2208405 (Migration) - [2024] ARTA 838

2208405 (MIGRATION) [2024] ARTA 838 (25 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Home Affairs
Tribunal Number:  2208405

Tribunal:General Member W Banfield
Place:Canberra
Date: 25 November 2024
Decision:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 25 November 2024 at 6:21pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – changes of subject area and study at lower levels – one course completed and another close to completion – adverse information – parents in Australia – listed in GTE statement but claim at hearing of no contact – parents’ application for protection visas – same address given – applicant not listed as relative in parents’ application – work history in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 May 2022 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 8 March 2022. 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 (Cth) (the Regulations) because they were not satisfied the applicant met the criteria of a genuine applicant for entry and stay as a student, as required for the grant of a student visa.
The applicant appeared before the Tribunal on 19 September and 25 November 2024 to give evidence and present arguments.
The applicant was represented in relation to the review.
The applicant submitted the following evidence in support of the application for review:
·Department of Home Affairs (the Department) notification and decision record dated 25 May 2022.
·Applicant’s Indian passport biometric information.
·Completed Student Visa Information form.
·Certificate of Enrolment (COE) for a Certificate III in [Subject 1] from 22/02/2021 to 11/12/2022.
·Completion certificate and transcript for a Certificate III in [Subject 1] dated 15 December 2022.
·COE for an Advanced Diploma of [Subject 2] from 27/02/2023 to 12/01/2025.
·COEs for a Graduate Diploma of [Subject 3]; Bachelor of [Subject 4]; Diploma of [Subject 5]; Bachelor of [Subject 5]; Certificate IV in [Subject 6a]; Certificate III in [Subject 6b]; Diploma of [Subject 6c]; Diploma of [Subject 6d].
·Affidavit of sponsor [Mr A] dated 20 February 2024.
·Statements from [Bank] in the name of [Mr A] dated 19 February 2024.
·Interim statement of results for an Advanced Diploma of [Subject 2] dated 18 September 2024.
·Representative’s written submission and updated submission dated 18 September 2024.
The applicant provided evidence to the Department at the time of application which has been considered in this decision.
Evidence at the hearing – 19 September 2024
The applicant confirmed he came to Australia in 2018 after completing the equivalent of Year 12. He said he chose to study in Australia for the opportunities, and for his own success. The applicant enrolled to study [subject 5] but due to a lack of interest, he decided to change. He had been enrolled in a Diploma of [Subject 5] at [University] and completed the first trimester. The applicant stated he came from a community in India where people work with [material], but in July 2019 he enrolled in a Certificate III in [subject 6]. The applicant claimed he was not interested in [work sector 1] either, so he enrolled in a Certificate III in [Subject 1] which is the only course he has completed so far. The applicant was asked why he has only completed only one certificate course since 2018. The applicant stated he has since enrolled in an advanced diploma course. He referred to having faced challenges and stress during COVID-19 because two of his relatives died. He said from 2021 things were going smoothly and he completed the certificate course. The applicant’s Advanced Diploma of [Subject 2] ends in January 2025.
Regarding his future, the applicant said he will get some work experience in Australia then return to India. He submitted there are great opportunity due to developments in India. The applicant was asked about specific plans. He said he will apply for employment as [an occupation 1] but is planning to apply for a Subclass 485 Temporary Graduate visa to gain work experience first. He advised he is not planning any further study. The Tribunal inquired why the applicant had arrived in Australia to study a bachelor’s degree but changed to certificate and diploma level courses. The applicant said he thought he would have greater opportunities because in his community people traditionally work by building in [material]. He was asked why he needed to study in Australia in that case. The applicant said he wants to do better for himself and [do a job task] for [work sector 2 projects].
The applicant was asked what family he has in India. He said he has a brother, sister, and grandparents. He was asked about his parents, and he said he has not had any contact with them since 2020. When asked where they are, the applicant said, “I don’t know, I don’t have any idea”. He was asked again where his parents are living and if he knows whether they are still in India. The applicant replied, “I don’t have any idea; I am not in contact with them anymore”. When asked why that was the applicant said, “family issue”. The applicant submitted he has returned to India twice since he arrived in Australia. He was asked if he has any family in Australia. The applicant said, “I do not have any family, but my cousin brother lives here”.
The Tribunal asked the applicant what incentive there if for him to return to India. He said he will go back because the salaries are good, and he hopes to start his own business. Regarding any property or assets in India, the applicant said he has land and gold although the land is currently in his grandparents’ name. The applicant advised he is single, and he has not applied for any other visa except a student visa.
The applicant was asked about the subjects being studied in the Advanced Diploma of [Subject 2]. He referred to units such as [Unit names 1-3]. He said he has completed 10 units and has two more to finish. The applicant said he did not think he has had any study gaps as a student in Australia.
The representative said he would like to submit some crucial points. The Tribunal was asked to consider the social fabric of India which has traditionally been caste based. Traditional skilled work such as [job skills/occupations] do not have formal institutions they are inherited from one generation to another. If the applicant’s surname is searched, it indicates they have been involved in [job skills/occupations] for generations. The applicant was enrolled in [subject 5], then [subject 6], but he realised he was made for traditional work. [Work sector 2] is booming everywhere so he decided to study [subject 1] which he has finished, and he is about to complete the Advanced Diploma of [Subject 2] which has taken three and a half to four years. His stay in Australia has been for five and a half years, which included COVID. His uncle and aunt lost their lives in the second phase of COVID, which caused pain and trauma. He was brought up by his uncle and aunt, and he studied with them. He has not worked more than was permitted and has not done so for the last two years as he is concentrating on study. He has completed 90% of the [subject 2] course and he deserves an opportunity to complete it. If he opens a business in India, he will thrive as he already has business connections because his whole family is in this. Once he has studied in Australia, he will have the skills to take a business to the next level.
The Tribunal put to the applicant that his representative said he has not been working for the last two years. However, according to his Student Visa Information form he worked as [an occupation 2] up to October 2023 and since February 2024 he has been working as [an occupation 3]. The applicant said he started work as [an occupation 3] but did so for only a week or 10 days. He was asked why there is no end date in his written submission. The applicant said it was because he completed the form in February 2024, around the time he had started. He claimed he is not working as [an occupation 3] at the time of the hearing.
Additional hearing – adverse information - 25 November 2024
The applicant was invited to attend a further hearing to discuss information available to the Tribunal, and to give him an opportunity to comment or respond.
The applicant was advised information had come to the attention of the Tribunal, and he was being given the opportunity to comment on it. He was advised information would be put to him that the Tribunal considers may be the reason or part of the reason for affirming the decision under review. He was told the information related to some of the evidence he gave at the last hearing which the Tribunal would explain, and he would be invited to comment or respond. The Tribunal informed the applicant that if he requires additional time to comment or respond he can make a request.
The Tribunal informed the applicant the information related to his family circumstances. It was put to him that during the last hearing he had stated he has a brother, sister, and grandparents in India, and that he does not have any contact with his parents. He agreed that was the case. He also agreed he had said he did not know where they are, or if they are still in India. The applicant repeated that he did not have any idea. The Tribunal put to the applicant that in fact, his parents are in Australia, and they have applied for protection visas. The applicant was informed that the Tribunal suspects he was aware of that but did not disclose it. The applicant said he did not know if they were in Australia, or any other country and he did not know they have applied for protection. It was put to him that his address in Australia and that of his parents has been the same. He said he does not have any idea and he did not get any letters. The Tribunal disclosed that the applicant’s address, and that of his parents were the same between 2020 and 2023. The applicant shook his head and repeated that he does not have any idea. The Tribunal advised the applicant it would be best if he explains as it is not accepted that he and his parents lived at the same address in Australia, but he says he has no idea about it. The applicant declined to comment. It was put to him that his parents also did not list him as a relative in their applications. He said he does not know anything about that application and did not know about them being in Australia.
The representative submitted he had not known about this but also claimed his client had not been aware. The Tribunal repeated that it was not accepted the applicant had not known his parents were in Australia when they had the same address between 2020 and 2023. The representative began referring to the genuine temporary entrant criteria. The Tribunal explained that if the applicant had disclosed the information about his parents, it would have been considered in an assessment of the genuine temporary criteria as evidence of family ties in Australia. The Tribunal advised that what was troubling was the fact the applicant had not disclosed it. There were no further comments.
For the following reasons, the Tribunal considers the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 s a genuine applicant for entry and stay as a student and whether he intends genuinely to stay in Australia temporarily.
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?
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. 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.
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.
Assessment
Circumstances in India
The Tribunal considered the applicants’ circumstances in India, including whether the applicant has reasonable reasons for not undertaking study in his home country or region if a similar course is already available there. In his written evidence the applicant declared courses of the type he is studying in Australia are not available in India and qualifications in Australia will give him an advantage. The Tribunal accepts the applicant provided some reasons for deciding to study in Australia.
Regarding personal and economic ties to his home country, the applicant is single with no declared dependents. He claimed in his written evidence that he plans to get married in India soon but did not provide any further information or evidence. The applicant gave oral evidence at the first hearing that his two siblings and his grandparents continue to live in India. The Tribunal accepts the applicant has siblings and extended family members in India but is not satisfied they provide an incentive for him to return in future. The applicant has not lived in India since 2018 and gave evidence he has only returned twice. When asked about property or assets in India, the applicant claimed to have “ancestral land”, a car and gold. However, the Tribunal was advised in the hearing that the land referred to belongs to the applicant’s grandparents and is not held in his name. There is no independent evidence before the Tribunal of any possessions such as a vehicle or gold, and the Tribunal considers if the applicant does own such assets, they are moveable assets and do not provide a reason for him to return to his home country. The applicant came to Australia after secondary school and did not declare any employment history in India.
When the applicant applied for the visa which is the subject of this review, he submitted a genuine temporary entrant statement to the Department dated 10 March 2022. The applicant declared: “Coming to my family background, I have my parents, an elder brother, and an elder sister. My parents are currently staying in Australia with me”. During the first Tribunal hearing, when asked about his parents the applicant claimed he has not had contact with them since 2020 and does not have any idea where they are. When he was asked about any family in Australia, the applicant declared he only has one cousin. The Tribunal finds the applicant’s claims at the hearing are inconsistent with his statement to the Department because the genuine temporary entrant statement shows he had close contact with his parents in 2022 as they were living with him.
Following the first hearing, the Tribunal became aware of information that indicated the applicant’s parents are currently onshore in Australia and have applied for permanent visas. The Tribunal invited the applicant to attend a second hearing to give him an opportunity to comment on the information. The applicant was informed about the particulars of the information before the Tribunal pertaining to his parents, and the relevance to his application for review. He was told he may request additional time to comment but the applicant did not do so. During the second hearing, the applicant confirmed he had said he has not had contact with his parents since 2020. He continued to deny knowing where his parents were living, or that they have applied for protection visas. This was despite the Tribunal putting to the applicant that his parents had provided the same address in Australia in their visa applications as his home address, and that the same address was used between 2020 and 2023. The applicant declined to give an explanation or make any further comment.
The Tribunal finds the applicant has parents in Australia who have applied for permanent visas. The Tribunal does not accept the applicant’s claims that he has not been in contact with his parents since 2020, he does not know whether they are still in India and does not know they have applied for protection in Australia. The Tribunal considers the applicant has not been honest about having no contact with his parents since 2020 due to a “family issue” because he provided evidence to the Department in 2022 that his parents were living with him. The applicant’s parents also provided the same residential address as him in relation to visa applications between 2020 and 2023 when the Department refused their applications. The Tribunal finds the applicant withheld information about the location and circumstances of his parents because it is evidence of family ties in Australia which would present as a strong incentive for him to remain. For these reasons, the Tribunal is not satisfied the applicant has a genuine intention to remain in Australia temporarily.
Circumstances in Australia

In Australia, the applicant has been enrolled in several courses of study. He came to Australia on 14 December 2018 to study a Diploma leading to a Bachelor of [Subject 5]. The applicant did not continue the course and enrolled in [subject 6] at certificate and diploma level instead. He discontinued studying in that field and enrolled in [subject 4] courses which were also not completed. On 22 February 2021 the applicant began a Certificate III in [Subject 1] which ended on 11 December 2022. The applicant began an Advanced Diploma of [Subject 2] on 27 February 2023 which is due to be completed on 12 January 2025. According to Direction No 108, ‘Assessing the genuine temporary entrant criterion for Student visas’, the Tribunal should allow for reasonable changes to career or study pathways. The Tribunal accepts the applicant has finished a certificate course and is due to complete an advanced diploma, both in [work sector 2]. However, he was granted a student visa to study at tertiary level and did not do so. During his residency in Australia as a student, the applicant has been enrolled in four different, unrelated study areas, those being [subject 5]; [subject 6]; [subject 4]; and [subject 2]. The Tribunal does not consider this to be reasonable changes to the applicant’s career or study pathway.
The applicant did not have an employment history in India before he came to Australia as a student. In written evidence he declared employment in Australia between 2022 and 2024 as [an occupation 4], [occupation 2], and [occupation 3]. At the first Tribunal hearing the applicant’s representative stated his client has not been working for the last two years so he can concentrate on study. The applicant did not correct or contradict this. The Tribunal put to him that he had declared employment from 2022 to 2024 prior to the hearing. The applicant admitted he had worked briefly as [an occupation 3] for a week or 10 days in 2024. He did not refer to having been employed as [an occupation 2] with [Employer] in 2022/2023 as disclosed in the Student Visa Information form which contradicted the representative’s claims at the hearing. The applicant made submissions in writing and in his oral evidence that he intends to return to India to work in [work sector 2], and eventually open a business. However, the applicant has no employment history in India, and has not lived there permanently since 2018. At the Tribunal hearing the applicant stated he plans to apply for a temporary graduate visa after completing his studies which indicates he does not expect to return to India in the near future. This is despite being in Australia for nearly six years at the date of this decision. The Tribunal finds the applicant’s parents being onshore and the opportunities for employment provide an incentive for him to remain in Australia.
Current studies in Australia
Regarding the value of the course to the applicant’s future, the Tribunal considered whether the applicant is undertaking a course that is consistent with his current level of education and whether it will assist the applicant to obtain employment or improve employment prospects in his home country. The applicant completed secondary school in India before travelling to Australia to study a diploma and a degree course at university. The applicant discontinued studying at tertiary level and regressed to certificate and diploma leve. Although the applicant did not pursue a university degree, the Tribunal is satisfied he is now studying at an appropriate level. The Tribunal accepts qualifications in [subject 1] and [subject 2] could be of value to the applicant in India since he had not studied after high school before coming to Australia. Despite these findings, the Tribunal is not persuaded the applicant intends to return to India to work in [work sector 2] as he claims. This is because the applicant’s parents are currently onshore and have applied for permanent visas. In addition, he has lived independently, away from his home country for nearly six years, and he has few ties to his home country other than some family members, that provide any incentive for him to return.
Immigration history
The applicant’s immigration history refers to his visa and travel history. The applicant arrived in Australia on 14 December 2018 holding a student visa. He stated in his written evidence and at the hearing that he has returned to India twice, in 2020 and 2022. The applicant will have been residing in Australia for six years when he finishes his current course of study. The Tribunal finds this to be an excessive amount of time for a student to complete two courses of study at certificate and advanced diploma level. In addition, the Tribunal did not find the applicant to be an honest or reliable witness and is concerned that he withheld information about his circumstances and those of his family members. This has led the Tribunal to doubt the applicant’s claims that he will return to India to pursue a career in [work sector 2].
Conclusion:
The Tribunal considered the evidence individually and cumulatively. On balance, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Therefore, 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.
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
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Dates of hearing(s): 19 September 2024, 25 November 2024
Representative for the Applicant: Mr Bipinchandra Patel (MARN: 1678995)
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:
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.