Karaman (Migration) - [2025] ARTA 896

KARAMAN (MIGRATION) [2025] ARTA 896 (10 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Halil Ibrahim Karaman
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2314669

Tribunal:General Member P Wearne
Place:Sydney
Date: 10 February 2025
Decision:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 10 February 2025 at 2:33pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – enrolment in a registered course – lengthy stay in Australia – limited academic progress – course cancellations – applicant changed to unrelated diploma level courses – liability for military service – maintaining ongoing residence in Australia – decision under review affirmed
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 cl 500.212
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 31 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 4 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.
On 31 August 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) on the basis that he is not a genuine applicant for entry and stay as a student.
Following the refusal by the delegate the applicant lodged an application for review of the delegate’s decision with the former Administrative Appeals Tribunal (the AAT) on 18 September 2023.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
On 11 November 2024 the Tribunal requested the applicant provide information that he is enrolled in a registered course of study and a genuine applicant for entry and stay as a student. It referred him to the Request for Student Visa Information Form and noted that in considering whether an applicant is a genuine applicant for entry and stay as a student, the Tribunal must have regard to Ministerial Direction No.108 ‘Assessing the genuine temporary entrant criterion for Student visa. It provided him with a link to Ministerial Direction No.108. The applicant provided a completed form and additional documents.
The applicant appeared before the Tribunal via video on 31 January 2025 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Turkish language.
The applicant appointed an educational agent as his authorised recipient. The applicant was not otherwise assisted in relation to the review.
For the following reasons, the Tribunal affirms the decision under review.
CLAIMS AND EVIDENCE
The applicant is a 28-year-old single man from Türkiye, where his parents, sister and cousins also live. Another sister lives in Australia. She is an Australian citizen. According to his visa application she guaranteed financial support to the applicant for his Student visa application. The applicant lived with her for about 6 or 7 years after coming to Sydney before moving to another Sydney address.
In his visa application, the applicant stated an intention to pursue study in the Vocational Education and Training Sector. He indicated that he had previously studied towards a Certificate III in Marketing and Management in 2020-2021 and a Diploma of Leadership and Management in 2017. The applicant also submitted a Statement of Purpose. In it he said that he came to Australia after graduating high school. He had wanted to improve his English and discover what to do for a living. He thought he would study business and information technology. However, he realised that he was not interested in marketing or in IT. After trying a few different majors, he decided that he should do something that he enjoyed and felt passionate about, which was cooking. After the COVID-19 pandemic and seeing job losses, he concluded that the only people with secure jobs were in the food sector. He wants a cooking education in Australia and then to be a celebratory chef like Australia’s Matt Moran and others, in Türkiye. The applicant said that he was currently completing a Certificate III in Commercial Cookery and would then do the Certificate IV in Commercial Cookery. Following those 2 cooking courses he would undertake a Diploma and Advanced Diploma of Hospitality Management to gain managerial and operational skills.
The PRISMS records confirm that the applicant has enrolments for in an Advanced Diploma of Hospitality Management (current)[1] and a Graduate Diploma of Hospitality Management (future)[2] both at Wiseman &Co.
[1] Course start date: 30 September 2024 and finish date: 10 October 2025.
[2] Course start date: 30 October 2024 and finish date: 9 October 2026.
In his response to the Request for Student Visa information sent by the Tribunal (‘his response’), the applicant detailed all the courses he had enrolled in since coming to Australia. He also set out a general statement as to why he chose Wiseman & Co as an educational provider, including that ‘it offers a unique combination of practical, job-orientated and high-quality education, tailored to meet the demands of today’s employers’. He stated that he chose to study in Australia because of its multiculturism and ‘a wide range of culinary techniques, recipes and cooking methods that cannot be matched’ in Türkiye. He stated that he will be able to introduce ‘innovative cuisines and techniques’ to Türkiye. He also stated in the response that he had worked as a delivery driver and as a kebab cook since coming to Australia.
Where relevant, the applicant’s evidence in the hearing is set out below.
During the hearing, the applicant confirmed information provided in his response that he has lived in Australia since March 2016, apart from 5 days in Thailand and Singapore in October 2017 and a return trip to Türkiye for about a month November 2018.
I told the applicant that in reviewing his application for a Student visa and specifically in assessing whether he intends genuinely to stay in Australia temporarily, I was concerned that he has been living here for almost 9 years. I told him that I was also concerned about what and how he has studied in Australia.
I observed that in his response, he referred to completing 9 courses, but he had not provided evidence of this. Additionally, he had referred to enrolments for 2 bachelor’s degrees which he had not completed.[3] The applicant agreed that he had not completed either of the degrees and enrolments had been cancelled. He said that he thought there were 7 or 8 courses not 9 on his completed list. He added that the 2 English courses in 2016 he’d listed separately on the response were in fact 2 parts of one course. He added that he’d completed both parts of this English course. I also acknowledged that one of the courses in his list was a current enrolment: Advanced Diploma of Hospitality Management at Wiseman & Co.[4]
[3] Confirmation of Enrolments confirm the applicant was enrolled in a Bachelor of Information Technology at Victoria University, 2018 and Bachelor of Business and Information Systems at Torrens University, 2021.
[4] Course start date: 30 September 2024-finish date: 10 October 2025.
Later in the hearing I asked the applicant about units he was currently studying for this Advanced Diploma. The applicant said it was a unit called Profile the Market. He said that he couldn’t tell me much about it as the term has just started after the break.
I told the applicant that I was concerned about the range of different courses he had enrolled in over the past 9 years, as well as how many of those he had completed. I observed that he had submitted only one completion certificate for all the courses that he had listed. That was for the Diploma of Leadership and Management. It was dated 17 December 2017, which I observed was a long time ago. I indicated that I was also concerned about his unfinished courses.
I noted that he had submitted only a results page regarding his study towards the Certificate III in Commercial Cookery, which seemed to cover study from September 2022 until June 2023. However, the Confirmation of Enrolment for this course and his own statement in the response indicate that this course extended until 29 September 2023. I observed that the results page he had submitted set out the subjects he had completed as of June 2023, and so this results page did not demonstrate to me that he had completed the course.
I also noted that he had submitted evidence of partial completion of the Certificate IV in Marketing and Communication dated 28 June 2023. However, his statement in the response indicated that this Certificate IV course had been held from July 2020 until January 2021 and from January 2021 until March 2021.[5] The applicant agreed. He said he had not completed the Certificate IV in Marketing and Communication. He had not proceeded in this field of study.
[5] The 2 Confirmation of Enrolments for this course give the same course dates.
I told the applicant if he wished me to consider evidence of completion of courses other than the Diploma of Leadership and Management in 2017, he should submit that to me as soon as possible after the hearing.
I noted that I was also concerned that considering all the different courses he’d listed, there seemed to be a ‘scattergun’ approach to his study. It also seemed that there was no hierarchical progression in any given field. According to his list on the response, he had enrolled in English courses in 2016 and again in 2020,[6] in marketing and communication courses, a leadership and management course, a cooking course and kitchen and hospitality management courses. Also, while I could accept that study of kitchen and hospitality management, albeit different, could relate to cooking, he’d also enrolled in a Bachelor of Information Technology (2018) and a Bachelor of Business Information Systems (2021). I explained that this pattern of changing areas of study, and lack of hierarchical progress in one area did not assist him to demonstrate that in applying for a Student visa, he genuinely intended to stay in Australia temporarily. The applicant acknowledged what I had told him. He said that after he completed the Diploma of Leadership and Management in 2017, he was advised by his education agent to study IT at university. His sister and brother-in-law here also encouraged him to do this. However, he found that he didn’t enjoy or feel comfortable in the university environment. He failed to progress or did not start the course. Both enrolments were cancelled.
[6] Confirmation of Enrolments confirm the course dates provided by the applicant in the list on his response.
The applicant told me that he came to Australia when he had been young, and he’d relied on the advice of others about what he should study. This is why he failed courses too. As he became older, he became more certain and interested in commercial cooking. The applicant told me that he is interested in hospitality, and he is particularly interested in cooking, not just Turkish cooking, cooking everything and food in general.
I asked the applicant about military service obligations in Türkiye noting that independent information indicated that military service is compulsory for male citizens aged 20 to 41 and could last between 6 to 12 months depending on the rank.[7] I noted that the applicant was 19 when he came to Australia and had not apparently yet done the military service required in his home country. The applicant agreed that miliary service would apply to him. He added without higher education he would be restricted to the lower ranks of the army. With higher education, he could be able to progress through the ranks which would make it easier to do military service or remain working in the army.
[7] Country policy and information notice: military service, Türkiye October 2023, updated 9 August 2024, para 3.2. Gov.UK.
I noted that the applicant had stated in his response that he did not have significant concerns about political unrest or civil unrest in Türkiye. Given this qualification, I asked the applicant if he had any concerns. He said that he no concerns now.
Following the hearing the applicant submitted documents indicating that he had current insurance cover, completed the 2016 English course, a Certificate III in Commercial Cookery[8] and a Certificate IV in Kitchen Management.[9]
[8] Completed 22 September 2023
[9] Completed 29 March 2024. The applicant also resubmitted the completion certificate for the Diploma of Leadership and Management, dated 17 December 2017.
On 7 and 9 February 2025, the applicant submitted a Certificate of Attainment for a 4-week English course completed in June-July 2020, Confirmation of Enrolments for the 2-part General English course in March-December 2016 and a statement from Wiseman & Co indicating the applicant the applicant had (as at 6 February 2025) completed 3 subjects in 2024 and 2 Subjects in 2025 towards the Advanced Diploma of Hospitality Management.
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 cl 500.212.
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), I 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 me 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’s circumstances in their home country
As to the applicant’s circumstances in Türkiye that are indicative of a person who is a temporary entrant who has incentive to return there, I find the following:
·There is no evidence before me suggests that his economic circumstances would present as a significant incentive for him not to return there.
·There is no evidence before me that political and civil unrest would result in the applicant choosing to remain in Australia indefinitely, and the applicant confirmed this to be the case during the hearing.
·The presence of his parents, sister and cousins represents personal ties to Türkiye that would act as an incentive for the applicant to return there. But in considering this personal tie, I also note that the applicant has only returned to Türkiye once to visit them during the long time he has been in Australia, and that was over 6 years ago for about a month.
However, regarding military service commitments the applicant acknowledges that he would be liable for military conscription on returning to live in Türkiye, as are other Turkish men living there between the ages of 20-41. The applicant said that he would have more opportunity to rise in the ranks of the army if he attained higher education. I accept this may be the case. However, I also consider that this acknowledged military service commitment presents as a significant incentive for the applicant not to return to Türkiye.
The applicant’s potential circumstances in Australia
As to his circumstances in Australia, the applicant’s older sister and her husband live in Australia. She is an Australian citizen. The applicant lived with her for 6 or 7 years before moving to another Sydney suburb. She was his financial guarantor for his student visa application. I consider that her presence here presents a strong incentive for the applicant to remain in Australia.
I accept that the applicant is currently enrolled in an Advanced Diploma of Hospitality Management at Wiseman & Co (from 30 September 2024 until 10 October 2025) and that he also has an enrolment for a Graduate Diploma of Management (from 13 October 2025 until 9 October 2026).
However, I have several concerns about the applicant’s study record in Australia over the past almost 9 years. These concerns include the range or study areas he chose to enrol in, lack of progression and lack of hierarchical achievement in any one area. My findings in regard to the applicant’s study record are set out below.
·The applicant completed a 2-part English course (March-December 2016)
·The applicant completed a Diploma of Leadership Management in December 2017.
·The applicant enrolled in a Bachelor of Information Technology in March 2018. As the applicant told me during the hearing, he did not progress with his study and this enrolment was cancelled through lack of progression.
·The applicant completed a 4-week General English course in June-July 2020 at English Unlimited.
·He did not complete the Certificate IV in Marketing and Communication (course dates: July 2020-March 2021) although he did complete some units, and he did not proceed with higher qualifications in this area.
·The applicant enrolled a Bachelor of Business Information Systems in May 2021. As the applicant told me during the hearing this enrolment was cancelled. The applicant felt unsuited to the university environment. He indicated that he did not start this degree course.
·The applicant completed a Certificate III in Commercial Cooking in September 2023. He did not proceed with the Certificate IV in Commercial Cookery predicted in his visa application. However, he did complete a Certificate of Kitchen Management in March 2024.
- The applicant is currently enrolled in an Advanced Diploma of Hospitality Management. I accept he has completed 5 subjects to date in this course.

I acknowledge that the applicant came to Australia when he was 19 years old and that being relatively young, he may have decided to change his course of study. However, the applicant has changed course direction several times since coming to Australia. Until he enrolled in the Certificate III Commercial Cookery course in September 2022, he has not made significant progress in one field of study in the nearly 9 years he had been living here.
Since the applicant enrolled in the Certificate III in Commercial Cookery, he has shown some progression in one area of study, albeit moving from the Certificate IV in Commercial Cookery he claimed in the visa application he would do, to a Certificate IV in Kitchen Management. I also accept he completed a Diploma of Hospitality Management and that he is currently enrolled in the Advanced Diploma. He has completed 5 subjects in this this Advanced Diploma course. However, I also note the statement from Wiseman & Co dated 6 February 2025 indicates that the one of the units the applicant has completed recently (in 2025) was the unit[10] the applicant was not able to tell me much about.
[10] Market the Profile
It is apparent from my findings above that the applicant was not progressing in study in Australia from 2018 until September 2022, apart from a 4-week English course in 2020. In considering this all the above in regard to the applicant’s circumstances in Australia, I find that the visa is being used to maintain ongoing residence.
Value of the course to the applicant’s future
The applicant stated in his visa application that he wished to study cookery so he could become a celebratory chef in Türkiye. I accept that a cookery course would be of value to this aim. However, the applicant has not made it clear what plans he would put in place to achieve this goal. I accept that since coming to Australia the applicant has worked as a kebab chef which is relevant to his current course of study.
The applicant’s immigration history
Regarding the applicant’s immigration history there is no evidence of non-compliance with visa conditions. There is no evidence before me that he has previously applied for a permanent visa, and the applicant also gave evidence to this effect in the hearing.
I accept that the applicant came to Australia to study when he arrived here in 2016 on a Subclass 572 visa. However, as the applicant acknowledged, apart from about 35 days away, he has been living in Australia for nearly 9 years, which is a considerable length of time.
I also look at the range of courses the applicant has studied, the number of courses he has not completed and the lack of hierarchal progression in a particular field until relatively recently. All of these factors lead me to consider that the Student visa is being used primarily to maintain ongoing residence in Australia.
In making my decision, I have considered all the evidence before me, including that the applicant is currently enrolled in courses, and that in the last 9 years he has completed 2 English courses, a Diploma of Leadership and Management, a Certificate III in Commercial Cookery and a Diploma in Kitchen Management. I accept that he has family ties in Türkiye. However, for the reasons outlined above, I do not accept that the applicant is undertaking the current study for the reasons he claims or for the value to the future he claims, but rather using it as a pathway to maintain residence in Australia. I am of the view that the student visa programme is primarily being used to maintain ongoing residence. In assessing all the evidence, I do not accept that the applicant intends genuinely to stay in Australia temporarily. It follows that I am not satisfied that he is a genuine applicant for entry and stay as a student.
On the basis of the above, I am therefore not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a). It follows that 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, I find that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Date of hearing: 31 January 2025
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.