Gavinos de Oliveira (Migration) - [2025] ARTA 898

GAVINOS DE OLIVEIRA (MIGRATION) [2025] ARTA 898 (11 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Miss Thalita Gavinos de Oliveira
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2314235

Tribunal: General MemberB. Lumsdaine
Place:Sydney
Date of hearing: 30 January 2025
Date: 11 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 11 February 2025 at 11:49am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – good academic progress – value of course to benefit future career – strong personal ties in home country – previous compliance with visa conditions – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
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 25 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 applied for the visa on 28 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 the delegate was not satisfied the applicant is a genuine applicant for entry and stay as a student in Australia.
The applicant appeared before the Tribunal on 30 January 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.
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 and satisfies cl 500.212 of the Regulations.
Evidence before the Tribunal
At the time she applied for the student visa, the applicant was proposing to take courses in General English, Certificate IV in Kitchen Management, and a Diploma of Hospitality Management. She provided certificates of her previous study, including a Diploma of Leadership and Management, certificates of completion of a Certificate IV in Leadership and Management, a Certificate IV in Project Management Practice and a Diploma of Leadership and Management and a record of results for her diploma. She also provided a statement setting out her past study – a degree in Business Administration with qualification in Foreign Trade, which she completed in 2009 and her work as an import analyst including for a company that imported food and beverages. She claimed that she always had a passion for cooking and reassessed her priorities after the COVID-19 pandemic. She explained she chose Evolution Hospitality Institute as it had highly qualified teachers, was practical and personalised among other reasons. She intended to return to Brazil where she believed she would earn 15,000 Real per month as a minimum. The applicant provided further documents relating to her work in Brazil including payslips and a copy of the certificate of completion for her business administration course in Brazil. She also provided a Resume which indicated her most recent work was as a barista at Il Chooko Charcoal Chicken restaurant in Maroubra.
On 25 August 2023, the delegate refused the application as they were not satisfied that the applicant was a genuine applicant for entry and stay as a student because she had ties in Brazil in the form of her relationship with her mother but little evidence of assets or other financial ties to Brazil. The delegate also noted the applicant’s sister’s usual country of residence was Australia. The delegate also expressed concern that the applicant’s long-term employment in Australia and prospects of similar employment in the future would be an incentive to remain in Australia. The delegate found that the applicant had provided some reasons for choosing to study in Australia but found the amount of research into study options overseas was less than expected for a genuine student. The delegate also found the applicant’s salary expectation or stated employment prospects for work on return to Brazil was not realistic and would outweigh the cost of study in Australia and found the applicant’s study would not add value to her future. The delegate also considered the applicant’s immigration history and found that on the information before them they were not satisfied the applicant was a genuine applicant for entry and stay as a student in Australia and was therefore not satisfied that the applicant met clause 500.212 of the Regulations.
On 12 September 2023, the applicant applied to the Tribunal for review of the delegate’s decision. After applying, the applicant provided the Tribunal with a letter addressing concerns raised in the delegate’s decision. In this letter, the applicant raised the fact that she had completed the study of her previous courses in Australia and that there had not been long gaps between her study. She emphasized the reputation of Evolution Hospitality Institute as an educational institution and the value of international certifications in Brazil. The applicant also identified opportunities for work in Brazil, which she claimed was experiencing a boom particularly in hospitality and provided some statistics to support this, though no source was attributed to these. She also emphasised her close bonds with her family in Brazil. She explained that while she had no assets to establish a business, she intended to seek experience in Brazil and then planned to establish a business with her mother who had inherited a house from the applicant’s grandparents and currently ran an acai shop. She also explained that while she has a sister in Australia, her sister is in Australia temporarily and she retains strong ties to her other family members in Brazil. She explained her work at Il Chooko had been a matter of convenience, as it was located close to her house and allowed her to practice English and engaging with customers and that she has since changed jobs to advance her career goals. The applicant also provided documents including a Small Business Owner certificate from Brazil for Valeria Gavinos, her mother, evidence that her mother had title of a property and that ownership of the applicant’s car had been transferred to her mother.
In a response to a Request for Student Visa Information form completed by the applicant on 21 November 2024, she provided updated information regarding her past study, visa history, income, contact with family and plans after she completes her study. She explained that she chose Evolution Hospitality Institute based on recommendations from other students and online research. She claimed that while similar classes are available in Brazil, this course offered state of the art facilities, an exposure to people from different cultures, and international recognition which would help her find work in Brazil or elsewhere outside Australia. She explained that she planned to find work and gain experience in renowned establishments in Brazil, with an aim to work in luxury or prestigious restaurants. She claimed that the average salary for a chef in Brazil is 52,000 Brazilian Reais (BRL) per year, with significant growth expected. She also claimed that salaries for chefs in Europe ranged from 50,000 to 70,000 Euros per year. She provided further details of her planned trip to see her family at the end of 2024 and of her involvement with charitable work in Australia. The applicant provided a further statement dated 21 November 2024 responding to concerns raised in delegate’s decision and providing links to supporting documents. The further statement largely reiterated information and arguments made by the applicant in previous documents provided to the Tribunal. She provided Confirmations of Enrolment for the Certificate IV in Kitchen management and the Diploma of Hospitality Management courses in which she has enrolled. She also provided a document comparing the course in which she was enrolled with other courses in Brazil, a bank statement and evidence of financial report she was receiving. She provided evidence of flights she had booked for Brazil. She also provided information that the average salary for chefs in Brazil ranged from 39,000BRL to 62,000BRL per year with an average of around 51,000BRL. She also provided an academic interim progress report for her Certificate IV course and a reference from an assessor.
At the hearing the applicant gave further evidence, most of which corroborated evidence she had already provided the Tribunal. The applicant elaborated on some of the benefits of studying in Australia including the exposure she had to people from around the world, which helped her create international networks and the exposure to cooking different types of foods. She also explained that the cost of studying similar courses in Brazil was comparable to the cost of studying in Australia when the duration of the study was considered. She also explained that studying in Australia also gave her the opportunity to learn English which was a competitive advantage for working at high end restaurants in Brazil. The applicant also emphasised her strong attendance record at the course and reports from instructors about her application to learning. The applicant also confirmed she had strong ties to her mother due largely to growing up with her following her parents’ separation. She also gave evidence that she had no military service commitments in Brazil and there were no circumstances such as civil or political unrest or personal circumstances that would make her return to Brazil difficult.
On 7 February 2025, the Tribunal received further submissions from the applicant. In these submissions, the applicant argued that the gastronomic sector in Brazil had experienced significant growth with an increase in people dining out and an appreciation of fine dining that led to a demand for highly qualified professionals. The applicant provided evidence that the average salary for an executive chef in Brazil was around 170,000BRL per year and estimated to rise by 11% by 2030. Salaries for a chef and chef’s assistant were 92,000BRL per year and 66,000BRL per year respectively. The applicant also submitted the international recognition and prestige of studying in Australia gave her a competitive edge over people who had only studied in Brazil, and that chefs with international experience earned higher salaries. Other advantages of studying in Australia were the opportunity to learn English, exposure to more diverse ingredients and techniques, high standards, and the opportunity to gain practical experience. She also provided evidence that the cost of studying in Australia was comparable to the cost of studying at the most respected cooking schools in Brazil when the duration of the courses is taken into consideration.
The applicant has provided no further evidence since these submissions.
Genuine applicant for entry and stay as a student (cl 500.212)
The issue before the Tribunal is whether the applicant meets 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.
The Tribunal’s consideration as to whether the applicant meets this criterion is set out below.
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 Tribunal has considered the applicant’s circumstances in Brazil. The Tribunal accepts the applicant has provided reasonable reasons for choosing to study in Australia rather than Brazil. The Tribunal was persuaded by applicant’s evidence that the relative prestige given to international qualifications, the benefits of exposure to different foods and cooking techniques as well as the opportunity to learn English reasonably explain her decision to study in Australia.
The Tribunal has also considered the applicant’s evidence regarding her personal ties to Brazil. The Tribunal notes the delegate’s concern that the applicant’s sister is in Australia and that she has no partner or dependents in Brazil. Nonetheless, the Tribunal accepts the applicant’s evidence that she has a strong relationship with her mother having grown close following her parents’ separation and considers her relationship with her mother to be a significant incentive for the applicant to return to Brazil. The Tribunal also acknowledges the delegate’s concern regarding the applicant’s lack of financial ties to Brazil, given her mother owns a home and a business and the applicant has sold her cars to support her mother, so presently has no substantial assets of her own in Brazil. Nonetheless, the Tribunal accepts the applicant’s evidence at the hearing and in written material before the Tribunal that the nature of the applicant’s relationship with her mother is that she has a joint interest in her mother’s business and property as evidenced by the applicant’s willingness to sell her cars to support her mother’s business and her desire to assist her mother run her business on return to Brazil.
The Tribunal has also considered the applicant’s economic circumstances in Brazil as compared to Australia. On the applicant’s evidence, it is apparent that her economic circumstances in Australia are more favourable than those in Brazil. For example, she stated in the completed request for Student Visa Information form that her salary in her current job as a food and beverage attendant at the Lakes Hotel, is AUD43,764, which equates to approximately 160,000BRL[1], which is similar to her salary expectations as an executive chef in Brazil. The fact that the applicant can earn this salary while studying indicates she would be able to earn a higher income in Australia and improve her economic situation relative to Brazil even if potentially lower living costs in Brazil are considered.
[1]See Xe.com, available at: >
The Tribunal also accepts that the applicant has no military service commitments in Brazil and that there are no personal circumstances or civil or political unrest in Brazil that would make her return there difficult.
The Tribunal has also considered the applicant’s potential circumstances in Australia. The applicant has ties to Australia in the form of her sister with whom she is close. The Tribunal notes, however, the applicant’s evidence that her sister currently holds a temporary graduate (subclass 485) visa and as such the applicant’s sister’s residence in Australia may also be temporary. While the applicant has friends in Australia, has been involved in some volunteer work and is familiar with Australia having lived here for several years, the Tribunal is not aware of any other significant ties the applicant has to Australia.
The Tribunal does not consider the applicant to be using the student visa programme to circumvent the intentions of the migration programme or that she is using the visa to maintain ongoing residence. In making this finding, the Tribunal has considered the applicant’s record of attendance and positive feedback on her study provided by the Evolution Hospitality Institute. The Tribunal accepts that the applicant is in Australia to complete her studies. There is no evidence that the applicant has entered into a relationship of concern for a successful visa outcome.
The Tribunal is satisfied that the applicant’s knowledge of living in Australia and her course of study is at a realistic level for what the Tribunal expects her to know. The applicant has been living in Australia for several years and understands Australian living conditions. In the written material and at the hearing, the applicant demonstrated a knowledge of her course of study and provided commensurate with the Tribunal’s expectations for a person who intends genuinely to stay in Australia temporarily as a student.
The Tribunal has considered the delegate’s concern that she may have changed her course of study to prolong her stay in Australia and her long-term employment at Il Chooko may indicate the applicant’s decision to study is motivated by factors other than a genuine intention to pursue study. Having considered the applicant’s evidence at the hearing and her written statements, the Tribunal accepts that the applicant’s decision to study cooking is motivated by a desire to change career, which was influenced by a longstanding passion or cooking, reconsidering her choices during the COVID-19 pandemic, motivated in part by her experience at Il Chooko. The Tribunal notes the applicant has since changed her employer and finds that her application for a student visa and decision to study kitchen and hospitality management is not motivated by a desire to obtain long-term employment at Il Chooko or her current employer.

The Tribunal has also considered the value of the course of study to the applicant’s future. The Tribunal raised similar concerns to those of the delegate regarding the applicant’s salary expectations and whether these would justify the cost of studying in Australia. The Tribunal is satisfied by the applicant’s evidence regarding her salary expectation should she progress to the role of an executive chef. Further, the Tribunal was convinced by the applicant’s response at the hearing and in the post-hearing submissions that equivalent study in Brazil costs approximately the same as her current study, and studying in Australia allows the applicant to learn English and gain exposure to different foods, cooking techniques and ability to make international networks. The Tribunal also appreciates that the applicant’s decision to study cooking and kitchen management is not motivated solely by a desire to increase her potential income.
The Tribunal has also considered the applicant’s immigration history. Of the factors listed in Direction 108, the Tribunal considered only that in s 14 a) vi) to be of relevance. In this regard, the Tribunal notes the applicant has been in Australia since 2019. Her initial studies related to leadership and management and only in 2023 did she begin to study kitchen and hospitality management. While this marks a significant change in her course of study, the courses the applicant has enrolled in could not be described as a series of short, inexpensive courses. Further, the applicant has completed her prior study. The Tribunal is satisfied that the applicant’s change in study reflects a deliberate change in choice of potential future career path and her immigration history does not indicate that she is not a genuine temporary entrant.
While the applicant has limited economic ties in Brazil, the Tribunal accepts she has strong personal ties to Brazil and that these represent a significant incentive to return to Brazil. While the applicant’s sister is in Australia, she has a temporary visa in Australia and despite the applicant’s close relationship with her sister, the Tribunal finds her ties to Brazil are stronger than her ties to Australia. The Tribunal’s concerns regarding economic incentives to remain in Australia and the applicant’s change of study giving the impression she was seeking to extend her stay in Australia have been addressed to the Tribunal’s satisfaction. The applicant’s strong record of attendance and completion of her courses, her evidence regarding the value of her study to her future employment weigh in finding that the applicant has chosen to change her career for the reasons she claims and that her decision to study is to pursue a career in hospitality as she claims.
On the basis of the above, 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. The following conditions may also be imposed in some cases (cl 500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).
There is no evidence before the Tribunal that the applicant has not complied with visa conditions in the past or intends not to comply with them in the future.
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 Tribunal has not identified any other relevant matters that would lead it to find the applicant is not a genuine applicant for entry and stay as a student.
Conclusion on cl 500.212
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 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.
Date of hearing: 30 January 2025
Representative: N/A
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.