Valesia (Migration)

[2022] AATA 3541

Valesia (Migration) [2022] AATA 3541 (30 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Cindi Valesia

REPRESENTATIVE:  Mrs Alessia Comandini

CASE NUMBER:  2114540

HOME AFFAIRS REFERENCE(S):          BCC2020/2545877

MEMBER:Peter Booth

DATE:30 September 2022

PLACE OF DECISION:  Melbourne

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 30 September 2022 at 10:46am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – reasonable academic progress to benefit future career – diploma level courses – course cancellations – family ties in home country – decision under review remitted         

LEGISLATION

Migration Act 1958, ss 65, 359, 499; Direction No 69
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 15 October 2021 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 28 October 2020. 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 applicant was not a genuine temporary entrant.

4. The applicant appeared before the Tribunal on 8 August 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

5. The applicant was assisted in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 entrant.

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

8. 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?

9. 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.

10. 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.

11. The applicant gave evidence at the hearing, the substance of which was follows.

12. The applicant had read the delegate’s decision dated 15 October 2021 refusing her application for a student visa.

13. The applicant understood that the issue for determination was whether she was a genuine temporary entrant.

14. The applicant was asked to describe her current enrolment including commencement and completion dates. The applicant said, “started Advanced Diploma of Leadership and Management started 11 July 22 finish 19 July 23”. She was asked whether she had recently completed a Diploma of Leadership and Management. The applicant said that she had. When asked whether she had proof of successful completion of that course she said “yes”. She was asked to state the nature of the proof. She said, “I have transcript and a certificate”. The applicant was invited to provide a copy of the certificate after the hearing. She said “it has been done”.

15. The applicant had produced a confirmation of enrolment document to the Tribunal in respect of an Advanced Diploma of Leadership and Management commencing on 11 July 2022 and scheduled to be completed on 19 July 2023. The Tribunal accepts that she is enrolled in the course described in the confirmation of enrolment.

16. The applicant had also provided information to the Tribunal in the form of a response to a request to do so pursuant to s 359(2).

17. In summary the information provided by the applicant was as follows.

18. The applicant completed a course described as “accountancy” in Indonesia between September 2012 and January 2016. Prior to arriving in Australia, she had been employed in “customer service” between January 2012 and June 2016, as a “store assistant “between July 2016 and August 2017 and as “admin commercial” between October 2017 and October 2018. She stated that she derived an annual salary of AU$4000 from the latter position.

19. The applicant arrived in Australia on 9 November 2018 and since that time has returned to Indonesia on one occasion in February 2020 for 28 days.

20. The application for the student visa in question was made on 28 October 2020. The applicant stated her visa history in Australia to be as follows: she held a “working holiday visa (subclass 462)” between September 2018 and November 2019 and another such visa described as “extension” between July 2019 and November 2020.

21. The applicant stated her study history in Australia to be as follows: she was “studying now” a Diploma of Leadership and Management which commenced in January 2021  which was due to be completed in June 2022, she enrolled in and Advanced Diploma of Leadership and Management due to commence in June 2022 but did not commence it, she also enrolled in the same  course at a different institution due to start in July 2022 and be completed in July 2023.

22. The applicant stated that she was employed as a “farmhand, a horticultural worker, a freight handler and a cook “between November 2018 and May 2021. Most recently she was employed as a cook. She did not disclose any income details.

23. The applicant stated that her brother resides in Australia and also her partner resides in Australia.

24. The applicant did not provide any information regarding ownership of property in the Indonesia

25. As to her future employment plans the applicant stated, “please refer to the attached submission”.

26. As to her expected future remuneration the applicant stated, “please refer to the attached submission”.

27. The Tribunal proceeded to ask the applicant some questions arising from the responses paraphrased above. The questions and the answers, in summary were as follows.

28. The applicant was asked to state the level of studies described as “accountancy” which she had completed prior to arriving in Australia. She said “bachelor”. She was asked whether she was employed as an accountant in Indonesia. She said “no”.

29. The applicant confirmed that she arrived in Australia on 9 November 2018 as the holder of a working holiday visas. The Tribunal observed that after that visa expired, she obtained another such visa. The applicant agreed. She was asked when that second visa expired. She said, “working holiday visa expired 9 November 2020”. The Tribunal observed that she applied for the student visa in question on 28 October 2020. The applicant agreed. The Tribunal observed that she applied for the student visa approximately 10 or 11 days prior to the expiry of the second working holiday visa. The applicant agreed.

30. The Tribunal turned to consider the applicant’s study history. On 2 August 2022 the Tribunal accessed the applicant’s record on the Provider Registration and International Student Management System register (PRISMS). The applicant was informed that it had conducted the search on 2 August 2022 and that it showed that her enrolment in a Diploma of Leadership and Management course had been cancelled on two occasions and also that her enrolment in an Advanced Diploma of Leadership and Management course had been cancelled on three occasions. The applicant was informed that this information may show that she was not a genuine temporary entrant or a genuine student. However, the Tribunal stressed that it had not come to such a view. She was informed that the Tribunal would ask her questions about the study history .She was invited to comment at the outset. She was also informed that she may need time to consider that matter and asked how she wanted to proceed. She said, “I cancel one because change school”.

31. The applicant was invited to explain further she said, “I finished Diploma Leadership and Management last year at seven I cancel at new school on 11 July”. She was again invited to provide more detail. She said, “study at DM education, then change school in ACBI”. She did not elaborate. The  Tribunal asked whether she had anything further to add to her response. She said, “I finish course in diploma leadership and management”.

32. The applicant was invited to comment on the cancellation of enrolments in the advanced diploma of leadership and management course. She said “I finish school on July and start in July”. The Tribunal informed her that her response was too vague and invited her to give more details. She said “but for diploma leadership managment course was ended 3 July 2022 and then enrolled in new school in ACBI on 11 July 2022. I change school did not like school, I want to study”.

33. She was asked how many units she had successfully completed in the Diploma of Leadership and Management at the first school. She said, “I finish 12 unit”. She was asked whether she got credit for those 12 units at the second school. She said “no”. She was invited to explain. She said, “second course was different course”. The Tribunal informed her that her answer was difficult to follow and  invited her to  clarify. She said, “I complete first Diploma Leadership and Management at school one”. She was asked whether she had completed any units in the Advanced Diploma Leadership and Management at the first school. She replied, “no transfer to another school”.

34. The applicant was asked why she decided to study in Australia having been in Australia for two years without studying. She said, “if study in Indonesia in a language I want to improve my English, in Indonesia is only a short course”. When the question was repeated she said, “I was travelling and working”.

35. She was asked whether she had any assets in Indonesia. She said, “yes a house  and a motorcycle”. She was asked whether the house was in her own name. She said, “in the name of parent”. The Tribunal observed the asset was not in her name. She said, “I have inheritance rights”. She was invited to explain that right. She said, “it will be given to me when they pass away”.

36. She was invited to state her employment intentions when she returns to Indonesia. She said, “with completed leadership and management course I hope to get a better job such as retail manager or team leader, so Ike could receive a better salary, I come from Kalimantan, will have better employment Indonesia you speak English”.

37. She was invited to comment on the change in direction of her study from accounting to leadership and management. She said, “I don’t really like accounting, so change to a course like to study”. She is asked when she decided that she did not want to be employed as an accountant. She said, “I have not worked as accountant, if wanted to could do have study at master level, I only study because parents wanted”.

38. She was asked whether she intended to seek employment as a human relations manager when she returned to Indonesia. She said “yes”. The applicant was asked why she was not studying human relations qualifications. She said, “like to study something which is more flexible”. The Tribunal observed that it would seem useful to study human relations if she wanted to seek employment in that field and invited her to comment. She said, “I would like to study leadership and management and become team leader or retail manager in this field”. She was invited to explain her reference to “the field”. She said, “retail manager or supervisor in any industry”. The Tribunal observed that neither position would be described as a human relations position and invited her to comment. She said that “I suppose they could be”.

39. The Tribunal observed that the applicant’s representative had provided written submissions dated 30 May 2022 and asked whether the applicant had read the document. She said “yes”. The Tribunal took the applicant to who a passage on page 3 of the document (there are no numbered paragraphs) and read it aloud as follows: “We are instructed that the Applicant plans to work as either an Accountant or a HR Manager in Indonesia after finishing her Australian course. “.

40. The Tribunal observed that the applicant had given evidence that she did not want to work as an accountant and invited her to explain. She said, “I am currently studying Leadership and Management, study to be Human Resources, if want to study accounting would have be at master level, at the moment I am studying human relations and prefer rather than accountant”.  The Tribunal asked the applicant whether she was contending that she could not be employed as an accountant unless she had Masters level qualifications in accounting. She said “Indonesia that is why it is, the need to go on and study more levels, don’t like accounting

41. The Tribunal asked the applicant why the representative stated, on instructions, that she intended to seek employment as an accountant. She said, “in Indonesia finish schooling came here to study leadership and management, have two options, if I want to study accounting +2 Masters degree, this will enable me to be human resources manager”. The Tribunal again asked the applicant whether she was asserting that she could not be employed in Indonesia as an accountant without Masters level qualifications in Accounting. She said, “after finish leadership and management can go back can start career as retail manager or HR manager, or supervisor, if go back planning to be accountant would have two complete Masters degree after study, I would rather not repeat study”.

42. When invited to add anything further to her evidence the applicant said, “I can give evidence to show what I am studying, if you give me opportunity to finish the course”.

43. The applicant’s representative was invited to make submissions to the Tribunal. In summary those, brief submissions were to the effect that the applicant had completed a Diploma of Leadership and Management, she was currently studying an Advanced Diploma Leadership and Management which will finish in July 2023, she was very keen, had completed all her assessments, she wanted to finalise a second course and she had moved schools. Further the applicant could only have studied for months while holding a working holiday visa, and that, the  applicants partner resides in Australia. The representative was invited to comment on the applicant’s failure to study during the previous two years while in Australia. She said “it happens a lot, have opportunity to extend, then they want to experience study life”.

44. The applicant was asked whether she was currently employed and if so to state the role and her income. She replied, “casual staff at restaurant, $800 each week”.

45. Prior to the hearing the applicant provided a variety of documents to the Tribunal. The applicant did not refer to any of these documents during the course of giving evidence at the hearing. Nonetheless they have been taken into account by the Tribunal to the extent relevant and given appropriate weight. The Tribunal makes a number of observations in relation to those documents. A confirmation of enrolment in a Diploma Leadership and Management course confirmed that the course was conducted from 29 January 2021 until 3 June 2022.  The applicant produced two different confirmation of enrolment documents in respect of an Advanced Diploma Leadership and Management. The first was to be conducted between 11 July 2022 and 9 July 2023, the second between 6 June 2022 and 1 December 2023. A letter from a course provider dated 5 August 2022 confirmed the applicant was enrolled in an Advanced Diploma Leadership and Management course to be conducted from 11 July 2022 until 9 July 2023. The applicant also provided a certificate which confirmed that she completed the Diploma of Leadership and Management course. The certificate is dated 28 June 2022.

46. The applicant provided a statement to the Department in support of her application for review. The statement is undated. The statement was not referred to by the applicant during the course of giving evidence at the hearing. Nonetheless it has been taken into account by the Tribunal to the extent relevant and given appropriate weight. The Tribunal notes that insofar as her career aspirations are concerned the applicant stated that she intended to seek employment in a managerial role. No details were provided.

47. The applicant’s representative had provided written submissions prior to the hearing. These submissions are dated 30 May 2022. They were not referred to by the applicant at the hearing. Nonetheless they have been taken into account by the Tribunal and given appropriate weight. The Tribunal makes a number of observations in relation to the submissions. These submissions state that the applicant changed her course provider in order to study the diploma leadership and management course. This is consistent with the applicant’s evidence at the hearing. It also states that she intends to seek employment as an accountant or “HR manager” when she returns to Indonesia. Finally, that she has family members in Indonesia although her brother resides in Australia.

    CONCLUSIONS

48. The evidence of the applicant was often unresponsive to the question, vague, imprecise or discursive. Often the evidence of the applicant contained elements of all these issues. The Tribunal has rehearsed the evidence as a representative narrative, given in real time, which was often quite disjointed. The Tribunal’s rehearsal of the evidence is not intended to be a transcript of the evidence, rather the best recording as it transpired. It does give and is intended to give an appreciation of the nature and quality of the applicant’s evidence.

1. The Tribunal considers the factors for and against the applicant being a genuine temporary entrant for study in Australia are closely balanced in this case. On the one hand the applicant has been in Australia since 9 November 2018, is only return to Indonesia on one occasion, is only completed one course of study since she arrived, did not study for two years while holding working holiday visas, made the application for the student visa in question a few days prior to the expiry of the working holiday visa, owns no assets in Indonesia, her brother and partner resides in Australia, she appears to have stable employment in Australia, she has changed her career aspirations on several occasions, despite stating an intention to seek employment in human relations she is not studying human relations while in Australia, and she has had several enrolments which have been cancelled in the same course However, in the applicant’s favour she was entitled to apply for a student visa while onshore and while holding a working holiday visa, she was not obliged to study whilst holding a working holiday visa, she has explained the cancellation of enrolment to the satisfaction of the Tribunal, she has not change the direction of his study in Australia, she has completed one diploma of leadership and management, she will shortly complete and advanced diploma of leadership and management, the courses appeared generally relevant to a desire to seek employment in human relationships or in a managerial position as she has stated that she will return to Indonesia when she has completed her current course of study.However, on balance, and not without significant misgivings the Tribunal considers it appropriate to give the benefit of the doubt to the applicant. Should the applicant make a further student visa application on the basis of her intention to undertake further study after this, the evidence she gave to the contrary in connection with this case will clearly be relevant to any assessment her intention to stay in Australia temporarily only to study.

2. 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).

3. 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.

4. 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

5. 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 500.500.212 of Schedule 2 to the Regulations.

   Peter Booth
   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.