Khan (Migration) - [2025] ARTA 395

KHAN (MIGRATION) [2025] ARTA 395 (20 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Rajman Khan
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2313173

Tribunal:General M McCalman
Place:Sydney
Date: 20 March 2025
Decision:The decision under review is affirmed.

Statement made on 20 March 2025 at 8:58am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa and travel to Australia and other countries – arrived on work visa, then enrolled in graduate diploma course after attendance in general English course discontinued – work history and study and work intentions – no basic business plan or substantiating evidence of ties to home country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 August 2023 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 20 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) on the basis that he is not a genuine applicant for entry and stay in Australia temporarily 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 28 August 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 2014 (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.
The applicant appeared before the Tribunal via Microsoft video on 14 February 2025 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant’s representative also attended the hearing via Microsoft video.
For the following reasons, the Tribunal considers the decision under review should be affirmed.
CLAIMS AND EVIDENCE
Department application
The applicant is a 36-year-old single male from India. In India, he is known by his artistic name, Rehaan Heer KHAN. He uses this name professionally in the Punjabi music industry where he worked as a director in movies and Punjabi music. He worked in the United Kingdom (UK) for three weeks in April 2021 and for another week in November 2022. He has also been a tourist in Singapore and in the United Arab Emirates (UAE). In India, he has his parents and one older brother. He attended school to Year 12.
The applicant arrived in Australia on 1 May 2023 on a subclass 408 (work) visitor visa valid to 1 August 2023. He was granted an 010 visa on 20 June 2023 to 27 September 2023 and a 020 visa from 27 September 2023 to 2 January 2025. He left Australia for two months on 4 October 2023 when he travelled to India and he departed Australia again on 25 December 2023 returning from India on 10 February 2024. Once again, he departed Australia on 16 May 2024 and finally arrived back in Australia on 2 August 2024. On 2 January 2025 he was granted a 020 visa which is currently in effect.
His Confirmation of Enrolment documents (CoEs) attached to his application for the student visa refer to the applicant studying a Graduate Diploma of Management (Learning) from 30 October 2023 to 26 October 2025. He was originally enrolled in a General English course from 22 May 2023 to 19 April 2024, however his enrolment was cancelled.
In his GTE Statement, the applicant provided the following information.
a)    He has had a passion for film and theatre since his childhood and after completing his schooling he joined the National Theatre Arts Society where he learnt acting skills. After five years, he moved to Chandigarh, which is a place renown as the centre of the Punjabi Music and Film industry as well as Hindi films. Here he developed an interest in film directing and his career advance in this direction.
b)    Having proficiency in English is especially important to advancing his directing career because it will improve his access to global markets, to international talent, to more educational resources, to networks in the industry, to international co-producing and funding, to communication opportunities, and generally be more able to work outside of India.
c)    He chose the General English program because it offers a comprehensive language learning experience that will assist him in his personal and professional growth and career.
d)    Aventia Institute was his choice for his study program because it is reputable, affordable, interactive that will advance his career.
e)    He has chosen to study in Australia because Australia is well-renown world-wide for its educational quality and has a reasonable fee structure. He states that Australian courses teach life enhancing and growth skills involving critical thinking and problem-solving compared to programs in India that focus on rote learning, marks and grades only.
The delegate in their decision record, a copy of which the applicant provided to the Tribunal, found the following.
a.In regard to personal ties in his home country, the applicant is unmarried, and his only personal ties are his parent and siblings. The delegate found that these did not in themselves, constitute a significant incentive to return to India.
b.In regard to education in India, the applicant has not sufficiently demonstrated that since secondary school, he has sufficiently investigated further study options in their chosen field in India and this raises concerns about his motivations as to why he is pursuing study in Australia.
c.In terms of assets in India, the applicant has worked for several years however has not provided any verifiable evidence to demonstrate they own any assets or hold business ties in India. The delegate considered that this diminishes his incentive to return to India after completing studies in Australia.
d.The delegate was concerned that the reasons the applicant stated he chose to study in Australia over India, are not reasons one would attach to the study of a language and suggested that such reasons have been copied from some other application. The delegate is not satisfied that the applicant has articulated how the proposed course of study is better suited to his needs than a similar course in India. He has not adequately articulated how the course is relevant to his future career aspirations and that he has undertaken minimal research regarding his proposed course of study. The delegate had concerns about the applicant’s motivation and genuine intentions about returning to India after the period of study in Australia.
e.The delegate found the applicant had maintained residence in Australia and had a reasonable knowledge of the living costs in Australia and understanding of his visa conditions. The delegate found this may be an incentive for him to stay in Australia.
f.The delegate found that the applicant had not demonstrated the value of the course in which he was enrolled to study.
g.In terms of his immigration history, the applicant held a 408 visa; he was refused a visitor visa on 9 May 2022. The delegate noted that the applicant travelled to Singapore and to the United Kingdom (UK) and to the United Arab Emirates (UAE). The delegate considered that the applicant’s change in migration intentions raises serious concerns that he is attempting to circumvent the migration program.
Tribunal application
In response to a request for information pursuant to s 359(2) of the Act, the applicant provided the following information to the Tribunal, on 29 November 2024.
a. From 22 May 2023, he was enrolled in a General English course with Aventia Institute. However, he only completed just over four months of the proposed 11-month course. From 30 October 2023, he is enrolled in a two-year Graduate Diploma of Management (Learning) course with the Campbell Institute. This course is due to complete on 26 October 2025.
b. The applicant worked as a freelance video director from 1 May 2014 to 3 January 2018 and then as a freelance video executive director from 4 January 2018 until he came to Australia.
In his statement that accompanied the form, the applicant set out the following relevant information:
a.    He first arrived in Australia on a Subclass 408 visa valid to 1 August 2023 and then while on a bridging visa, he returned to India on three occasions because of his mother’s ill health.
b.    He applied for an Australia visitor (Business) subclass visa 600 on 18 April 2022 which was refused on the basis that he did not satisfy the provisions of the Migration Regulation 1994.
c.     His choice to study the Graduate Diploma of Management at the Campbell Institute is because of its reputation and prime location in Western Sydney where the applicant feels at home due to the vibrant Indian community in the area. The course was attractive to him because of its international recognition and quality; exposure to diverse learning; practical and relevant skills; career opportunities; and networking and professional development. Relevantly, he further states that he was ineligible to undertake a similar type of course available in India because he did not have the prerequisite bachelor’s degree as required by most of the courses. This course in Australia allowed him entry without the prerequisite undergraduate qualification.
d.    In terms of community ties, he lists his parents and a brother whom he is in contact on a daily basis. He also lists that he is a member of the Federation of North Zone Film & TV Associations and provided photo identification supporting this membership.
e.    His future plans after completion of the Graduate Diploma of Management course in Australia is to further study filmmaking at the New York Film Academy Australia or at the Academy of Interactive Technology (AIT) Sydney and eventually start his own filmmaking company in India. He outlines that in his current study program he is learning business management which involves crucial skills and tools to build a sustainable local and international filmmaking business.
f.    The applicant did not provide a projection of the cost benefit of his study in Australia and claims that as an entrepreneur there will be no fixed salary or limit to the remuneration he will earn. He claims that his future income in this business venture will be dependent on his personal effort, the quality of his work and how well it is received.
g.    As evidence of his past business ventures as claimed above, the applicant provided the Tribunal with printouts of a website “REHAAN HEER KHAN” and google evidence of his identity and career linked to his stage name, and his Facebook; Instagram and YouTube accounts for the same. He also provided several photographs of film sets featuring himself and other people (actors).
h.    In regard to previous international travel, the Tribunal was satisfied that his travel was relevant to his work and leisure.
On 13 February 2025, the applicant’s representative sent the Tribunal further confirmation of enrolment including a letter from the student support officer of the Campbell Institute stating that the applicant is completing the Graduate Diploma of Management (Learning) in English and that he has maintained an attendance rate of 80% and achieved satisfactory progress. The letter also confirms that the applicant had paid fees of $8,400 up until 22 December 2024 leaving a balance of $5,600 owing.
The hearing
The applicant told the Tribunal that he discontinued the English language course because he realised that his career would be more benefited by taking the Graduate Diploma of Management (Learning) which is an online course delivered in English. He claims that he felt that he was wasting time in undertaking the English course when he was advised by a course consultant that his written and reading skills in English was sufficient to undertake a broader course conducted in English. The Tribunal notes however that it was necessary for the applicant to be assisted in the hearing by an interpreter in the Punjabi language. When asked about this, he said that his oral language skills were not up to the level of his written and reading skills particularly in a legal hearing context. The Tribunal accepts the applicant’s explanation.
The applicant outlined that his career in India started early, and he later realised that he needed further education beyond high school. He said that he started a university course but had to drop out because of family reasons. He claims that the two-year Australian film and industry master’s level course he proposes to study at the Film Academy in Queensland after completing his current course, is highly credible worldwide and he named several famous actors who have completed the course in Australia. The Tribunal notes that at the time of the hearing, there was no evidence before the Tribunal indicating that the applicant had enrolled in this proposed course of study.
The Tribunal notes that the applicant’s ties to India appear weak particularly as the applicant has provided no substantiating evidence. When asked for further evidence, he advised the Tribunal that his father died on 15 December 2024 and that his mother is now alone although the applicant’s brother is with her and is assisting with the operation of the family farm. The applicant said that his mother and brother provide him with financial support in Australia from India. He said that he is very close to his mother and in fact travelled to India from Australia on three occasions when she was very unwell. He also said that he owned two properties in India, one is a residential flat where he lived when in India and is now rented out and the second property is a farmhouse from which he draws income from leasing it for wedding shoots. He also told the Tribunal that he has a car in India and that his main incentive to return to India after his study in Australia, is his success in the film and music industry. The Tribunal agreed that it would accept substantiating evidence about these assets from the applicant after the hearing.
As a further incentive to return to India, the applicant claims that he makes enough money in India to live a luxurious life there. His income tax statements indicate that in the 2021/22 tax year he had an income of INR 815,548 (equivalent to $AU15,039).[1] The Tribunal accepts that the income tax statements genuinely reflect the applicant’s income for that year.
[1] Google search indicates that between INR 600,000 and INR 840,000 IND represents a good comfortable income level in India.
The Tribunal asked the applicant if he had considered any risks associated with his business plan given his financial investment in the current course, and considering the loss of income that he would otherwise have earned in India had he not come to Australia to study. The applicant did not address the issue of cost of his study investment in regard to future earning capacity. His response to the Tribunal’s enquiry was that the primary risk in his line of work is audience appeal. He said that any one project in the film industry can take up to six months to complete and at the end, it may not make money if the audience do not like the product. The Tribunal is not satisfied that the applicant has done any cost benefit analysis as would be expected of a businessperson such as the applicant and particularly given the relative advanced stage of his current course of study in Management.
When asked about personal relationships in either India or Australia, the applicant told the Tribunal that he has a 12-year long relationship and is engaged to a famous actress named Gagan Mehra. He said that they were planning to marry at the end of last year however his father’s death in December 2024 means that they have to wait until it is culturally acceptable before going ahead with the wedding. When asked for some proof of this relationship, the applicant showed the Tribunal an online photograph of an Indian woman who appeared to be an actress. The Tribunal commented that an online photograph of a famous person without him present in the picture, provided no proof of their relationship or engagement.
When asked if his ‘fiancé’ has visited him in Australia, he said she had not due to her buzy professional schedule. When asked what his fiancé thinks about him staying on in Australia for a further two years after he completes his current course in October 2025 particularly in light of the alleged cancelled wedding plans, he replied that, “she is a very fine actress and a very nice person which is why I am close with her….. I know her very well”.
The Tribunal does not accept that the applicant has a fiancé in India as he claims.
Having noted that the applicant has had a long well-paying career, the Tribunal asked him why he needs financial support from his family in India while he is in Australia. The applicant said that because he is not working in Australia, the high living costs compared to India, has all contributed to draining his savings. He said that he is living cheaply with a friend in Blacktown to keep costs down.
The Tribunal raised its concern with the applicant that there was no substantiating evidence about his alleged ties to India and incentive to return there after completing his study. The Tribunal noted that the applicant appeared to be manufacturing oral evidence in response to the Tribunal’s questions through the hearing. For example, his evidence that he had a long-term relationship, and was engaged to be married, and that he owned property in India was never put forward previously. The Tribunal expects that if any of this was true, the applicant would have included it in his written statements. Notwithstanding, the Tribunal gave the applicant the benefit of the doubt and requested that such evidence of these ties to his home country be provided to support the applicant’s oral evidence after the hearing.
As the applicant’s legal representative needed to travel overseas for a personal emergency the day following the hearing, and the requested evidence was in the Tribunal’s view, crucial to its determination about this matter, the Tribunal agreed to allow up to 10 March 2025 for further submissions to be made.
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.
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 Tribunal accepts that there are several factors favourable to the visa grant. It is accepted that the applicant discontinued the English language course in which he was originally enrolled because of the greater benefit of the Graduate Diploma of Management (Learning) which is delivered in English.
The Tribunal accepts that the applicant has been a music producer and a film director in India and that he has made a good salary when he worked in this field. The Tribunal also accepts that the applicant’s professional reputation and his relative earning power in India is a significant tie to India and an incentive for him to return there.
In terms of personal relationship ties, the Tribunal accepts that the applicant has his mother and brother in India. The Tribunal also accepts that the applicant travelling back to see his mother when she was unwell on three occasions between October 2023 and August 2024, indicates ties to his home country.
The applicant told the Tribunal that he enrolled in the Graduate Management Diploma in Australia because he did not have the entry prerequisites to study a similar course in India. While he has provided no evidence to support this statement, the Tribunal is willing to accept that these factors are reasons as to why the applicant would choose to study in Australia over India.
In terms of unfavourable factors to a visa grant, the Tribunal finds that the absence of an overall plan is indicative that his business development may not be a strong incentive to return to his home country. In this regard, the Tribunal notes that the applicant is dependent on financial support from his family and without at minimum, a basic business plan including his education and a financial strategy, it suggests that the applicant may not be genuinely attempting to build on his career and success in India.
The Tribunal notes that the applicant is currently living with a friend in Australia. While not a strong tie on its own, the Tribunal does give it some weight as an incentive to remain in Australia.
The Tribunal does not accept that the applicant is engaged to be married to a famous actor and has been in this relationship for the past 12 years. The Tribunal makes this finding on the basis that the applicant has provided no substantiating evidence despite being allowed generous time to do so after the hearing. The Tribunal considers that a fiancé in one’s home country is such a strong tie and incentive to return, that it is unlikely that such information would not have been put forward to the Tribunal if it was true. In addition, the applicant’s alleged plans for marriage in December 2024 appear completely incongruent with his study plans in Australia. Without any verifying evidence, the Tribunal considers it highly unlikely that a marriage was planned for December 2024 and then deferred as alleged by the applicant.
The Tribunal notes that no submissions or verifiable evidence to demonstrate the applicant’s ties to India was received from the applicant by the due date, 10 March 2025. This leads the Tribunal to consider that this is because no such evidence was available.
These factors suggest to the Tribunal that the applicant has not genuinely presented his case to the Tribunal. This in turn leads the Tribunal to doubt other evidence presented by the applicant.
Conclusion
The Tribunal has considered all of the evidence before it and on balance, is unconvinced that the applicant genuinely plans to return to their home country on completion of his study program in Australia. This in turn raises significant concerns about the applicant’s motivation to study in Australia.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Dates of hearing: 14 February 2025
Representative for the Applicant: Mr Ranjit Singh (MARN: 2318012)
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.