Sukhdeep Singh (Migration)

[2021] AATA 5420

Sukhdeep Singh (Migration) [2021] AATA 5420 (30 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Sukhdeep Singh Sukhdeep Singh

CASE NUMBER:  2000255

HOME AFFAIRS REFERENCE(S):          BCC2019/5590921

MEMBER:T. Quinn

DATE:30 September 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 30 September 2021 at 7:21pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No.69 – unsatisfactory academic progress – visa history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

CASES
Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372
Khan v Minister for Immigration & Another [2019] FCCA 565
Tshering v Minister for Home Affairs [2019] FCCA 2667

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 (‘the delegate’) on 20 December 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicant applied for the visa on 6 November 2019 (‘the application’).   At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The applicant applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. On 20 December 2019, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that the applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

4. On 6 January 2020, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.

5. Approximately 20 months have elapsed since the making of the delegate’s decision and the applicant’s application for review with the Tribunal. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed during that time. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information to the Tribunal for the purposes of determining the outcome of their application for review. To this end, on 12 August 2021, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’). The applicant responded to the s359(2) letter on 26 August 2021 which was within the prescribed timeframe.

6. The applicant appeared before the Tribunal via telephone hearing on 29 September 2021 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.  The applicant was assisted in relation to the review by their registered migration agent who also attended the hearing.

7. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.

8. The Tribunal has proceeded to a decision having regard to all the information before it, including the material and evidence provided by the applicant on the day of the hearing.

9. For the following reasons, the Tribunal has concluded that the decision under review ought to be affirmed in this case.  In reaching its decision, the Tribunal has had regard to:

   a.the oral evidence of the applicant given at the hearing;

   b.the submissions made by the applicant’s migration agent;

   c.all written material filed by or on behalf of the applicant both before and after the hearing; and

   d.other relevant documents on the Tribunal and Department files.

   The Tribunal notes that not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference only to that information that the Tribunal has been found to be fundamental or materially significant to the determination of the issues in the case.

   STATUTORY FRAMEWORK

10. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant.

11. 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?

12. In considering whether the applicant satisfies clause 500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (‘the Direction’), made under section 499 of the Act. The Direction requires the Tribunal to have regard to a number of specified factors in relation to:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

13. 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.

14. The Direction is a lawful direction of the Minister made in accordance with section 499 of the Act. The Tribunal is therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[1]  Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before the Tribunal.  The Tribunal, however, recognises that it is an independent statutory body.  It must therefore reach its own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate.  In this regard, the Tribunal also notes the decision of Judge McNab in Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]), wherein his Honour referred to the decisions of Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]) and Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) in relation to the proper approach to the consideration of guidelines such as the Direction. Most pertinently, his Honour endorses the view espoused in those cases, that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.

    [1]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The applicant in this case is a 23 year old male Indian citizen who first arrived in Australia on 7 September 2019 on a visitor visa.[2]  Prior to his arrival in Australia, the applicant commenced but did not complete a Diploma in Diesel Mechanics in 2018.[3]

    [2] See delegate’s decision and applicant’s response to the s359(2) letter.

    [3] See delegate’s decision and applicant’s response to the s359(2) letter.

16. The applicant’s application which is the subject of this review was to undertake Certificate III in Wall and Floor tiling which was due for completion in October 2021.  Due to delays in this matter coming before the Tribunal, the applicant ought now to be nearly finished his proposed course.  Instead, the applicant has remained onshore on a bridging visa without progressing his study at all, despite claiming to wish to remain onshore on the basis of a student visa.  At hearing and in his submissions, the applicant stated that he took admission in the Certificate III but due to the COVID19 Pandemic he could not continue.  He gave evidence at hearing that he could not study because of the state of the Pandemic in Australia but also because of the financial impact the pandemic had on his family – and therefore source of funds – in India.  He gave evidence that he could not continue his study because he did not have the money for it.  The Tribunal empathises with the applicant in this regard but there are financial requirements that must be met before student visas are granted.

17. When asked about whether he had commenced his Certificate III, the applicant gave evidence that he did not even start this course.  Even allowing for the COVID19 Pandemic and associated difficulties studying online and financial stressors, the Tribunal is concerned by the fact that the applicant has been onshore for the last two years and made no academic progress whatsoever.

18. A particularly effective way for an applicant to demonstrate that they hold a genuine desire to study in Australia, while awaiting a review hearing following an initial student visa refusal, is to take positive steps towards achieving the educational qualification they had proposed in their original application. That is to say, an applicant should progress with their proposed course of study in Australia notwithstanding that their visa application has been refused.  In doing so, by the time the application on review proceeds to a hearing before the Tribunal, an applicant will be a position to produce compelling evidence at the hearing that shows they are a genuine applicant for a student visa.  In this case, there is no such evidence.  The Tribunal does not consider this to be the kind of behaviour that is consistent with that expected of a genuine applicant for entry and stay as a student in Australia.  In fact, if the applicant had engaged with his Certificate III, he would be less than one month from completion of same.  Instead, he has remained in Australia, not studying, whilst claiming he wishes to remain onshore as a genuine student.  This evidence raises concerns for the Tribunal about the true nature of the applicant’s intentions in applying for the student visa and, when taken as a whole with the evidence outlined in this decision, appears to constitute evidence that the applicant is using the student visa programme to circumvent the intentions of the migration programme.

19. The applicant has recently enrolled in a new Certificate III in Wall and Floor tilling with course dates from 11 October 2021-6 October 2021.[4] The Tribunal notes that the applicant created this enrolment on 25 August 2021 – the day before his response to the s359(2) letter was due. This timing raises concerns for the Tribunal about the true nature of the applicant’s intentions.

    [4] See applicant’s response to the s359(2) letter.

20. The applicant’s migration agent made submissions at hearing including that the applicant is still very young and was uncertain about whether to stay in Australia or return to India when the COVID19 Pandemic hit the world.  The Tribunal empathises with the applicant in this regard and has taken this into consideration in coming to its conclusions in this case.

21. The applicant submits that after he completes his course, he will return to his home country to work in construction as a self-contractor or project manager (renovations), ceramic tiler and/or mosaic tiler.[5]  He has made submissions about the construction industry and growth happening in that field in India.[6]  He anticipates a starting income of INR100,000-150,000 per month in India using the qualifications gained.[7]  The Tribunal allows for reasonable changes to study and career pathways and considers this study is consistent with the applicant’s current level of education.  The Tribunal also accepts that this qualification is likely to be relevant to and assist and improve the applicant’s stated future career goal.

    [5] See applicant’s response to the s359(2) letter and evidence at hearing.

    [6] See applicant’s response to the s359(2) letter and evidence at hearing.

    [7]           See applicant’s evidence at hearing.

22. The applicant has not listed any work history in Australia in his questionnaire filed in response to the s359(2) letter and stated at hearing that he is not working in Australia. His father owns assets in India worth a total of AUD365,000 equivalent.[8]  The applicant gave evidence about the difficulties his family faced living in India during the COVID19 Pandemic and although he submitted that his family’s financial circumstances have improved, he is living onshore with his cousin at the moment who is an Australian citizen.  The applicant has listed expenses of AUD14,640 per annum in Australia.[9]  The Tribunal notes that the United Nations Human Development Index, which is a statistical comparison of life expectancy, education and per capita income indicators by country, ranks Indonesia as 131^st in the world as compared to Australia’s ranking of 8^th in the world.[10]  The Tribunal is concerned that comparing the applicant’s circumstances in Australia with his cousin with that of his family in his home country it is possible his economic circumstances may be acting as a significant incentive for him to remain but does not make any firm findings in this regard due to the lack of information before it in relation to the applicant’s cousin’s financial position and the fact that the applicant states he is not working onshore.

    [8] See applicant’s response to the s359(2) letter and evidence at hearing.

    [9] See applicant’s response to the s359(2) letter.

    [10]See Table 1 of United Nations’ Human Development Report 2020 commencing at page 343 < See also: Rathor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1187 at [42]-[44].

23. The applicant states that the ‘Australian education system is globally recognized which will definitely provide opportunity to the international students to get an international qualification and establish their career in their desired field….  [O]nce I finish my study, I will have the knowledge to either secure a really good job in my field or start my own business. I really want to make the best out of the opportunity of being in Australia and get the best possible education.’[11]  The Tribunal accepts the applicant has provided reasonable reasons for undertaking this study in Australia.

    [11] See applicant’s response to the s359(2) letter.

24. The applicant has left blank the section of the questionnaire filed in response to the s359(2) letter in relation to his community ties to Australia. However, he is living onshore with his cousin – who is an Australian citizen – as well as his cousin’s wife and their two children.[12]  He gave evidence at hearing that he does not help with the care of the children.  The Tribunal is concerned that the applicant’s familial presence onshore may be acting as a strong incentive for him to remain onshore but does not consider it has sufficient information before it to form any firm conclusions in this regard at this time.

    [12] See applicant’s response to the s359(2) letter and evidence at hearing.

25. The applicant’s parents, brother and two sisters live in India and he speaks to them every day.[13]  He has not travelled home to India since his arrival but the Tribunal notes that the COVID19 Pandemic and associated travel restrictions have made such travel virtually impossible since early 2020.  He speaks highly of his hometown and its culture.[14]  He used to visit tourist attractions with his family in India.[15]  His family runs a farming business.[16]  The Tribunal accepts that the applicant has ties to India which may serve as an incentive for him to return but does not consider the evidence supports a finding that those ties are acting as a significant incentive for him to return. 

    [13] See applicant’s response to the s359(2) letter.

    [14] See applicant’s response to the s359(2) letter.

    [15] See applicant’s response to the s359(2) letter.

    [16] See applicant’s response to the s359(2) letter.

26. The applicant has not had any travel, visa or immigration issues in the past.[17]  The applicant does not have any potential military service obligations or political or civil unrest circumstances in India.[18]

    [17] See applicant’s response to the s359(2) letter.

    [18] See applicant’s response to the s359(2) letter.

27. The Tribunal is concerned by the way in which the applicant came to be onshore (being on a visitor visa and only then, once onshore, applying for a student visa).  It is difficult for the Tribunal to accept that the applicant, in such a short space of time after his arrival onshore as a visitor, could have then promptly researched all study and living options and decided to remain onshore for a further two year period (which has now been extended to four years under the new confirmation of enrolment).  The Tribunal accepts that it is possible that an applicant may seek a change in plans or to further their skills for employment reasons and remuneration opportunities, but the Tribunal is puzzled when an applicant arrives on a visitor visa and then makes sudden changes to their plans within a short period of time after arriving.  It seems unlikely to the Tribunal that a person travelling as a tourist would make such a significant change from their initial intentions to visit.  Such a significant change would necessarily include a greater level of planning and preparation before arriving in Australia considering the length of time (two years which has now become four years) that the applicant proposed to spend in Australia.  It raises concerns about his true intentions in seeking a student visa. 

1. Taking the evidence as a whole, the Tribunal is concerned that the applicant is motivated by factors other than study and is using the student visa program as a means of maintaining residence in Australia.  The Tribunal cannot be satisfied on the material and evidence before it that the applicant genuinely intends to stay in Australia temporarily.

2. Having had regard to the applicant’s circumstances, his immigration history and all other relevant matters, the Tribunal cannot be satisfied that the applicant is a genuine applicant for entry and stay as a student temporarily as required by clause 500.212. Accordingly, the applicant does not meet clause 500.212.

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

DECISION

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

   T. Quinn
   Member

   Attachment – Direction No.69

   DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

   (Section 499)

   I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

   Dated: 18 April 2016

   Peter Dutton

   
   

   Minister for Immigration and Border Protection

   Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

   Part 1 of Direction No. 69 - Preliminary

   Name of Direction

   This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

   It may be cited as Direction No. 69.

   Commencement

   This Direction commences on 1 July 2016.

   Interpretation

   Act means the Migration Act 1958.

   Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

   Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

   Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

   Regulations mean the Migration Regulations 1994.

   Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

   Spouse has the same meaning as the definition of the term in section 5F of the Act.

   Student visa means a Subclass 500 (Student) visa

   Student Guardian visa means a Subclass 590 (Student Guardian) visa.

   Application

   This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

   This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

   The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

   Preamble

   The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

   An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

   The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

   a.the applicant’s circumstances; and

   b.the applicant’s immigration history; and

   c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

   d.any other relevant matter.

   This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

   Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

   Part 2 of Direction No. 69 - Directions

   Assessing the genuine temporary entrant criterion

   1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

   2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

   a.considering the applicant against all factors specified in this Direction; and

   b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

   3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

   4.Circumstances where further scrutiny may be appropriate include but are not limited to:

   a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

   b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

   c.the applicant intends to study in a field unrelated to their previous studies or employment; and

   d.apparent inconsistencies in information provided by the applicant in their Student visa application.

   5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

   The applicant’s circumstances

   6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

   7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

   8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

   The applicant’s circumstances in their home country

   9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

   a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

   b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

   c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

   d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

   e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

   10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

   The applicant’s potential circumstances in Australia

   11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

   a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

   b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

   c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

   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.