipan (Migration) [2022] AATA 755 (18 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sathu Sittipan

REPRESENTATIVE:  Mrs Ariel Barrett (MARN: 0215389)

CASE NUMBER:  2006866

HOME AFFAIRS REFERENCE(S):          BCC2019/6852915

MEMBER:Mark Bishop

DATE:18 March 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 18 March 2022 at 10:22am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – lengthy stay in Australia – applicant complete several courses – applicant changed vocation and courses – limited benefit of course to future career – minimal family ties to home country – maintaining ongoing residence in Australia – decision under review affirmed         

LEGISLATION

Migration Act 1958, ss 65, 359, 499; Direction No 69
Migration Regulations 1994, Schedule 2 cl 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 1 April 2020 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 24 December 2019. 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).

4. The applicant appeared before the Tribunal on 17 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

5. The applicant was assisted in relation to the review by his Migration Agent (MA). His MA made oral submissions at the end of the hearing.

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 Genuine Temporary Entry (GTE).

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

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 provided a GTE statement to the Department that outlined the following:

    ·At time of delegate decision he resided in Australia as the holder of a temporary graduate visa post completion of his cookery studies.

    ·He works as a chef. It is a stressful occupation. There are some occupational health and safety concerns. He works under stress. Work requirements impact upon his social life.

    ·He decided to do a Certificate IV in Engineering. This qualification covers the skills and knowledge required for employment as a Higher Engineering Tradesperson or a Special Class Engineering Tradesperson.

    ·After completion of this course, one can perform various roles such as the design, assembly, manufacture, installation, modification, testing, fault finding, commissioning, maintenance and service of equipment and machinery, the fabrication of structures and assemblies, manufacture of sheet metal work, as well as use of relevant machinery, equipment and joining techniques. After completing this course one can work in various engineering streams.

    ·There are plenty jobs available in Thailand in this engineering field. On average, an engineering trade person can earn 13290 THB per month.

    ·His family back in Thailand is well settled and are very happy to support him morally and financially.

12. In response to a s.359(2) Request for Information the applicant advised as follows:

    • He provided a copy of an undated letter on blank paper dated from his sister advising she owned a construction company, she would offer him a job as a locksmith, his locksmith skills are closely related to her business range and her construction company was engaged in the following projects:

    oBuilding Construction: construction of a 4-storey building

    o Reinforced Concrete

    oCheck Dam

    oExterior/interior design

    ·A letter that advised as follows:

    oHis intention to study a Certificate IV in Engineering (locksmith).

    oHe did not sight the supporting detail provided to the Department in his Application for a Student Visa.

    oHe arrived in Australia, studied English, wanted to gain skills in the hospitality industry, post completion of his hospitality studies he reflected upon his life, he enjoys puzzles both in the real world and the virtual world.

    oHe outlined the skills involved in “smithing” in lengthy detail.

    oIt is difficult to find colleges in Thailand that teach this course. However there are courses available which are short term and not as comprehensive as available in Australia.

    oThere is much competition for hospitality jobs in Thailand. Covid caused a lot of people to lose work in hospitality.

    oHe will move back to Thailand and work in his sister’s construction company.

    oAustralia has a fine reputation in education. He has been taught in advance computerised security systems.

    oHis current employment is to support himself financially. His relatives have supported him financially since 20212. His current job is not a long term career.

    ·He completed a Certificate Of Vocational Education.

    ·He was employed as a mechanic from January 2009 until March 2016.

    ·He returned home in 2013, 2014 and 2016 for short periods generally of 2 weeks or less.

    ·He has resided in Australia since April 2012 as the holder of successive temporary student visas, temporary work visas and bridging visas.

    ·He has a current COE in a field of study.

    ·He has complete numerous vocational certificates in English (4 courses), Hospitality (6 courses addressing Commercial Cookery III and IV, Hospitality Management at Diploma and Advance Diploma level, Patisserie III and IV and will complete a Certificate IV in Engineering in April 2022).

    ·He summarised his reasons for choosing an Australian education provider. In substance his reasons in this response are consistent with his previously provided GTE statements to the Department and the Tribunal.

    ·It is difficult to find a similar course in Thailand. Available courses are informal apprenticeships. He held a subclass 485 visa in the period March 2018 until December 2019.

    ·He has worked as a cook and a locksmith.

    ·A sister lives in Thailand. He has close ties with her. He doesn’t  “…have any close tie in my home country with any organization or group”.

    ·He has relatives in Australia “…my auntie and uncle who provide me with accommodation. I've been working with their takeaway as a cook/chef…”

    ·His future employment plans involve working in his sister’s construction company.

    ·He advised the “…salary as a locksmith in Thailand is much lower than the salary level in Australia. However there is a prospect to work with my sister's business and even possible become a stakeholder of the business…”

    ·He has completed his military services in Thailand and does not have any concerns.

13. He provided copies of Certificates of Graduation and academic transcripts for all of his completed courses. He provided a copy of a current COE. He provided a letter or recommendation from Skills Training Australia that advised he has achieved satisfactory progress, is a regular and punctual student and paid his course fees according to the instillment plan and will complete the course by 30 April 2022.

14. He provided to the Department a copy of his academic transcript from the Ubon Ratchathani Technical College dated 11 January 2011 that outlined his study over 4 semesters in the years 2000 to 2003. The applicant completed almost 120 subjects in the technical engineering field and graduated with a Certificate of Vocational Education in Trade & Industry (Auto-Mechanics) in October 2003. These subjects addressed bench work, technical drawing, engineering practice, general electronics, auto-electricity practice, welding and sheet metal work, relevant theory, relevant shop practice, mathematics and a range of other technical subjects at varying grades of complexity over time as he progressed through his course.

15. In his Application for a Student Visa dated 24 December 2019 he declared he was studying a AQF Certificate IV in the field of Mechanical Engineering and would complete the course in Sep[ember 2021.

16. In evidence to the Tribunal the applicant advised as follows: He graduated from a Thai college in late 2003 after four years of study that involved approximately 120 units. He then worked as a mechanic mainly in the field of motorcycles, motor cars, painting and had exposure during his training to heavy diesel and trucks. He had never worked construction  or on building sites. His sister owned a construction firm and engaged mainly as a prime contractor and engaged sub-contractors for welding, carpentry and cement work in his home province. Some of that work was on construction or building siters and involved house building, government work, road construction and road repair.  The applicant came to Australia in June 2012 and has not returned home since 2016. He could not travel in the period of Covid. He is not married and does not have any dependants. His parents have passed. He lives with his aunty in Melbourne and has lived with her since coming to Australia. He has other family in South Australia. He did not apply to any educational institutions in Thailand to study locksmithing because a friend or friends advise him such course did not exist. He looked at 1 school only. He does not have any commercial business or company assets in his home country. His links to Thailand are his sister and friends he went to school with many years ago. He does not have any ties to community based organisations in Thailand. In Australia he has completed numerous courses in hospitality to management level. He will finish his current course in April 2022. He has worked as a cook and a chef. He wishes a change from that type of work in the future. He is currently working Fridays and Saturdays as a chef. He has been working full time as a locksmith since October 2021 and currently works full time as well as finishing his studies. He worked full time as a locksmith from October 2021 as his school closed temporarily due to the Covid. He is active in the Thai community in Melbourne and attends temple for cultural and social events. He attends a local gym to lift weights. He runs with friends as a social activity. He advised he manages his time with work, study, family sport and social engagements. He is now thinking of further study related to the construction industry.

17. The MA for the applicant advised the Tribunal he could not travel during the period of Covid, that the hospitality industry in Thailand was impacted by the Covid, he was not currently enrolled in any courses of study post April 2022 but was considering further study in construction in Australia.

    Applicant’s Circumstances in the Home Country

18. The applicant completed his technical education after 4 years of study of a comprehensive range of material in 2003. Thereafter he worked as  a mechanic mainly in the field of motorcycles, motor cars, painting and had exposure during his training to heavy diesel and trucks. The applicant has resided in Australia since 2012. He has not returned home since 2016. He is not married and does not have any dependants. His parents have passed. He lives with his aunty in Melbourne and has lived with her since coming to Australia. He has other family in South Australia. He did not apply to any educational institutions in Thailand to study locksmithing because a friend or friends advised him such courses did not exist. He looked at 1 school only. He does not have any commercial, business or company assets in his home country. His links to Thailand are his sister and friends he went to school with many years ago. He does not have any ties to community based organisations in Thailand. His knowledge of the construction industry appears to be limited to his familiarity to a limited degree with his sister’s construction firm. He had never worked construction or on building sites.

19. Thailand is a large country with growing wealth. It has significant, growing and advanced manufacturing, automobile, construction and building industries. The Tribunal was surprised to hear there is almost complete unavailability of suitable technical courses in the field of locksmithing considering the security and protections interests inherent in such studies. The Tribunal is of the view the applicant’s investigations or research into the availability of relevant courses in locksmithing was cursory and limited. The Tribunal is not satisfied the applicant has advanced reasonable reasons for not undertaking the study in his home country or home region.

20. The applicant’s ties to his home country are limited. His physical engagement (visits) with his home country since 2012 has been almost minimal. He has little family in Thailand. He has no business, commercial or economic interests in that country. His possible employment interests in Thailand extends to possible work in a construction company owned by his sister that on the available evidence has little need for a qualified locksmith. He works in Australia in two separate vocations of chef (currently part time) and locksmith (currently full time) and earns a reasonable income as he has for many years. He lives with family in Australia.

21. The Tribunal is of the view the economic circumstances of the applicant present as a significant incentive to not return to his home country.

22. The Tribunal notes that the applicant has personal ties in his home country in the form of his sister: however, the Tribunal finds that these ties do not, constitute a strong incentive to return home at the completion of the proposed study. When considering the applicants circumstances in the home country on balance the Tribunal is of the view that the applicant has not been able to demonstrate strong enough ties to outweigh a significant incentive for the applicant not to return to his home country.

23. The Tribunal does not make any adverse findings concerning military service commitments as the applicant is has completed his military service. The Tribunal does not make any adverse findings concerning cl. 9(e) of Ministerial Direction number 69 (MD69). There was little evidence concerning cl. 10 of MD69. 

    Applicant’s circumstances in Australia

24. The applicant has lived, worked, studied and participated in the community life of Australia for many years. He lives with his aunty in Melbourne and has additional family in South Australia. He is employed in Melbourne in two separate jobs as a full time locksmith and a part time chef mainly on weekends. He earns a significant income. He receives little in the form of financial assistance from his sister in Thailand. He has rarely visited his sister in Thailand. He has the company of his aunty in Melbourne. He worked full time as a locksmith from October 2021 as his school closed temporarily due to the Covid. He is active in the Thai community in Melbourne and attends temple for cultural and social events. He attends a local gym to lift weights. He runs with friends as a social activity. He advised he manages his time with work, study, family sport and social engagements. He is now thinking of further study related to the construction industry.

25. The Tribunal is of the view the applicant’s ties with Australia  (family in the form of an aunty with whom he lives) employment, income, community and study) serve as a significant incentive to remain in Australia. The Tribunal is satisfied the applicant is using the student visa programme to circumvent the intentions of the migration program. The Tribunal is satisfied the applicant is using the application for a student visa  to maintain ongoing residence. The Tribunal does not make any adverse findings as to cl. 11 (d) and (e) of MD69.

    Value of the Course

26. The applicant’s study record in Australia is exemplary. It is a record of success and completion of vocational courses in radically different fields of endeavour.  He advised the Tribunal (see paragraph 12 above) he has completed numerous vocational certificates in English (4 courses), Hospitality (6 courses addressing Commercial Cookery III and IV, Hospitality Management at Diploma and Advance Diploma level, Patisserie III and IV and will complete a Certificate IV in Engineering in April 2022). He has worked in occupations attached to his vocational training and experience. He is a trained chef and holds qualifications in patisserie. He has worked extensively as a chef. He has serious management qualifications to Advance Diploma level in Hospitality. He holds serious technical qualifications as a mechanic from Thailand and worked for many years as a mechanic in that country. He has now almost completed further advanced technical qualifications leading to a Certificate IV in Engineering. He currently works full time as a locksmith and part time as a chef. He has studied, worked and lived with success in two countries. He has extensive vocational qualifications, experience and expertise. He has management training to Advanced Diploma level. He advised the Tribunal he is now considering further study in Australia in construction. Apart from a connection to his sister and her firm in Thailand he has little hands on or practical experience or knowledge in that field. Having completed a Certificate IV in Engineering (locksmithing) he now appears to dispense with his submissions as to the utility of that course and its relevance to future employment in his sisters firm by seeking to undertake further study in construction, a new field, in Australia.

1. The Tribunal is of the view the applicant is seeking to undertake a course that is consistent with his current level of education and will not assist him to obtain employment or improve his employment prospects in his home country. The Tribunal sees little relevance to the applicant’s past or proposed future employment either in Thailand or a third country. There is insufficient evidence for the Tribunal to reach a conclusion concerning cl.12(c) of Ministerial Direction number 69 (MD69).

   Migration

2. The applicant initially arrived in Australia on a Student (Class TU Subclass 570) visa and commenced studying in June 2012. His study endeavours have been successful. Since his arrival, he has held further Student visas, a Temporary Graduate Work (Subclass 485) visa and associated bridging visas. The applicant will shortly complete his studies in locksmithing. Both he and his MA advised the Tribunal he is now intending to embark on studies in a new field of construction and has taken the preliminary steps to gain enrolment. He has been unable to establish that it will add significant value to his future, extending his temporary stay in Australia in excess of eleven years.

3. The Tribunal finds the length of the applicant’s proposed stay in Australia to be entirely incompatible with the conclusion he is a genuine temporary entrant, which brings into question his intention to return to his home country and to apply his knowledge and skills there. While the Tribunal acknowledges that, there is no evidence to demonstrate that the applicant has not been compliant with the conditions of his visa in Australia or any other country, the Tribunal does not find that this is significant enough to demonstrate that he is a genuine temporary entrant. The Tribunal holds significant concerns that the applicant is more likely attempting to utilise the Student visa program as a means for maintaining ongoing residence in Australia and is not a genuine temporary entrant.

4. The Tribunal is of the view the applicant has spent a lengthy period of time in Australia, his prior temporary student visas and his current application for a further student visa is being used primarily for maintaining ongoing residence.

5. 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.

   Conclusion

6. 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

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

   Mark Bishop

   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.