Zaheer (Migration)

[2020] AATA 5717

Zaheer (Migration) [2020] AATA 5717 (22 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Khalid Zaheer

CASE NUMBER:  1828918

HOME AFFAIRS REFERENCE(S):          BCC2018/3153401

MEMBER:Meredith Jackson

DATE:22 October 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 22 October 2020 at 11:50am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not a genuine temporary entrant – higher education student visa – non-completion of degree courses – completion of vocational courses in sheet metal work – nomination for skilled visa withdrawn by employer – similarity in course choices with no apparent value for career – strong incentives to remain in Australia – use of student visa program to maintain residency – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359(2), 499
Migration Regulations 1994, Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 September 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).The applicant applied for the visa on 21 August 2018. 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. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant intends genuinely to remain in Australia temporarily.

2.    On 26 March 2020, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act inviting him to provide, by 9 April 2020, sufficient information to satisfy the Tribunal that he meets both the enrolment and genuine temporary entrant criteria of the Regulations. The Tribunal asked him to provide all relevant information about the course(s) of study he is undertaking and about his entry and stay in Australia as a student.

3.    On 8 April 2020, the applicant requested an extension of time to provide information, on the basis that the circumstances of the global pandemic were hampering his ability to garner the relevant information.  The Tribunal granted the applicant an extension until 21 May 2020.

4.    On 21 May 2020 the applicant provided a response to the Tribunal’s invitation in support of his claim to be a genuine applicant for entry and stay as a student.

5.    On 2 October 2020 the Tribunal wrote to the applicant inviting him to attend a hearing. The applicant accepted and provided the Tribunal with further written material in support of his case. He appeared by telephone on 21 October 2020 to give evidence and present arguments.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

8. Clause 500.212 requires as follows:

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

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

(i)the applicant’s circumstances; and

(ii)the applicant’s immigration history; and

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

(iv)any other relevant matter; and

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

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

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

(c)of any other relevant matter.

Does the applicant intend genuinely to stay in Australia temporarily?

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

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

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

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

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

1. 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.

Case summary

1. The applicant, Mr Muhammad Khalid Zaheer, aged 35, a citizen of Pakistan, has been in Australia since April 2013, having arrived as the holder of a student visa issued under streamlined arrangements for study in the higher education sector. Despite several enrolments in Bachelor degree courses, he is yet to complete a degree course. When he applied for the visa under review, he intended to study a Diploma of Leadership and Management, which he completed in May 2020. He is now proposing a further course and a stay until 2023, having enrolled in June 2020 in a Bachelor of Business course. While in Australia, he has worked in his field of sheet metal production and in 2017, he trained for skills assessment and was nominated by his employer for a skilled work visa, an application withdrawn in 2018.

Primary decision

1. The delegate’s decision record of 18 September 2018 raises a concern that the applicant has been in Australia since 2013 and at the time of decision was proposing to stay until April 2020, which amount to seven years onshore with what the delegate considered to be insufficient study outcomes. The decision stated that the applicant may be using the student visa program to maintain residency rather than being a genuine student. It noted that in five years, the applicant had not completed any courses above vocational level, when he had indicated he was trying to complete a Bachelor degree. Further, his course choices appeared similar to one another and lacked apparent value to his future. In summary, the delegate was not satisfied that the applicant’s circumstances during his stay in Australia indicated he would return home at the end of his proposed stay and was not satisfied he is a genuine temporary entrant.

Evidence before the Tribunal – written and oral

Documents provided

1. In response to the Tribunal’s invitation of March 2020 to provide information and its invitation of October 2020 to attend a hearing and provide any further information, the applicant submitted the following in support of his case:

   a.A personal statement dated 20 May 2020, addressing his circumstances against factors in Direction 69.

   b.Certificates acquired in Pakistan for sheet metal technology qualifications; work references from Pakistan for employment between 2009 and 2013.

   c.Certificates III and IV in Engineering completed at two former Australian registered training providers; a welding course participation record;

   d.A successful skills assessment record dated 17 September 2018 from VETASSESS, a skills assessment body contracted by the Australian government for migration matters, for the applicant as a Sheetmetal Trades Worker.

   e.Work references, subcontractor agreement (undated) between AU Duct Installation Pty Ltd (NSW) and applicant, including details of services to be provided and the applicant’s ABN;

   f.Confirmations of Enrolment (COEs) covering eight course enrolments between 2013 and 2023;

   g.Medical records for the applicant in Australia for a health condition; and for the applicant’s mother Mr Raissa Begum in Pakistan for health conditions; Overseas Student Health Cover for the applicant in Australia; identity documents; Marriage Certificate issued in Pakistan in 2019, for the applicant and Noreen Lateef.

   h.A written statement dated 16 October 2020 concerning the applicant’s circumstances and further addressing factors in Direction 69;

2. The Tribunal has also had regard to the Tribunal and Departmental files including the applicant’s records as an international student and visa applicant. Information from two departmental databases was put to the applicant in the hearing pursuant to section 359AA of the Act [paragraphs 16 to 27].

The hearing

1. The applicant stated in the hearing:

   a.Studying in Australia has provided him with qualifications for business and given there are good business opportunities between Australia and Pakistan in his field of steel fabrication; this will be very useful to his future in a sheet metal business; he had always had a business brain and sheet metal experience and wanted to join his brother in his business.

   b.When he first came to Australia, he intended to study a Bachelor of Business Information Systems after completing two preparatory courses, but he found he could not adjust easily and could not speak English confidently. Before then, he had only ever been to the sheet metal factory and back in Pakistan and the different experiences in Australia were difficult for him. After an initial certificate course in 2013, he was keen to progress to higher education. He was enrolled at Victoria University and wanted to go there to study a Bachelor of Business Information Systems. However his vocational college refused to release him because he had enrolled in another with them. He was unable to get his $3700 in fees back from Victoria University, which shocked him. Then in about 2015, someone stole his car.

   c.The Tribunal noted the applicant had provided evidence of having completed short courses in metal work in 2017 and 2018, which appeared not to be specified courses for student visa holders such as he was. He said this was because some of the people he lived with were doing sheet metal work and as that was also his background, he wanted to get certified in Australia. He had discussed with his parents the idea of doing the certificates and they agreed to it. It was very easy for him to get the certificates and they would be good for his business-related study. He said he was always keen to study everything including short courses.

Information put to the applicant at hearing under 359AA

PRISMS record and visa history

1. Prior to the hearing, the Tribunal wrote to the applicant, providing him with a copy of his record in the Provider Registration and International Student Management System (PRISMS). The Tribunal advised the applicant that the record may be referred to in the hearing. At the hearing, the Tribunal, adopting the procedure in section 359AA of the Act, put to the applicant that it had information to put to him that related to his PRISMS record. The Tribunal explained to the applicant what the PRISMS database is, and further explained that, according to the PRISMS records he appeared to have had a significant gap in study between May 2015 and April 2018 while holding a higher education student visa, around the time he was doing the short courses for skills assessment.  The Tribunal explained why this information was relevant to the review and explained the consequences of the Tribunal relying on the information. The Tribunal also raised, pursuant to section 359AA, certain information in departmental systems that may be related to his study gap, in that it indicated that it appeared he had been nominated by his employer, AU Duct Installation Pty Ltd, in June 2017 for a skilled visa. The Tribunal asked if he had been working for the employer in the period he was not studying and holding a student visa. The applicant said that initially, he was not working because he didn’t have evidence of sheet metal qualifications from his home country, so he did the courses and got assessed by VETASSESS, but all the while his focus was on his future in business. He stated:

   In December 2017 when I applied for the work visa 457 I didn’t have any skills certificate and after I got it I decided not to stay here. I applied but I withdrew my case. I didn’t want to remain in Australia. I was working 20 hours a week and they thought I was good and asked why not get this visa, but I said I needed to complete my course. The employer said if you have a skilled visa you can learn here and you won’t have to pay a huge amount to colleges. But I said no. The company was forcing me to do this, they applied for me online but I told the boss I would not want to apply. I was just working 20 hours a week but I didn’t need money because my parents were supporting me. After 2017 I did not apply for permanent residency or anything and now I am married and I have to go back to my home country. After 10 months my skill assessment will expire. My aim is to continue my business study. My parents are getting old and I need to go back and stay with my family and my wife. My aim is completing my Bachelor of Business course.

2. The Tribunal asked the applicant if he had understood the information and the significance of it being put to him and offered an opportunity for further time to consider it. The applicant he confirmed that he did understand it and its significance and did not require additional time to consider it. He then added:

   The degrees from my home country are not recognised because my country is not viewed very well. Australia is my second country, I would die for Australia, I love it. There is corruption at home, and if I go back with qualifications from Australia they will see this (achievement) as very important. My plan is to go back and start a business helping my father. In truth, in 2017 I was thinking of settling in Australia, it is a beautiful country and my confidence is very high here; I can talk, write and read and everything. I said to my father in 2019, I need to come back to Pakistan, but my father said you have to finish.

3. The applicant stated that his mother is 80 and sometimes she is sick with diabetes and he misses her. He had provided medical reports to show that his mother had been ilI. He was very close to her and was very distressed.

4. He said after he completed a Certificate IV course he enrolled in a Bachelor of Accounting but withdrew because accounting was not useful in his business.

5. The Tribunal spent some time in the hearing seeking to establish why his PRISMS record stated he had withdrawn from the course for compelling and compassionate reasons. The applicant said he did not complete the course because he went home and discussed not returning to Australia, but his father said he must complete the course because education is so important.

6. Asked why, having completed the Advanced Diploma of Leadership and Management course in April 2020, for which he applied for the visa, he did not return to Pakistan then, the applicant said:

   It was a good time to go home after my diploma was completed but I talked to friends who said you would get around 12 subjects credit for a Bachelor degree. Now this pandemic has slowed everything down, but the college is giving me the 12 unit exemption so I now am just taking time.

7. The Tribunal asked the applicant again if he had understood the significance of the information put to him and he stated that he did and asked if he need more time to consider the information and he said he did not need more time.

8. In relation to his future plans, the applicant said when he returned he would go into business alongside his brother. He does not have a business plan for his venture, he would work in the manner of his father and brother.

9. The Tribunal raised with the applicant that he has previously applied for a skilled visa and now he appears not to be planning to go home for another two years or more, bringing his time away from his family to 10 years. The Tribunal said it might be concerned that he is expending a lot of money on study and has had many enrolments and cancellations, with limited academic outcomes, and therefore he may be using the student visa program to extend his stay in Australia. The applicant responded by saying that in 2017, when he was studying accounting for a period, he did it for his mother. His parents were not worried about the money they were spending. He had taken classes every day.

10. The Tribunal said it had noted that he had come to Australia on a (TU 573) student visa, which allowed streamlined entry for the higher education sector, and yet he had not studied in the sector successfully, and had only qualified after seven years in the vocational sector. This might suggest he did not intend to study at higher education level but had taken advantage of streamlined visa processing to gain easier entry to Australia. The applicant responded that yes, it was necessary to do higher education here, but he found it difficult. He was now ready.

11. The Tribunal gave the applicant an opportunity to raise any further issues in relation to his case and he said he had covered everything and did not need extra time. He stated that he just wanted to complete his Bachelor degree and go back. He had been very open and frank with the Tribunal, because his future is at stake. He loves his family and wants to be a good son and satisfy his parents that he is a well-qualified person. He said people make mistakes and ten years away is a very long time, but his intentions are good.

Conclusions and findings

Direction 69 - the applicant’s circumstances in his home country

1. Direction 69 requires the Tribunal to assess the applicant’s circumstances in his home country.

2. The applicant’s parents and wife and wider family are in Pakistan. He claims the family is large and respected, and he does not have family in Australia. He married his wife in Pakistan in 2019 and wishes to return to her and his family when he completes his Bachelor qualification at Asia Pacific International College in 2023. He claims that there are no issues discouraging his return to his home country. He states in his written submission that while a similar course to his Bachelor of Business is available in his home country, it is inferior to the Australian course. He has a cousin brother who completed a course at the Australian National University and is now well settled in Pakistan. This had inspired him. He believes he has a promising career in Pakistan. He had “done wonders” working in sheet metal jobs and his brother is into his own business and doing wonders.

3. The Tribunal has considered the applicant’s circumstances in Pakistan and accepts his claim that he has a viable future there, particularly given his accrued vocational qualifications and experience working in his sheet metal field in Australia. The Tribunal is less persuaded that it is necessary for the applicant to stay an additional two years or more to complete a Bachelor degree. The Tribunal is mindful that his application for the visa was based on him completing an Advanced Diploma of Leadership and Management in 2020, as he has done, and that he has not laid out a detailed case for why he needs a degree.

1. The Tribunal accepts the applicant’s evidence that his extended family live in Pakistan, that he has no obstacles to returning, and that he is married to a Pakistan citizen and wishes to make his parents proud. The Tribunal has taken this into account in weighing his circumstances in his home country, balanced against the length of time he has been in, and is seeking to remain in Australia separated from his wife and family. The Tribunal is satisfied that the attraction of his family, a family business established by his brother, and the status that Australian qualifications will afford him are positives in relation to returning, but are not by themselves, strong incentives for the applicant to return to his home country after his extended study timeframe concludes in 2023 that outweigh the attractions of Australia, as discussed in further detail, below.

Direction 69 - the applicant’s potential circumstances in Australia

1. Direction 69 requires the Tribunal to assess the applicant’s circumstances in Australia.

2. The applicant has been in Australia for seven years and plans to stay until 2023 to complete a Bachelor degree. In the hearing, he expressed “great love” for Australia, called it his second motherland, and claimed he would be back “in a moment” if ever Australia called upon to return. The Tribunal notes the applicant has worked in Australia over time in skilled sheet metal jobs, sought and achieved recognition for his Pakistan and Australian metal engineering training, and claims to have performed well enough for an employer to sponsor him for a skilled visa leading to permanent residency. The Tribunal accepts that the skilled visa application was withdrawn in 2018, however the applicant’s actions in working and skilling in his field while not studying specified courses as a student visa holder, tends to suggest he may be other than a genuine student and genuine temporary entrant, rather, he wants to stay on and work in Australia, a country he claims to love. The Tribunal put this to the applicant in the hearing, and he responded that this was not the case; he wants to go back to Pakistan and his wife and family after studying the degree course. The Tribunal has taken this into account, but considers that 10 years in Australia is a long time to potentially complete a Bachelor degree that he intended to study soon after arriving in 2013. Given the applicant’s repeated claims that Australia is a country second only in his estimation to his home country, and that he would come back in a heartbeat, the Tribunal considers the applicant’s circumstances in Australia provide a strong incentive for him to seek to remain here permanently, potentially joined by his new wife. In the hearing, it was difficult to elicit detail from the applicant about his comparative prospects in Australia and Pakistan, because while he spoke volubly throughout the hearing, he appeared limited in addressing many questions directly, to the point of evasiveness. He claimed in written submissions that his potential prospects in Pakistan outweigh those here. The Tribunal is not convinced they do. The Tribunal is satisfied the applicant’s circumstances and immigration history since 2013 demonstrate that he is likely to again seek to remain in Australia permanently, as he has done previously. The Tribunal weighs these considerations against him.

Direction 69 – the value of any course to the applicant’s future

1. Direction 69 requires the Tribunal to assess the value of any course to the applicant’s future.

2. As described earlier in these reasons, the applicant completed the course for which he sought the visa, an Advanced Diploma of Leadership and Management, in May 2020. He is now enrolled to study a Bachelor of Business degree concluding in 2023, having been granted substantial credit by his college for his previous vocational studies. He claims he expects to be studying for somewhat less than three years given the credit he has been granted. However the Tribunal notes the applicant enrolled in the course in June 2020, a point coinciding with his invitation to provide information for the review, including evidence of enrolment. The applicant claims there is a genuine intent in wanting to do a degree. He claims, with a somewhat broad brush and shortage of detail, that a Bachelor degree from Australia will provide him with a significant edge in Pakistan on return. This may be so, but the Tribunal is not satisfied he will ever complete the degree, and notes he has not laid out a convincing case or business plan for how he intends to leverage the degree. He claims he does not need one because of his family’s success, but has not justified in any convincing manner, the need for a degree qualification beyond saying it will be good for his future in the sheet metal business. The justification for the degree appears to be at odds with the reason he sought the visa, which was to study at advanced diploma level and go home. Vocation study is where he has spent most of his productive study time in Australia. The Tribunal notes that in seven years, the applicant has achieved a Certificate IV in Business Administration, a Diploma of Management, a Diploma of Business and an Advanced Diploma of Leadership and Management and despite enrolling in higher education, he has not completed a substantial part of a degree course and is relying substantially on academic credit for vocational study. He claims he has studied every day and always prioritised study. As raised with him in the hearing, however, some of that study, particularly that in the leadup to skills assessment, was not at a level envisaged by the grant of his higher education visas. On balance, given the applicant has completed the advanced diploma course for which he sought the visa; given his focus to date on vocational skills and qualifications; and given he has not put forward a convincing case as to why he needs a Bachelor degree, the Tribunal considers that, the course in which he enrolled in June 2020 is of limited relevance and value to his future and further, has likely been entered into for the purpose of extending his stay and being enrolled for the purposes of the review. The Tribunal weighs this consideration against the applicant.

Conclusion

1. Having considered the claims and information before it separately in accordance with Direction 69 and as a whole, the Tribunal is not satisfied the applicant is a genuine applicant for entry and stay as a student. The Tribunal concludes that the applicant is using the student visa program to extend his stay in Australia.

2. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

3. 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

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

Meredith Jackson
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

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

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

3. 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

1. 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.

2. 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

1. 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

1. 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

1. An applicant’s immigration history refers both to their visa and travel history.

2. 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

1. 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

1. 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.