Souza (Migration)

[2019] AATA 4913

Souza (Migration) [2019] AATA 4913 (12 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Anne Caroline Souza

CASE NUMBER:  1727648

HOME AFFAIRS REFERENCE(S):           BCC2017/3268921

MEMBER:Frank Russo

DATE:12 November 2019

PLACE OF DECISION:  Sydney

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

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 12 November 2019 at 8:04pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary stay – changed career path – plans to combine knowledge – significant personal ties to home country – course not available back home – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 500.212(a)

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 on 1 November 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 8 September 2017. 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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

4. The applicant is a 31-year-old Brazilian national.

5. The applicant appeared before the Tribunal on 25 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

6. The applicant was assisted in relation to the review by her registered migration agent.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   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 applicant for entry and stay as a student.

   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 addition to the application form, the applicant provided the Tribunal with a number of other documents, as follows:

    a.A s.359(2) response and a GTE Statement;

    b.Submission from the applicant’s agent, dated 20 May 2019;

    c.Certificate in General English;

    d.Certificates II, III and IV in Business, issued by Australian College of Technology and Diploma and Advanced Diploma of Management, issued by Clarendon College;

    e.Letter from SSBT, dated 20 July 2017, confirming the applicants enrolment in the Diploma of Early Childhood Education and Care;

    f.Confirmation of Course Enrolment in the Certificates III and IV in Commercial Cookerty and Diploma of Hospitality Management, issued by Evolution Hospitality Institute on 15 May 2019;

    g.Certified English translation of certificate for completion of Food Handling course in Brazil, issued on 2 November 2011;

    h.Whatsapp chat record and call logs; and

    i.Applicant’s bank account balance statement.

13. The Tribunal has had regard to these documents. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file.

14. Having considered all the material before it and the relevant considerations as set out in Direction 69, the Tribunal is satisfied that the applicant genuinely intends to stay in Australia temporarily for the reasons set out below.

15. The applicant gave evidence at the hearing that she was enrolled in a Certificate IV in Commercial Cookery, which she would complete in October 2019 and the Diploma of Hospitality Management at Evolution Hospitality Institute, which she would complete in three months.

16. The applicant told the Tribunal that she first arrived in Australia in July 2012, with the aim of learning English and experiencing a different culture. She chose to come to Australia because she said there were elements which reminded her of Brazilian culture. She was enrolled in a General English course at International House, which she said she completed, but she found it difficult as she didn’t have a lot of English and in the beginning it was very difficult as a non-English speaker.

17. She stated that after that she studied Business, completing Certificates III, IV and V in Business and a Diploma and Advanced Diploma of Management. She stated that the Management courses were part of a package course leading on from her studies in Business. The applicant stated that after this she completed a Diploma of Early Childhood Education and Care at SSBT. Following this she enrolled in the Commercial Cookery and Hospitality Management courses which were the subject of the visa application currently under review.

18. At the date of the hearing the applicant had completed a Certificate III in Commercial Cookery and was due to complete the Certificate IV in Commercial Cookery on 7 October 2019. She was due to complete the Diploma of Hospitality Management on 22 December 2019.

19. The Tribunal notes that it has on file a copy of the applicant’s enrolment records from the Provider Registration International Student Management System (PRISMS) database, but did not provide the applicant with a copy at the hearing as the Tribunal considered the information contained in her PRISMS record to be consistent with the account she gave of her enrolment history in her oral evidence.

20. The applicant gave evidence that she completed high school in Brazil and then studied Pedagogy, which she stated is the equivalent of a Bachelor of Education. She also obtained a certificate in Children’s Services whilst in Brazil. She stated that she worked part-time while she studied at university in Brazil from 2007 to 2012, working in the childcare section of a club. She stated that her role was childcare worker/instructor. She also worked full-time in the same role for six months prior to arriving in Australia.

21. When asked why she had chosen to study Business and Management, she stated that her plan was to seek something to give her a chance of upgrading her position, so she could have the opportunity to work in management or in an office, rather than being an instructor. She stated that she studied Childhood Services because she wanted to see the difference between Brazilian and Australian early childhood education, with the aim of seeing whether she could take some of what she learned back with her to Brazil.

22. When asked why she has now chosen to enrol in Commercial Cookery and Hospitality, she stated that she did so because she has been working in hospitality since 2014. She stated that even before this, hospitality was not totally new to her as both her mother and brother work as cooks. She stated that she would now like to be a chef and that she is happy with what she has already learned from the Certificates III and IV in Commercial Cookery as she has learned things which she can apply when she returns to Brazil. She stated that maybe in the future she will open her own business in Brazil.

23. At the date of the hearing the applicant worked part-time in a restaurant in Parramatta, where she started working in 2014. She gave evidence that in Brazil she had worked in a bakery, where she baked bread and other baked goods. There she completed a 40 hour course in baking over a two month period. She provided the Tribunal with a certified English translation of the certificate for this course, which the Tribunal considers demonstrates an interest in cooking prior to her arrival in Australia. She stated that she is from the south of Brazil and that the same courses in Commercial Cookery are not available there. She stated that in the city she is from there is a Gastronomy course at a university, but it is a four-year course and is largely theoretical, whereas the course she is studying in Australia is practical and hands on. She stated that before she enrolled in her current package course she looked at courses she could study in Brazil. She stated that she was already working in hospitality and wanted to see what she could take back with her to Brazil. She stated that she intends to study further in Hospitality when she returns to Brazil, although she has not decided yet which course to enrol in.

24. The applicant gave evidence that she had researched what she can do when she returns to Brazil. She stated that she had spoken to friends who work at the club where she previously worked. She has in mind developing a learning experience program involving teaching children how to cook whilst teaching them about nutrition. She stated that her brother works in a restaurant and has spoken to the owner about getting her a job. She also stated that her mother is working in an aged care facility and they are looking at the potential for someone to design the menu so that food can be prepared in-house, with a view to reducing expenses.

25. As to why she had chosen to study at Evolution Hospitality Institute, the applicant stated that the college had been operating for more than 12 years, is specifically focused on Hospitality and the course includes the study of different cuisines. She stated that the application process was a one-month process which involved different interviews. She stated that her agent had given her three possible options for Hospitality schools, but she also did her own research. She was able to give evidence of a recent assignment which she completed. The Tribunal finds the applicant has a good knowledge of her course and education provider and that she undertook a level of research in finding an appropriate course of study relevant to her future plans.

26. The Tribunal raised with the applicant the various concerns raised in the delegate’s decision and gave the applicant an opportunity to provide a comment or to respond to these concerns, some of which she had already covered in her evidence. As for the concern that she has already been granted three Student visas, the applicant explained that when she first arrived in Australia she was still uncertain as to what she wanted to do for work in the future. She stated that the length of time she has been a student is also one of the reasons why she has enrolled in a practical course at the vocational level, rather than enrolling in a higher education degree. She also stated that she believes a Diploma qualification from Australia will carry weight in Brazil as it is an internationally recognised qualification. As for the concern that she has changed her career and study pathway, she stated that she believes that in the end her different qualifications and experience will be linked. She gave evidence of how she wishes to bring her knowledge of childcare and cooking together.

27. The Tribunal found the applicant to be a candid witness who answered questions in a matter-of-fact manner and finds that she has established reasonable motives for her current studies, including the value of her current course to her intended future, as well as the value of undertaking the study in Australia as opposed in the region of Brazil where she is from.

28. The Tribunal is satisfied that the applicant’s current studies for the Diploma of Hospitality Management are relevant to both her current and future employment plans as a chef and her plans to combine what she has learned in Hospitality Management and Early Childhood Education to develop a learning program which involves teaching children about cooking and nutrition.

29. Although the applicant’s current studies are in the Vocational Education and Training (VET) Sector, below the Bachelor degree studies she obtained in Brazil, the applicant has advanced a reasonable explanation for the why she has enrolled in a course at this level, as well as its value to her future. As a whole, the Tribunal finds that the applicant was able to advance a reasonable claim to the relevance of her course to her proposed future employment options in Brazil and therefore makes no adverse findings in relation to the value of the course to the applicant’s future.

30. In terms of her family ties to Brazil, the applicant stated that her parents, two brothers, uncles and aunts and all of her cousins live in Brazil and live close to her parents’ house. She gave evidence that she is single and has no family in Australia.

31. The applicant confirmed at the hearing that she has not returned to Brazil since her arrival in Australia. She stated that she was intending to return in 2017, but her visa application was rejected. She stated that she desperately wants to return to Brazil to see her family. She stated that she speaks to her family every day through internet applications, and provided the Tribunal with documentary evidence supporting this. The Tribunal finds the applicant has significant personal ties to her home country, which are likely to act as an incentive for her to return to Brazil following the conclusion of her current course. There is nothing before the Tribunal to suggest she has significant personal ties in Australia.

32. There is no evidence of any military service obligations or civil or political concerns that would act as an incentive for the applicant to remain in Australia. There is no evidence that the applicant has entered into a relationship of concern. There is insufficient evidence before the Tribunal regarding the applicant's circumstances in Brazil, relative to others in that country., and the Tribunal makes no adverse findings in relation to these factors.

33. In terms of her economic circumstances, the applicant told the Tribunal that she currently earns $755 per week after tax. She stated that prior to coming to Australia she had been earning the equivalent of about $475 to $500 AUD per month. She stated that she believes that with the qualification she is currently obtaining, when she returns to Brazil she will be able to earn about $700 to $800 AUD per month, however she asked the Tribunal to consider the lower cost of living and also stated that she would not have to pay the same expenses that she pays in Sydney, such as the $410 per fortnight that she currently pays to live in a share house. In terms of her incentives to return to Brazil, she stated that her family is waiting for her to return. She stated that she wishes to share what she has learned when she returns to the workforce in Brazil. She stated that she feels she now has enough skills and feels more confident. In the future there is the possibility of opening her own restaurant with her family. She also stated that she believes the lifestyle in Brazil will be better for her long-term because of the expense of living in Sydney. Having considered this evidence, the Tribunal makes no adverse findings in relation to the remuneration the applicant could expect to receive in her home country, compared with Australia, using the qualifications to be gained from her current studies.

34. As for her immigration history, there is no evidence that the applicant has not complied with previous visas or that she has previously held visas that were refused, cancelled or considered for cancellation. The applicant gave evidence that she does not have any outstanding visa applications. She gave evidence that she has complied with all visa conditions, and there is nothing before the Tribunal to suggest otherwise.

35. The Tribunal accepts the applicant’s claims as to the purpose for her current study, and as a result finds that there are not sufficient grounds for a finding that the applicant is using the Student visa system primarily to maintain ongoing residency. The Tribunal notes that since the delegate’s decision to refuse her Student visa, the applicant has continued her studies, completing the Certificate III in Commercial Cookery, and at the time of the hearing was scheduled to complete the Certificate IV in approximately one month, and the Diploma of Hospitality Management in approximately three months. The Tribunal considers this lends further support to the applicant’s claims as to her genuine intent as a student. The Tribunal makes no adverse findings with respect to the applicant’s immigration history as a whole.

36. The Tribunal has also given regard to whether there are any other relevant matters and finds there are no other relevant matters to the assessment of the applicant's intentions to stay in Australia temporarily in addition to the matters covered above. The Tribunal has considered all the information provided by the applicant in support of the application.

37. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

    Does the applicant intend to comply with visa conditions?

38. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

1. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed in some cases (cl.500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).

2. The applicant has provided with her visa application an undertaking to comply with any conditions the subject of which the visa is granted. There is no evidence to demonstrate that this would not be the case. The Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

3. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

   Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

4. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

5. There is no evidence before the Tribunal of any other relevant matter that gives rise to a concern by the Tribunal that the applicant is not a genuine applicant for entry and stay as a student.

6. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

7. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

   DECISION

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

   ·cl.500.212 of Schedule 2 to the Regulations.

   Frank Russo
   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.