Wu (Migration)

[2021] AATA 5518

Wu (Migration) [2021] AATA 5518 (2 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Wan-Ju Wu

CASE NUMBER:  1925287

HOME AFFAIRS REFERENCE(S):          BCC2019/3842314

MEMBER:Gabrielle Cullen

DATE:2 November 2021

PLACE OF DECISION:  Sydney

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

Statement made on 02 November 2021 at 9:49am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Advanced Diploma of Project Management – genuine temporary entrant – Direction No.69 – family ties in Taiwan – academic progression – holder of bachelor’s degree – studying at a lower level – value of the course – GTE statement not provided – 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 Home Affairs on 26 August 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 2 August 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 applicant arrived in Australia on 18 March 2014 as the holder of a subclass 417 Working Holiday visa valid to 20 February 2018. She then held a subclass 500 student visa to 9 August 2019 and applied for the visa to which this decision relates on 26 August 2019.

4. Since her arrival in Australia she has departed on three occasions; from 16 March 2015 to 20 February 2017, 25 April 2018 to 16 May 2018 and 8 January 2020 to 15 January 2020.

5. With her application for the visa she provided evidence of enrolment in a Diploma of Leadership and Management from 6 July 2020 to 13 June 2021.

6. In her application she indicated that she is studying these courses to learn some professional knowledge and skills related to business and management. She said once she finishes these courses she will return to her country and obtain a good job. She also provided evidence of health insurance to 13 August 2021.

7. The delegate decided to refuse to grant the visa on 26 August 2019. The delegate decided to refuse to grant the visa because the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations on the basis that she is not a genuine applicant for entry and stay as a student. The delegate was concerned that the applicant was not going to start her course until 6 July 2020 and that her evidence as to why she wishes to stay and study in Australia was limited. The delegate noted she had not provided a statement addressing the genuine temporary entrant criteria.

8. On 9 September 2019 the applicant lodged an appeal to the Tribunal. She did not and has not since provided the decision of the Department to the Tribunal despite a request from the Tribunal.  

9. On 6 October 2021 the Tribunal wrote to the applicant and invited her to attend a hearing on 1 November 2021 by telephone.

10. The letter, among other matters, requested the applicant provide a current COE and documents that show her past studies in Australia. It noted the Tribunal will assess whether she intends genuinely to stay in Australia temporarily as required by clause 500.212 and asked her to provide a written statement addressing this issue by referring to Direction 69, which was attached.

11. On 25 October 2021 the applicant’s representative made the following submissions.

    We note that Ms.Wu commenced a Diploma of Project Management in October 2019 which was due to complete in October 2020.  Ms Wu did not pass this course.  She has instructed us that she did not cope with the transition to online learning.  She maintained her enrolment but did not complete the course.  She did the course again commencing in October 2020 and this has just been completed.  Our client has not been able to provide us with the completion letter or transcript but we hope to have these available before the hearing.

    We enclose copies of the receipts for her tuition we have received from her education agents.

    She has now commenced the Advanced Diploma of Leadership and Management and this is due to conclude in October 2022.

12. Prior to the hearing the applicant’s representative provided evidence the applicant had successfully completed the following courses while studying in Australia.

    ·General English Course studied from 2 April 2018 to 17 February 2019

    ·General English Course studied from 18 March 2019 to 9 June 2019.

    ·Diploma of Project Management studied from 12 October 2020 to 10 October 2021.

13. Also attached were the following CoEs:

    ·CoE indicating the applicant was enrolled in a Certificate IV in Leadership and Management at IBN College Pty Ltd for the period 8 July 2019 to 14 June 2020.

    ·CoE indicating the applicant was enrolled in  the course Diploma of Leadership and Management at IBN College Pty Ltd for the period 6 July 2020 to 13 June 2021.

    ·CoE indicating the applicant was enrolled in the Advanced Diploma of Leadership and Management at IBN College Pty Ltd for the period 5 July 2021 to 12 June 2022.

    ·CoE indicating the applicant is enrolled in the course Advanced Diploma of Program Management at Australian Vocational Training Institute Pty Ltd for the period 11 October 2021 to 9 October 2022.

    ·CoE indicating the applicant was enrolled the course Diploma of Project Management at Australian Vocational Training Institute Pty Ltd for the period 12 October 2020 to 10 October 2021.

    ·CoE indicating the applicant was studying the course Diploma of Project Management at Australian Vocational Training Institute Pty Ltd for the period 14 October 2019 to 11 October 2020. PRISMS finished

14. Evidence was also provided of the payment of the following fees for the applicant’s study since 2019.

    ·Invoice dated 17 October 2019 for Tuition Fees: AVTI Diploma Sem1 for the amount of $1,500.00

    ·Invoice dated 7 January 2020 for Tuition Fees: AVTI Diploma Sem2 for the amount of $1,500.00

    ·Invoice dated 14 April 2020 for Tuition Fees: AVTI Diploma Sem3 for the amount of $1,500.00

    ·Invoice dated 16 July 2020 for Tuition Fees: AVTI Diploma Sem4 for the amount of $1,500.00

    ·Invoice dated 15 October 2020 for Tuition Fees: AVTI Diploma Sem1 (re-enrol) for the amount of $1,500.00

    ·Invoice dated 7 January 2021 for Tuition Fees: AVTI Diploma Sem2 for the amount of $1,500.00

    ·Invoice dated 12 April 2021 for Tuition Fees: AVTI Diploma Semester 3 for the amount of $1,500.00

    ·Invoice dated 9 July 2021 for Tuition Fees: AVTI Diploma Semester 4 for the amount of $1,500.00

    ·Invoice dated 7 October 2021 for Tuition Fees: AVTI Advanced Diploma Semester 1 for the amount of $1,500.00

15. A letter was also provided confirming the applicant’s current enrolment in the Advanced Diploma of Program Management to be studied from 11 October 2021 to 9 October 2022.

16. The applicant appeared before the Tribunal on 1 November 2021 by telephone to give evidence and present arguments. The applicant was assisted with an interpreter in the Mandarin and English languages.

17. The applicant’s representative attended the hearing.

18. The Tribunal noted that the issue before it is whether she meets the genuine temporary entrant criteria as per cl.500.212. It outlined these requirements and Direction 69.

19. As to the applicant’s highest level of study in Taiwan, she said she achieved a Bachelor of Information Management in 2007/2008.

20. As to her work in Taiwan she said from 2007 until 2014 she worked as a shop clerk at a 7/11 part-time. She then said she worked from 2010 to 2012 at Cathay Life Insurance, selling insurance full-time. She said that is the only period she worked for Cathay Life Insurance. The Tribunal asked why then in her application for the visa it said she worked for Cathay Life Insurance from March 2015 to February 2017. She said that was a long time ago and she had forgotten and then she said that the application was lodged by her agent. The Tribunal asked who the agent was and raised with her that there was no evidence of an agent assisting in her application to the Department.

21. She said she worked from March 2015 to February 2017 in a mobile factory as an operator, full-time.

22. The Tribunal asked why she applied for a student visa in 2018 and she said because she wanted to study English.

23. The Tribunal asked why she applied for a student visa in 2019 and what she applied for. She said she wanted to find a better job on return and said she applied  to study leadership and management. She said she did not study those courses as the agent wanted her to pay a commission and she found another arrangement and then enrolled in the Diploma of Project Management.

24. The Tribunal noted she was enrolled in the Diploma of Project Management from 14 October 2019 to 11 October 2020 and asked whether she completed any units in this course. She said she completed one unit in this period and said because of Covid the school closed, she could not attend and then she could not study well online. The Tribunal noted that her course started in October 2019 yet Covid did not lead to a lockdown until March 2020 and questioned this being the reason she only successfully achieved one subject. She said studying in Australia is different than in Taiwan where it is just writing down whatever the teacher tells you. She said at the beginning she was not used to the study method in Australia. She said that is why she did not pass the first year.

25. As to her current course, the Advanced Diploma of Project Management she said she had just completed one subject, International Marketing Opportunities and that she still had to complete 11 units.

26. The Tribunal noted that she had studied a bachelor’s degree in Taiwan and wanted to know the value of studying at a lower level in Australia to her future. She said studying in Taiwan is at a basic level and in Australia it is at a deeper level. As to the value of studying the courses she is enrolled in to her future she said there are many industries and a big employment market in Taiwan. When asked if she had anything further to add as to why she is studying the current courses, she said the employment rate is low in Taiwan and it is easy to find a job. The Tribunal raised with her that she was sounding vague and lacking in detail as to why she is studying these courses and asked her whether she had anything else to say and she responded in the negative.

27. The Tribunal raised that it was concerned she was using the student visa to maintain residence not as a genuine student. In particular it noted that she had been in Australia since 2018 studying and had indicated she wanted to stay and study to October 2022 a period of over four years and would expect that a person paying for her study in Australia for that time would be able to provide more detail about the value of the courses to her future. When asked if she had anything to say, she said no.

28. As to her work in Australia she said she works cleaning many places. The Tribunal asked whether she had ever applied to work in an area similar to that which she was and is studying in Australia or where she wanted to work in Taiwan on return. She said in the beginning she only did cleaning, but then her employer asked her to help with the management. The Tribunal asked for more detail. She said in the beginning she did the cleaning job and then she helped to coordinate the employees to check the quality. The Tribunal asked why she did not say this was part of her job when previously asked and she said because as far as she is concerned it is work relating to being a cleaner. When asked how many employees the business has she said seven including herself.

29. She said she never applied for any position in Australia to work in her study area or  future career other than as a cleaner. The Tribunal raised concern that she is using the student visa to maintain her residence in Australia other than as a genuine student. She said she believes she can go back and apply for related work and when asked what work she referred to a specialised management manager. When asked if she had researched this area she said she had not.

30. She said she had no family in Australia but her parents, brother and sister live in Taiwan. She said she was not in a relationship in Australia. She said she owns property in Taiwan and that was the house her family live in.

31. She said she had no military commitments in Taiwan and there were no political or civil reasons which would act as a disincentive to return.

32. When asked whether she had anything to add, there was a long pause and then she said she wanted to study in Australia to improve her English as she wants to enter a company called TSNC. When asked what TSNC does she said it is a manufacturer of IC foundry.

33. The representative made the following submissions:

    ·the applicant came to him after she was refused by the Department. He said it is common practice for less reputable agents to lodge the application, giving little guidance and not putting their name on it.

    ·when she came to him the applicant was furious as there was no GTE statement attached and she did not want to pay a commission to study leadership and management so changed to project management.

    ·she was studying at a lower level but he referred to her evidence that she could complete the course in Taiwan through regurgitation of what was learned and that was quite different to studying the Diploma of Project Management in Australia. He noted that this different teaching method led partially to her failure in the course and then she could not cope when it went online because of Covid.

    ·she had always paid her fees, had now passed the Diploma of Project Management and was studying the Advanced Diploma of Project Management where she had finished one subject.

    ·she only had less than one year to finish the course and despite not passing had always paid fees.

    ·she would return on completion of the Advanced Diploma of Project Management.

34. The applicant confirmed she will return to Taiwan on completion of the current course to try and find a job at TSNC.

    CONSIDERATION OF CLAIMS AND EVIDENCE

35. 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 meets cl.500.212.

36. 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.

37. 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 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.

38. 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.

39. As to the applicant’s circumstances in her home country, no evidence has been presented that the applicant’s economic circumstances would present as a significant incentive for the applicant not to return to Taiwan. There is no evidence before the Tribunal that political and civil unrest would result in the applicant choosing to remain in Australia indefinitely. There is no evidence before the Tribunal of military commitments that would present as a significant motive not to return. The Tribunal accepts that study in Australia is highly regarded and it accepts her reasons for not studying in her home country. It accepts she owns the property in Taiwan where her family reside. The Tribunal accepts her parents and siblings live in Taiwan. It accepts she has no family in Australia and is not in a relationship. The Tribunal accepts that the above circumstances in Taiwan are indicative of a person who is only a temporary entrant and wishes to return to their country.

40. The Tribunal also accepts that the applicant has since her application for the first student visa in 2018 successfully completed English courses studied from 2 April 2018 to 9 June 2019 as well as a Diploma of Project Management studied from 14 October 2019 to 10 October 2021 and one subject towards the Advance Diploma of Project Management, which she is currently enrolled in. The Tribunal accepts that continuous enrolment, including paying fees for these courses and completion of courses including a subject towards the Advanced Diploma of Project Management are indicative of a genuine student, however they are but two of many considerations relevant to the assessment of whether the applicant, in regard to the current visa application, intends genuinely to stay in Australia temporarily.

41. Despite her enrolment and study above since 2018 the Tribunal views as of concern that she is studying at a lower level to that achieved in Taiwan where she completed a Bachelor of Information Management. While there may be good reason for it the Tribunal finds her evidence vague and lacking in detail as to why she is studying in Australia and the value of these courses to her future. To the Department in her application she indicated that she is studying the courses to learn some professional knowledge and skills related to business and management. She said once she finishes these courses she will return to her country and obtain a good job. The courses she was referring to were the leadership and management courses she was enrolled in until she changed in 2019. At the hearing she indicated that her agent prepared the application and her representative indicated that the applicant was furious after the Department refusal that no genuine temporary entrant statement had been provided with her application. In this regard, the applicant has still to provide such a statement. While not determinative the only other evidence the Tribunal was given as to why she is studying at a lower level and the value of these courses to her future was her evidence at hearing. In this regard despite repeated requests for information her evidence was vague and lacking in detail. She said studying in Taiwan it is at a basic level and in Australia it is a deeper level. As to the value of the courses to her future she said there are many industries and a big employment market in Taiwan. When asked if she had anything further to add as to why she is studying the current courses she said the employment rate is low in Taiwan and it is easy to find a job. The Tribunal raised with her that she was sounding vague and lacking in detail as to why she is studying these courses and asked her whether she had anything else to say and she responded in the negative. On another occasion she said she wanted to be a specialised management manager, but curiously when asked if she had done any research to obtaining employment in this area on return she answered in he negative. She did add at the end of the hearing, after a long pause that she wants to return to work at TSNC and was able to provide the Tribunal with some information as to what TSNC does.

1. The Tribunal is of the view that considering the expense and time she has spent studying in Australia since 2018, if she were a genuine student studying for her future she would be able to provide far more detailed evidence as to her future career aim and how the courses she is and has been enrolled in will assist in this career aim. It would also expect she would have researched her future career aim if she wishes to become a specialised management manager. Her vague evidence lacking in detail leads the Tribunal to conclude she is using the student visa to maintain migration rather than as a genuine student.

2. Further, the Tribunal views as of concern that despite her claim she is studying for her future career aim she has only worked as a cleaner in Australia, as well as assisting her employer to manage the 7 cleaners in his business, including herself. The Tribunal is of the view considering her time in Australia and the expense of studying in Australia that if she is genuine that she is studying for her future career aim that she would have at a minimum sought work in an area relevant to her future career aim. It has difficulty accepting assisting her employer to manage 7 cleaners, including herself is consistent with her career aim.

3. These matters lead the Tribunal to conclude she is using the student visa to maintain migration rather than as a genuine student.

4. As to the applicant’s immigration history, the Tribunal is of the view there is nothing which indicates that he does not genuinely intend to stay in Australia temporarily.

5. In making the decision the Tribunal has considered all the evidence before it, including that she is currently enrolled in and studying an Advanced Diploma of Project Management and has less than a year to complete the course, that she previously completed a Diploma of Project Management and English courses, she has much stronger family ties in Taiwan than in Australia, she owns property in Taiwan, her indication that she will return home on completion of the current course; however for the reasons outlined above does not accept she is undertaking the current study for the reasons she claims, but rather using it as a pathway to maintain residence in Australia.

6. Based on what is evidenced of the applicant’s circumstances overall, including her immigration and study history, her circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal is not satisfied that she intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.

7. 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).

8. 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

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

   Gabrielle Cullen
   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.