Uwizeye (Migration)

[2020] AATA 6132

Uwizeye (Migration) [2020] AATA 6132 (21 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Christelle Uwizeye

CASE NUMBER:  1920133

HOME AFFAIRS REFERENCE(S):          BCC2019/2820156

MEMBER:Genevieve Cleary

DATE:21 July 2020

PLACE OF DECISION:  Perth

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

Statement made on 21 July 2020 at 4:55pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolled in lower level courses in different subject areas than previous highest study – enrolled after arriving on skilled working visa but being unable to find relevant work – undetailed future business plans – family ties in home country, no strong ties in Australia – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 July 2019 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 1 June 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 (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 appeared before the Tribunal on 20 July 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Kinyarwanda and English languages.

5. The applicant was assisted in relation to the review by their registered migration agent.

6. Prior to the hearing the applicant provided to the Tribunal:

   ·The Decision Record of the delegate;

   ·The response to the Request for Student Visa Information form;

   ·A letter of offer and acceptance (unsigned by the applicant) dated 9 September 2019 from Australian Tertiary Institute for the Certificates III and IV in Commercial Cookery and the Diploma of Hospitality Management;

   ·A letter of confirmation of enrolment dated 12 February 2020 from Australian Tertiary Institute for the Certificates III and IV in Commercial Cookery and the Diploma of Hospitality Management;

   ·A letter of confirmation of enrolment dated 7 July 2020 from Australian Tertiary Institute for the Certificates III and IV in Commercial Cookery and the Diploma of Hospitality Management;

   ·A letter from the Australian Tertiary Institute dated 7 July 2020 outlining the courses in which the applicant is currently enrolled;

   ·A Confirmation of Enrolment for the Certificate III in Commercial Cookery, showing that that coursed commenced on 3 June 2019, and was to be completed on 25 May 2020;

   ·A Confirmation of Enrolment for the Certificate IV in Commercial Cookery, showing that that course commenced on 27 May 2020, and will be completed on 18 November 2020;

   ·A Confirmation of Enrolment for the Diploma of Hospitality Management, showing that that course will commence on 4 December 2020, and will be completed on 7 May 2021, and

   ·A payment receipt to the Australian Tertiary Institute for $1966.68 dated 3 July 2020 for ‘Tuition Fees- Certificate III in Commercial Cookery.’

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

   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 applicant for entry and stay as a student.

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

9. Clause 500.212 requires as follows:

   The applicant is a genuine applicant for entry and stay as a student because:

   (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

   (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)any other relevant matter; and

   (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

10. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:

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

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

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

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

11. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

The applicant’s circumstances in their home country

1. Prior to the applicant coming to Australia the applicant had completed a Bachelor and Masters in Electronics and Telecommunications.  The bachelor level qualification was obtained in Rwanda, and the Masters in Malaysia in August 2016.

2. The applicant’s mother and 3 brothers remain in Rwanda; she calls them regularly. While the Tribunal accepts that this creates some incentive for the applicant to return home, the applicant does not appear to have any ties to employment or other economic circumstances in her home country. The Tribunal is not satisfied that the family ties in the circumstances would provide a significant incentive for the applicant to return to her home country, and this is to be given a little weight against her gaining a Student visa.

3. The applicant is not subject to national service and there is no political or civil unrest or, generally, economic reasons, other than are expressed elsewhere in these reasons, that would be cause for the applicant not to return to Rwanda, or provide an incentive for her not to return, and the Tribunal gives these factors some weight in her favour.

The applicant’s reasons for coming to Australia, her course of study in Australia and the value of her courses to her future

1. The applicant travelled to Malaysia to do her masters on a government scholarship.  She went because she could not find a job in Rwanda with her Bachelor degree. She applied online for engineering jobs, and she cold called companies, but to no avail. 

2. The applicant arrived in Australia in June 2017.  At the time she held a FA600 Visitor visa.  She came for a holiday because she was studying in Malaysia because and it was not far.  She stayed for 2 weeks.   In August 2017 she was granted a VF-476 Skilled Recognised Graduate visa and she returned to Australia in December 2017.  She applied for this visa because she wanted to work and have experience in communications engineering.  She did not have a job before she came to Australia, and when she arrived she could not find employment.  She did work during that period, cooking at a café in Claremont, a suburb of Perth.  She worked there for 6 months, commencing February 2018, and she left in June 2018.  She then completed a Certificate III in Aged Care, and tried to find employment, but, again, she could not.  She was living with a family who had jobs in that area, and they told her it was easy to get a job, and she needed to pay her bills. 

3. She completed that course in July 2018.  The course took 3 months.  During that time she worked as a babysitter and a cleaner. She then worked in mining, as a house keeper at Barrow Island.  This lasted from March 2019 until October 2019.  Her skills visa expired on 6 June 2019. 

4. She said that she decided that when she could not get an engineering job, but was cooking, and she decided that if she got a certificate and got skills in cooking, she could run her own business when she returned to Rwanda.  She knew that it was already difficult to gain employment in engineering in Rwanda.

5. In Rwanda, she had cooked local food for weddings and parties.  This is traditional practice.  Purchasing cooking from homes is cheaper than buying food from a restaurant. There was a charge for that food she prepared.  This would happen about once a month and she did the cooking with her mother, who works for a business which sells juice, and she rents a house, and rooms in her own house for financial support.

6. The Letter of Offer provided by the applicant from the Australian Tertiary Institute dated 9 September 2019 shows that the applicant enrolled in the Certificates III and IV in Commercial Cookery and the Diploma of Hospitality Management.   Should the applicant complete the latter course, the letter of offer says that she will complete her studies on 15 October 2021. The tuition fee for the certificate three course is $11,000 and for the other two courses $5000 each.

7. Further, the letter confirming her enrolment dated 12 February 2020 shows that she had commenced the Certificate III course at the time of the letter, and that, should she complete the Diploma of Hospitality, she would complete her studies on 15 October 2021. The letter confirming her enrolment dated 7 July 2020 also shows that she commenced the Certificate III course in October 2019, and would complete her studies in October 2021.

8. The applicant told the Tribunal that when she enrolled she was given the start date of July 2019.  She did not start then because she did not have sufficient money to pay the fees. She could also not break her contract with Barrow Island.  Therefore she started the course in October, having worked for longer at Barrow Island. 

9. The applicant told the Tribunal that she loves cooking, and wanted to improve her knowledge and skills so that in the future she would be in a position to cook as a professional.  She also told the Department this, as is recounted in the Decision Record of the delegate. The Decision Record also notes that she told the Department that she will have her own restaurant business in the future which will allow her to support herself and her future family.  While the applicant has also told the Tribunal this, and, in her response to the Request for Student Visa Information form that she plans to return to her country and open her own restaurant business, offering different cuisines at an international standard and catering to international tourists who will pay well, she has also told the Tribunal in her response to the Request for Student Visa Information form that the qualifications she gains in Australia will be an opportunity to obtain a job in a five star hotel, earning her up to $1500 per month.

10. The applicant told the Tribunal at the hearing that she will start in a hotel, but then later run her own business. The business will be cooking local food, and international food.  It will be a restaurant in a city where she comes from. She will do this with her family, being her brothers.  The money will come from work she has in a hotel.  She will work and save money for 2 years. 

11. She chose Australia to study this course because the courses here incorporate both the cooking and management aspects of the industry.  In Rwanda the courses are separate, and must be completed separately.  In addition, she said that the courses here address cooking sea food, whereas in her country, because it is not near the sea, there is no sea food on offer. The applicant said she will start small, and it will take about 10 million francs to rent premises, pay staff “and buy everything.”  She has asked for help and information from her family, particularly her brothers.  Her brothers do not work, they are 30 and 31 years old.  They do not have a business, the youngest has experience in business in a shop selling breakfast items. 

12. While that may be the case, and while the Tribunal accepts that a qualification in Australia may place, generally, applicants at a competitive advantage when they return to their home country, the applicant has not provided any information that shows that she has determined in what type of premises or exactly where in the city the restaurant will be that she opens, how it will be run, how big it will be, what financial backing she will require, or any other business or financial planning that she has performed to determine whether her plans are realistic.  The applicant has not provided any details on how she says saving money for 2 years from an entry level hospitality job will enable her to achieve the financial substance to set up a business. She has not provided any information to the Tribunal that shows that she has any other access to the financial resources required to open her own restaurant, or the income she hopes to achieve.  The applicant’s plans are vague and unsubstantiated, and the Tribunal is not satisfied that they are firm or realistic plans at all. 

13. She has had no experience in the cooking or hospitality industry, other than her home based, sporadic supply of food with her mother in her home country and the study of hospitality is completely different to the studies she has already completed, being communications engineering and aged care. The applicant told the Tribunal that she decided to embark on a cooking career having worked at a café in Perth, however at that time she was here on a skills visa, the purpose of which is to further the skills gained, and to gain practical skills, in areas in which the person is already qualified, not to assist the visa holder to try new industries to determine whether they wish to work in them, and gain further qualification in them.

14. The applicant’s representative was invited to speak at the Tribunal hearing.  She said that the applicant wants to have an international qualification, and she thought that if she gained an Australian qualification, she would be able to return home, having been skilled through work and study.  Her aim is to be her own boss, and as a female, that is a valuable thing in her country.  She suggested that this is a brave move when this is such a big change in direction for her.  This would also mean she can start her own business, which is also brave.

15. The Tribunal accepts that young students do not always know what they really want to study when they leave school, and may have a change in direction.  Changes to courses and course providers, and some failures in units, are reasonable in those circumstances.  Further, it is reasonable to want to do all that is possible to ensure a person has the best prospects of gaining employment.  However, the applicant has taken some time, and has qualifications in 3 separate countries, including an aged care qualification from Australia, to determine that she wishes to complete a hospitality course.  The applicant, by her own evidence, and by the fact that she did not commence a hospitality course until she had completed an engineering high-level qualification, an aged care course and then worked in a café, could not be said to have always had a goal to work in hospitality or run her own business in hospitality. It would be reasonable to assume that she would have followed up on that goal much earlier in life, had she always had it. 

16. The Tribunal also accepts that it is brave for any person to want to start their own business, and be their own boss, and accepts what the representative says about the importance to the applicant of the ability to do so, however, the current suite of courses being undertaken by the applicant are not only inconsistent with the subject of her existing qualifications, but they are also inconsistent with the level of her current qualifications, being a masters.  Again, the Tribunal accepts that people do not always start out studying in an industry in which they will ultimately be employed, however, it is difficult to make a determination on whether the current hospitality courses the applicant is undertaking will have any value to the applicant’s future employment when the applicant has a number of different qualifications at different levels in different industries and has not found successful employment in any of them, and, given that the applicant was already in Australia on a Skills visa in order to practice her skills at engineering when she changed to aged care and then hospitality, the Tribunal cannot give any weight to the value of the courses to her future in favour of the applicant being granted her Student visa.

17. While the Tribunal accepts that it is reasonable to undertake courses in another country such as Australia, or Malaysia, to maximise the potential for employment in an applicant’s home country, the constant changes and inconsistencies between the industries and levels of courses undertaken suggests that the applicant is using the Australian immigration system to maintain ongoing residence in Australia. This factor, combined with the vague and unsubstantiated claims made as to the goals for the applicant’s future also weigh against the applicant being granted her Student visa.

The applicant’s circumstances and potential circumstances in Australia

1. The applicant has been employed in Australia.  She worked at a café from February 2018 to July 2018 as a kitchen hand, and then in housekeeping on Barrow Island from March to October 2019.  At the moment she works as a babysitter and cleaner, which she has also done from time to time during her stay in Australia.  The Tribunal is satisfied that the applicant has not, through that employment, established such personal ties in Australia that they are a strong incentive themselves for her to remain in Australia. However, the Tribunal is satisfied that the economic circumstances which arise from relatively constant employment for the applicant compared to the lack of prospective employment opportunities the applicant has already experienced in Rwanda does provide a strong incentive for the applicant to remain in Australia and to attempt to use the visa programme to prolong her stay here.  Given the Tribunal’s finding that the applicant does not have significant incentive to return to Rwanda because of close personal ties or other factors, the Tribunal gives these potential economic circumstances some weight against her being granted a Student visa.

1. There is also little information provided by the applicant which enables the Tribunal to compare the applicant’s circumstances in Australia to her circumstances in Rwanda, should she return there.  The applicant has provided limited information on the salary or income she would expect to gain in Rwanda having studied courses in Australia, and it is unclear where she obtained that information. Neither has she, as is expressed elsewhere in these reasons, provided any details on the financial backing the applicant may receive, or other support, from family or other sources, and the income she hopes to achieve from a restaurant. The Tribunal therefore can put no weight on the applicant’s circumstances in Rwanda compared with her circumstances in Australia in that regard.

2. There is no other information before the Tribunal to suggest that the applicant has strong personal ties in Australia such that she has an incentive to remain and the Tribunal gives this a little weight in her favour. The applicant is not in a relationship here, and there is no evidence that the applicant has entered into a relationship of concern, and the Tribunal gives this limited weight in her favour. 

The applicant’s visa and travel history

1. The applicant studied in Malaysia for 3 years from 2013, where she completed her Masters qualification.  There is no indication that the applicant did not comply with visa conditions during that stay.  She was then granted a Graduate Skills visa (476) in August 2017, which expired in June 2019.  It was after that visa that she applied for the Student visa, the refusal of which is the subject of this review.

2. There are no other outstanding visa applications yet to be finally determined.  There is no evidence that any of the applicant’s family have an immigration or visa history of concern.  The applicant has not had a visa refused elsewhere or considered for cancelation anywhere. The Tribunal gives the applicant some weight in her favour for those factors.  The applicant has not returned to her home country since she has been in Australia, having already been in Malaysia for 3 years.  This is a relatively significant period to have been away from her family, and it adds weight to a finding that the applicant does not have strong or significant ties to her community or family in Rwanda such that she has a strong incentive to return, and this is to be given some weight against her being a genuine temporary entrant for study.

Any other relevant matters

1. The Tribunal is satisfied that there are no other relevant matters for consideration in relation to this applicant.

Whether the applicant is a minor

1. The applicant is not a minor and therefore the intentions of a parent, legal guardian or spouse of the applicant are not a relevant factor.

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. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

4. 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

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

   Genevieve Cleary
   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.