Tawiah (Migration)

[2020] AATA 2413

Tawiah (Migration) [2020] AATA 2413 (15 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dominic Tawiah

CASE NUMBER:  1819345

HOME AFFAIRS REFERENCE(S):          BCC2018/2111502

MEMBER:Elizabeth Tueno

DATE:15 June 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 15 June 2020 at 12:09pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment at lower than highest level – incentives to return or remain – family, community and economic ties to home country – employment in Australia – working hours in excess of visa conditions – value of course to future employment – using student visa program to extend stay in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A

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 Home Affairs on 15 June 2018 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 15 May 2018. 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 (the Regulations). The delegate was not satisfied that the information provided by the applicant about his circumstances in his home country, potential circumstances in Australia, the value of the proposed course and his immigration history demonstrated that he intended on staying in Australia temporarily.

4. The applicant appeared before the Tribunal on 18 March 2020 by telephone to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 intends genuinely to stay in Australia temporarily.

7. 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.

   Is the applicant currently enrolled in a registered course of study?

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. While the issue before the delegate was whether the applicant is a genuine temporary entrant, the issue before the Tribunal is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.

9. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.

10. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

11. Following the hearing, the Tribunal sent the applicant a request for information pursuant to s.359A in relation to his enrolment.  Records indicated that despite the applicant’s evidence that he is currently studying a Certificate IV course in Work Health and Safety, he was not in fact enrolled in any course of study.  The applicant provided evidence of enrolment in this course including an email from the head teacher at TAFE NSW confirming his enrolment in the course.  His academic record and attendance record in the course were also provided. 

12. Accordingly, the Tribunal is satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is met.

    Does the applicant intend genuinely to stay in Australia temporarily?

13. 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.

14. 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.

15. The Tribunal has had regard to applicant’s oral evidence given at the hearing, the Department’s file as well as documents provided to the Tribunal by the applicant including:

    ·     Statutory declaration of the applicant dated 22 January 2020;

    ·     A copy of his passport;

    ·     Certificate of completion of a Higher National Diploma in Accountancy from the Takoradi Polytechnic dated 30 November 2010;

    ·     Bachelor of Commerce certificate dated 26 September 2016;

    ·     Certificate of marriage between the applicant and Vincentia Ansah;

    ·     Certificate of completion of his mandatory national service for the Republic of Ghana dated 30 March 2012;

    ·     The applicant’s birth certificate and his son who was born on 18 February 2015;

    ·     Offer of appointment dated 8 June 2012 in relation to the position of account clerk;

    ·     Secondary school certificate of examination dated 21 December 2001;

    ·     Various of enrolment in a past course;

    ·     Letter of offer from Southern Cross School of Business in relation to a Diploma and Advanced Diploma of Leadership and Management;

    ·      Various documents relating to his enrolment at Southern Cross Business School;

    ·     Floor plans for a proposed construction of house;

    ·     Lease of land in Ghana; and

    ·     Completed s.359(2) questionnaire.

16. The applicant is a 38-year-old from the Republic of Ghana.  He arrived in Australia temporary activities visa on 17 March 2018.  This visa permitted the applicant to work at the Commonwealth Games in 2018.  He applied for a student visa on 15 May 2018 and enrolled in a Diploma and Advanced Diploma of Leadership and Management.  While he did complete the Diploma course, he did not complete the Advanced Diploma.  He states he is now enrolled in a Certificate IV course in Work Health and Safety which commenced in July 2019 and will end on 19 June 2020. 

    CIRCUMSTANCES IN THE APPLICANT’S HOME COUNTRY

17. The applicant stated at the hearing that that he is not studying the Certificate IV in Work Health and Safety because “there is not much interest in safety” in Ghana.  In his questionnaire response, the stated that there are in fact related courses in his home country but the course content in Australia is more detailed and more practicable.  He said that in his home country, qualifications from Australia have a good reputation and are recognised there.  He wants the opportunity to study here and upgrade his education.  In his statutory declaration, the applicant stated “my home country might have similar courses, but on comparison, the course content here thus [sic] Australia has more detailed and much practical work.  I know gaining this kind of knowledge with the course content will help sharpen my leadership qualities.”

18. It is not clear from the applicant’s written responses whether he was referring to the work health and safety course or if he was referring to his studies in leadership and management.  Given his reference to sharpening his leadership qualities, the Tribunal understands this evidence to refer to the leadership and management courses.  Accordingly, the only evidence remaining about why he is not studying the Certificate IV in Work Health and Safety course in his country is the evidence he gave at the hearing, which was, “there is not much interest in safety” in Ghana.  The Tribunal is not satisfied that this is a sound reason for not studying in his home country.  The applicant did not state that there was no similar course available, simply that there is little interest in safety in his home country.  This does not mean that there are not work safety courses taught in Ghana.  Furthermore, the Tribunal takes into account the applicant’s academic background, having completed a Bachelor of Commerce at the University of Cape Coast-Ghana.  The applicant has demonstrated that he is capable and able to study at a tertiary level.

19. In relation to the applicant’s personal ties to his home country, he stated at the hearing that he is married and has one child living in Ghana.  This is supported by his marriage certificate and birth certificate.  In his questionnaire response, he said that he is contact with his family in Ghana by telephone on a daily basis.  He also stated that he is a member of the Saint Teresa’s Catholic Church in Ghana as well as the Catholic Men’s Association and a past student union member. 

20. He stated in his statutory declaration that his elderly mother, who is a living with his wife, is a reason to return to his home country.  He went on to state that, “I have a young nuclear family thus a spouse and a child to which my spouse is anxiously waiting for me to get pregnant and give birth”.  The Tribunal accepts that the applicant has familial and community ties to his home country.  However, the applicant has not once returned to his home country since arriving in Australia on 17 March 2018, over two years ago.  This demonstrates that, despite his stated reasons for returning to his home country, his personal ties to his home country are not a strong incentive to return to his home country. 

21. In relation to his economic circumstances, the applicant stated that a reason for him to return home is that he has a parcel of land with a building development, which is being sponsored by his wife.  He provided a copy of a lease of a parcel of land in Ghana and also floor plans for a residential building.  Prior to coming to Australia, the applicant worked as an accounts clerk in Ghana for Ghana Ports and Harbour earning the approximately GHS 15,600 after tax per annum.  This equates to roughly AUS $3,958 at today’s conversion rate.  He worked in this position for nearly six years.  He provided the letter of offer for this position, which confirms the position and his salary.

22. Prior to this, he worked as a teacher for just under one year and as a stores officer for around four months.   He stated at the hearing that he currently works in Australia as a forklift driver.  He works Monday to Friday approximately 9 or 10 hours a day but he also claimed that he worked 35 – 37 hours.  Regardless of how many hours a week he is working, he stated that he earns approximately $960 per week.  This means that he would be earnings approximately around $50,000 per annum in Australia.  He stated in his questionnaire that his annual living expenses while in Australia are approximately $21,576.  He is financially supporting himself in Australia by relying on the assistance of friends.  He also stated at the hearing that he sometimes sends money from his employment in Australia back to his wife in Ghana. 

23. The Tribunal has taken into account the above matters.  It considers that the applicant’s economic circumstances are a significant incentive not to return to his home country of Ghana.  He is able to earn enough in Australia to support himself while he studies and send money to his family in Ghana.  He is working in excess of the permitted hours of work according to the conditions of his visa.  He is able to support his family while living in Australia and the fact that he owns land in Ghana (and a residential dwelling) does not mean that this is an incentive to return to Ghana.  Land can be sold or leased out and does not require the applicant to be physically in the country.

24. The applicant provided evidence that he has completed his military service commitment in Ghana in 2012.  He also stated in his questionnaire response that he has no concerns about any political or civil unrest in his home country.   Accordingly, the Tribunal is satisfied that these matters would not induce the applicant to apply for the student visa in order to remain indefinitely in Australia. 

    POTENTIAL CIRCUMSTANCES IN AUSTRALIA

25. The applicant stating initially that he has no friends in Australia, however he also said that he is currently living with a friend.  There is also the fact that, as stated by the applicant, he is being supported by friends while in Australia.  His sister also came to Australia with him and is currently studying.  He is a member of the local Ghana Catholic Church in Granville, Sydney and attends church fortnightly.  He has worked as a forklift operative since April 2019 and, as mentioned above, earns approximately $960 per week.  He sometimes sends money home to his wife in Ghana. 

26. Despite the relatively short period of time that the applicant has been in Australia, the Tribunal considers that he has developed ties in Australia and that these ties represent a significant incentive to remain in Australia.  His employment and ability to send money back to Ghana indicates that the applicant has an incentive to remain in Australia rather than return to his home country.  He has established a comfortable life that covers both his own living expenses but can also provide for his family.  For these reasons, the Tribunal is of the belief that the applicant is using the student visa to maintain ongoing residence in Australia and that the applicant is using the student visa to circumvent the intentions of the migration program.

    VALUE OF THE COURSE

27. Prior to coming to Australia, the applicant had completed a studies at the university level, having completed a bachelor of commerce from the University of Cape Coast in Ghana.  He also completed a higher national education diploma in accountancy.  Since arriving in Australia, he has completed a Diploma of Leadership and Management.  He is currently studying a Certificate IV in Work Health and Safety.  Having previously completed tertiary studies at a level higher than a certificate IV course, the Tribunal does not consider the applicant is a studying a level consistent with his previous studies. 

28. As to his plans for the future, the applicant stated in his questionnaire response,

    On my employment future plans, as was fully employed my employers are prepared to accept me back to work after my studies here in Australia.  Also, my step brother who supports me financially owns a construction company and he is also prepared to accept me run his company with the knowledge I acquire from the studies.  In relation to work and safety course, my employers back in Ghana are ready to accept me with this new field of study because, work health and safety is now a requirement by law in any corporate organisation in Ghana.  Also work and safety officers in Ghana are marketable with higher remuneration as work safety is a legal requirement in Ghana.  [sic]

29. In his statutory declaration, the applicant wrote that he travelled to Australia with his sister and that they are doing to same course together for “the family business in future”.  He said that upgrading his education with the proposed course will “equip me to be a sharp and versatile manager when I return to my country.  That is my ultimate goal”.

30. It is also apparent from the statutory declaration and the email from TAFE NSW, that the applicant intends on remaining in Australia to continue studying in Australia in a Diploma of Work Health and Safety.  The applicant is not currently enrolled in such a course. 

31. There was no objective evidence provided to the Tribunal by the applicant that demonstrates that his former employer is prepared to re-hire him and if so, in what capacity.  Nor is there any evidence from the applicant’s stepbrother about his construction business, for example how many employees they have, how long the business has been operating, whether or not his stepbrother is genuinely offering the applicant employment.  His statements about the requirements for work health and safety in Ghana is at odds with his statement at the hearing, that “there is not much interest in safety” in Ghana. 

32. Accordingly, the Tribunal is not satisfied that the proposed course will assist the applicant in obtaining employment or improve his employment prospects in his home country.  The Tribunal notes that the applicant has never worked in construction or in the area of occupational health and safety.  As to his future employment, as noted above, the Tribunal is not satisfied that the course is relevant to his future employment given the lack of cogent evidence about his prospective job offers. 

33. As to remuneration, the applicant stated in his questionnaire that, “after my studies will contribute a lot in remuneration such manager in leadership roles are among the highly paid jobs in Ghana.  Also, as Ghana now is exploiting oil in commercial quantities, work health and safety officers now marketable with highly paid remuneration”.  Given that the Tribunal is not satisfied that the course will assist him in obtaining employment, it follows that the Tribunal is not satisfied that the course will significantly increase his remuneration in home country or third country. 

    IMMIGRATION HISTORY

34. The applicant arrived in Australia on a temporary activities visa in order to work at the Commonwealth Games.  This visa was valid until May 2018 when he applied for the student visa, which was refused.  He has remained in Australia since then on a Bridging visa A.  Since arriving in Australia on 17 March 2018, he has now spent 822 days in Australia on temporary visas and has not returned to his home country at all during this time.  Having arrived in Australia for a very specific reason for a limited period of time, to not have returned to his home country at all during this time indicates that the applicant is using the student visa to maintain ongoing residence in Australia. 

    OTHER MATTERS

1. There were no other matters raised by the applicant for consideration. 

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

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. Accordingly, the decision under review must be affirmed.

   DECISION

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

   Elizabeth Tueno
   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.