Molakalapalli (Migration) - [2025] ARTA 1965

MOLAKALAPALLI (MIGRATION) [2025] ARTA 1965 (28 AUGUST 2025)
Applicant:Mr Aditya Molakalapalli
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2406687
Tribunal:General Member R Hampson
Place:Brisbane
Date:28 August 2025

CORRIGENDUM
Date of Corrigendum:15 September 2025

Pursuant to s 114 of the Administrative Review Tribunal Act 2024 (Cth), the following alterations are made to the statement of reasons for the decision:
The first two sentences in paragraph 33 of the written statement of reasons for the decision is altered to read: On the basis of the above, the Tribunal is therefore satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does meet cl 500.212(a). It follows that the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
The first sentence in paragraph 34 of the written statement of reasons for the decision is altered to read: Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are met.
The third sentence in paragraph 34 of the written statement of reasons for the decision is altered to read: Accordingly, the decision under review must be remitted for reconsideration, with the direction that the first named applicant meets the criteria (cl 500.212 of Schedule 2 of the Regulations) for a Subclass 500 (Student) visa.
Statement made on 15 September 2025 at 11:04am
DECISION AND
REASONS FOR DECISION
Applicant:Mr Aditya Molakalapalli
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2406687

Tribunal: General MemberR Hampson
Place:Brisbane
Date: 28 August 2025
Decision:The Tribunal remits the application for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.

Statement made on 28 August 2025 at 10:22am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study and work in home country – previous visa compliance and return visits – enrolments at lower levels and different subject areas – two courses completed and many not commenced or completed – COVID restrictions and chronic medical condition – financial support from parents and permitted work not related to study – recent re-enrolment – future business plans – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
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 14 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 27 December 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.
In an genuine temporary entrant statement attached to his application to the department, the applicant claimed he wished to undertake a commercial cookery course and a hospitality management course with the view to opening his own fine dining restaurant in his home city of Ahmedabad, India. He claimed his parents would assist him financially to set up a restaurant when he has gained experience in the field. He has included course outlines listing subjects he would undertake. He claims he has chosen to study in Australia because very few Indian educational institutions offer vocational training and education. He claims to have chosen the Newton and Nova colleges as they have high standards, are in inner city Melbourne and have highly qualified staff and trainers. He has parents and a brother still living in India and reports strong ties to his mother and has the financial backing of his parents whilst he remains in Australia.
The delegate has had regard for the applicants ties namely his parents and brother in India but did not see these ties as significant incentive for the applicant to return to India. This along with the applicants research into study options in India the delegate found these investigations were not thorough enough to be credible. The delegate also noted the applicant came to Australia initially in 2019 on a student visa and then proposed to do further study from this original application extending his visa until 2026, and this, she found was ground for concern that the applicant did not have genuine intentions of remaining in Australia only for study purposes but more so to remain in Australia with a view to permanent residency. The delegate also noted the applicants view of his future and she states she was not convinced his course of study would add value to his future but rather the economic circumstances in Australia versus India are more of an incentive for the applicant to want to remain in Australia. She also noted the applicants immigration history in that he first arrived in Australia in 2019 and is using this student visa pathway as a method to remain in Australia permanently rather than under the conditions of a genuine temporary entrant to Australia exclusively for the purposes of study.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because he is not a genuine applicant for entry and stay as a student.
The applicant applied to the Tribunal for a review of this decision on 29 March 2024. The applicant was requested by the Tribunal to provide information about his enrolment in a registered course of study and to complete the student visa information form regarding his status as a genuine temporary entrant and stay as a student. This form states,
‘Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study the main applicant is undertaking and their entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below’.
The Tribunal also advised that in considering whether an applicant is a genuine applicant for entry and stay as a student, the Tribunal must have regard to Ministerial Direction No.69 ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ and attached a copy. This has since changed to Ministerial Direction No. 108. The Tribunal raised at hearing the content of Ministerial Direction No. 108 and noted it is essentially the same as Ministerial Direction No. 69 as to matters to consider when determining whether the applicant is a genuine applicant for entry and stay as a student.
The applicant returned this information form to the Tribunal on 9 April 2025 completed with his migration history (fully outlined at paragraph 10), his work in Australia, which he has included as a cashier in a supermarket and as an Uber delivery driver which is his current work. He has stated his enrolment in study in Australia (fully outlined at paragraph 11) and stating he has chosen this study as he is very interested and passionate about the profession and wants to continue to study in Australia so he can learn from the best tutors and there is no similar type of course available in his home country. He has not elaborated on his future and has not included any further documents as part of this application.
The applicant appeared by MS Teams video before the Tribunal on 27 August 2025 to give evidence and present arguments. The applicants authorised representative did not attend the hearing.
BACKGROUND OF APPLICANT
The applicant is a 30 year old male from India. He first arrived in Australia on 1 July 2019 on a student visa. He left Australia again on 21 October 2019 and returned on 12 December 2019 on the same visa class. He then left Australia again on 10 February 2022 and returned on 2 April 2022 now on a Bridging visa B. He again departed Australia on 31 August 2022 and returned on 2 October 2022 again on a student visa. He departed Australia again on 11 March 2024 and returned on 24 March 2024 again on a Bridging visa B. He left Australia again on 8 June 2025 and has since returned and is on a Bridging visa B.
The applicant is not in a relationship in Australia or in India. He has no financial ties to Australia or India and is supported for his study by his parents who live and work in India.
The applicant states he studied a Bachelor of Technology in Engineering in India and worked in this field from 2016 to 2019. He then came to Australia and enrolled in a Diploma of Project Management commencing 15 July 2019, which he did not complete. He then enrolled in a Certificate III in Commercial Cookery commencing 17 August 2020 to which he did not commence. He then enrolled in a Diploma of Leadership and Management on 5 July 2021 and did not commence this course. He then enrolled in a Certificate IV in Commercial Cookery to start 12 July 2021 to which he did not commence study. He then enrolled in a Diploma of Leadership and Management to start on 6 September 2021 and he completed this course on 2 September 2022. He then enrolled in a Diploma of Hospitality Management to commence on 24 January 2022 and did not commence this study. He then enrolled in a Bachelor of Business to commence on 18 July 2022 and did not commence this study. He then enrolled in an Advanced Diploma of Leadership and Management to commence on 31 October 2022 but did not complete this study due to non-payment of fees. He then enrolled again in the Certificate III of Commercial Cookery to commence on 31 October 2022 and completed this course on 29 October 2023. He then enrolled in the Advanced Diploma of Leadership and Management again to start on 2 January 2023 to which he did not commence. He then enrolled in the Certificate IV in Commercial Cookery again to commence on 4 December 2023 but did not commence this course of study. He then enrolled in a Diploma of Hospitality Management to commence on 8 July 2024 but did not commence this course. He then enrolled in a Graduate Diploma of Management (Learning) to commence study on 3 February 2025 but did not commence this course of study.
On 18 August 2025 the applicant enrolled in a Certificate IV in Kitchen Management which he would complete in October 2026 to then commence a Diploma of Hospitality Management to complete in May 2027 and a further Advanced Diploma of Hospitality Management to complete in November 2027.
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 cl 500.212.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), 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 applicant completed a degree in Engineering in India and worked in this field for 3 years before coming to Australia where he states he thought he would continue with studies in project management to assist with his engineering work but found this was not his passion and did not complete this course instead enrolling in commercial cookery studies which were not able to be taught because of the Covid 19 pandemic lockdown in Victoria particularly during 2020-2021. He completed a Diploma in Leadership and Management in 2022 and then moved back to pursuing his commercial cookery course which he completed in October 2023. He told the Tribunal he then applied for an extension of his student visa to complete further study and this was refused and he became disillusioned and confused and did not study for 6 months. He then became unwell during 2024 with bouts of chronic [medical condition] meaning he could not attend work or study. He contacted his study providers who said he could reenrol in his courses of study with a deferral period. He stated he recently returned to India as his brother had a motorcycle accident and was undergoing surgery and he feared for him. On his return to Australia, he has again been plagued by chronic ill health and has not studied. I accept that whilst the applicant has had a chequered study history in both India and Australia marred by his changing of career direction, the Covid pandemic lockdown which was particularly severe in Melbourne, his completion of 2 courses of study and periods of chronic illness.
He is financially supported by his parents who pay for his education and he works as an Uber driver to support himself. He is a single man who lives with friends in share accommodation in Melbourne. He has no relatives in Australia. He has visited India to see his family each year since arriving in Australia in 2019. Each of these factors I accept as significant in his status as a genuine temporary entrant to Australia.
When asked about his study and his plans, he said he wanted to gain experience in restaurants, learn how to manage staff and the running of a food business and then open a Mexican restaurant near his home in Ahmedabad in India. He said he would need to do this about 2 hours away from where his family lives as the rent is much less and had thought about a food venue in a corporate office building as something different. He explained that Indian people in general are still very traditional about their eating habits and their culinary training with a focus only on Indian cuisine whereas he wants to introduce Mexican food to his home city. I accept the applicant has some genuine plans about his future in the food industry and spoke freely and engagingly about this.
I spoke with the applicant about my concerns about his claims and will address each of these and his responses to my invitation to him for comment.
He has then returned to India recently to visit his brother who was hospitalised. He was invited to a hearing on 4 August 2025 to which he provided a medical certificate stating he was unwell with a bout of the same chronic illness on this date and could not attend the hearing. Since that hearing invitation he has enrolled in a certificate IV in kitchen management and commenced that study with a view to 2 further qualifications meaning he would remain a student in Australia for a further 2 years until the end of 2027. I expressed my concern to him that he had not been enrolled and or completed any study since the end of 2023 and then enrolled in 3 courses for completion over the next 2 years when he knew he had a hearing with the Tribunal to be rather dubious to his genuineness. The applicant said he understood my concerns but felt he was now back on the right track to continue to complete his studies with a plan for his future.
I asked the applicant about his work choices in Australia and my concerns that he has said he is passionate about the food industry and opening a restaurant in India but he has not undertaken any part time work in this hospitality field to which he states is his passion and his future, he is entitled to do 15 hours a week on his visa conditions. He has worked in a supermarket and an Uber driver. He said he has applied for jobs in Melbourne but the employers only offer waitstaff/front of house, cleaning or dishwashing positions to which he feels he would not get the experience he wants. He also said employers did not want to employ college students as they were unreliable and not available when the season is the busiest. I spoke with him about the implausible nature of these statements taking into consideration Melbourne is a large city and is well known as a dining destination along with having a passion for food then any job in the food industry is a step in the door to understanding how a food venue operates from every angle. I therefore do not accept the applicants explanations about why he has made very few steps towards gaining experience in this industry. Rather I am concerned the applicant earns more money as an Uber driver than he may working for example washing dishes in a commercial kitchen.
I accept the applicant does not face military service in his home country nor did he raise fears of civil and or political unrest in his home country as a disincentive to return there.
I accept the applicants immigration history and the reasons he has travelled, returning to India each year to visit his family. I accept he has complied with Australian laws pertinent to his Bridging Visa and his previous Student visa.
Whilst the applicant has presented a precarious study history, some of which was a result of circumstances outside of his control such as the Covid pandemic lockdown, chronic illness other points were by his own choice including periods where he simply was not enrolled in any course of study. I have considered looking at the applicants circumstances from both his genuineness marred by a series of unfortunate events versus a lack of genuineness and the possibility he is taking advantage of the student visa pathway to remain in Australia more permanently. On balance I accept his genuineness to follow a course of study in Australia and then return to India to implement this knowledge.

On the basis of the above and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).
Does the applicant intend to comply with visa conditions?
For the applicant to meet cl 500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl 500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). For visa applications made on or after 1 July 2022, condition 8208 (no critical technology related study without approval) must also be imposed.
The evidence before the Tribunal is that the applicant has abided by conditions of the visas he has held to date.
On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl 500.212(b).
Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?
For the applicant to meet cl 500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl 500.212(a) and (b)).
On the basis of the above, the Tribunal is therefore not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a). It follows that the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
Given the above findings, 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 remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
· cl 500.212 of Schedule 2 to the Regulations.
Date of hearing: 27 August 2025
Representative for the Applicant: Mr Vikas Mor (MARN: 2217782)
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.