Gaur (Migration) - [2025] ARTA 442

GAUR (MIGRATION) [2025] ARTA 442 (7 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Ashwani Chander Gaur
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2315085

Tribunal:Clyde Cosentino
Place:Brisbane
Date: 7 March 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 March 2025 at 4:38pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – current course enrolment – employment prospects in home country – property and business ownership – academic progress to benefit future career – family ties in home country – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 359, 499; Direction Nos 69 & 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 4 September 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 applied for the visa on 19 July 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 applicant attached the following documents in support of his student visa application:
·National ID Card – Arti Sharma, wife of the applicant
·National ID Card - applicant
·Applicant’s Passport
·“Declaration Regarding Marriage in absence of Marriage Certificate” – confirming marriage residence of the applicant and his wife at the same address in Karnal, Haryana, India.
·Applicant’s Overseas Qualification
·Confirmation of Enrolment (CoE) – Certificate III in Commercial Cookery (Course end date: 9 August 2024)
·CoE – Certificate IV in Kitchen Management (course end date: 29 January 2025)
·CoE – Diploma of Hospitality Management (course start date: 15 February 2025; course end date 23 May 2025)
·Evidence - Overseas Student Health Cover (OSHC)
According to his student visa application, the applicant is 45 years of age and is from India.
The applicant provided a Genuine Temporary Entrant (GTE) Statement as evidence to his visa application which the Tribunal has read. In particular, the Tribunal has taken into account the following:
·He has undertaken and completed tertiary studies in India.
·He wishes to pursue advanced qualifications in hospitality, focusing on mastering innovative culinary techniques. He wishes to establish a successful business as a result of his studies.
·India’s hospitality sector is growing rapidly but lacks the essential innovation and creative talent to help it to keep up with growing demands and expectations.
·He has chosen Certificate III in Commercial Cookery, Certificate IV in Kitchen Management and a Diploma in Hospitality Management which are not widely available in India. Obtaining international qualifications in Australia will offer a competitive advantage for him, offering better career opportunities. He has researched the Australian School of Commerce in Melbourne as having an excellent reputation in this field. His aim is to gain valuable experience and ultimately establish his own culinary venture in India.
·He has strong family ties in India with his wife, parents and brothers living in India. His strong family ties are rooted in India with his close relatives and friends also present in India. His family properties and personal belongings are also in India.
·He has strong economic ties back in India. Having earned money as a professional since 2004, he has accumulated enough support for a temporary stay in Australia.
·His future employment prospects lie in the numerous opportunities arising in India’s culinary industries and its many hospitality companies there.
·He has the means to support himself.
·He is committed to continue to abide by Australian immigration laws.
On 4 September 2023, 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 information by the applicant regarding his circumstances in his home country, potential circumstances in Australia, the value of his proposed courses to his future, his immigration history and other relevant matters, looking at them cumulatively, were sufficient to demonstrate that the applicant was a genuine temporary entrant.
Evidence provided after delegate’s decision
The applicant applied to the Tribunal on 22 September 2023 seeking review of the delegate’s decision to refuse to grant him a student visa.
On 23 December 2024, the Tribunal wrote to the applicant, through his represernative, a s 359(2) letter as follows:
I am writing to you as the authorised recipient of the applicant(s) for the above-mentioned application for review to the Administrative Review Tribunal in respect of a decision to refuse to grant a Student (Temporary) (Class TU) visa.
As the authorised recipient, we are required to give you, instead of the applicant, any document that we would otherwise have given to the applicant. By sending you this email, we are taken to have sent the email to the applicant. You should ensure that all applicants included in the review are informed of this email as soon as possible.
As the applicant applied for the visa based on undertaking a course of study in Australia, it is a requirement of the visa for the applicant to be:
enrolled in a registered course of study;
and a genuine applicant for entry and stay as a student.
The applicant will need to provide sufficient information to satisfy us that they meet both of these visa requirements.
Request to provide information
The applicant is now invited to give, in writing, all relevant information about the course(s) of study they are undertaking and their entry and stay in Australia as a student. Details of the information requested are set out in the Student Visa Information Form.
… … …
Other information
In considering whether an applicant is a genuine applicant for entry and stay as a student, the ART must have regard to Ministerial Direction No.108 ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’. A copy of this is linked below for your reference.
On 21 January 2025, in response to the request above, the applicant provided a completed form including the following information relevant to the GTE criteria:
·That he has completed a Certificate III in Commercial Cookery on 9 August 2024 (this is confirmed by his PRISMS record).
·That he is currently enrolled in, and studying, a Certificate IV in Kitchen Management (CoE provided) (with the course to finish on 10 March 2025 (as confirmed by his PRISMS record).
·That he is presently enrolled to study a Diploma of Hospitality Management (CoE provided) from 15 March 2025 to 21 June 2025 (as confirmed by his PRISMS record).
·When asked how and why he chose the current education provider of the course he is currently enrolled in, he states:
The applicant chose the Australian School of Commerce for its strong reputation in delivering practical and industry-relevant training in hospitality and cookery. The institution offers a well-structured pathway, starting with Certificate III and IV in Commercial Cookery and Kitchen Management, followed by a Diploma of Hospitality Management, providing comprehensive skills and knowledge to excel in the
hospitality industry. Its focus on hands-on experience, industry connections, and a curriculum aligned with global standards influenced the applicant’s decision.
- When asked whether there are similar courses available in the applicant’s home country or region to the course(s) they are currently studying and/or propose to study in Australia, he states:
While similar courses in cookery and hospitality are available in India, the applicant chose to study in Australia because of the globally recognized qualifications, advanced facilities, and practical training standards offered by Australian institutions. The courses in India often lack the same level of hands-on experience, exposure to international cuisines, and industry connections that the Australian School of
Commerce provides. Additionally, studying in Australia allows the applicant to gain international exposure and develop skills in a multicultural environment, which is essential for excelling in the global hospitality industry.
·He states that he has been enrolled in a registered course at all times while in Australia.
·He provides details of his family members living in India, including his wife, his two children, his father and two brothers who are all living in India.
- When asked to give details of how he maintains contact with family in his home country, and how often this contact occurs he states:
The Applicant maintains regular contact with family members in their home country through phone calls, video calls, and text messages for direct communication. Additionally, they stay connected with some extended family members as well, ensuring strong ties and consistent interaction.
·When asked to give details of his community ties (if any) in Australia, he states:
The Applicant has established positive social ties in Australia through friendly interactions with classmates, housemates, and others in their surroundings. While not actively involved in any specific community groups or organizations, the applicant maintains good social relationships and is well-regarded within their immediate network.
·When asked to give details of his community ties (if any) in India, he states:
The Applicant maintains strong community ties in their home country through close relationships with family and social friends. While they are not actively involved in any specific community groups or organizations, these personal connections reflect their strong attachment to their local community.
·He provides details of significant assets back in India such as ownership of family residential plot, sixteen (16) commercial shops and his parents’ home back in India.
·When asked to give details of the applicant’s plans, including employment plans, at the completion of the course of study now proposed and these courses relate to the applicant, he states:
Upon completing the proposed courses in commercial cookery and hospitality management, the Applicant plans to gain experience in the culinary field to strengthen their expertise before opening their own food chain in India. They aim to work in the industry to build hands on knowledge and refine their skills, which will provide a solid foundation for launching a successful business. Their long-term goal is to expand the food chain internationally, bringing authentic Indian cuisine to a global audience.
The skills and knowledge gained through these courses will enable the applicant to manage kitchen operations, understand global culinary trends, and lead a thriving hospitality business. This aligns with their vision of creating a brand that can compete on an international level. In Australia he would prefer to gain 1-2 years experience to understand the international standards and then will go back home to expand his business using his skills in India.
Notable Indian food chains like Bikanervala, Saravana Bhavan, and Moti Mahal have successfully expanded globally, including in Australia and serve as inspiration for the applicant’s plans to bring Indian cuisine to a broader international market.
- When asked to give details of the remuneration the applicant expects to receive in his home country using the qualifications he will gain from his current and/or proposed study, he states:
The Applicant plans to initially work in the food and hospitality industry in India to gain hands-on experience after completing their studies in commercial cookery and hospitality management. With the qualifications they will gain, the applicant expects to earn a competitive salary in a managerial or senior culinary role, with an estimated remuneration range of INR 6-10 lakhs per annum, depending on the
specific position and level of experience. This experience will be crucial in refining their culinary skills and operational knowledge, setting the foundation for their future goal of opening their own food chain. Once established, the food chain has the potential to generate higher earnings as the business expands.
For a small to medium-sized food chain, the expected monthly revenue could range between INR 5-15 lakhs in the initial phase, especially if it operates in a city with high foot traffic or popular tourist areas. This figure is an estimate based on factors such as pricing, customer base, and business operations.
·When asked whether the applicant has any concerns about military service commitments or political or civil unrest back at home, he states that he does not.
The applicant also provided the following supporting documents on 21 January 2025:
·Record of Results from the Australian School of Commerce Re: Completion of Certificate III in Commercial Cookery
·Letter from Australian School of Commerce indicating that the applicant has successfully completed his Certificate III in Commercial Cookery.
·Certificate from Australian School of Commerce certifying that the applicant had fulfilled the requirements of a Certificate III in Commercial Cookery
·Continuation of his OSHC cover.
·Same three (3) CoE’s provided to the Department at time of application.
·Certificate from Gauri Goyal & Associates, Chartered Accountants, India, certifying applicant’s and applicant’s wife’s total net assets (real and personal) amounting to R. 4654454.69
·Affidavit of Aarti Sharma, wife of the applicant, and dated 24 January 2025, declaring that she continues to financially support her husband while he studies in Australia and that she is the owner of a Boutique shop in Karnal.
·Affidavit of Suresh Chand, father of the applicant, and dated 24 January 2025, declaring that he is also supporting the applicant financially while his son studies in Australia.
·Land documents and deeds evidencing real property in the names of the applicant, his wife and their families.
On 5 March 2025, the applicant appeared before the Tribunal by video link to give evidence and present arguments. The applicant was assisted in relation to the review by his agent.
The Tribunal noted that the issue before it was whether the applicant meets the genuine temporary entrant criterion as outlined in cl 500.212.
The applicant provided evidence to the Tribunal in support of his review. The Tribunal asked him a range of questions relating to the relevant factors for consideration under Direction 108.
He answered consistently with information dealing with the above relevant factors outlined in Direction 108. The applicant also provided oral evidence consistent with his supporting documents.
The Tribunal’s findings relating to his oral evidence, along with his written material and supporting documents, are given below under “Consideration of Claims and Evidence”.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal sets aside the decision under review and remits the visa application for reconsideration.
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 meets cl 500.212(a).
Genuine applicant for entry and stay as a student (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.
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.
The applicant gave oral evidence at the hearing that his family own substantial “ancestral property” in India such as sixteen commercial shops and other assets. The applicant is part owner of these properties along with other family members. He gave oral evidence that his wife owns a boutique business on her own property. The applicant provided documents (above) to support this.
Having regard to the applicant’s circumstances in his home country and having regard to the supporting documents provided by the applicant relating to his assets and family assets and business interests, there is no evidence that has been presented which indicate that his economic circumstances would present as a significant incentive for the applicant not to return to India. The applicant has provided evidence of land ownership at his review stage. He has provided evidence of his relationship with his wife and evidence of his wife’s land assets in India. The Tribunal is satisfied on the evidence before it that the applicant does hold land tenure back in India. The Tribunal is satisfied on the evidence before it that the applicant’s wife does hold land tenure back in India. It is satisfied on the evidence before it that the applicant and his wife continue to remain in a married relationship and that they share property back in India.

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 accepts his oral evidence that his reasons for choosing to study in Australia is because he does not have the practical and modern skills that can be obtained in India and that by completing his courses in commercial cooking, kitchen management and hospitality management in Australia, he will be better off in achieving his business goals in India. It accepts his oral evidence that he has shown commitment in this particular field of study by completing his Certificate III in Commercial Cookery and Certificate IV in Kitchen Management, and that he is enrolled to begin his Diploma of Hospitality Management. It accepts his oral evidence that at the end of his Diploma of Hospitality Management (in the middle of 2025 as evidenced by the CoE), his goal and intention is to return to India to be with his family and to start his own restaurant business, with the help of his wife who is also a businesswoman.
The Tribunal finds the applicant’s oral evidence plausible that he will open a restaurant on the roof of the shopping complex (owned by his family) that holds sixteen shops. It is plausible from the evidence before it that this can be a viable business venture given that he has the property and the family finance behind him to make this a successful business, and that his outlays will be minimal given that he will commence his business with little or no known debt.
The evidence indicates that the applicant has been continuously enrolled, successfully completing a Certificate III in Commercial Cookery and Certificate IV in Kitchen Management, and that he is enrolled to begin his Diploma of Hospitality Management. The Tribunal accepts that the applicant has been continuously enrolled, successfully completing courses and achieving course progression which is indicative of a genuine student.
The Tribunal also accepts the applicant’s evidence as to the value of the courses to his future, given his connectivity with his property and business assets in India. He has provided detailed and consistent oral and written evidence as to his future employment plans and the value of studying these courses have to his future.
The applicant has indicated that he will return to India on completion of his Diploma of Hospitality Management (which he is enrolled to commence) in the middle of 2025. No evidence has been presented that he will need to stay further in Australia to study for a future career aim following completion of this course and should he choose to do so and present a further application for a student visa or enrolment in a further course this would be of concern.
The Tribunal does not have any information before it to indicate that the applicant has not complied with visa requirements while studying in Australia. There is no evidence before the Tribunal to suggest that the applicant will not comply with visa visa conditions into the future.
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.
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)). There is no other relevant matter to consider. The Tribunal finds the applicant meets cl 500.212(c)
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: 5 March 2025
Representative for the Applicant: Dhiraj Arora (MARN: 1807823)
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.