Tiwari (Migration)

[2021] AATA 5421

Tiwari (Migration) [2021] AATA 5421 (20 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rabin Babu Tiwari

CASE NUMBER:  2000379

HOME AFFAIRS REFERENCE(S):          BCC2019/5466911

MEMBER:Frank Russo

DATE:20 December 2021

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 20 December 2021 at 4:03pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – de-registration of his college’s status as a registered education provider –– genuine applicant for entry and stay as a student temporarily – positive course progress -current studies are of some value to his future – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359, 499

Migration Regulations 1994, Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 December 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 30 October 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) 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 26-year-old Nepalese national. The Student visa under review was in respect of his enrolment in an Advanced Diploma of Information Technology.

5. The applicant appeared before the Tribunal by telephone on 21 October 2021 and 5 November 2021 to give evidence and present arguments.

6. The applicant was assisted in relation to the review by his registered migration agent. The representative attended the Tribunal hearing by telephone.

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.

9. In addition to the application form and copy of the delegate’s reasons for decision, the applicant provided the Tribunal with the following other documents:

   a.A s.359(2) response, which included a completed Request for Student Visa Information form and confirmation of enrolment (CoE) for the Advanced Diploma of Information Technology at Pacific College of Technology from 4 October 2021 to 2 April 2023;

   b.Hearing responses; and

   c.Following the first hearing, a submission which included a Statement of Attainment issued by Australian Institute of Business and Technology (AIBT) on 12 January 2020.

10. 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.

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

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 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.

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 applicant gave evidence that he arrived in Australia on 6 August 2017 holding a Student visa, which was for the purpose of completing a Diploma of Information Technology and an Advanced Diploma of Information Technology at AIBT. On 31 August 2018 he completed the Diploma of Information Technology. The applicant was due to commence the Advanced Diploma of Information Technology on 3 September 2018 and due to complete the course on 30 August 2019, however his enrolment in this course was cancelled on 3 September 2019 due to non-payment of fees.

15. The Student visa under review was in respect of the applicant’s second enrolment in an Advanced Diploma of Information Technology, which was to commence on 30 October 2019 and end on 23 October 2020. When questioned about his enrolments in the Advanced Diploma of Information Technology, the applicant indicated that in 2018 AIBT was deregistered as a provider for courses in Nursing and Information Technology, as a result of which his studies were halted for six to seven months. He stated that a lot of his friends left the college, but he was in doubt about doing so because he had paid a lot of money. He stated that this resulted in a gap in his studies, as a result of which he went into a depression because he had spent a lot of his family’s money. He stated that he obtained a second CoE from the same college and completed half of the Advanced Diploma of Information Technology, but when he asked for a transcript from the college, they asked for more time. He stated that AIBT would not provide him with certificates, which meant that he was unable to enrol in courses with other providers.

16. The applicant stated that he felt like he could no longer trust this college, and at the time of the hearing he had obtained a CoE for the Advanced Diploma of Information Technology at Pacific College, which commenced on 4 October 2021 and is due to end on 2 April 2023. He stated that Pacific College has allowed him to credit transfers, which will mean he will complete the course prior to 2 April 2023. When asked for the details of when he will complete the course and the reasons why his CoE has not been updated, he stated that it will take some time for his course credits to be updated and reflected in his CoE.

17. The Tribunal questioned the applicant about his attendance at AIBT after the decision in relation to AIBT’s registration. The applicant stated that when the COVID-19 pandemic commenced, he studied for six to seven months through online classes, but he stated that the teaching was not conducted well and assignments were not conducted. He stated that he was depressed and did not want to continue with this college, and that his family told him not to study there and to find a new course. The Tribunal questioned whether the applicant has any evidence of seeking treatment for depression. He responded that during this period all of the general practitioners were closed due to COVID-19, so he was unable to obtain a certificate. The applicant stated that for most of 2020 he stayed home in a depression, which was difficult for him because he claims that prior to this he was a good student.

18. The Tribunal adopted the procedure in s.359AA of the Act to put to the applicant information from his enrolment records from the Provider Registration International Student Management System (PRISMS) database. In particular, the Tribunal put to the applicant concern that his PRISMS record indicated that his first enrolment in the Advanced Diploma of Information Technology was cancelled on 3 September 2019 for non-payment of fees, and that following the ending of his second enrolment in this course on 23 October 2019, he remained un-enrolled for a period of over 11 months, until he enrolled again in the Advanced Diploma of Information Technology at Pacific College on 4 October 2021. The applicant requested time to respond to this information for the purpose of obtaining information about the registration status of AIBT and to explain the gap in his studies. The Tribunal considered it reasonable to adjourn the hearing, and noted also that the applicant had provided no information in support of some of his claims, including about the registration issues which affected AIBT.

19. Prior to the second hearing, the applicant provided the Tribunal with a Statement of Attainment issued by AIBT with the date of 12 January 2020. The applicant stated in his evidence that he had not received a copy in January 2020, and that he had received it for the first time only a few days before the hearing.

20. The Tribunal questioned the applicant about why he remained un-enrolled for over 11 months after the conclusion of the AIBT course. He stated that he was depressed because of the ‘scandal’ which had affected AIBT and because the college did not issue him with any certificates which would allow him to find another college. In addition, he had paid the course fees.

21. The applicant gave evidence that he has now enrolled in the Advanced Diploma of Information Technology at Pacific College because it is the same course that he weas enrolled in previously, he studied computing in high school and completed a University of Cambridge course in computing. He stated that the course will help him bridge gaps that he has in the studies he completed at high school and will train him to deal with real life situations, rather than just theory. He stated that the course involves training in analysing information and coding and will help develop specialisation.

22. As to his future plans, the applicant stated that he intends to return to Nepal to work as a computer engineer. He stated that his career options include working as a developer, in networking, as an ICT project manager, web developer or in data analysis. He stated that he is the only son in his family and therefore has responsibilities to his parents to return to Nepal.

23. The applicant gave evidence that he did an internship for about three months with Ace the Himalaya (Trekking Tours) as a developer and doing some marketing, although he was not paid for the role. He stated that after he completed his course he wanted to share his experience by doing this work for a ‘cousin brother’s’ company.

24. The applicant gave evidence that he has chosen to study his proposed course in Australia rather than Nepal because Australian degrees are world-recognised and the education is in English. He stated that it is focused on practical matters, rather than theory. He stated that in the IT field he can learn things in Australia such as software development and developing gaming apps, which he could not obtain in a course in Nepal. He considers that the course will assist him to find work in Nepal because of its practical focus and because it is world-recognised. He believes that with a qualification from Australia he will be given priority over people who have completed qualifications in Nepal.

25. The applicant told the Tribunal that he is now focused on his studies and will use the practical knowledge he gains to return to his home country to take up opportunities in the IT industry. He stated that he had completed two weeks of his course, including an introductory session as well as going through the units he will study. He stated that the units he will undertake are Develop Knowledge Management Strategy and then Lead and Manage Organisation Change. He was able to speak knowledgeably about the unit content for Lead and Manage Organisational Change.

26. The applicant confirmed that he has no immediate family members in Australia. He stated that he has a distant cousin in Melbourne and that he is single. He shares accommodation with a couple from Nepal, whom he met in Australia. He stated that his parents own property in Nepal and he has no assets of his own.

27. The applicant gave evidence that he did not work in 2020 as the hotel where he was working closed its restaurant. From 2017 to 2019 he had worked as a kitchen hand, earning $500 to $600 per week. He stated that he started working again as a delivery driver the week the first hearing was held, earning $500 to $600 a week, working 19 to 20 hours per week. He stated that I In 2021 he worked casual jobs 10 to 15 hours per week as a cleaner in a pub.

28. Having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account all the relevant information, the Tribunal is satisfied that the applicant meets the genuine temporary entrant criterion.

29. While the applicant struggled to produce supporting evidence of the claims he made regarding the registration of AIBT, the Tribunal has independently confirmed that there is support for these claims. The Tribunal notes that on 19 February 2019 the Australian Skills Quality Authority (ASQA) made a decision to cancel the registration of AIBT (which was trading as Brighton Pacific Pty Ltd) under s.39 of the National Vocational Education and Training Regulator Act 2011 (Cth), as well as to cancel its registration for all courses at all locations under ss.83(3) and 93(4) of the Education Services for Overseas Students Act 2000 (Cth). On 19 September 2019 the this Tribunal (differently constituted) made a decision setting aside these decisions and directed that Brighton Pacific Pty Ltd’s registration be renewed for a period of three years, subject to conditions set out in its reasons for decision.[1] As part of its decision, the Tribunal (differently constituted) outlines multiple breaches by Brighton Pacific Pty Ltd of its obligations to update PRISMS records, as well as breaches in its obligations regarding assessments. The decision also refers to complaints from ‘A number of students who were clearly very dissatisfied with the treatment or education they received’, as well as the details of complaints of one student from the United Kingdom, whom the Tribunal finds was ‘appallingly treated.’[2]

    [1] Brighton Pacific Ptd Ltd and Australian Skills Quality Authority [2019] AATA 3645 (19 September 2019), Ibid, paras 92-93.

30. Further to this, following the Tribunal’s (differently constituted) decision, ASQA made a request to this Tribunal (differently constituted) to vary a stay order which had been granted on 18 April 2019 and advised that it intended to file an appeal against the decision of 19 September 2019. The Tribunal (differently constituted) ordered on 10 October 2019 that the Order dated 18 April 2019 made pursuant to s.41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) be preserved.[3]

    [3] Brighton Pacific Pty Ltd and Australian Skills Quality Authority [2019] AATA 4977 (4 October 2019), >

    The Tribunal is satisfied that AIBT’s registration was cancelled by ASQA in February 2019. While the Tribunal (differently constituted) set aside this decision in September 2019 and directed that it be registered for three years, the Tribunal is also satisfied that this was not the end of the matter, and that it was the subject of further legal action by ASQA. The Tribunal is also satisfied that a number of students had complaints regarding the way they were treated by AIBT and that following this Tribunal’s (differently constituted) decision of 19 September 2019, AIBT issued CoEs to previous students who had already commenced their courses.[4]

    [4] Ibid, para 10.

31. The Tribunal accepts the applicant’s evidence of the difficulties he experienced with his enrolments at AIBT. The Tribunal accepts that the applicant completed the requirements for the Diploma of Information Technology. It also accepts that following the cancellation of the college’s registration in February 2019, the applicant experienced significant disruption to his education and his proposed completion of the Advanced Diploma of Information Technology. It also accepts his evidence that he paid his course fees and yet had difficulties in communication with his college, including not receiving transcripts of units completed. The Tribunal gives little weight to the PRISMS record which indicates that the applicant’s enrolment in the Advanced Diploma of Information Technology was not cancelled in September 2019 due to the non-payment of fees, noting in particular the Tribunal’s (differently constituted) findings regarding preaches by this education provider of the requirements for the PRISMS database. The Tribunal accepts the statement of attainment which the applicant has provided by AIBT, which indicates that he has completed 9 units of the Diploma of Information Technology, and then on a separate page indicates he has completed a further 7 units of the Diploma of Information Technology, which may in fact be units towards the Advanced Diploma of Information Technology.

32. The Tribunal therefore finds that the applicant was up until February 2019 making good progress with his proposed studies and that progress was interrupted considerably by the uncertainties associated with the de-registration of his college’s status as a registered education provider. While the applicant’s gap in enrolment from 23 October 2020 to 4 October 2021 is of significant concern, the Tribunal has taken into account the applicant’s claims regarding his depression following the disruptions to his education and the added uncertainty and disruption caused by the COVID-19 pandemic. The Tribunal also takes into account the applicant’s evidence that he was not working during 2020 as a result of his job loss and depression. While the Tribunal did not find the applicant’s responses to questions about any medical evidence of his depression to be satisfactory, it has also taken into account the applicant’s youth and the relatively short time period he has been in Australia, away from family and support networks. The Tribunal also considers that the applicant was able to speak knowledgeably about his current units of study. The Tribunal accepts that he is currently engaged and now in a position where he can perform well as a student. Accordingly, the Tribunal makes no adverse findings regarding his enrolment history.

1. The Tribunal accepts that the applicant has put forward reasonable reasons for why he wishes to study in Australia. In particular, he wishes to complete the course of study for which he originally came to Australia and for which he was granted his first Student visa, but was unable to complete because of uncertainty caused by the deregistration of his college’s status as a registered education provider. The Tribunal accepts that the applicant has personal ties to his home country, including the presence of all of his immediate family in Nepal, as well as extended family.

2. The applicant confirmed at the hearing that there are no civil or political issues that would act as an incentive for him to remain in Australia. There is no evidence of any military service requirements. There is insufficient evidence before the Tribunal regarding the applicant's circumstances in Nepal, relative to others in that country, and the Tribunal makes no adverse findings in relation to these factors.

3. The Tribunal does not consider that there is evidence of ties to Australia which would act as a strong incentive for the applicant to remain after completing his course of study. The applicant arrived in Australia in August 2017 to complete an Advanced Diploma of Information Technology. He has completed the Diploma of Information Technology, and now, wishes to complete the Advanced Diploma at another college as a result of disruptions to the registration status of his previous education provider. There is no evidence of the applicant being in a relationship or of having strong family or community ties in Australia. There is nothing to suggest that he has been building a career in Australia, and the Tribunal gives some weight to his evidence that he did not work for the majority of 2020 and 2021 as a result of the COVID-19 pandemic and the depression he experienced as a result of the gaps in his study.

4. The Tribunal accepts that the proposed course of study will be of value to the applicant’s future. The study is relevant to his proposed career as a computer engineer and is consistent with his high school education in Nepal and his brief work as an intern prior to arriving in Australia. The Tribunal considers the applicant is studying at a level consistent with his existing education and accepts that his aim is to obtain internationally-recognised qualifications which will give him an advantage in his home country.

5. The Tribunal considers there is nothing adverse regarding the applicant’s immigration history. He has previously only held one Student visa application, and now wishes to complete the course which he arrived in Australia to complete. He does not have a lengthy visa history. He has shown a consistent pathway in his enrolment history. There is no evidence of previous visa refusals or cancellations, and nothing to suggest that he has not complied with the conditions of his visas.

6. 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.

7. 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?

8. 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.

9. 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).

10. The applicant has provided with his 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, and based on the applicant’s stay in Australia to date, including his evidence of compliance with current visa conditions and his current progress with his studies.

11. 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?

12. 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)).

13. 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.

14. 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.

15. 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

16. 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;

    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.