Rajwinder Singh (Migration) - [2025] ARTA 1024

RAJWINDER SINGH (MIGRATION) [2025] ARTA 1024 (30 JUNE 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Rajwinder Singh
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2406350

Tribunal:General Member D Hughes
Place:Melbourne
Date: 30 June 2025
Decision:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa

Statement made on 30 June 2025 at 1:10pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – good academic progress – limited benefit to future career – significant family commitments in home country – business investments in India – English language proficiency – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 54
Migration Act 1958 (Cth), ss 65, 499; Direction No 108
Migration Regulations 1994, Schedule 2 cls 500.212, 500.213
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Citizenship on 12 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 22 September 2023. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this matter 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 the delegate was not satisfied the applicant was a genuine applicant for entry and stay as a student.
The applicant appeared before the Tribunal on 8 May 2025 and 20 June 2025 to give evidence and present arguments via video hearing (Microsoft Teams). The hearings were each conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was assisted in relation to the review and at the hearing by their representative.
For the following reasons, the Tribunal considers the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant satisfies the criteria in cl 500.212 as well as cl 500.213.
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 has weighed the applicant’s oral and written evidence against the considerations under cl 500.212(a). While the evidence before the Tribunal is detailed, the applicant’s evidence at the hearing raised concerns for the Tribunal about the applicant’s studies and intentions.
Background
The applicant came to Australia in 2023. He contends that he came for his sister’s housewarming ceremony and to ‘roam around.’ In the course of the hearing, the applicant indicated that his sister bought her home in 2021. While it was a concern for the Tribunal that the housewarming was two years after that purchase, the Tribunal acknowledge that 2021 was a complicated time in Victoria and it is plausible those celebrations were deferred.
At the hearing, the applicant contends that he returned to India in May 2023 and travelled back to Australia in June 2023. He confirmed he returned to Australia on his visitor visa in order to apply for a student visa.
Enrolment in Australian courses and compliance
The applicant has provided evidence of his completion of a Diploma of Business at the Australian School of Commerce (15 November 2023 to 12 November 2024). He also provided evidence of his competencies in all units for this course.
The applicant is currently enrolled and studying an Advanced Diploma of Business, at the Australian School of Commerce (25 February 2025 to 17 December 2025). He provided a confirmation of his enrolment in this study and indicated those studies are ongoing.
The applicant has provided evidence of his course progress. He has not altered or extended his study plan and there is no evidence before the Tribunal of any immigration history of concern. The Tribunal gives these factors positive consideration in terms of this criteria.
Circumstances in Australia and India
The applicant contends that he has strong family ties that require him to return to India. In his written submissions, he states it is his responsibility to look after his parents in their old age. He also discussed his love for his wife and daughter, and how he cannot be away from them for a long time. He also refers to his social and cultural ties to the country. His representative said that the applicant is obligated to return and support his father’s business in the administrative district – which he contends are very hard to come by.
In his written statement to the Tribunal, the applicant states that his wife operates a small business (GK Tuition Centre) and that she is maintaining her business and their household on her own. He contends that his wife’s current situation is not sustainable in the long term, and that he is emotionally and morally obligated to return to India to support his family. He contends that the presence of his wife and child in India is a clear and compelling reason for him to return home after his studies. He also refers to his and his father’s shared plans to modernise his father’s business. The applicant provided supporting evidence of his wife’s business, his father’s business, the family’s assets and income, and evidence of his daughter and her studies.
The applicant also contended that he has his own financial incentives to return to India. In his written statement, he states that he has made significant long-term investments in India, referring to his family’s ancestral home (in his father’s name) and both his and his father’s income.
The applicant’s family circumstances are a key consideration. A concern for the Tribunal is whether the applicant intends to bring his wife and child to Australia. The representative has contended that the applicant’s wife holds a visitor visa, and she could come at any time if she intended to, but they have not done so. He also contended that if they intended for his wife to get a student visa, she would have applied at the same time. He further submitted that the applicant has no prospect of obtaining permanent residence after his student visa expires.
The Tribunal will defer to the representative’s experience on these matters, but the Tribunal does consider it relevant that it appears from his evidence to the Department that his wife presently has a permission to come to Australia, and that raises a question for the Tribunal about their future intentions.
The applicant already has close family in Australia – a sister in Australia. She studies and works at a warehouse. His sister’s partner works for Australia Post. He has lived with his sister at her home in Tarneit, which she bought in 2021. His evidence was that he is helping out and supporting the family and children when he is not studying.
The Tribunal considers the applicant’s broader employment, assets and family circumstances in India are to some extent an incentive for him to return to India. Equally, he has close family living in Australia permanently. The Tribunal considers these family members are potentially an incentive for him to remain here. The Tribunal also considers there is some uncertainty about his future intentions with respect to his wife and child, notwithstanding his evidence that they will not apply to stay here, and that impacts the assessment of whether his family are an incentive for him to return to India.
Motivation and value of studies
The applicant contended at the hearing that he had two friends that provided him some guidance about coming to Australia to study. A concern for the Tribunal was that this was at odds with his evidence in his written statement which suggested in very detailed terms that his sister was the key catalyst in him deciding to study in Australia. In response to this concern at the hearing, the applicant said that his sister was also a factor.
In his written submissions to the Department, the applicant provided a detailed account of his path to study in Australia. He also detailed his future plans, and the potential for his studies to open doors to entry and mid-level positions in various industries, including business management and analyst positions. He discusses his decision to choose these courses and the Australian School of Commerce, as well as his ties to his home country and financial position.
In his SVI form, the applicant’s evidence about his studies is brief, but it is supplemented by a written statement to the Tribunal, in which he details his circumstances, and his motivations and desire to modernise his father’s business and create an e-service platform, and return to India and his family.
The applicant’s evidence at the hearing was broadly consistent with those future plans. The applicant was able to speak generally about the courses he studied in his Diploma of Business. However, when asked why it was necessary to study the Advanced Diploma given he had learned basic business skills in his initial Diploma, the applicant struggled to provide any insight of the value of this course, beyond stating that it would help him expand his business and apply new techniques. He referred to having created a website, and adding new policies to that website. He said he is learning new things and his further studies are important for him.
The applicant’s statement to the Tribunal is to some extent persuasive, but it bears little resemblance to the more lengthy and at times generic statement provided to the Department. While the Tribunal considers the applicant provided some insight into the relevance of his initial diploma, the inception of his website, and his plans for his father’s business, his evidence about the need to undertake the Advanced Diploma was very limited and provided little as to why it was necessary for him to study this further course.
A related concern for the Tribunal about the value of these courses to the applicant is the applicant’s English level.
When discussing the applicant’s work in India, he indicated he typed in Punjabi and English. In terms of his studies, he confirmed his studies in his completed Diploma of Business were in English. His evidence of his website was also in English.
At the first hearing, the Tribunal asked the applicant if he could speak briefly in English. The applicant was understandably quite reluctant. The Tribunal confirmed the hearing would proceed with the interpreter, but it wished to speak with him in English briefly without the interpreter. The Tribunal asked the applicant some limited questions. The applicant was unable to answer the Tribunal’s questions about his school, its full address or how he travelled to school.
The Tribunal reiterates that the applicant is entitled to give evidence through an interpreter. The Tribunal is also conscious of the stress of the hearing context and the pressure of asking the applicant to speak in English. However, it was also the case that the applicant claimed to have completed a year long business course in Australia, undertaken in English, and he has stressed the value of these courses to him and his need to study in Australia rather than India. In that context, the Tribunal was concerned that the applicant was not able to answer what it considered to be relatively simple English questions related to his studies.
In response to these concerns, the applicant said that the teachers at the school will help him understand in Hindi if he has difficulty understanding in English. He said his class is multilingual.
The Tribunal considers the applicant’s evidence about his need to study the Advanced Diploma was very limited. When considered with the applicant’s limited English ability, this raised concerns about the genuineness of his claimed studies, the value of those studies, and more broadly about his motivations with respect to Australia.
Immigration history, and security concerns in his home country
There is no adverse information before the Tribunal about the applicant’s immigration history. The Tribunal notes that the applicant indicated an awareness of the visa conditions that would attach to his student visa in his written submissions provided to the Department.
In his written submissions, the applicant said that his home area of Punjab is a safe place. In his SVI form, he indicated no military service commitments, political or civil unrest in his home country.
These are positive considerations.
Assessment
The Tribunal has considered the totality of the applicant’s oral and written evidence.
While the Tribunal is concerned about aspects of the applicant’s evidence, there is no evidence before the Tribunal that the applicant has any immigration history of concern. He has not indicated he has any military service commitments, and he did not indicate any fears or concerns in returning to India. The Tribunal has given these factors positive consideration.
The applicant’s family in India is obviously a key factor, however the Tribunal considers his wife’s current visa to travel to Australia, and his evidence about those matters, raises some questions about their future intentions. The Tribunal also finds it significant that the applicant has close family permanently living in Australia. The Tribunal considers his incentives to return to India – in terms of his family, business and assets – are a positive consideration, however the Tribunal is concerned about the potential for his family to be a factor in him remaining in Australia, as well as the lure of his family currently here.
In terms of his future plans, aspects of the applicant’s evidence about his future business plans are quite credible. His father’s business is a key incentive for him to return to India, and his plans with respect to that business as advanced to the Tribunal appear to have some merit. However, his evidence of the value of his studies in the Advance Diploma were limited, and his limitations English raised significant doubts for the Tribunal about the value of these courses and his future studies, and his claimed need to study in Australia.
As indicated to the applicant at the second hearing, aspects of the applicant’s claims are persuasive. However, other key aspects of the applicant’s evidence left the Tribunal with considerable doubts about his current circumstances, his future intentions and the value of his studies in Australia.
Looking to all the circumstances, the Tribunal is not satisfied the applicant intends to return home to India at the conclusion of his current studies. For these reasons, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily, and therefore the applicant does not meet cl 500.212(a). Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
English language proficiency (cl 500.213)
In the course of the first hearing, a further concern arose in relation to the applicant’s English language proficiency.
To meet cl 500.213, the applicant must (if required by the Minister) give evidence that they have a level of English language proficiency that meets the requirements specified in an instrument: cl 500.213(1). This requirement does not apply to an applicant within a class specified in an instrument: cl 500.213(2).
The relevant instrument (IMMI 18/015) specifies the requirements for evidence of English language proficiency and classes of applicants to whom the requirement does not apply.
In undertaking the review, the Tribunal may exercise all the powers and discretions that are conferred on the decision maker: s 54 of the Administrative Review Tribunal Act 2024.
Following the first hearing, on 3 June 2025 the Tribunal wrote to the applicant and requested the applicant provide evidence that the applicant met the English language proficiency requirements for the visa grant. If applicable, the applicant was given an opportunity to provide evidence of a test booking by 9 June 2025, and a test result by 19 June 2025.
On 4 June 2025, the applicant was notified of a further hearing on 20 June 2025 in order to discuss the issue of his language proficiency and any applicable test result.
On 9 June 2025, the applicant provided evidence of a PTE Academic test booking to take place in Geelong on 13 June 2025.
On 18 June 2025, the applicant provided a completed hearing form indicating he would attend the hearing. However, no test result was provided by the 19 June 2025 deadline.
At the hearing on 20 June 2025, the applicant indicated that he undertook the PTE Academic test on 13 June 2025 and he received a result of 25.
According to the relevant instrument, as the applicant’s course of studies was not packaged with any ELICOS studies, the minimum PTE Academic test score the applicant needed to achieve was 42. The Tribunal observes that even if the applicant had packaged his course with periods of ELICOS studies, he still would not have met the lower minimum test scores of 36 or 30.
At the second hearing, the Tribunal indicated to the applicant that his overall score was below the minimum score required. It also did not appear that the applicant was within any of the classes of persons specified in the instrument under cl 500.213(2). Relevantly, he does not hold a valid passport as specified under paragraph 2(a) of Part 2 of the relevant instrument.

At the second hearing, the representative advanced a submission that the requirement in cl 500.213(1) may not apply to the applicant under paragraph 2(d)(ii) of the relevant instrument, which relevantly provides the following as a class of applicants for cl 500.212(2):
(d)an applicant, who, in the 2 years before applying for a Subclass 500 (Student) visa, has successfully completed:
(i) …
(ii) a substantial component of a course leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher that was conducted in Australia and in English, while the applicant was holding a student visa; or
In terms of paragraph 2(d)(ii), the Tribunal accepts the applicant has provided evidence that he has completed a substantial component of a course leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher, being his completion of a Diploma of Business in November 2024. However, as indicated to the applicant at the hearing, the applicable paragraph also requires that the study be successfully completed ‘in the 2 years before applying for a Subclass 500 (Student) visa’. It further requires that the completion of a substantial component of a course occurs while the applicant was holding a student visa.
According to his own submissions, the applicant’s studies in his Diploma of Business commenced in November 2023, well after the date of his application for a student visa which was made on 22 September 2023. The applicant was also not holding a student visa at the time of his studies – the fact of which is the subject matter of this review.
The Tribunal acknowledges the representative’s submissions about the interpretation of this clause. However, the Tribunal does not consider it has a discretion to interpret this provision in any broader sense, or to waive this requirement once it has been requested. The terms of paragraph 2(d)(ii) of the instrument appear unequivocal to the Tribunal, and the Tribunal is not satisfied the applicant’s studies in Australia satisfy those requirements.
There is no evidence before the Tribunal that the applicant is within a class of persons specified under cl 500.213(3)(b). As the applicant is not within a class of applicants specified in the instrument, cl 500.213(1) applies to the applicant.
At the hearing, the applicant said that his future plans do not require him to be proficient in English. In a post hearing submission, the applicant stated that he was not required to provide evidence of his English at the time he lodged his visa application. He states that this is because his ‘education provider was classified as a level 1 provider at the time, and English language evidence was not required’.
The applicant’s student visa application was refused on the basis of cl 500.212. It does not appear that the issue of his English proficiency was considered. While the applicant may not have been required to provide evidence of English language proficiency at the time he lodged his visa application, if the delegate had also or later considered his English was a concern, the delegate was entitled to request evidence of his English language proficiency. The applicant has not provided evidence or submissions that indicate otherwise.
The applicant may genuinely contend that he does not require a higher level of English in terms of his future plans, but that is not the question before the Tribunal.
In this case, the applicant’s evidence at the first hearing revealed concerns with his English level. The applicant was requested by the Tribunal to provide evidence of English language proficiency in accordance with cl 500.213 and the relevant instrument.
The applicant has not provided evidence that he has the level of English language proficiency that meets the requirements specified in the instrument.
Accordingly, the Tribunal is also not satisfied that the applicant meets cl 500.213.
Conclusion
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Date of hearings: 8 May 2025 and 20 June 2025
Representative for the Applicant: Mr Harpal Singh Bajwa (MARN: 0955800)
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.