Yanez Merino (Migration)

[2024] AATA 2657

Yanez Merino (Migration) [2024] AATA 2657 (17 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Nicole Lorena Yanez Merino
Mr Jorge Luis Castillo Guzman

REPRESENTATIVE:  Mrs Catherine Coleman

CASE NUMBER:  2212354

HOME AFFAIRS REFERENCE(S):          BCC2021/1749651

MEMBER:Frank Russo

DATE:17 July 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl 500.212 of Schedule 2 to the Regulations.

Statement made on 17 July 2024 at 2:35pm

CATCHWORDS  
MIGRATION – Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant is currently performing well in her studies – applicant is enrolled in a course of study – proposed course of study will be of value to the applicant’s stated business plans – satisfied that the applicant is a genuine applicant for entry and stay as a student – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359, 376

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 11 August 2022 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 8 September 2021. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

4. The applicant is a 37-year-old Chilean national. The second named applicant is the applicant’s husband, a 42-year-old Chilean national.

5. The applicants appeared before the Tribunal by telephone on 18 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

6. The applicants were assisted in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary applicant for entry and stay as a student.

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

9. Clause 500.212 requires as follows:

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

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

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

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

   (iv)any other relevant matter; and

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

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

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

   (c)of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

10. In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 108, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. The Tribunal notes that Direction No 108 commenced on 23 March 2024. Part 2 of Direction No 108 is expressed in the same terms as Part 2 of Direction No 69, other than the addition of the words ‘or Student Guardian visa application’ at clause 4(d) of the Direction No 108. The Tribunal discussed Direction No 108 with the applicants at the hearing.

11. Direction No 108, 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.

12. 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.

    Background information

13. The applicant is a 37-year-old Chilean national. She first arrived in Australia on 18 February 2020 holding a Student visa which was granted until 9 September 2021 for the purpose of undertaking a Certificate II in Customer Engagement and a Certificate II in Business. She applied for the Student visa under review on 8 September 2021, which was in respect of enrolments in an IELTS Preparation Course, a Certificate III in Light Vehicle Mechanical technology and a Certificate IV in Automotive Mechanical Diagnosis.

    The applicant’s evidence

14. The applicant gave evidence that she came to Australia to complete a course in Business, but she did not complete it because one month before she arrived, the COVID-19 pandemic started. Courses went online and she struggled with the learning environment as English is her second language. She stated that she had studied English previously in Chile, but found this was not enough when she arrived here. She stated that she felt she did not obtain the support she needed from the online classroom, and she became demotivated. She stated that she completed some assessments, but not all of the course requirements, and she stopped attending just before the course finished.

15. The applicant stated that she enrolled in the IELTS course because she needed to complete a foundation English course in order to enrol in the Automotive courses she is currently studying. She gave evidence that she has successfully completed the IELTS course. She then commenced the Certificate III in Light Vehicle Mechanical Technology. She stated that she was initially doing well in the course and passing all of her subjects, but in June 2022 her Student visa application was rejected. She also encountered difficulties when her father-in-law in Chile was diagnosed with lung cancer. He was taking care of her two children, who were aged 14 and 15. She was forced to bring her children to Australia as her father-in-law could no longer care for them and could no longer assist her financially. She requested a deferral or suspension of her studies, but her education provider refused her request.

16. The applicant told the Tribunal that she has completed a number of units in the Certificate III in Light Vehicle Mechanical Technology and was proceeding well. She provided an interim transcript to the Tribunal after the hearing.

17. The applicant gave evidence that after she completes the Certificate IV in Automotive Mechanical Diagnosis, she will return to Chile to open a workshop with her father. She stated that she wants her workshop to be capable of performing minor and major vehicle servicing and to bring in parts from overseas. She stated that her father has been saving for such a business for many years and is planning to purchase business premises. She stated that she has chosen to study in Australia rather than in Chile because the certificate she will obtain in Australia is recognised world-wide, and she is also learning English.

18. The applicant gave evidence that she has a secretarial certificate from Chile, and she worked in servicing cars. She did a work placement with Toyota from April to May 2022, for which she was not paid. She confirmed that she is currently working as a barista and kitchenhand, earning about $45,000 a year. Her husband currently works as a forklift driver and earns approximately $40,000 a year.

19. The Tribunal used the procedure set out in s.359AA of the Act to put to the applicant concerns about her enrolment record set out in the Provider Registration and International Student Management System (PRISMS). In particular, the Tribunal raised concerns with an apparent gap in the applicant’s enrolments between 2 November 2022 and 18 September 2023, a gap of over 10 months. The Tribunal also noted that the applicant’s original enrolment in the Certificate IV in Automotive Mechanical Diagnosis was due to finish in December 2023, whereas she is now enrolled in this course until September 2025, which is a delay of approximately 21 months. The applicant indicated that she wished to respond to the information from her PRISMS record at the hearing. She stated that in the period she was not enrolled, her father-in-law passed away. Her children were in Chile, and she was struggling with her plans on how to provide them with stability and emotional support. Her children applied for Visitor visas to Australia, but they were rejected. They applied for Visitor visas again, which were approved, and her children arrived in Australia. They attempted to enrol the children in classes in Australia, but her daughter’s visa was rejected, so the applicant had to accompany her back to Chile. She stated that the entire process was very costly and emotional difficult for her. She stated that when she returned to Australia, her priority was to enrol again, and her priority is now to finish her studies. The applicant also gave evidence that her first enrolment in the Certificate III in Light Vehicle Mechanical Technology was cancelled because of an administrative error. She stated that it had been cancelled because of non-payment of fees, but she had paid the course fees.

    Preliminary issue – non-disclosure certificate

20. The Tribunal notes in passing that the Department file contains a copy of a non-disclosure certificate issued by a Delegate of the Minister for Home Affairs and Delegate of the Secretary of the Department under s 376 of the Act. The certificate states that the disclosure of material from the folio referred to in the certificate, would be contrary to the public interest, because it may disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods. The Tribunal notes that the certificate is signed by the delegate, but not dated.

21. In any case, the Tribunal notes that the information in the document referred to in the certificate is not relevant to the determinative issue currently before the Tribunal, namely whether the applicant is a genuine temporary applicant for entry and stay as a student. The information relates to sources of information which the applicant provided to the Department, and which the Department wrote to the applicant about and obtained further information from the applicant. I therefore consider that the information contained in the document does not contain any information which the Tribunal relies upon in making its decision. Therefore, the Tribunal has not taken the document which is the subject of the s.376 certificate into account in making its decision, nor does it need to consider the validity of the non-disclosure certificate for the purposes of making this decision.

    Findings on factors set out in Direction No.108

22. Having considered the applicant’s claims against all the factors specified in Direction 108, and taking into account all the relevant information, the Tribunal is satisfied that on this occasion the applicant meets the genuine temporary entrant criterion. The Tribunal notes that it has received a number of additional documents that were not available to the delegate and had the benefit of questioning the applicant at the hearing in relation to its concerns.

    The applicant’s circumstances in her home country

23. I make no adverse findings regarding the applicant’s reasons for wishing to undertake the proposed courses of study in Australia rather than in Chile. I accept the reasons she provided at the hearing as to why she wishes to undertake her current courses of study in Australia. I have also had regard to the explanation provided in her s.359(2) response, which includes information about Australian standards in servicing vehicles, care for the environment and the health of workers.

24. I accept that the applicant has ties to Chile which would serve as a significant incentive to return to her home country. This includes the presence there of her parents, her daughter and mother-in-law. She gave evidence that at the time of the hearing, her son was living in Australia and attending school, although he would also be returning to Chile one months after the hearing. The applicant gave evidence that she previously worked as a secretary and in retail in Chile, and that from 2018 to 2019 she worked in vehicle maintenance. There is no evidence that the applicant has current employment Chile or has any job offer in her home country. She claims that upon return to Chile, she and her father will open their own vehicle servicing workshop, which her father will fund, and that he is looking to purchase suitable premises for such a business. The applicant gave evidence that she has no assets.

25. I make no adverse findings regarding the applicant’s economic circumstances on this occasion. I note that the applicant and her husband both have current employment in Australia, which could act as some incentive for the applicant not to return to Chile. However, I also note the applicant’s evidence of her previous employment in Chile and the lower cost of living, as well as her evidence of her father’s plans to purchase premises for a vehicle servicing workshop.

26. There is no evidence of any military service requirements or of any civil or political issues which would act as an incentive for the applicant to remain in Australia. There is no adverse evidence before the Tribunal regarding the applicant's circumstances in Chile, relative to others in that country, and the Tribunal makes no adverse findings in relation to these factors.

    The applicant’s potential circumstances in Australia

27. The applicant first arrived in Australia on 18 February 2020, holding a Student visa, which was granted for the purpose of undertaking vocational studies in the Certificate II in Customer Engagement, her CoE in which was cancelled in September 2020 due to unsatisfactory course progress. The applicant gave evidence that she did not do well in this course because of her English language skills at the time and because she was unfamiliar with the online study mode which was introduced in response to the COVID-19 pandemic. She then enrolled in a Certificate II in Business from November 2020 to July 2021. Although her PRISMS record states that the applicant finished this course, the applicant gave evidence that she did not successfully complete all of the course requirements and has not been awarded the qualification.

28. The applicant enrolled in an IELTS Preparation Course and the Certificate III in Light Vehicle Mechanical Technology and Certificate IV in Automotive Mechanical Diagnosis, which are the subject of the Student visa application under review. The applicant has now provided evidence of completion of the IELTS Preparation Course through a letter from International House Brisbane ALS, dated 10 December 2021. The applicant has also provided a letter from Oceania College of Technology, dated 26 April 2024, which indicates that the applicant has successfully completed 10 units of the Certificate III in Light Vehicle Mechanical Technology. While I note there are some concerns with the applicant’s enrolment history, including her failure to complete either of the courses she enrolled in as part of her first Student visa and the gap in her enrolments from November 2022 to September 2023, the applicant has provided an explanation for this performance. This includes the illness and subsequent death of her father-in-law in Chile, and the consequent need to make alternative plans for the care of her two children, who had been cared for by her father-in-law. The applicant gave evidence of her attempts to relocate her children to Australia, which included visa refusals, and her need to travel to accompany her daughter back to Chile. Following the hearing, the applicant provided evidence in support of these claims, including the death certificate of her father-in-law, who died in June 2022 as a result of cancer, as well as evidence of her travel to Chile in May 2022 and August 2023. The applicant also provided the Tribunal with written submission following the hearing, which set out the circumstances which contributed to her enrolment history.

29. I also consider that the applicant is currently performing well in her studies, as evidenced by the letter from Oceania College of Technology. Therefore, on this occasion I find there is insufficient evidence for the Tribunal to be satisfied that the applicant is using the Student visa programme to maintain ongoing residence or to circumvent the intentions of the migration programme.

30. As to the applicant’s ties to Australia, I make no adverse findings regarding the presence of her husband in Australia, given he is a dependent applicant to the visa application under review and his presence is currently tied to the outcome of the application for review. I also accept the applicant’s evidence that she had made plans for her son to return to Chile one month after the hearing date so she can continue to concentrate on her studies. I accept that the applicant had made plans for her children to be cared for by her in-laws in Chile, and that she had to make temporary alternative arrangements for their care following the illness and death of her father-in-law.

31. There is no evidence that the applicant has entered a relationship of concern for a successful Student visa outcome. Given the length of time the applicant has remained in Australia and the evidence she has provided with respect to the completion of 10 units in her current course of study, I make no adverse findings regarding her knowledge of living in Australia, nor of her knowledge of her current course or education provider.

    Value of the course to the applicant’s future

32. The applicant has no tertiary qualifications from her home country, other than a two-year secretarial certificate which she completed in 2012 and a short English course completed in 2006. I accept the applicant’s evidence that she worked in car servicing and maintenance in Chile from 2018 to 2019 and find that her proposed courses of study are relevant to her recent employment experience and that she does not yet have any formal qualifications in this field. I also consider that the proposed courses of study are relevant to the applicant’s stated plans to open a mechanic workshop with her father on return to Chile. She gave evidence that she believes her current course of study will be an opportunity for her to make a prosperous future for herself and her children in Chile. I note that the applicant is currently enrolled at the Certificate III level and intends to then progress to studies at the Certificate IV level. I consider that this is consistent with her current level of education. I therefore accept that the proposed course of study will be of value to the applicant’s stated business plans and make no adverse findings regarding the value of the course to her future.

    The applicant’s immigration history

1. As noted above, the applicant arrived in Australia in February 2020, holding a Student visa. She does not have an extensive visa history. She now proposed remaining in Australia at least until September 2025 to complete the Certificate IV in Automotive Mechanical Diagnosis. This will bring her stay in Australia to approximately five-and-a-half years. Although I have noted some concerns with the applicant’s enrolment history, I have also noted the explanations and supporting documents she has provided, which go some of the way towards explaining these concerns. I also accept that the applicant has provided documentary evidence that she is on track with her current course of study. I find there is insufficient evidence for the Tribunal to conclude that the Student visa is intended primarily for the purpose of maintaining ongoing residence.

2. I make no adverse findings regarding the remaining factors relating to the applicant’s immigration history. There is nothing to indicate that the applicant has an adverse visa or migration history to any other country. There is nothing to suggest that she has had a visa cancelled or considered for cancellation or that she has had other visa applications refused. I make no adverse findings regarding the refusal of the applicant’s daughter’s application for a Student visa. There is nothing to indicate that she has made any other applications for a different class of visa which are yet to be finally determined. There is no evidence to indicate that the applicant has not complied with the conditions of her visas in Australia.

   Any other relevant matters and conclusion regarding findings

3. The Tribunal has also given regard to whether there are any other relevant matters and finds there are no other relevant matters to the assessment of the applicant's intentions to stay in Australia temporarily in addition to the matters covered above. The Tribunal has considered all the information provided by the applicant in support of the application.

4. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).

   Does the applicant intend to comply with visa conditions?

5. For the applicant to meet cl 500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

6. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl 500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed in some cases (cl 500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).

7. The applicant has provided with her visa application an undertaking to comply with any conditions subject to which the visa is granted. There is insufficient information to indicate that the applicant would not comply with such conditions. The Tribunal notes in particular the applicant has been studying her current course despite the visa refusal decision, which indicates an intention to comply with Condition 8202 of the Student visa. The Tribunal is satisfied that the applicant intends to comply with the conditions of the Student visa, including condition 8202.

8. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl 500.212(b).

   Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

9. For the applicant to meet cl 500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl 500.212(a) and (b)).

10. There is no evidence before the Tribunal of any other relevant matter that gives rise to a concern that the applicant is not a genuine applicant for entry and stay as a student.

11. 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.

12. 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

13. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl 500.212 of Schedule 2 to the Regulations.

    Frank Russo
    Member

    
    

    Attachment – Direction No.108

    DIRECTION NUMBER 108 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, CLARE O’NEIL, Minister for Home Affairs and Minister for Cyber Security, give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 21 March 2024

    Clare O’Neil

    
    

    Minister for Home Affairs and Minister for Cyber Security

    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 - Preliminary

    Name of Direction

    This Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 108.

    Commencement

    This Direction commences on 23 March 2024.

    Revocation

    Direction No. 69, given under section 499 of the Act, is revoked.

    Interpretation

    Act means the Migration Act 1958.

    Finally determined has the same meaning as is set out in subsections 5(9) and (9A) of the Act.

    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 against the genuine temporary entrant criterion for Student visa applications and Student Guardian visa applications (as applicable).

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

    This Direction applies in relation to Student visa applications and Student Guardian visa applications made before 23 March 2024 but not finally determined on that date, including such visa applications that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for a Student visa and seek to satisfy the primary or secondary criteria, or an application for a Student Guardian visa and seek to satisfy the primary criteria.

    Note: Direction No. 106 applies in relation to Subclass 500 (Student) visa applications and Student Guardian visa applications made on or after 23 March 2024, including visa applications made on or after that date that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.

    Preamble

    The Australian Government operates a student visa program 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 program 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 – 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 or Student Guardian 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 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.

    iii. b. Previous travels to Australia or other countries, including:

    iv. 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;

    v. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    vi. 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

    vii. 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 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.