Zouya Raise (Migration)

[2022] AATA 1516

Zouya Raise (Migration) [2022] AATA 1516 (31 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Zouya Raise Zouya Raise
Mr Hameed Syed
Master Zohra Fatima Syeda
Master Zara Fatima Syeda

REPRESENTATIVE:  Mr Mohammed Ismail Saud Mohammed Ismail Saud (MARN: 1909826)

CASE NUMBER:  2113705

HOME AFFAIRS REFERENCE(S):          BCC2020/2848601

MEMBER:Peter Booth

DATE:31 March 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 31 March 2022 at 2:22pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No 69 – reason for study – expiry of husband’s 457 visa – change of direction and level of study – economic disparity – 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 27 September 2021 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 18 December 2020. 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 applicant was not a genuine temporary entrant.

4. The applicants appeared before the Tribunal on 25 February 2022 to give evidence and present arguments.

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

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 temporary entrant.

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

8. Clause 500.212 requires as follows:

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

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

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

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

   (iv)any other relevant matter; and

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

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

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

   (c)of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

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

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

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

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

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

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

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

12. The applicant had read the delegate’s decision dated 27 September 2022 refusing her application for a student visa.

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

14.   The applicant was asked to describe her current enrolment including commencement and completion dates. The applicant said “started course on 2 February 21, Certificate IV Cookery, 08, 22”. The applicant had not produced a confirmation of enrolment document to the Tribunal in respect of such a course. She was invited to produce confirmation of enrolment subsequent to the hearing. She agreed to do so. In the event she produced a confirmation of enrolment in a Certificate IV in Commercial Cookery which commenced on 4 January 2021 and is scheduled to be completed on 4 July 2022. Notwithstanding the vague nature of the applicant’s evidence the Tribunal accepts that she is enrolled in the course described in the confirmation of enrolment.

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

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

17.   The applicant completed a Bachelor of commerce degree in India between June 2009 and June 2012. She did not disclose any employment history in India.

18.   The applicant arrived in Australia on 20 April 2017 and since that time has returned to India on one occasion in March 2019 for 60 days.

19.   The application for the student visa in question was made in December 2020. The applicant described her visa history in Australia as follows “457” visa granted in January 2017 and ceased in January 2021.

20.   The applicant stated her study history in Australia to be as follows: she was “studying now” a Certificate IV in Commercial Cookery which commenced in February 2021 and is scheduled to be completed in August 2022.

21.   The applicant stated that she was employed as a “chef” from November 2021 from which she derived an annual salary of AU$40,000.

22.   The applicant stated that her father, mother, sister, brother, father-in-law and mother-in-law reside in India. Her brother, husband and two children reside in Australia.

23.   The applicant stated that she owned assets in India comprising “land”. As to her future employment plans the applicant stated:

As India is a fastest growing economy and especially Hyderabad is very famous for its delicious foods, where I have planned to get settled down in future with my family. Hyderabad has become hospitality and tourism face of India with lot of people visiting every day for business purposes and tourism. Lot of people from different parts of India have moved to Hyderabad and have settled down and is one of the richest states of India with a huge population which can afford to go out in highly priced fine dine restaurants. This has also created lot of demand for hotels and restaurant and food places. My Australia work experience, study and development in Hyderabad and the demand of hospitality has forced me and my mind to get education here in Australia which will be helpful for the growth and welfare of myself and my family. There is high demand for international graduates as hospitality tourism business and hotels in India want to hire people with overseas qualification and experience from a quality country like Australia. As overseas graduates have better understanding about the different cultures as they will have exposure to different cultures during their period of study in international countries like Australia. These hotels and businesses need people with experience and different cookery and hospitality skills rather than only Indian style of cooking which we learn in India they need people with various style of cooking as to serve the visitors from different countries around the globe. As far as salary is concerned, it relies on various aspects like confidence, specialization, experience, expertise and personal skills. Another variable that determines your pay is the place in which you work and the qualification you have. If I have overseas qualification employers will see me as a person with good understanding about foreigners and their food tastes as I will have the international qualification and exposure. chef and hospitality professionals can expect to take home somewhere between Rs.70,000 and Rs.80,000. Even, executive chefs are making somewhere between Rs.1 to Rs.2 lakhs per month. In the case of luxury and deluxe hotels, the take home will still be more. In addition to hotels and restaurants, I can also find jobs in bars and night clubs, food service sector.

As to her expected future remuneration the applicant stated:

chef and hospitality professionals can expect to take home somewhere between Rs.70,000 and Rs.80,000. Even executive chefs are making somewhere between Rs.1 to Rs.2 lakhs per month. In the case of luxury and deluxe hotels, the take home will still be more. In addition to hotels and restaurants, I can also find jobs in bars and night clubs, food service sector.

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

1. When asked to state her employment history in India she replied: “I was housewife”.

2. The applicant confirmed that she arrived in Australia on 20 April 2017. She was asked what visa she held at that time. She said “457 visa”. When asked what she intended studying she said “I came with daughter, my plan to study in Australia, she is one year”.

3. She was asked as to the purpose of travelling to Australia. She said “my plan to stay with husband and do professional as a chef, he supported me”. When the question was repeated she said “I intend to study but had six-year-old, I was not able to do it, I intend to stay with husband”. She was then asked to explain the purpose of the 457 visa. She said “sponsorship visa for family”. When asked whether her husband was already starting at that time she said “yes”. She was asked when her husband had arrived in Australia. She said “2009”. The applicant was asked what visa her husband held when he arrived in Australia. She said “student visa”. She was asked to explain what her husband had been studying. She replied “Diploma in Business Management”. She was then asked when her husband’s student visa had expired. She said “2018”. When invited to be more precise she said “he got opportunity for sponsorship visa, when visa was over my husband got a 457 visa opted for that from 2017”.

4. The applicant confirmed that she made the application for the student visa in question on 18 December 2020. She was asked why she had decided to study at that time. She said “I was planning to do it when I came to Australia”. She was asked what visa her husband held as at 18 December 2020. She said “457 visa”. She was asked when the visa expired. She replied “1st, 21”. When invited to be more precise she said “1 January 2021”. The Tribunal observed the applicant had applied for a student visa in her own name a few weeks before her husband’s 457 visa expired. The applicant agreed.

5. She was asked how many children she had. She replied “two”. When asked when her second child had been born she said 26 March 2018”.

6. When asked whether she owned any land in her own name in India she said “no”.

7. She was asked to explain her employment intentions when she returns to India. She said “to get a good job in five-star hotel”.

8. She was asked whether she intended to return to India when she completed her current course. She said yes”.

9. She was asked what her husband has been doing doing following the expiry of his 457 visa. She said “he was looking for another sponsor but couldn’t find one, he is at home not working”.

10. When invited to add anything further to her evidence the applicant said “I am genuine student, my intention to study and go back to home country”.

11. The applicant’s husband, Mr Syed, was also on the call. He is the second applicant in this proceeding. Tribunal proceeded to ask Mr Syed some questions.

12. When asked when he arrived in Australia he replied “2009”. He was asked what visa he held at the time. He said “student visa”. When asked what he intended to study, he said “Advanced Diploma and Diploma in Business Management”. He was then asked whether he had studied any other courses, he replied “marketing”.

13. The tribunal asked the second applicant when he had completed the studies. He responded “2017”. He was asked what he did after that. He said “looking for sponsor and part time in real estate, boss is sponsor”. He was asked to state that next visa of the held. He said “457”. When invited to state the commencement and expiry dates of that visa he said “start 2017, February, finished 2021, January”. He was asked whether these expired on 1 January 2021. He replied “12 January 21, no 1 January”.

14. He was asked why he and his family did not return permanently to India when his 457 visa expired. He said “COVID there, and situation bad”. It was asked whether that was the only real reason why he did not return permanently to India at that time. He said “yes but she wanted to study”.

15. He was asked why he and his family had not returned to India permanently when his wife’s student visa application was refused. He replied “because she in middle of study”.

16. Prior to the hearing the applicant provided a variety of documents to the Tribunal. The applicant did not refer to any of these documents during the course of giving evidence at the hearing. Nonetheless they have been taken into account by the Tribunal to the extent relevant and given appropriate weight.

17. Prior to the hearing the applicant provided a statement in support of her application for review. The statement is unsigned, undated, and without page numbers or paragraph numbers. The statement was not referred to by the applicant during the course of giving evidence at the hearing. Nonetheless it has been taken into account by the Tribunal to the extent relevant and given appropriate weight. The Tribunal makes a number of observations in relation to the statement. It does not explain why the applicant did not study between April 2017 and January 2021, why she decided to study in 2021, why she made an application for a student visa a few weeks prior to the expiry of her husband’s 457 visa, why she and her family did not return to India permanently when her husband’s 457 visa had expired or whether her application for a student visa was refused, a clear and cogent career path and why she has changed the direction and level of her study from that which she completed in India.

    CONCLUSIONS

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

43.   Without diminishing the applicant’s evidence, it can be summarised as follows.

44.   The applicant completed a Bachelor of Commerce in India in 2012. She has no employment history in India. She arrived in Australia on 20 April 2017 and has returned to India on one occasion in March 2019 for 60 days. She arrived in Australia with an infant and subsequently has had another child in Australia born in 2018. The applicant travelled to Australia to join her husband who at that time held a 457 visa. The applicant’s husband, who is also an applicant in this proceeding, had been in Australia since 2009. He completed several courses of study in Australia. He was granted a 457 visa in 2017 which expired on 1 January 2021. The applicant did not study between April 2017, when she arrived, and January 2021 when she commenced the Certificate IV in Commercial Cookery. The student visa application question was made on 18 December 2020, a few weeks prior to the expiry of her husband’s 457 visa.

45.   The applicant owns no assets in India. She stated that her immediate family reside in India and that her brother resides in Australia.

46.   She gave vague evidence about an intention to work in hospitality in India.

1. The applicant has not explained to the Tribunal’s satisfaction why she did not study between April 2017 and January 2021, why she decided to study in 2021, why she made an application for a student visa a few weeks prior to the expiry of her husband’s 457 visa, why she and her family did not return to India permanently when her husband’s 457 visa had expired or whether her application for a student visa was refused, a clear and cogent career path and why she has changed the direction and level of her study from that which she completed in India.

2. In considering whether the applicant has met the genuine temporary entry criterion, the Tribunal had regard to the following factors consistent with cl 500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether she has satisfied the genuine temporary entrant criterion.

3. The Tribunal has considered the applicant’s circumstances in her home country. The applicant is from India. The applicant has provided evidence of direct family ties to her home country which act as incentives to return. The Tribunal finds that she has been able to demonstrate ties to act as an incentive to return to her home country at the completion of the actual or proposed study.  Whilst the Tribunal accepts that the applicant may have family ties to India, having regard to the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to India.

4. The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 20 April 2017 as a dependent on her husband’s 457 visa which was valid to 1 January 2021. The proposed study would extend the applicant’s stay until at least July 2022. The Tribunal considers that the length of the proposed stay suggests that the applicant is studying for the purposes of staying in Australia. Whilst plans can change, in the Tribunal’s view this is not the conduct of a genuine temporary student. On balance it is consistent with the applicant having decided to extend her stay in Australia by utilising the student visa programme.

5. The Tribunal does not place substantial weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. Whilst the Tribunal acknowledges that a vocational qualification in cookery would be advantageous to a person in seeking employment in that field, the applicant has provided extremely vague details of her career path.

1. The Tribunal observes that the applicant’s current study plan is inconsistent with the applicant’s qualifications obtained in India and is inconsistent with her decision not to study when she entered Australia.

2. The applicant relies on a statement in which she addresses the various genuine temporary entry criterion, it has been taken into account as discussed above.

3. On balance, the Tribunal is not satisfied that the applicant has established that study will provide her with significant benefits in her proposed career plan, considering the cost of the study and the fact that the applicant already has a qualification in commerce obtained in India. Accordingly, the Tribunal is not satisfied that the proposed additional study has a reasonable prospect of providing significant value to her career beyond the existing qualifications.

4. The Tribunal turns to consider whether there are any other relevant matters. The Tribunal observes that the second applicant had been in Australia since 2009. He held student visas and then a 457 visa which expired on 1 January 2021. The applicant arrived in Australia in 2017. She did not study until making the application for a student visa in her name in December 2020, a few weeks prior to the expiry of her husband’s 457 visa. The coincidence between the applicant’s student visa application and the imminent expiry of her husband’s 457 visa cannot be ignored. In the Tribunal’s view the conduct of both applicants is strongly suggestive of a deliberate plan to extend their stay in Australia by any available means. This is given some weight by the Tribunal.

5. The Tribunal has considered the applicant’s economic circumstances in her home country relative to her potential circumstances in Australia. Having regard to the disparity in economic circumstances between India and Australia, the Tribunal is not satisfied that the applicant has significant incentive to return to India. The applicant has been unable to demonstrate substantial ties or personal assets in her home country which diminishes her incentive to return to India.

6. The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from her proposed study which will outweigh the significant time and monetary commitment this course will require. Accordingly, the Tribunal is not satisfied that the applicant has demonstrated the value of her proposed course to her future.

7. The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 20 April 2017 the applicant has spent nearly 5 years in Australia and returned to India on one occasion for a period of 60 days, has no employment history in India, owns no assets in India, has stable employment in Australia, her husband and two children, one of which was born in Australia, all residing Australia, all of which which indicates that she does not appear to have strong personal ties to India. On balance, the Tribunal assesses the applicant’s incentive to return to India to be minimal.

8. The Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. On balance it appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study.

9. The Tribunal has considered all information provided by the applicant in support of her application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in her home country, potential circumstances in Australia, the value of the proposed course to her future, her immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.

10. On the contrary, the evidence suggests that the applicant has enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study. The Tribunal considers that the applicant is using the student visa programme as a means of maintaining ongoing residence in Australia, and does not have a genuine intention to stay in Australia temporarily.

11. There is no evidence before the Tribunal regarding the following factors indicated by Direction No.69: economic circumstances of the applicant; any potential military service in India; political or civil unrest circumstances in India; remuneration the applicant could expect to receive in India or a third country compared with Australia; circumstances in India relative to Australia or any other country; and the applicant’s circumstances in India relative to others in that country.

12. 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).

13. 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.

14. 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.

15. The application of the applicant having been unsuccessful, it follows that those of the other applicants must also fail.

    DECISION

16. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Peter Booth
    Member

    
    

    Attachment – Direction No.69

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

    (Section 499)

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

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

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

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

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

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

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

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

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

    Regulations mean the Migration Regulations 1994.

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

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

    Student visa means a Subclass 500 (Student) visa

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

    Application

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

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

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

    Preamble

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

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

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

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

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

    d.any other relevant matter.

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

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

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

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

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

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

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

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

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

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

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

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

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

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

    The applicant’s circumstances

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

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

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

    The applicant’s circumstances in their home country

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

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

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

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

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

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

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

    The applicant’s potential circumstances in Australia

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

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

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

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

    d.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

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

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

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

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

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

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.