Khan (Migration) - [2024] ARTA 66

DECISION AND
REASONS FOR DECISION
Khan (Migration) [2024] ARTA 66 (18 October 2024)
Applicant:Mr Sifath Ullah Khan
Respondent:  Minister for Home Affairs
Tribunal Number:  2305705

Tribunal:General Member David Thompson
Place:Perth
Date: 18 October 2024
DECISION:The decision under review is affirmed.

Statement made on 18 October 2024 at 4:39pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – arrived on transit visa then applied for student visa – family in home country and work history in home country and another – remunerative skills and economic incentive – courses not related to work history – successful completion of certificate course – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
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 12 April 2023 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 28 March 2023. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because they were not satisfied that the applicant intended genuinely to stay in Australia temporarily.
The applicant appeared before the Tribunal on 9 August 2024 to give evidence and present arguments.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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 meets the requirements of 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.
Evidence
As well as giving oral evidence at hearing, the applicant provided the Tribunal with the following items of documentary evidence:
a.the delegate’s decision record and notification letter, both dated 12 April 2023;
b.a completed ‘Request for Student Visa Information’ form, provided in response to an invitation made by the Tribunal pursuant to s 359(2) of the Migration Act 1958 (the Act) (as it stood prior to amendments taking effect on 14 October 2024) on 19 April 2024;
c.a student invoice issued by Le Pont International College dated 18 April 2024, showing payments made towards the applicant’s course fees to that date;
d.a statement of attainment dated 17 April 2024, showing the applicant’s results for his Certificate IV in Kitchen Management to that date;
e.identification pages from the applicant’s Indian passport;
f.Confirmation of Enrolment (CoE) E14EE272, recording the applicant’s enrolment in a Certificate IV in Kitchen Management at Le Pont International College, scheduled to run from 3 April 2023 to 2 September 2024;
g.a Punjab National Bank Confirmation of Deposit document, recording a fixed term deposit of INR1,000,000 made by Safiullah Khan on 4 May 2024 for a period of 6 months;
h.a certificate issued by Punjab National Bank dated 4 May 2024 regarding the deposit the subject of paragraph 9(e) above;
i.a Genuine Temporary Entrant statement made by the applicant, undated;
j.a New Zealand visitor visa approval dated 10 January 2023;
k.a screenshot of a Google search results page for ‘Maphar Constructions Pvt Ltd’, giving 22 April 2024 as the date of search;
l.a certificate of completion of a Certificate IV in Kitchen Management, issued to the applicant by Le Pont International College on 30 September 2024, with record of results and statement of attainment attached; and
m.a Bridging Visa A grant notice dated 28 March 2023.
The Tribunal also received written submissions dated 9 August 2024 from the applicant’s representative.
Prior to constitution of this matter, the Tribunal obtained the Departmental file in relation to the applicant’s visa application. That file contained the following relevant documents provided by the applicant and not already mentioned above:
a.the applicant’s student visa application, lodged on 28 May 2023;
b.a letter from Le Pont International College dated, offering the applicant enrolment in a package of courses consisting of a Certificate IV in Kitchen Management and a Diploma of Hospitality Management;
c.a letter from Nortwest Pty Ltd dated 28 March 2023, offering the applicant a place in an Advanced Diploma of Hospitality Management;
d.CoE E14EF126, recording the applicant’s enrolment in a Diploma of Hospitality Management, scheduled to run from 9 September 2024 to 24 February 2025;
e.CoE E1580077, recording the applicant’s enrolment in an Advanced Diploma of Hospitality Management, scheduled to run from 24 March 2025 to 19 September 2025;
f.the applicant’s Intermediate Pass Certificate Cum Memorandum of Marks, issued by the Board of Intermediate Education, A.P., dated 26 April 2010;
g.the applicant’s Secondary School Certificate, issued by the Board of Secondary Education, Andhra Pradesh, dated 15 May 2008;
h.Government of India identification cards for the applicant and his parents, Safiullah Khan and Alliya Khanam;
i.A document entitled ‘Statement of Purpose’, addressed to the Visa Officer at the Australian Embassy, undated;
j.a letter dated 2 January 2019 to the applicant from Maphar Constructions Pvt Ltd, offering him a position as Site Supervisor;
k.a letter dated 20 March 2022 to the applicant from Maphar Constructions Pvt Ltd, informing him of an increase in pay;
l.payslips issued to the applicant by Maphar Constructions Pvt Ltd for the months September, October, and November 2022;
m.an HDFC Bank statement showing transactions and account balances between 1 December 2022 and 28 February 2022 on an account held by the applicant; and
n.pages from Indian passports held by the applicant showing departure and arrival stamps.
Where in the course of these reasons I refer to any of the documents listed above, I do so using that number of the paragraph at which the document is described. Thus, the document noted in paragraph 9(a) is referred to simply as ‘document 9(a)’, and so on for the other documents listed.
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.
Background
The following paragraphs 16 to 22 set out my findings of fact on certain background matters relevant to my decision in this matter.
The applicant is a citizen of the Republic of India, and is 32 years of age at the date of these reasons.
The applicant first arrived in Australia on 26 March 2023, as the holder of a TX-771 transit visa.
On 27 March 2023, the applicant enrolled in the following courses at Le Pont International College:
a.Certificate IV in Kitchen Management, scheduled to run from 3 April 2023 to 2 September 2024; and
b.Diploma of Hospitality Management, scheduled to run from 9 September 2024 to 24 February 2025.
On 28 March 2023, the applicant enrolled at Nortwest Pty Ltd in an Advanced Diploma of Hospitality Management, scheduled to run from 24 March 2025 to 19 September 2025.
On 28 March 2023, the applicant applied for a student visa. He was granted a Bridging Visa A on the same day, and has remained in Australia on a series of such bridging visas ever since.
The applicant’s student visa application was refused on 12 April 2023.
The applicant applied to the Administrative Appeals Tribunal for a review of that decision on 24 April 2023, and a hearing was held on 9 August 2024.
The applicant’s review application to the Administrative Appeals Tribunal has become a review application to this Tribunal by virtue of item 24 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024.
The applicant’s immigration history
The applicant gave evidence at hearing that he has never before been refused a visa by any country, has never had a visa issued to him cancelled, and has no other Australian visa application on foot at present. He also gave evidence that he had spent 3 years working in Saudi Arabia. There is no evidence before me to contradict any of these claims, and I accept them. Nor is there any evidence before me to suggest that the applicant has ever breached the immigration laws of Australia or any other country. These aspects of the applicant’s immigration history present no reason to doubt his claim to be a genuine temporary entrant.
The applicant has now resided in Australia for approximately 1 ½ years. In that time, he has completed his first course, which was a Certificate IV in Kitchen Management. This lends some support to his claim to be a genuine student, although not necessarily to his claim to intend genuinely to stay in Australia temporarily.
The aspect of the applicant’s immigration history that is most noteworthy is the manner in which he arrived in Australia on a transit visa and decided, within a few days, to abandon his journey to New Zealand and to apply for a student visa. The decision, and its implementation, was so extraordinarily fast as to raise real doubts as to his intentions. I raised this issue with the applicant at hearing. His explanation was that he had spoken with people on his way to Australia and had learned of the opportunity to study in this country in the course of those conversations, that he had become extremely interested in what he had learned, and that on arrival in Australia he quickly made up his mind to study. This is, in essence, the account given by the applicant in document 9(i), although in that document he also stated that before enrolling, he “did thorough research and shortlisted courses according to [his] interest and knowledge and I wanted to learn lifelong practical skills.” I am not satisfied by this explanation. I find it unlikely that a person genuinely intending to remain in Australia temporarily as a student would make such a sudden decision, especially given the expense and commitment of time involved. I also find it most unlikely that the applicant had time to conduct any thorough research into his options for education in Australia. I find that this aspect of the applicant’s immigration history strongly tends against accepting his claim to have stayed in Australia in order to study. That, in turn, tends strongly against accepting his claim to intend genuinely to stay in Australia temporarily.
On balance, I find that the applicant’s immigration history does not support his claim to be a genuine temporary entrant, and indeed detracts from it.
The applicant’s circumstances in his home country
The applicant gave evidence that he has family in India, in the form of his parents, 3 brother, and 2 sisters. He stated that he contacts his parents every day by email and WhatsApp calls. There is nothing in the evidence before me that would cause me to disbelieve that evidence. I am prepared to accept that the applicant is very close to his parents, and (perhaps to a lesser extent) to his siblings. These personal ties would give the applicant some incentive to return to his home country at the end of his studies in Australia. However, the applicant is a single man, of an age where me might reasonably seek to establish himself independent of his family. That is not to say that having done so, he would not return to India from time to time to see his family. However, in those circumstances, I am not prepared to find that those ties amount to a strong incentive to return home permanently.
When asked at hearing about any community ties he might have to his home country, the applicant mentioned only his membership of his local mosque which, he explained, involved taking part in charitable works centred around feeding the needy. He stated, however, that he was not in contact with his local mosque or its community of worshippers whilst in Australia. I find that the applicant’s mosque membership is not a community tie that would give him any incentive to return to India on the completion of his studies in Australia. He has given no evidence of any other community ties.
The applicant’s evidence is that the highest level of education he reached in India was the completion of his secondary schooling (that is, the equivalent of Year 12) in 2010. He has given evidence of a history of employment in India, stating that he worked for a business trading as Hyper Panda Supermarket between 2015 and 2018, and as a site supervisor for Maphar Constructions Pvt Ltd from January 2019 until he came to Australia in March 2023. In the latter position, he was earning the equivalent of approximately AUD 13,730 per annum (documents 9(b), 11(k) and (l)). The applicant gave evidence that he owns no property in India, but that his father is in funds and owns a construction business. There is some documentary evidence corroborating those claims before me (documents 9(g) and (h)). I find that the applicant’s employment history in India gives him an economic tie with that country, in that it would place him at an advantage in finding further work in the construction field if he were to return there. That economic tie gives him, I find, some incentive to return to India once he finishes his studies in Australia, although not a particularly strong incentive.
The applicant gave evidence that he has no military service obligations to perform on his return to India, and no concerns regarding civil or political unrest in that country. That evidence is consistent with the country information available to me, and there is nothing in the evidence before me to the contrary. I accept the applicant’s evidence on these points and find accordingly. These factors will not provide the applicant with any incentive to avoid returning to India once he finishes his studies in Australia.
The applicant gave evidence that there are hospitality courses available in India, but that the Australian courses are better quality. The basis upon which he has come to that conclusion is unclear: at hearing, he stated that he had not investigated the courses available in India. Indeed, although the applicant gave an accounts of the virtues of studying in Australia and of the Australian education system generally in documents 9(b) and (i), and in document 11(i), those statements are in the main generic, and contain little (if anything) regarding available courses in India. Indeed, the applicant’s evidence was that he made the decision to study in Australia while travelling to New Zealand, having spoken with students proposing to study in Australia. It is fair, on the evidence before me, to characterise that decision as ‘spur of the moment’, in that the applicant applied to study and for a student visa within a few days of his arrival in this country. I find that the applicant’s evidence on these points offers no support to his claim to be a genuine temporary entrant.
For these reasons, I find that the applicant’s circumstances in his home country do not support his claim to be a genuine temporary entrant.
The applicant’s potential circumstances in Australia
The applicant stated at hearing that he has no family in Australia, and has formed no community ties in this country, apart from attending mosque for prayers. I accept evidence. I find that he has no personal ties with Australia that would provide him with any significant incentive to remain in this country once he finishes his studies.
The applicant stated at hearing that he has not worked in Australia (having no work rights) and has no property in this country. I accept his evidence on these points. However, as I have already discussed, the applicant has a strong history of work in the construction industry in India, and indeed has mentioned in his evidence time spent in Saudi Arabia for work purposes. Experienced construction workers are in demand in Australia, and I have no doubt that the applicant could, if permitted, find remunerative work in this country. In these circumstances, I find that the applicant has an economic incentive to remain in Australia.
The applicant gave evidence that he has not entered into any relationship whilst in Australia. There is no evidence before me to the contrary, and I accept the applicant’s evidence on this point. It follows that the applicant has not entered into any relationship of concern, in the sense of a relationship contrived to improve the applicant’s changes of remaining in Australia.
The manner in which the applicant arrived in Australia, and the speed at which he decided to study and applied for his student visa, are facts from which once might reasonably infer that he has other reasons for seeking to stay in Australia (although nothing in the evidence suggests what those reasons might be). To that extent, there is evidence before me that the applicant is attempting to use the student visa system to maintain residence in Australia.

I have commented above on the speed with which the applicant enrolled in his courses and applied for a student visa after arriving in Australia. In doing so, I have noted that the applicant gave some account of the manner in which he chose his course provided in document 9(i). I note here that the applicant has not, in that document or elsewhere in his evidence, given any detail of the research or any other steps he undertook to identify and investigate potential courses and course providers, or of his reasons for choosing the particular course providers with which he has enrolled. Rather, he has simply asserted that he undertook thorough research, provided generic information regarding Australia as a venue for studies, and made a simple approbatory statement (also generic) regarding his current course provider, Le Pont International College. This evidence does not satisfy me that the applicant has researched his courses or course providers in any but a cursory manner.
For these reasons, I find that the applicant’s potential (and indeed, actual) circumstances in Australia weigh against accepting his claim to be a genuine temporary entrant.
The value of the applicant’s courses for his future
The highest level of education the applicant has achieved previously is the completion of his secondary schooling in India. His current package of courses does not, therefore, amount to a regression in level of study.
The applicant’s package of courses has no relation to his work history or experience to date. Although it is of course open to an application to seek to change their career path through further study, the applicant has provided no evidence as to his reasons for wishing to do so, beyond a statement in document 9(b) that it has always been his ambition to open a restaurant in his hometown (Hyderabad), and a statement in document 9(i) that he wants to take his love of cooking to a professional level.
The applicant‘s courses are consistent with his stated plan of opening a restaurant in Hyderabad. However, he has provided no evidence of any particular preparations or concrete plans for doing so. Nor has he provided any information as to the revenue he might be able to generate in doing so. Document 9(i) contains statements suggesting that the applicant might at some point seek work in a hotel or restaurant in his home country, and contains links to websites. That information does not satisfy me that the applicant will be in a position to improve his earning capacity, taking his last salary as a reference point (on which, see paragraph 30 above).
I am not satisfied that the applicant’s courses will have sufficient value to him on his return to his home country to justify the outlay and loss of salary he will incur in completing them. I find that this weighs against accepting the applicant’s claim to be a genuine temporary entrant.
Conclusion on cl 500.212(a)
On the basis of the above, I am not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
That being the case, it is unnecessary to consider cl 500.212(b). For the sake of completeness, I note that no other relevant matter arises on the evidence before me for consideration under cl 500.212(c).
Accordingly, I am 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 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.
David Thompson
General Member

Date(s) of hearing:  9 August 2024
Representative for the Applicant:       Mr Rupinder Singh Nafra (MARN: 1681196)
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: 21 March 2024
Clare O’Neil
Minister for Home Affairs and 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.