Patel (Migration)
[2025] ARTA 2105
•30 June 2025
Patel (Migration) [2025] ARTA 2105 (30 June 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Rushank Mukeshkkumar Patel
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2406577
Tribunal:General Member R Lee
Place:Perth
Date: 30 June 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Student (Temporary) (Class TU) visa for reconsideration in accordance with the order 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 30 June 2025 at 2:35pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – value of courses to benefit future career – researched career path change – good academic progress – family ties in home country – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 65, 499; Direction No 108
Migration Regulations 1994, Schedule 2 cls 500.212, 500.611STATEMENT 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 19 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 first arrived in Australia on 14 November 2022 and left on 10 February 2023. The applicant last arrived in Australia on 8 August 2023.[1]
[1] Movement record – 22 April 2025.
The applicant applied for the visa on 26 October 2023. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because given the applicant's circumstances, the comparatively greater economic opportunities in Australia and the applicant’s overall situation as presented in their application, the delegate was not satisfied that the applicant was a genuine applicant as a student.
The applicant appeared before the Tribunal on 2 May 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
The applicant was assisted in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal sets aside the decision under review and remits the visa application for reconsideration.
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 intends genuinely to stay in Australia temporarily.
The applicant is a 22-year-old Indian national. With their undated genuine temporary entrance statement (GTE Statement) which accompanied the student visa application, the applicant said that:
After completion of my Advanced Diploma in Civil Construction Design in Australia, my plans to return to India to implement the knowledge and skills they have gained in the field. The construction industry in India is booming, with many new infrastructure and development projects underway. This provides a significant opportunity for civil construction professionals to enter the market and make a meaningful impact through their work. I can choose from a wide range of job opportunities in India, including working as engineers, architects, project managers, and construction specialists, among others. I may also consider starting my own construction design firm or consultancy to provide specialized services to clients in need of high-quality construction design solutions.
On 28 March 2024, the applicant applied to the Administrative Appeals Tribunal (AAT) for review and attached the delegate’s decision.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
On 24 March 2025, the Tribunal invited the applicant to give, in writing, all relevant information about the course(s) of study they are undertaking and their entry and stay in Australia as a student, noting that as the applicant applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for the applicant to be enrolled in a course of study and be a genuine applicant for entry and stay in Australia.
In the Request for Student Visa Information form signed by the applicant on 4 April 2025 and provided on 5 April 2025 (Response), amongst other things the applicant stated they had applied for a student visa on 12 February 2022 which was refused.
The Tribunal has also relevantly received in relation to the applicant:
(a)Academic transcript from the education provider for the Advanced Diploma;
(b)Submissions dated 4 April 2025 (April Submissions);
(c)Overseas Student Confirmation-of-Enrolment certificates for the applicant (CoE) for:
(i)Advanced Diploma of Civil Construction Design from 13 November 2023 to 7 September 2025 for a value of AUD $26,250.
During the hearing, the applicant gave the following evidence:
(a)The applicant’s agent in the presence of the applicant wrote the student visa application form and the applicant wrote GTE Statement and the Request. The applicant signed the April Submissions, which were written by himself. The applicant’s representative signed the May Submissions;
(b)The applicant stopped studying the Bachelor of Commerce in India, because he came to visit family in Australia. He became interested in infrastructure because he can earn more income than working in commerce. He conducted research on the internet, learning for example a site engineer; a construction supervisor and design technician, earn 40-50,000 Indian rupees per month, whereas as an accountant he would earn 20,000 per month. Also, there a number of accounting students and so it would not be easy to find a job, whereas not many are doing design construction;
(c)The applicant’s sister lives in Australia. She is an Australian citizen. When he arrived in Australia, the applicant had no intention to study. The applicant told their University he would not be completing his Bachelor of Commerce, when he applied for the CoE;
(d)In Australia, the applicant researched infrastructure courses in India with LD College and Punjab University, but the Indian institutions mostly focus on the theory compared to the Australian courses which offer theory and practical and teach about relevant software to draw 2D and 3D diagrams. The applicant looked at studying in Australia, as his sister lives here, and Canada and New Zealand. He subsequently said he looked at the USA, when prompted by the Tribunal;
(e)When the applicant was asked why the GTE Statement refers to a Bachelor of Nursing, the applicant said he never learned about nursing but he liked it a little bit. The applicant confirmed he wrote the GTE Statement and when asked why the GTE Statement would refer to nursing if the applicant did not enrol in nursing, he (incorrectly) suggested he had never mentioned nursing;
(f)The Tribunal also noted that the applicant had different figures for income in the GTE Statement than the applicant had said during the hearing. The applicant said he gave figures at that time he did the research, which was with different companies in different places;
(g)When asked why he did not mention his sister in the Request, the applicant said he did not think it was necessary to mention. When the Tribunal asked if there any other family members not mentioned in the Request, the applicant said just his sister and paternal aunt, the latter being an Australian citizen who has lived in Perth for about 15 to 17 years;
(h)The benefit of an Advanced Diploma in Civil Construction Design is that the applicant will work in the industry for 2-3 years, to obtain experience and earn some money, and then start a small business. He will work with friends, who have a construction company. When the Tribunal suggested that it did not have anything before it to establish that construction courses only teach theory and are not practical, nor that courses looked at in India does not suit the applicant’s purposes, the applicant referred to the Request and said India was progressing and construction businesses in India were progressing. The applicant wants to do something different than others and wanted to study in Australia, because he can earn more money in India with an Australian qualification and then save to start his own business;
(i)When asked how he knew what he would earn with an Australian qualification, the applicant said when he decided to study here, he contacted some of his friends who studied construction and design overseas and in India they are earning a greater salary than Indians who are doing the same job. The applicant thinks he will initially earn 35-50k/month then after one month it will increase to 70/k in India with this qualification, based on what his friends said. He also researched job adverts, but you need to call them and ask for the job description and how much they will pay, and the applicant also found some contacts;
(j)The applicant is now studying his 11th unit being, manage civil works design processes. The Tribunal noted that it was in the applicant’s favour that he had been progressing though the course and was close to completion; and
(k)The Tribunal raised its further concerns:
a. There is a lack of information in the Request and it was concerned the applicant did not write the GTE Statement and whether it could be satisfied his studies were of value to him in India compared to the studies he could have undertaken in India. The applicant said he had not researched jobs in Australia and was planning to finish his studies and return to India, as he needs to live with parents in India given his responsibilities as a son. Whilst he shares this responsibility with sister, she lives in Australia.
After the hearing, the applicant provided submissions dated 9 May 2025 (May Submissions) addressing:
· The strong and sustained demand for skilled professionals in the civil construction sector in India, particularly in Gujarat, and how this presents significant career opportunities upon his return;
· A comparative analysis of civil engineering education in India versus Australia, highlighting the practical and globally recognized training that the applicant is receiving and its alignment with his career goals in India; and
· The applicant’s deep familial, cultural, and financial ties to India, and his clearly articulated career plan to return and contribute to India’s infrastructure development, affirming his commitment to comply with visa conditions and return home after his studies.
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 Tribunal finds that the applicant is enrolled in and studying an Advanced Diploma of Civil Construction Design, starting from 13 November 2023 to 7 September 2025, and has progressed satisfactorily through the units, based on the CoE, the academic transcript provided, the applicant’s evidence at the hearing and the fact that this is consistent with the applicant’s enrolment record from the Provider Registration and International Student Management System (PRISMS) database contained on the Tribunal file.
In the delegate’s decision, it was stated that at the interview on 19 March 2024 the applicant was unable to demonstrate a reasonable level of knowledge about the course’s contents and educational objectives and were not able to name the course of study in which they were enrolled. However, significant time has passed since the delegate’s decision was made and the evidence before the Tribunal is that the applicant has been continuously enrolled, successfully completing subjects and achieving course progression whilst the student visa application has been on foot, which is indicative of a genuine student.
The Tribunal accepts that the applicant was enrolled in but did not complete a Bachelor of Commerce in India, based on the student visa applicant, the Response, and the applicant’s evidence at the hearing. The Tribunal considers that the applicant is undertaking a reasonable change to his study and career aspirations, because it is reasonable to reflect on your job prospects and realise your interests lie elsewhere whilst undertaking one course of study and the Tribunal accepts that the applicant has an interest in infrastructure design and construction, based on his evidence at the hearing.
The Tribunal accepts that the applicant travelled to Australia for three months in November 2022 and returned to Australia on the last occasion in February 2023, on both occasions to visit his sister, who is an Australian citizen living in Australia, based on the student visa applicant and the applicant’s evidence at the hearing. Whilst the sister’s residence in Australia may be an incentive to visit Australia, the Tribunal does not consider it to be a significant incentive to remain in Australia when balanced against the other considerations below.
It is of concern to the Tribunal that the GTE Statement refers to the applicant deciding to pursue a Bachelor of Nursing, and the Tribunal considers that there is no satisfactory explanation before the Tribunal as to why this occurred. The Tribunal, however, accepts the applicant’s evidence at the hearing that the applicant has never enrolled in or studied nursing. The GTE Statement does however correctly refer to the applicant’s interest in civil construction design.
The Tribunal accepts that the applicant’s interest for civil construction design grew after observing the infrastructure in Western Australia, including monuments, landmarks, skyscrapers, and housing, based on the GTE Statement and the applicant’s evidence at the hearing.
The Tribunal accepts that India’s civil engineering education system offers a wide range of programs but faces several systemic challenges; that while top institutions like the Indian Institutes of Technology and Nirma University, MSU Baroda, Gujarat Technical University maintain high academic standards, their entrance requirements are highly competitive; that private universities frequently demand high donation fees for admission, making quality education financially inaccessible for many; and that the curriculum in many Indian colleges emphasizes theoretical learning, with limited exposure to practical training, global construction standards, and modern technologies, based on the May Submissions.
The Tribunal accepts that civil construction and engineering courses are available in India, but most of them are highly theoretical and lack hands-on, practical training or real-world applications and additionally, gaining admission into top-tier Indian institutions requires clearing competitive exams like JEE or GUJCET, and even then, the seats are limited and placements are not always guaranteed, based on the Response and the applicant’s evidence at the hearing.
Based on the findings in the two immediately preceding paragraphs, the Tribunal finds that the applicant has reasonable reasons for not undertaking the study in their home country.
The Tribunal accepts that the applicant’s plan is to return to India and build a career in the growing infrastructure and construction industry, by applying for roles such as site engineer, construction supervisor, or civil design technician in companies involved in residential or commercial development projects, with a long-term goal of gaining professional experience for a few years and eventually establishing his own construction-related business in India, based on the Response and the applicant’s evidence at the hearing.
In the May Submissions, it was stated, which the Tribunal accepts:
Following graduation, [the applicant] plans to work as a Civil Site Supervisor or CAD Designer with a salary ranging between INR 35,000 to 50,000 per month. He has researched roles on platforms such as Naukri and Indeed India, with listings and pay scales attached to this submission.
The Tribunal accepts that despite its rapid growth, including a surge in infrastructure development in Gujarat, the Indian construction sector faces a significant skills shortage, given only 19% of the workforce is classified as skilled, and demand is increasing for professionals proficient in CAD, project management, and civil construction design, based on the May Submissions.
The Tribunal accepts that the applicant can use various platforms available for seeking employment opportunities, including personal references, to secure a job in India and the applicant has a friend who has a construction business and it will be easy for the applicant to enter into the field, based on the May Submission.
The Tribunal accepts that the Advanced Diploma, will give the applicant the kind of exposure and experience that will help him contribute meaningfully to India’s rapidly growing infrastructure sector when he returns to India, based on the Response. The Tribunal finds that the Advanced Diploma has value to the applicant’s future, because it accepts that the diploma will assist the applicant to obtain employment in India and is relevant to his proposed future employment and business aspirations.
The Tribunal accepts that the applicant’s father and mother live in India, and they would be one of the main reasons the applicant would be returning apart from his career, as the applicant has obligations to look after them when they are old and it is his wish and duty to return to India to be with them and support them, not just personally but also professionally, based on the GTE Statement, the Response, the applicant’s evidence at the hearing and the May Submissions.
The Tribunal accepts that the applicant has community ties to his hometown of Kukarwada, Mehsana, Gujarat, where he has actively participated in community events and celebrations through groups like the Gujarati Samaj, especially during festivals such as Navratri, Diwali, and Holi, building meaningful relationships with neighbours, family friends, and elders, and that these connections remain a strong pull for the applicant to return to India after completing his studies in Australia, based on the Response.
The Tribunal also accepts that the applicant does not have any concerns about military service commitments or political or civil unrest in India, based on the Response, which may have otherwise acted as a disincentive to return.
On the basis of the above, 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 following conditions may also be imposed in some cases (cl 500.611(2)): 8535 (limited visa entitlement), 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).
The applicant declared in their student visa application that they acknowledged they were required to abide by any conditions subject to which the visa is granted. There is no evidence before the Tribunal to demonstrate that this would not be the case and based on the applicant’s stay in Australia to date, including their evidence of compliance with current visa conditions, 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).
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)).
There is no evidence before the Tribunal of any other relevant matter that gives rise to a concern by the Tribunal that the applicant is not a genuine applicant for entry and stay as a student. The Tribunal finds the applicant meets cl 500.212(c).
Accordingly, the Tribunal is 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 appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
DECISION
The Tribunal sets aside the decision under review and remits the application for a Student (Temporary) (Class TU) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.
Dates of hearing(s): 2 May 2025
Representative for the Applicant: Mrs Kiranbir Kaur (MARN: 2418628)
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.
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