BECERRA PEREZ (Migration) - [2025] ARTA 891

BECERRA PEREZ (MIGRATION) [2025] ARTA 891 (7 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mrs Andrea Fabiola BECERRA PEREZ
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2312587

Tribunal:General Member J Le Vay
Place:Sydney
Date: 7 February 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Student (Temporary) (Class TU) visa for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.

Statement made on 07 February 2025 at 4:16pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – value of course to benefit future career – related employment guaranteed upon return to Colombia – family ties and property ownership in home country – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 499; Direction No 108
Migration Regulations 1994, Schedule 2 cls 500.212, 500.611
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 August 2023 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a 35-year-old Colombian citizen.
The applicant applied for the visa on 8 June 2023. 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 that the applicant intended genuinely to stay temporarily in Australia.
The applicant appeared before the Tribunal on 7 February 2025 by video conference to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.
The applicant was assisted in relation to the review.
For the following reasons, the Tribunal sets aside the decision under review and remits the visa application for reconsideration.
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 is a genuine applicant for entry and stay as a student as required by cl 500.212.
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.
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.
Student visa application
The applicant provided the following documentation to the Department:
·Completed Application for a Student Visa form
·Curriculum Vitae
·Health insurance certificate
·Letter from applicant dated May 2023
·Degree certificate: Technical Auditing and Construction Supervision Specialist dated 8 July 2022 and translation
- Graduation certificate: Technical Auditing and Construction Supervision Specialist dated 26 March 2021 and translation
- Passport
- Certificate of Enrolment (COE): General English (Beginners to Advanced) commencing 31 October 2022
According to the documentation, the applicant completed a degree in architecture in 2012 in Colombia and then worked full-term as an architect in Colombia in various roles until March 2018. She then worked part-time as an architect from August 2018 to August 2022 during which period she studied for the Graduation certificate in Technical Auditing and Construction Supervision Specialist. She also helped manage her father’s hardware store.
The applicant entered Australia on a student visa on 22 October 2022.
According to Provider Registration and International Student Management System (PRISMS)[1] records the applicant completed a course in General English (Beginners to Advanced) from October 2022 to May 2023.
[1] PRISMS is a secure database owned and maintained by the Department of Education, Skills and Employment for the purposes of administering the Education Services for Overseas Students Act 2000 (ESOS Act).
The applicant applied for the student visa – the refusal of which is the subject of this review – on 8 June 2023. According to PRISMS records she was enrolled on the same English course as above which was due to commence on 26 June 2023 but did not commence it.
In her letter the applicant stated that she wished to study English because it would benefit her professionally and would enable her to study for a Diploma of Building and Construction (Management) and then a master’s in project management. This would put her in a better position to obtain employment with a large construction company in Colombia. She stated that qualifications obtained in Australia are well-regarded internationally. She expressed an interest in building construction, an area where there is a demand internationally, including Colombia. She indicated her desire to study at Everthought College of Construction because of the quality of the course. She indicated her desire to return to Colombia on completing her studies where she will work in the construction sector, which she believes is forecast to grow.
The application was refused on 9 August 2023. The delegate was not satisfied that the applicant’s family ties to Colombia constituted a strong incentive to return there on the completion of her proposed study. The delegate was also not satisfied that the applicant intended to stay in Australia because the delegate assessed that the applicant had not ‘substantively’ investigated study options in Australia or elsewhere. Further the delegate was not convinced that the proposed course would add value to the applicant’s future in light of the applicant’s failure to provide detail about how it would improve her job prospects and about the renumeration she could reasonably expect.
According to movement records the applicant was granted a bridging visa on 9 June 2023, which is still current.
Review application
The applicant applied to the AAT for review on 19 August 2023 and attached the decision of the delegate.
According to PRISMS records the applicant completed a course a General English Program from October 2023 to March 2024. She is enrolled in an Advanced Diploma of Civil Construction Design which commenced in May 2024 and is proposed to end in April 2026. The Tribunal is satisfied that the applicant is enrolled in a course of study.
The applicant provided the following further documentation to the Tribunal:
·Completed ‘Request for Student Visa Information Form’ (RSVIF) as requested by the Tribunal dated 19 November 2024.
·Submission with appendices from the representative dated 24 November 2024.
·COE – Advanced Diploma of Civil Construction Design which commenced in May 2024 and ends in April 2026.
·Letter from Everthought College of Construction dated 13 November 2024 confirming the applicant’s enrolment in the Advanced Diploma of Civil Construction Design which it expects to end in April 2026. The college also states that the applicant initially started a Diploma of Building Construction (Management) in April 2024 but then changed course after completing one unit. The college states that the applicant has maintained the required attendance rate and that her progress is satisfactory.
·Letters dated November 2024 from Angelo Gregor Marzan and Catalina Belen Gomez who state that they are classmates of the applicant in the Advanced Diploma of Civil Construction Design, and confirm the applicant’s attendance and her commitment to the course.
- Letter dated 19 November 2024 from a trainer/assessor at Everthought College of Construction who also confirms the applicant’s attendance and her commitment to the course. He also confirms the applicant’s successful completion of assessment units and her positive feedback.
·Academic transcript issued by Everthought College of Construction indicating completed workshops and units from April 2024 to December 2024.
- Architect (‘Arch’) brochure.
·Letter from Ivan Solano Fuente, Manager, dated 19 November 2024, who confirms the applicant’s employment at his practice in Bucaramanga, Colombia, as an architectural designer from January 2020 to September 2022. He indicates his knowledge of the applicant’s study in Australia, and that the applicant is on unpaid leave while she studies. He states that the applicant’s employment will resume on her return to Colombia as a project manager for residential building construction.
·Property certificate and partial translation which indicates the transfer of a property in Cucuta, Colombia, to the applicant in 2014.
In the RSVIF the applicant additionally states that:
·She has worked in Australia as a cleaner and kitchenhand from November 2022 to June 2023, and as a ‘crewmember’ at a fast-food restaurant since July 2024.
·She chose to study at Everthought College of Construction because it aligns with her career goals.
·Related courses in Colombia are short and specialised and do not align with her broader interest in advanced civil construction design, and lack the practical, industry-relevant training provided by Australian institutions.
·She maintains close contact with her family in Colombia, including her father, stepmother, sister, and grandfather.
·She owns a house in Cucuta.
·She intends to return to Colombia on completion of her studies, where she will advance her career in architecture and civil construction design, applying the skills she has acquired in Australia.
·She expects to secure employment with a salary of between around $2,802 to $5,253 per month.
The representative addresses the factors specified in Direction No 108 in his written submissions. His submissions include the following:
·The applicant’s partner is with her in Australia.
·She maintains close relationships with her family in Colombia.
·She and her partner intend to return to Colombia together on completing their studies so that they can leverage their enhanced skills and experience to advance their careers.
·She intends to contribute to the development of Colombian cities by incorporating innovative, world-class, architectural techniques on her return.
·She was given unpaid study leave by her previous employer – Ivan Solano Fuentes S.A.S. – who will resume its employment of her on her return.
·She owns a property in Cucuta where she will reside on her return.
·Courses in Colombia do not match her broader interests in civil design. The Advanced Diploma of Civil Construction Design at Everthought College of Construction is more aligned to her interests, including civil construction design with a global perspective.
·In Colombia multinational companies place a high value on candidates with strong English skills and expertise in architectural design acquired in developed countries. The representative provides examples of roles in Colombia for which the applicant is suitable which offer salaries in the range of around $2,800 per month to $3,500. He provides details of a senior role which commands a higher salary.
Hearing
The applicant gave her evidence mainly in English with the occasional assistance of the interpreter.
The Tribunal noted that the issue before it is whether the applicant meets the genuine temporary entrant criterion as per cl 500.212. It outlined these requirements and Direction No.108.
The applicant’s oral evidence was consistent with the written material.
The applicant confirmed her family background. Her family – including her parents, stepmother, sister, grandfather, and aunt live in Cucuta, Colombia. She is in daily contact with them. Her father continues to own a hardware store.
She confirmed that she travelled to Australia with her de factor partner: Mr Carlos Andres RODRIGUEZ BALLESTEROS, who is also a Colombian citizen. He also entered as a student and has a separate matter before the Tribunal in relation to the refusal of his student visa application lodged in Australia.[2]
[2] Tribunal number: 2312585
She confirmed her educational and employment history. She emphasised her employment with Ivan Solano Fuentes S.A.S. from 2020 until she left Colombia. She described the architect practice and her employment there. She was earning about $1500 per month. She recognised that architects are paid more in Australia than in Colombia, but she anticipates she will earn over $3000 per month on return to Colombia because of the English language skills she has acquired in Australia and the Advanced Diploma of Civil Construction Design. The Tribunal noted that according to information it had identified the average salary for an architect in Colombia is about $33,000 a year[3] (the applicant thought it was about $36,000) and that she was only earning about half of this after about 10 years employment as an architect. The representative submitted that English language skills are valuable and significantly increase salary expectations. The applicant also noted the cost of living in Colombia is about a third of the cost in Australia.
[3]
The applicant talked in some detail about how her English language skills and study in Australia would benefit her employment in Colombia. She said that Ivan Solano Fuentes’s practice engages with international stakeholders and investors and that a grasp of English is essential. She said she had missed employment opportunities before because of her lack of English.
The Tribunal discussed the offer of resumed employment from Ivan Solano Fuentes. The applicant said that he had not agreed a salary on her return. The Tribunal noted that the employment history she gave to the Department does not include her employment with Ivan Solano Fuentes S.A.S. She thought this must be an oversight and confirmed her part-time employment with the practice. At the same time, she worked part-time for the Colombian government.
She confirmed her employment in Australia. The Tribunal asked why she did not work in a role related to her studies and prospective employment in Colombia. She replied that she did not have the time – she was too busy studying, and her focus was on her study.
She confirmed her immigration history and study in Australia. She described in detail her current study. She said that that the diploma is both theoretical and practical, and that the content is not limited to practising in Australia. She said that similar courses in Colombia cannot offer the same: they are either too specialised, or too long in the case of a degree. She also emphasised the importance of studying in English – gaining technical language skills – which will aid her employment in Colombia.
She confirmed that she would return to Colombia – to Bucaramanga not to Cucuta – with her partner at the end of their studies. He is due to complete his course in May 2026 (which is confirmed by information before the Tribunal in relation to his matter). They will resume living with his mother there, and the applicant will continue to lease the house she owns in Cucuta.
Post hearing
After the hearing the Tribunal received:
·Amended c.v. indicating part-time employment with Ivan Solano Fuentes S.A.S. from January 2020 to September 2022.
·Certified statement dated 2 June 2022 and translation by Ivan Solano Fuentes on company headed note paper indicating that the applicant has been indefinitely employed by his company since January 2020 as an architect designer on a monthly salary of 2,800,000 COP and granting unpaid leave so that the applicant can study English in Australia and then resume her employment, along with what appears to be two payslips issued by Ivan Solano Fuentes S.A.S. to the applicant for April 2022 and May 2022.
· Pamphlet with information about ‘Ivan Solano Arquitecto’.
Does the applicant intend genuinely to stay in Australia temporarily?
The Tribunal has had regard to the factors specified in Direction No 108.
The Tribunal assesses that the applicant spoke enthusiastically and knowledgeably about her study in Australia. It gives weight to her completion of the English languages courses and her ability to give her oral evidence in English. The Tribunal also gives weight to the applicant’s successful attendance on the diploma to date and the positive appraisal of her performance from course mates and more significantly her trainer/assessor.
The Tribunal considers that the applicant spoke convincingly about her desire to return to Colombia on completing her studies, with her partner, and to resume her employment there as an architect. The reasons she provided for seeking to study in Australia are reasonable.
The Tribunal’s concern about the omission of her employment with Ivan Solano Fuentes S.A.S. in her evidence to the Department is resolved by the evidence of her employment with the practice provided to the Tribunal very shortly after the hearing. The Tribunal gives weight to the evidence that the applicant will resume employment at Ivan Solano Fuentes S.A.S.
Even though Ivan Solano Fuentes S.A.S. has not indicated a salary the Tribunal finds it plausible that the applicant would be paid more than before in light of her study in Australia and her English language skills (the Tribunal notes that the offer of resumed employment is in a different role to the one she had before) and that these skills/study would also be attractive to other employers. Her study is clearly relevant to her proposed employment in Colombia. The Tribunal recognises that the lower cost of living in Colombia would compensate for the lower salaries relative to Australia.

There is no evidence before the Tribunal that political and civil unrest would result in the applicant choosing to remain in Australia indefinitely. There is no evidence before the Tribunal of military commitments that would present as a significant motive not to return.
The Tribunal gives weight to the applicant’s family ties in Colombia when assessing her intention to return there. It accepts that she has close contact with them. It also recognises that she owns property in Colombia.
There is no information to indicate that the applicant has ties in Australia which would present a strong incentive to remain in Australia. According to information before the Tribunal in his matter, the applicant’s partner’s proposed study is due to end in May 2026.
The Tribunal weighs favourably that the applicant entered Australia on a student visa, and has been studying consistently since then, and that she has consistently stated to the Department and the Tribunal her desire to study English and then a diploma relevant to her profession in order to enhance her employment prospects in Colombia.
The Tribunal accepts as reasonable the applicant’s explanation that she has not been working in employment relevant to her profession in Australia because her focus is on her studies.
The Tribunal assesses that the applicant’s circumstances do not indicate that the student visa is intended primarily for residence in Australia.
On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).
Does the applicant intend to comply with visa conditions?
For the applicant to meet cl 500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl 500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). For visa applications made on or after 1 July 2022, condition 8208 (no critical technology related study without approval) must also be imposed.
There is no information before the Tribunal to indicate that the applicant does not intend to comply with any conditions subject to which the visa is granted.
On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl 500.212(b).
Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?
For the applicant to meet cl 500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl 500.212(a) and (b)).The Tribunal has not identified any other relevant matter to consider.
Conclusion
Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
DECISION
The Tribunal sets aside the decision under review and remits the application for a Student (Temporary) (Class TU) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.
Dates of hearing(s): 7 February 2025
Representative for the Applicant: Mr Juan Carlos Bedoya Leal (MARN: 2117696)
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.