Quina (Migration) - [2025] ARTA 1677

QUINA (MIGRATION) [2025] ARTA 1677 (24 AUGUST 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Christine Jane De Guia Quina
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2409396

Tribunal:Clyde Cosentino
Place:Brisbane
Date: 24 August 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 24 August 2025 at 3:38pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study and work history and reasons for further study in Australia – course progress and departure and employment plans – parents, sibling, partner and children in home country, one sibling in Australia and one in third country – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 April 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 16 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.
According to her student visa application the applicant, female, applied for an intended course of study for which she had a Confirmation of Enrolment (CoE). The applicant did not provide a genuine temporary entrant (GTE) statement setting out her reasons for pursuing studies in Australia rather than in her home country.
The applicant did include a number of documents in support of her student visa application including:
·An affidavit of cohabitation sworn in the Philippines.
·“Business clearance” certificate granted 4 September 2023 to the applicant by the Municipality of Subic and Barangay Cawag, Philippines.
·Bank statements outlining her funds and ability to pay for her student studies in Australia
·Certification outlining that the applicant was employed with Powerlane Resources Inc. as a “Production Operator” and assigned at “Sanyo Denki Philippines” from 6 July 2015 to 15 December 2017.
·Certification of studies completed and official transcript of records at “Kolehiyo NG Subic”, Philippines for “Tourism, Hotel and Restaurant Operations” which the applicant was enrolled in and completed.
·Certification granted 7 April 2015 to the applicant for completion of “Tourism, Hotel and Restaurant Operations”, in the Subic Province of Zambales.
·Form 54 – Family composition record provided to the Department of Home Affairs on 8 October 2023 outlining the following family members living in the Philippines:
o“Live in Partner” residing in Sitio Malingao Barangay Cawag Subic Zambales, Philippines.
oHer father and mother residing in Sitio Malingao Barangay Cawag Subic Zambales, Philippines.
oOne sibling residing in Sitio Malingao Barangay Cawag Subic Zambales, Philippines.
oOne sibling residing in Japan
oOne sibling residing in Australia
oHer daughters residing in Sitio Malingao Barangay Cawag Subic Zambales, Philippines.
·Certificate of completion at secondary school, Philippines
·Tax declaration of joint property ownership by the applicant and her partner
At the time of application, the applicant advised that her proposed course of studies included the following:
·CoE – ECDF1948 – Diploma of Hospitality Management
·CoE – ECDF1373 – Certificate IV in Kitchen Management
·CoE – ECDEFB33 – Certificate III in Commercial Cookery.
On 15 April 2024, 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 they were not satisfied that the applicant intended genuinely to stay temporarily in Australia.
Evidence provided after delegate’s decision
The applicant applied to the Tribunal on 25 April 2024 seeking a review of the delegate’s decision to refuse to grant her a student visa.
On 7 April 2025, the Tribunal wrote to the applicant, via her authorised representative (representative), a s 359(2) letter as follows:
I am writing to you as the authorised recipient of the applicant(s) for the above-mentioned application for review to the Administrative Review Tribunal in respect of a decision to refuse to grant a Student (Temporary) (Class TU) visa.
As the authorised recipient, we are required to give you, instead of the applicant, any document that we would otherwise have given to the applicant. By sending you this email, we are taken to have sent the email to the applicant. You should ensure that all applicants included in the review are informed of this email as soon as possible.
As the applicant applied for the visa based on undertaking a course of study in Australia, it is a requirement of the visa for the applicant to be:
enrolled in a registered course of study;
and a genuine applicant for entry and stay as a student.
The applicant will need to provide sufficient information to satisfy us that they meet both of these visa requirements.
Request to provide information
The applicant is now invited 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. Details of the information requested are set out in the Student Visa Information Form.
… … …
Other information
In considering whether an applicant is a genuine applicant for entry and stay as a student, the ART must have regard to Ministerial Direction No.108 ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’. A copy of this is linked below for your reference.
On 14 April 2025, the applicant provided a response to the s 359(2) letter (via her representative). Her response contained the following documents:
·A letter of offer to the applicant as an international student (dated 13 October 2023) from Hilton Academy College offering the following courses of registered study:
oCertificate III in Commercial Cookery (commencing 27.11.2023 and ending 25.11.2024).
oCertificate IV in Kitchen Management (commencing 06.01.2025 and ending 07.07.2025).
oDiploma of Hospitality Management (commencing 11.08.2025 and ending 9.02.2026).
On 14 April 2025, the applicant provided a further response to the s 359(2) letter (via her representative). Her response contained the following documents:
·CoE – Certificate III in Commercial Cookery (start date: 27.11.2023 and end date 25.11.2024)
·Certificate of enrolment from Hilton Academy for Certificate III in Commercial Cookery
·Interim statement of results for Certificate III in Commercial Cookery from Hilton Academy
·Letter from Hilton Academy dated 21 May 2024 certifying course progress for a Certificate III in Commercial Cookery
·Course completion letter from Hilton Academy College dated 13 February 2025 certifying that the applicant had undertaken a Certificate III in Commercial Cookery on 27 November 2023 and completed the Certificate on 25 November 2024.
·Certificate from Hilton Academy for completion of Certificate III in Commercial Cookery
·CoE – Certificate IV in Kitchen Management (start date: 6.01.2025 and end date 07.07.2025)
·CoE – Diploma of Hospitality Management (start date: 11.08.2025 and end date 09.02.2026)
On 14 April 2025, the applicant also provided a completed response to “Request for Student Information” sent to her by the Tribunal. In that Request for Student Information the applicant provided the following GTE statement:
·In response to the question: “Please give details of how and why the Main Applicant chose the education provider(s) for the Australian course(s) they are currently studying and/or propose to study in the future”, the applicant stated that Hilton Academy provided practical, hands-on learning experiences for industry-specific training in commercial cookery and hospitality management. She had researched its pricing structure and academic rigour and concluded that it was the best education provider in providing value for her investment in the courses she wished to study.
·In response to why she did not undertake this course of study in her home country, she stated that, while in Australia, she had the opportunity to speak to many Filipinos who are actively pursing their studies in Australia. She stated that their experiences and stories about the high level of study in Australia “solidified her desire” to undertake her educational journey in Australia.
·She does not provide any periods where she was not enrolled in a registered course while the holder of a student visa.
·She states that she maintains close and regular contact with her children (almost on a daily basis) and family back in the Philippines through different social media forums such as Messenger and Facebook. She states that she wishes to remain “deeply involved” in her children’s lives and “strengthen the bond” they share while they are apart.
·She states that she has strong community ties in the Philippines. She maintains her relationships with her family, friends and extended family members through social media. She states that she continues to support her local charities and programs there.
·She outlines her plans, including her employment plans, at the completion of her courses of study. She states that her reason for enrolling in a Certificate III in Commercial Cookery, Certificate IV in Kitchen Management and Diploma of Hospitality Management is because they “revolve” around her decision “dedication to advancing [her] career and securing a brighter future for [her] children”. She states that her chosen course of study serves to “reinforce and build upon the knowledge and skills [she] acquired during [her] previous study of Tourism, Hotel and Restaurant Services in 2015”. She states that these courses will result in her “gaining a wealth of knowledge and skills that will significantly shape [her] culinary and hospitality career”.
·She states that her time away from her children, while very difficult, is a “necessary sacrifice to ensure a brighter future for [her] children and [herself].” She believes that this short-term separation will outweigh the longer-term goals of supporting her family and her career when she returns. She states that she has always wanted to be a professional chef. She provides examples of salaries received by professional chefs in the Philippines.
·She states that her decision to remain in Australia, while difficult given what she has left behind, is “guided by [her] desire to secure as brighter future” for herself and her family.
Prior to hearing, and in response to the hearing invitation sent out by the Tribunal, the applicant provided material in support of her review application which had been provided previously by the applicant.
On 21 July 2025, the applicant appeared before the Tribunal by video link to give evidence and present arguments. The applicant was assisted in relation to the review.
The Tribunal noted that the issue before it was whether the applicant meets the genuine temporary entrant criterion as outlined in cl 500.212.
The applicant provided evidence to the Tribunal in support of her review. The Tribunal asked her a range of questions relating to the relevant factors for consideration under Direction 108.
She answered consistently with information dealing with the above relevant factors outlined in Direction 108. The applicant also provided oral evidence consistent with her supporting documents.
The Tribunal’s findings relating to her oral evidence, along with her written material and supporting documents, are given below under “Consideration of Claims and Evidence”.
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 meets cl 500.212(a).
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 is satisfied from the evidence before it, that the applicant has strong and close connections to her family members back in the Philippines, in particular her four daughters aged fourteen, twelve, seven and three years respectively, her parents, and one sibling, all living in Sitio Malingao Barangay Cawag Subic Zambales, Philippines. At the hearing the applicant spoke genuinely about how she is making the sacrifices for her daughters while in Australia so that she can acquire the learning and skillset to be able to earn a better living back at home so that she can secure them a better financial future. She gave evidence about how she speaks with her children on a daily basis via social media. She gave evidence of how much she greatly misses her children, and that it was the reason why she wished to return home after completing her Diploma of Hospitality Management on or around February 2026. The applicant has been consistent, both in her written and oral evidence, as to how close she is to her family back in the Philippines. The applicant has only one other sibling – her sister - who lives in Australia. The applicant has given consistent evidence that her mother and sister look after her children in Sitio Malingao Barangay Cawag Subic Zambales while the applicant is studying in Australia. The applicant has given evidence that she is close to her mother and sister and keeps in touch with them almost on a daily basis.
The Tribunal accepts on the evidence before it that she wishes to return to Philippines, after completing her Diploma of Hospitality Management to be reunited with her four daughters, as well as her parents and sister who have been looking after her children. The Tribunal accepts on the evidence before it that the applicant maintains almost daily communication with her immediate and extended family in the Philippines while she is studying in Australia. Given the extent of the applicant’s personal ties to the Philippines, the Tribunal is satisfied that these factors serve as a significant incentive for her to return to the Philippines.
The Tribunal has considered the economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. The Tribunal has considered the “Tax Declaration of Real Property” document presented of joint ownership of the applicant’s residential home in a “residential house” estate in her name (albeit jointly) in the Philippines. Having considered that the applicant jointly owns a “residential house” in her home area of Sitio Malingao, Cawag, Subic, Zambales, an area where her children, parents and sister live, the Tribunal is satisfied that economic circumstances of the applicant do not present as a significant incentive for the applicant not to return to the Philippines.
Having regard to the applicant’s potential circumstances in Australia and having regard to the supporting documents and oral evidence provided by the applicant, there is no evidence that has been presented to the Tribunal which indicate that her potential circumstances in Australia would present as a significant incentive for the applicant not to return to the Philippines. The Tribunal is mindful that she has a sister living in Australia and who is supporting her while she is studying here. However, given all the other evidence before the Tribunal which indicates a stronger pull for her to return to the Philippines at the end of her registered course of study, the Tribunal is satisfied that the applicant’s only family connection in Australia, her sister, is not a stronger reason for her to remain in Australia.
Having regard to the value of the course to the applicant’s future and her future business plan that will follow on from the completion of her courses in Australia, the Tribunal has had regard to the applicant’s written statements and oral evidence explaining how her registered courses of study add significant value to her future employment back in the Philippines. It has considered her previous completion of studies in “Tourism, Hotel and Restaurant Operations” in Subic, Zambales in 2015 and how they act as a foundation to her studies in cookery, kitchen management and hospitality in Australia. It accepts as consistent with her course studies in the Philippines her evidence that she has chosen her studies in Australia to reinforce and build upon the knowledge and skills she acquired during her previous study of Tourism, Hotel and Restaurant Operations. It accepts as consistent with her course studies in the Philippines her evidence that the completion of her Certificate III in Commercial Cookery, Certificate IV in Kitchen Management and a Diploma in Hospitality Management Courses will result in her gaining a wealth of knowledge and skills that will significantly shape her culinary and hospitality career. It accepts as consistent with her previous course studies in the Philippines and course studies in Australia her evidence at the hearing that she has worked towards being a chef and opening her own business in the Philippines, particularly in her own area which she states is a tourist destination.

The Tribunal is satisfied from the evidence before it that she understands what the Certificate III in Commercial Cookery, Certificate IV in Kitchen Management and the Diploma of Hospitality Management entails, the learnings from these courses and the value these courses have to her future employment prospects back in the Philippines, given her previous studies down a similar path. Given this finding, the Tribunal is satisfied that the value of her course in Australia will increase her prospects of employment in the restaurant, hospitality and tourism sectors in the Philippines.
The Tribunal notes the applicant’s commitment already in studying a Diploma of Hospitality Management. The Tribunal is satisfied from her PRISMS record (and the CoE’s provided as evidence) that she is presently registered in a Diploma of Hospitality Management and that she has completed her courses in Certificate III in Commercial Cookery and Certificate IV in Kitchen Management respectively. This information is also confirmed by a letter from her education provider, Academy College. It is satisfied from the evidence before it that she has commenced a Diploma of Hospitality Management, and that the completion of this course is on or about 9 February 2026.
The evidence indicates that the applicant has been continuously enrolled, successfully completing her subjects and that she is presently enrolled in a Diploma of Hospitality Management. The Tribunal accepts that the applicant has been continuously enrolled and is achieving course progression which is indicative of a genuine student.
The applicant has indicated that she will return to the Philippines on completion of her Diploma course. No evidence has been presented that she will need to stay further in Australia to study for a future career aim following completion of this course and should she choose to do so and present a further application for a student visa or enrolment in a further course this would be of concern.
The Tribunal does not have any information before it to indicate that the applicant has not complied with visa requirements while studying in Australia. There is no evidence before the Tribunal to suggest that the applicant will not comply with visa conditions into the future.
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.
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)). 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: 21 July 2025
Representative for the Applicant: Ms Alfe Roder
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.