Kumar (Migration) - [2025] ARTA 1456

KUMAR (MIGRATION) [2025] ARTA 1456 (28 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Krishan Kumar
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2408039

Tribunal:General Member N Schmitz
Place:Melbourne
Date: 28 July 2025
Decision:The decision under review is affirmed.

Statement made on 28 July 2025 at 12:33pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study, work and immigration history – applied after arriving on visitor visa – enrolment at lower level and different subject area – parents and married sister in home country and brother permanent resident of Australia – responsibility to care for parents – employment and income prospects, and cost of living – vague knowledge of 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 27 March 2024 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 18 September 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 515.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant intended genuinely to stay in Australia temporarily.
On 12 April 2024, the applicant applied to the Administrative Appeals Tribunal (the AAT) for a review of that decision.
On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (the Tribunal). The Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth) (“the Transitional Act”) provides that review applications which were not finalised before 14 October 2024 are deemed to be applications for review by the ART and are to be continued and determined as such.
The applicant appeared before the Tribunal on 1 July 2025 via Microsoft Teams video technology to give evidence and present arguments. The applicant was assisted in relation to the review and the representative attended the hearing.
For the following reasons, the Tribunal considers 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 genuinely intends to stay in Australia temporarily as a student.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 108, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
Evidence before the Tribunal
The Tribunal has had regard to documents filed prior to hearing and the applicant’s oral evidence at hearing. The Tribunal has also considered the applicant’s record in the Provider Registration and International Student Management System (PRISMS) and travel movement records.
Background
The applicant is a 33-year-old national from Punjab, India.
The applicant arrived in Australia on 23 March 2023 on a visitor visa (Subclass 600) to visit his brother in Western Australia.
On 18 September 2023, the applicant applied for the student visa which is the subject of this review. He applied to study an Advanced Diploma of Civil and Construction Design at the Apeiro Institute from 16 October 2023 until 10 August 2025 (tuition fee AUD26,250). Confirmation of enrolment records confirms the same.
In his genuine temporary entrant (GTE) statement, the applicant claims he chose to study in Australia as he was very ‘impressed with the lifestyle in Australia’ having spent the previous six months as a tourist travelling Western Australia. In choosing his course he states:
I have tried using my previous qualification to get better job. Even though, I have got a chance to work as manager, but I didn’t feel satisfied with the outcome. My job was quite stressful. I had to manage each and everything in workshop that give me so much stress and it started affecting my health therefore, I decided that I want to change my field. I wanted to go in a field where I can use my creativity and client praise my work. I looked for different field such as IT, cooking and designing. I have discussed my thought with the education consultant and based upon over conversation, I get know about civil draft person, which is similar to designing and also has great demand in future too.
Submissions by the representative claim the applicant feels more comfortable studying in Australia as he is older than most other students undertaking a Diploma and he thinks the education system in Australia is superior.
In his Request for Student Visa Information form dated 7 April 2025, the applicant claims after completing his studies he ‘would like to build his career as a builder in India. He would like to start his own business’. The applicant claims he could earn AUD50,000-AUD100,000.
Tribunal Hearing
The applicant’s circumstances in his home country
In India the applicant’s family comprises of his parents and sister. The applicant claims he has to return to India to care for his parents as they live alone. His brother now resides in Australia and is a permanent resident and his sister is married and lives with her husband. The applicant relies on country information which states that whilst social welfare exists in India, ‘social welfare is traditionally provided within the family and many Indians rely on family for support’.[1]
[1] DFAT – DFAT Country Information Report India dated 29 September 2023 at [2.38] to [2.39]
The applicant does not own property or have any significant assets in India. He states his parents own a property which he can resume living at upon his return to India and enjoy a comfortable lifestyle. He further claims he will inherit half of his parents assets. The applicant also claims to have strong community ties and is a registered organ donor in India with the National Organ and Tissue Transplant Organisation (NOTTA). In support the applicant provided a copy of his organ donor card.
The applicant maintains communication with his family. Since applying for his student visa, he has returned twice to India to see his family and seek medical treatment including from 6 December 2023 until 5 February 2024 and 14 October 2024 until 21 November 2024. Flight records provided by the applicant and travel movement records obtained by the Tribunal confirm the same.
The applicant completed a Bachelor of Computer Application in 2012. In May 2017 he completed a Diploma in Food Production. From May 2012 until March 2018, the applicant worked for his father’s metal fabrication business. Between March 2018 until March 2021, the applicant operated two hospitality businesses. His businesses were not successful, with the last failing due to the COVID-19 pandemic. From April 2021 until March 2023, the applicant worked for his father’s friend’s business, N.P Cast, as a manager.
There is no evidence to support the applicant has military obligations in India. The Tribunal is not aware of any political and/or civil unrest in India that would be a relevant consideration for this applicant
The applicant’s circumstances in Australia
The applicant does not work in Australia. He currently resides with his brother in Western Australia who is employed at a logistics business. His education and living expenses are financed by his brother and father.
The applicant has never married and is not in a de facto relationship. He has no dependent children. A letter from his educational provider states that the applicant is maintaining satisfactory course progression.
The applicant’s career plans and value of his course to his future
At hearing the Tribunal asked the applicant about the nature of his course, including what it involved and whether there was practical building training. This was of interest to the Tribunal given the applicant’s claims that he wanted to be a builder upon his return to India and him not having any relevant work history or trade qualifications. The applicant replied, ‘Civil construction design’. The Tribunal asked the applicant if he could elaborate. He replied, ‘Civil construction. All about building bridges, dams, tunnels’. He stated there was no practical training as he did not have work rights and it was ‘all theoretical’.
The Tribunal asked the applicant what his future employment plans were after he finished his Advanced Diploma and whether he had any evidence in support. This was of interest to the Tribunal given he had approximately one month left of his course. The applicant replied that he wants to join a company in his hometown and do civil construction and referred to two companies LNT and Omax. The Tribunal asked in what role. He replied, ‘Take contracts’. The Tribunal asked several times what that meant and if he could be more specific but the applicant simply repeated ‘contracts’. He stated he had seen other contractors working in his village and claimed there was a lot of mismanagement in the system. He did not have any evidence to support his plans but claimed his father had good links as he was the head of the village and could help him get contracts.
The Tribunal indicated it had concerns about his plans given the applicant had no relevant work history, no relevant trade qualifications and noting his current course offered no practical training and was all theoretical. The applicant claimed he had told the Tribunal ‘everything’ and repeated his study would help him.
Noting the applicant’s claims to the Tribunal that from his course he would work as a builder and operate his own business, the Tribunal asked whether he had any business plans. The applicant replied, ‘I will start my own business. No clear reason. Need to get experience’. The Tribunal asked the applicant whether he had any evidence in support. The applicant replied in the negative and reiterated ‘Need experience go get a job’. The Tribunal asked the applicant whether he had any evidence to support that his Advanced Diploma would allow him to work as a builder or civil engineer. The Tribunal indicated it had concerns that it would not as such occupations usually required practical training (i.e. an apprenticeship) or a university degree. The applicant had no evidence in support but claimed his course would be helpful to get licenced.
The Tribunal asked the applicant what value his course was to his future employment. The applicant replied that there was value as he could ‘grab job easily’ and claimed that Australian studies were highly valued in India.
Noting the applicant’s education and employment history, the Tribunal asked the applicant why he had decided to change his entire career direction to being a builder and working in civil construction. The applicant replied that he had twice tried to start two food businesses in India but failed as the first was a franchise and the second business did not survive the COVID-19 pandemic. He stated, ‘Civil construction is the option for me’. The Tribunal indicated it had some concerns given the contents of his GTE statement where he stated he chose the course after speaking to an educational consultant which raised concerns that he chose the course as a means of maintaining residency in Australia. The applicant replied he consulted with an education agent about institutions not courses. The Tribunal indicated that was not how his GTE statement was expressed. He then claimed it was his own decision and that he had spoken to his brother.
The Tribunal asked the applicant what remuneration he would expect to receive in India and whether he had any evidence in support. The applicant claimed he could earn INR100,000 per month (equivalent to AUD1,757). The Tribunal asked what he was basing that figure on and if he had any evidence in support. The applicant replied that it was a ‘Rough idea’ and claimed he could make that on contracts. When the Tribunal indicated it had concerns, he then claimed he would earn that money after two to three years’ experience.
The Tribunal indicated the renumeration did not appear a lot compared to the monetary outlay and time commitment his studies had required in Australia (i.e. AUD26,250 and over one year and nine months). The applicant replied that his father and brother pay for his studies.
The Tribunal indicated that it had concerns that the applicant may consider he has better employment and economic prospects in Australia. The Tribunal referred to statistics from the Fair Work Ombudsman which indicated that as of 1 July 2025, the national minimum wage in Australia was AUD24.95 per hour or AUD948[2] a week and that labourers in Perth earn on average AUD65,000-AUD75,000 per annum.[3] The applicant was asked if he wished to comment. The applicant claimed that making money was not his goal in Australia. He conceded whilst he could earn more in Australia than India, that his living expenses were higher; whereas in India, he could earn less but live a better lifestyle with his parents.
[2]
[3]
The Tribunal asked why he could not undertake his course in India or somewhere in that region and that information indicated there were similar courses available. The applicant claimed that students were half his age.
The Tribunal asked how his Australian qualification assisted him achieving his goal in comparison to a qualification that could be acquired domestically. The applicant replied that it was easy to grab a job in India and there was less competition.
The applicant’s immigration history
The applicant has previously travelled to Australia on a visitor visa from 10 September 2019 until 9 December 2019 to visit his brother and complied with the conditions of the visa.
The Tribunal referred to information which showed that the applicant arrived in Australia on a visitor visa on 22 March 2023. Six months later on 18 September 2023, he applied for the student visa to study for an extended period, namely 22 months. The Tribunal noted to the applicant that this was five days before his visitor visa was due to expire on 23 September 2023. The Tribunal explained that the significant change in the applicant’s migration intentions raised concerns that he was not a genuine temporary entrant and may be using the student visa program to maintain a residency in Australia. The applicant was asked if he wished to comment.
The applicant claimed he came to Australia to visit his brother and he did not have any plans to study in Australia. The Tribunal indicated it had concerns and referred the applicant to his employment history which showed his previous employment ending directly before coming to Australia in March 2023. The applicant denied this was the case and claimed that his visitor visa was valid until 2025. At hearing the representative submitted that the visitor visa was valid until 12 September 2025 and provided to the Tribunal a copy of his visitor visa grant notice.
The visa grant notice does not support this assertion. Rather it states that the applicant ‘must not arrive after 12 September 2025’ and his length of stay is 6 months from the date of each arrival. At hearing, the Tribunal discussed and showed the applicant his travel movement records which indicated that his visitor visa was valid until 23 September 2023.
Other than the student visa, which is the subject of this review, there is no evidence before the Tribunal that the applicant has had a visa in Australia or for any other country refused or cancelled.
Tribunal Findings
The Tribunal has considered the written and oral evidence before it, as well as the factors set out in the above Direction.
The Tribunal accepts that the applicant has some remaining family who reside in India including his parents and sister that could act as an incentive to return home. However, the Tribunal does not consider that these circumstances in and of themselves demonstrate a significant incentive for the applicant to return home. The Tribunal notes that the applicant has only briefly returned to India for approximately three months despite being onshore in Australia for over two years and his claims that his parents are aging. Rather, the applicant has managed to maintain personal relations with his family from overseas and the Tribunal considers that the applicant and his family are used to being apart for significant periods and in such circumstances, the Tribunal places less favourable weight in this regard.
The Tribunal acknowledges that the applicant’s family in India have provided him with financial support in the past and they continue to provide him with financial support while offshore in Australia. However, the Tribunal considers that the applicant has been able to remotely obtain these funds from his family in India while in Australia which reduces the need for him to be home to access any financial benefits. Accordingly, the Tribunal places less favourable weight in circumstances where the applicant has been able to manage financial ties to his home country from afar.

The Tribunal accepts that the applicant’s parents own property in India, however as conceded by the applicant at hearing, the property is not in his name and his parents are not yet deceased. The Tribunal considers his claims of property ownership to be entirely speculative and does not regard it to be a strong incentive to return after the completion of his studies.
Whilst the Tribunal accepts that the applicant is a registered organ and tissue donor in India, this is an activity that can be universally undertaken including in Australia.[4] Whilst admirable the Tribunal places limited weight in this regard.
[4] and – Accessed on 28 July 2025
The applicant has family ties in Australia that are of particular concern to the Tribunal. The applicant’s brother is a permanent resident of Australia and provides the applicant with financial support. He was the reason for the applicant’s visit to Australia in 2019 and again in 2023. When considered in conjunction with the Tribunal’s concerns detailed in this decision record, in particular the quality of lifestyle, employment and remuneration opportunities in Australia, the Tribunal considers that his family in Australia may act as an incentive to remain in Australia once he finishes his studies.
Whilst the Tribunal accepts that an individual may seek to further educate themselves and change their career direction, the Tribunal is unconvinced by the applicant’s evidence which was scant and lacked detail. The applicant’s knowledge about his course seemed less than reasonable. When asked to provide details he simply repeated the course title to the Tribunal and provided some generic examples of civil infrastructure. Of significant concern, is the fact that his course offers no practical building training. This is despite the applicant claiming he would use the course to be a builder and operate his own building business when he returns to India. He was unable to articulate with any conviction the value of his course and how it would assist his future employment.
The Tribunal also considers the applicant’s employment plans to be vague and highly unsatisfactory. The Tribunal is not satisfied that the applicant has given his future career plans much thought. For example, when asked what his future employment plans were, the applicant replied ‘Take contracts’. Despite being given various opportunities at hearing to explain what this meant he simply repeated ‘contracts’. Similarly, in relation to his plans of working as a builder and operating a building business, he had no evidence to support that his studies in Australia would allow him to work as a builder and had no evidence to show that he was working to establish a business in India. This is despite his claims that he had the help of his father who has contacts and is an entrepreneur.
The Tribunal considers this to be highly unsatisfactory in circumstances where the applicant is due to complete his studies in less than one month. The Tribunal also regards it to be highly unsatisfactory in circumstances where he has abandoned many years of study in information technology and a career in hospitality to pursue a new career direction and given he has been in Australia for over two years and apparently working towards this goal. The applicant was unable to provide the level of detail that the Tribunal would expect to see from someone genuinely preparing to return to his home country to commence work. Whenever the Tribunal attempted to explore his plans, the applicant would simply refer to mismanagement in India. The Tribunal found the applicant’s evidence to be tangential and evasive.
The Tribunal has also considered the applicant’s reasons for changing his career direction but regards them to be vague and unconvincing. As such, the vagueness of his future career plans and reasons for changing his career aspirations does not give the Tribunal confidence that the applicant is a genuine applicant for entry and stay as a student. These concerns are elevated when considered with his GTE statement where he claims he chose his course after discussions with his educational consultant. The Tribunal has considered the applicant’s claims at hearing that he chose his course and only discussed institutions with his agent, however when viewed with the Tribunal’s concerns discussed in this decision record, the Tribunal does not accept his claims.
The Tribunal has considered the applicant’s evidence regarding the remuneration he could expect to receive in his home country from undertaking his proposed courses but does not regard it to be credible nor a significant incentive to return despite lower cost of living and family support in India. Rather, the Tribunal considers it to be a paltry sum compared to the monetary outlay and time required to undertake his course in Australia. The Tribunal considers that the applicant has better employment and financial prospects in Australia which may incentivise him to remain noting the Fair Work Ombudsman statistics referred to above which the Tribunal regards as credible.
The Tribunal notes the applicant first arrived in Australia on a visitor visa for the purposes of visiting his brother. The Tribunal does not consider it likely that he travelled to Australia on a visitor visa and then decided to commence a course of approximately two years duration once here. The Tribunal makes this assessment noting the applicant’s previous employment ended in March 2023. The Tribunal does not accept that he would have been in a position to change his plans in such a significant way. The Tribunal finds that he more likely that he travelled to Australia with the intention to commence his studies here and apply for a student visa. This causes the Tribunal some doubt about his stated intentions regarding his student visa.
Weighing up all the available evidence and based on 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).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
Given the above findings, the 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(s): 1 July 2025
Representative for the Applicant: Mr Gajender Pal Singh (MARN: 1169960)
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.