Wann (Migration)

[2019] AATA 2632

Wann (Migration) [2019] AATA 2632 (30 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ko-diing Wann

CASE NUMBER:  1732101

HOME AFFAIRS REFERENCE(S):           BCC2017/4428917

MEMBER:T. Quinn

DATE:30 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 30 May 2019 at 2:31pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – problematic answers in response to s 359(2) letter – vague future plans – reasons for studying in Australia – length of time already onshore – satisfactory academic progress – timing of current visa application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Immigration and Border Protection (‘the delegate’) on 14 December 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicant applied for the visa on 23 November 2017 (‘the application’).   At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The applicant applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. On 14 December 2017, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that the applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

4. On 19 December 2017, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.

5. More than 17 months have elapsed since the making of the delegate’s decision and the applicant’s application for review with the Tribunal. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed during that time. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information to the Tribunal for the purposes of determining the outcome of their application for review. To this end, on 5 April 2019, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’). The applicant responded to the s359(2) letter within the prescribed period, filing five submissions on 23 April 2019 and one further submission on 24 April 2019.

6. The applicant appeared before the Tribunal on 27 May 2019 to give evidence and present arguments.  The applicant had not requested an interpreter but an interpreter in the Mandarin and English languages was present for another applicant in the hearing room and the applicant in this case expressed a preference to use the interpreter’s services.  Therefore, the hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The applicant had been assisted in relation to the review by their registered migration agent but was not assisted at the hearing.

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

9. The Tribunal has proceeded to a decision having regard to all the information before it, including the Department file and all material and evidence provided by the applicant to the Tribunal.

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

    STATUTORY FRAMEWORK

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

12. 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?

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

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

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

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

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

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

15. The Direction is a lawful direction of the Minister made in accordance with section 499 of the Act. The Tribunal is therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[1]  Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before the Tribunal.  The Tribunal, however, recognises that it is an independent statutory body.  It must therefore reach its own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The applicant in this case is a 32 year old Taiwan citizen who first arrived in Australia on 2 June 2012 pursuant to a working holiday visa which was valid for two years.[2]  The applicant gave evidence that after this visa expired, they obtained a tourist visa for 6 months and travelled around Australia and then applied for a student visa in 2015 which was refused.  The applicant said that they did not know why that particular student visa application was refused and did not seek a review with the Tribunal.  Three months later, the applicant again applied for a student visa in late 2015 and was successful.  The applicant then applied for the student visa which is the subject of this review on 23 November 2017.  It is of note that the applicant’s application and enrolment in the proposed Diploma of Hospitality Management course occurred one day prior to the expiry of their previous student visa.[3]

    [2]           See delegate’s decision in addition to evidence given by the applicant at hearing.

    [3]         See delegate’s decision.

16. Prior to coming to Australia, the applicant completed secondary school in 2001 in Taiwan.[4] The applicant’s response to the s359(2) letter was problematic for the Tribunal as some sections were answered and others were not. When the Tribunal enquired about this, the applicant stated that they did not understand the questions in the form. The applicant has been living in an English speaking country for over six years cumulatively now and studying courses taught in the medium of English for some time, the Tribunal has difficulty accepting that the applicant could not understand the questions asked in the questionnaire attached to the s359(2) letter and the Tribunal found it difficult during the hearing to obtain complete answers to the questions that had been missed by the applicant in the form. The applicant’s response to the s359(2) letter did not refer to any work experience in Taiwan from 2011 until the applicant’s arrival in Australia in 2012. The applicant initially simply stated they had been working in a Chinese restaurant in reception and management. Upon further questioning, the applicant stated they had worked in other companies such as an Information Technology company in sales and marketing and in a department store in sales. The applicant’s evidence in this regard was a cause of concern for the Tribunal as it raised questions about whether the applicant was being forthright in the information they were providing to the Tribunal.

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

17. The applicant stated that they worked for a few months in a packaging company upon their arrival in Australia in 2012 under the working holiday visa and then since having a student visa they spent a few months working as a waitress at a sushi restaurant earning approximately $100AUD per day but that they have otherwise been supporting themselves using savings from work prior to arriving in Australia, such expenses totalling between $2-3000AUD per month. 

18. Under their previous student visa, the applicant’s evidence was that they undertook two English courses, a Certificate III in Business, a Certificate IV in Business Administration and a Diploma of Business Administration.  The delegate’s decision outlines the applicant’s enrolment history which includes seven cancelled enrolments.  The applicant has provided certificates in support of completion of the two English courses and a Diploma of Business Administration.  The delegate’s decision states that the Certificate IV in Business Administration is ‘finished’ but states that the Certificate III in Business was cancelled.  The applicant’s evidence was that this was incorrect and that the applicant completed the Certificate III in Business.  The Tribunal gave the applicant until close of business two days after the hearing to submit evidence of completion of the aforementioned Certificates.  The Certificate III in Business was of particular interest for the Tribunal as the dates outlined in the delegate’s decision seem to indicate that the applicant was not engaging with their study from March to August 2016.

19. On 29 May 2019, the Tribunal received submissions from the applicant which included:

    a.a letter from the applicant’s course provider dated 29 May 2019 verifying that the applicant had been enrolled in the Certificate III in Business from 18 April 2016 but withdrew from the course on 21 July 2016;

    b.a Statement of Attainment from the applicant’s course provider dated 20 February 2017 indicating the applicant has completed four subjects in the Certificate IV in Business Administration;

    c.a number of documents supporting the certificate for the Diploma of Business Administration, which the applicant had already provided to the Tribunal prior to hearing.

    d.a Confirmation of Course Progress from the applicant’s course provider dated 28 May 2019 indicating the applicant has successfully completed 13 subjects towards their Diploma of Hospitality Management.

20. The applicant’s evidence in relation to their Certificate III in Business and Certificate IV in Business Administration is inconsistent.  The applicant at hearing said they had completed the Certificate III in Business but the document provided indicated the applicant withdrew from the course and, in addition, there is no corroborating evidence before the Tribunal about whether the applicant actually engaged with that course at all.  Although the applicant was enrolled from April to July 2016, it is not clear to the Tribunal whether the applicant was engaging with their studies and, if so, what sort of course progress they made.  Further, the applicant indicated they had also completed the Certificate IV in Business Administration, however, no certificate to this effect has been provided and, in fact, the document provided to the Tribunal only supports completion of four subjects in that course, not completion of the entire course.  The Tribunal acknowledges the letter bears a date which is at such time that the applicant may have still completed this certificate but the Tribunal is puzzled by the applicant’s failure to proffer that certificate in their evidence as One would think that if the applicant had completed this course, they would have a copy of their certificate and provide same to the Tribunal. 

21. The applicant’s current visa application which is the subject of this review was to study a Diploma of Hospitality Management commencing 29 January 2018 with completion on 26 January 2020.  Due to delays in the applicant’s matter coming before the Tribunal, the applicant is now passed half way through this course.  The applicant stated that they are making good course progress.  The applicant has provided to the Tribunal a letter from their course provider confirming enrolment and indicating a 96% attendance rate.  The Tribunal requested some sort of corroborating evidence from the course provider in relation to the applicant’s academic progress and confirming the applicant’s likely completion date.  The Tribunal gave the applicant until close of business two days after the hearing to submit same. 

22. On 29 May 2019, the Tribunal received submissions from the applicant which included a Confirmation of Course Progress from the applicant’s course provider dated 28 May 2019 indicating the applicant has successfully completed 13 subjects towards their Diploma of Hospitality Management and is enrolled in a further seven subjects with an expected completion date in January 2020.  The Tribunal acknowledges that the applicant has been engaging with and making adequate academic progress in relation to their most recent studies in the Diploma of Hospitality Management.

23. When the Tribunal asked the applicant what their initial plan was on their first student visa, the applicant’s evidence was that they initially came to Australia to study English because their English was poor but stayed on because they knew their friends have studied other courses.  The Tribunal was puzzled by this explanation as it seemed to suggest a motivation based on factors other than studying.

24. In their genuine temporary entrant statement, the applicant claims that ‘the education qualification from Australia is well recognised… in terms of tourism and hospitality management.  After I finish the degree, then I will be more than just eligible to apply for any job relate to this discipline in my country’ (‘the GTE’).[5]  Prior to hearing, the Tribunal had little guidance on the material before it as to what the applicant’s future plans were and how the qualifications obtained would assist in that plan.  At hearing, the applicant stated that they plan to finish the course and go home ‘to maybe open my business’.  The Tribunal had to repeatedly question the applicant to obtain any detail in relation to this plan.  Ultimately, the applicant’s evidence was that the business would a fusion restaurant of eastern and western food doing high tea, three meals combined with western snacks, probably in Tai Pei city.  The applicant said they would start with desserts and then probably hire a chef.  When asked about their experience in cooking and desserts, the applicant stated ‘I just learned a little bit at the moment’ and when asked whether they had undertaken cookery courses, the applicant stated ‘not yet’.  The applicant indicated that their parents had now retired but previously ran a restaurant.  When asked what sort of remuneration the applicant could expect to receive, the applicant initially stated they did not know.  When the Tribunal enquired about the applicant’s parent’s restaurants, the applicant stated that they had approximately $60-$70,000AUD equivalent turnover per month but the applicant did not know what sort of profit margin existed or what they would be likely to receive running their proposed restaurant.  Overall, the applicant’s evidence raised concerns for the Tribunal about the true nature of the applicant’s intentions in studying in Australia, particularly given that the particular plan did not seem to have been articulated by the applicant prior to the day of hearing.

    [5]           See page 29 Department file.

25. When the Tribunal enquired about whether the applicant could have undertaken the proposed courses in Taiwan, the applicant gave the following evidence: ‘I just wanted to study here.  I didn’t get to know if they have courses like this in Taiwan.’  This raised concerns for the Tribunal.  Although the GTE previously supplied by the applicant describes the desirable lifestyle in Australia and the quality of the education, the Tribunal considers that the applicant has not provided reasonable reasons for not undertaking the study in their home country, particularly given the expense of living in Australia when not working.

26. The applicant submitted that the courses they are undertaking have given them foundation knowledge about running a restaurant and that they have learnt a lot of English.  The Tribunal accepts that English and business skills are beneficial in a business trying to operate engaging with English-speaking clientele.  The Tribunal also acknowledges that study in hospitality is likely to assist in, and is relevant to, the running of a restaurant, however, the Tribunal found the applicant’s evidence about their proposed plan difficult to reconcile with their previous submissions which were markedly lacking in any specific plan and also with the applicant’s evidence which reflected a very strong desire to simply be studying in Australia.  This is mirrored in the GTE.  The Tribunal allows for reasonable changes to career and study pathways and accepts that the proposed study appears consistent with the applicant’s current level of study but it does not appear relevant to the applicant’s past employment in reception, sales and marketing.  Given the fact that the applicant has spent approximately six years in total onshore, completed two English courses and one Diploma as well as engaging in some study at the Certificate level, the Tribunal considers the applicant has obtained significant exposure to English in an English speaking country in that time.  The Tribunal considers the benefit to the applicant’s future employment prospects somewhat limited in circumstances where the applicant is likely to be able to complete similar courses in Taiwan, at less cost.  The applicant, having completed significant study and remained onshore for approximately six years, appears to the Tribunal to now be in a position to depart Australia, reunite with their family and put in motion their future plan.  However, the applicant is now seeking to remain onshore for in excess of seven years in total in order to complete the Diploma, which was only sought and enrolled in the day before the applicant’s previous student visa was due to expire.  This causes concerns for the Tribunal about the applicant’s true intentions and raises questions about whether seven years can be referred to as ‘temporary’ in the true meaning of the word.

1. The applicant stated they are not in a relationship in Australia and that they live with two housemates.  The applicant stated they play volleyball at MSAC and have done so since their time on a working holiday visa in 2012.  The Tribunal considers that in the circumstances the applicant has cultivated and established strong ties to the Australian community.  As each day passes, those ties strengthen.

2. The applicant returned to Taiwan as follows: from 29 March 2013 to 4 June 2013, from 23 April 2014 to 8 July 2014 to do some life planning, from 20 March 2015 to 28 June 2015 for no particular reason, from 25 October 2016 to 1 November 2016 as the applicant’s father was admitted to hospital after having a fall.  The applicant has not returned home since 1 November 2016, now in excess of two and a half years.  The applicant has both parents and is the youngest of ten children.  The applicant stated they speak to their family every day via facetime.  The Tribunal accepts that the applicant has personal ties to Taiwan serving as a significant incentive for them to return.  However, given the length of time the applicant has been onshore for, approximately six years in total, in combination with the current application to remain onshore for a further period, it appears to the Tribunal the such ties are outweighed by the applicant’s desires and incentives to remain onshore.

3. Given the applicant’s evidence that they are not working and have considerable expenses totalling $2-3,000AUD per month, the Tribunal accepts that the applicant’s economic circumstances in Australia would appear to be a significant incentive for them to return home, however, it would seem such incentives are outweighed by the desire to remain onshore. 

4. The applicant stated that prior to arriving in Australia in 2012, they travelled to Singapore, Indonesia and Hong Kong and have had no visa or immigration issues in the past, other than those described above, and the applicant does not have any potential military service obligations or political or civil unrest circumstances in Taiwan.  The Tribunal accepts this evidence.

5. The Tribunal empathises with the applicant and acknowledges they have made good academic progress in their most recent course.  However, Tribunal is concerned about: the nature of some of the applicant’s evidence which was at times evasive and inconsistent and which, taken as a whole, appeared to indicate a focus on residing in Australia in priority over the purpose of study and/or any future plan; the application to stay onshore well beyond the period initially applied for in 2015; the timing of the current student visa application (being the day before expiry of the applicant’s previous student visa) and the length of time the applicant has been onshore for in total.  Taken as a whole, the Tribunal is concerned that the applicant is motivated by factors other than study and is using the student visa program as a means of maintaining residence in Australia.  The Tribunal cannot be satisfied on the material and evidence before it that the applicant genuinely intends to stay in Australia temporarily.

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

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

DECISION

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

T. Quinn

Member

Attachment – Direction No.69

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

(Section 499)

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

Dated: 18 April 2016

Peter Dutton

Minister for Immigration and Border Protection

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

Part 1 of Direction No. 69 - Preliminary

Name of Direction

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

It may be cited as Direction No. 69.

Commencement

This Direction commences on 1 July 2016.

Interpretation

Act means the Migration Act 1958.

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

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

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

Regulations mean the Migration Regulations 1994.

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

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

Student visa means a Subclass 500 (Student) visa

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

Application

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

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

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

Preamble

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

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

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

a.the applicant’s circumstances; and

b.the applicant’s immigration history; and

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

d.any other relevant matter.

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

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

Part 2 of Direction No. 69 - Directions

Assessing the genuine temporary entrant criterion

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

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

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

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

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

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

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

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

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

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

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

The applicant’s circumstances

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

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

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

The applicant’s circumstances in their home country

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

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

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

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

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

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

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

The applicant’s potential circumstances in Australia

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

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

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

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

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.