RODRIGUEZ BALLESTEROS (Migration) - [2025] ARTA 894

RODRIGUEZ BALLESTEROS (MIGRATION) [2025] ARTA 894 (7 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Carlos Andres RODRIGUEZ BALLESTEROS
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2312585

Tribunal: General MemberJ Le Vay
Place:Sydney
Date: 7 February 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 07 February 2025 at 4:26pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – good academic progress to benefit future career – career change – plans to expand family business – family and community ties in home country – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 499; Direction No 108
Migration Regulations 1994, Schedule 2 cls 500.212, 500.611
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 2 August 2023 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 is a 35-year-old Colombian citizen.
The applicant applied for the visa on 2 June 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 they were not satisfied that the applicant intended genuinely to stay temporarily in Australia.
The applicant appeared before the Tribunal on 5 February 2025 by video conference to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.
The applicant was assisted in relation to the review.
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 is a genuine applicant for entry and stay as a student as required by 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.
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.
Student visa application
The applicant provided the following documentation to the Department:
·Completed Application for a Student Visa form
·Curriculum Vitae
·Health insurance certificate
·Letter from applicant dated 20 May 2023
·Diploma certificate: Specialist in Community Intervention dated 12 April 2019 and translation
·Degree certificate: Specialist in Community Intervention dated 12 April 2019 and translation
·Passport
·Certificate of Enrolment (COE): General English (Beginners to Advanced) commencing 31 October 2022
According to the documentation, the applicant completed a degree in psychology in 2013 in Colombia and then worked as psychologist in various capacities until leaving Colombia for Australia in October 2022. He obtained the postgraduate qualifications in Specialist in Community Intervention in 2019. He also undertook training in risk management and disaster assistance in 2019.
The applicant entered Australia on a student visa on 22 October 2022.
According to Provider Registration and International Student Management System (PRISMS)[1] records the applicant completed a course in General English (Beginners to Advanced) from October 2022 to May 2023.
[1] PRISMS is a secure database owned and maintained by the Department of Education, Skills and Employment for the purposes of administering the Education Services for Overseas Students Act 2000 (ESOS Act).
On arriving in Australia, he commenced work for Olive and Angelo Italian restaurant as a kitchenhand.
The applicant applied for the student visa – the refusal of which is the subject of this review – on 2 June 2023. According to PRISMS records he was enrolled on the same English course as above which was due to commence on 26 June 2023 but did not commence it.
In his letter the applicant stated that he wished to change career and study cooking in Australia for which he needed to study English. He identified a Certificate IV in Kitchen Management and a Diploma of Hospitality Management. He stated that it was his intention to return to Colombia on completing his studies and open a restaurant there.
The application was refused on 2 August 2023. The delegate was not satisfied that the applicant had demonstrated that the proposed diploma would be of greater benefit to him – in terms of future employment and increased remuneration – than the work experience he already had. Neither had the applicant demonstrated any research in relation to establishing a restaurant in Colombia.
According to movement records the applicant was granted a bridging visa on 2 June 2023, which is still current.
Review application
The applicant applied to the AAT for review on 19 August 2023 and attached the decision of the delegate.
According to PRISMS records the applicant completed a course a General English Program from October 2023 to January 2024. He is enrolled in Certificate IV in Kitchen Management which commenced in March 2024 and is due to end in October 2025. He is also enrolled in a Diploma of Hospital Management which is due to run from October 2025 to May 2026. The Tribunal is satisfied that the applicant is enrolled in a course of study.
The applicant provided the following further documentation to the Tribunal:
- Completed ‘Request for Student Visa Information Form’ (RSVIF) as requested by the Tribunal.
·Submission with appendices from the representative dated 25 November 2024.
·COE – Certificate IV in Kitchen Management from March 2024 to October 2025.
·COE – Diploma in Hospitality Management from October 2025 to May 2026.
·Letter from Greenwich College dated 13 November 2024 confirming the applicant’s enrolment in the above courses.
·Screenshots of Greenwich College ‘lecturers’ feedbacks’ indicating generally positive feedback.
·Record of results issued 3 February 2025 by Greenwich College, Certificate IV in Kitchen Management, indicating passes in modules completed to date.
·Letter from Lina Maria Quinto Cituentes dated 20 November 2024, who identifies herself as a course mate of the applicant and describes him in positive terms, including his cooking skills.
·Payslips issued by Olive and Angelo for periods in November 2022, September 2024, and November 2024.
·Certificate of business registration issued 30 June 2023 and translation. According to the business registration certificate Evangelina Ballesteros Rueda registered the business El Amarillo in January 2020. The registration was renewed in June 2023.
·Statutory declaration by Evangelina Ballesteros Rueda date 19 November 2024. Ms Ballesteros Rueda (applicant’s mother) identifies herself as the applicant’s mother. She states that the family has a business distributing preserved meats and wishes to expand the business by producing artisanal meat and cheese goods and establishing its own restaurant that would make use of the applicant’s study in Australia. She states that the applicant’s education is key to the transformation of the business.
·Business plan for El Amarillo.
In the RSVIF the applicant states additionally that:
·He chose to study at Greenwich College because of its good reputation and the content of the courses which combine culinary and business management skills. Courses in Colombia are not integrated in this way, and are longer and therefore more expensive.
·He is in contact with his mother and grandparents in Columbia.
·He has strong community ties in Colombia through his voluntary work for the Colombian Civil Defence.
·He will return to Colombia to expand the family business and open a restaurant on completing the Certificate IV in Kitchen Management and the Diploma of Hospitality Management, which will equip him with the culinary and business skills needed to run a restaurant.
·He expects to generate significant profits by expanding the family business and opening a restaurant.
The representative addresses the factors specified in Direction No 108 in his written submissions. His submissions include the following:
·Renumeration as a psychologist in Colombia is low and the applicant has the potential to increase his income by opening a restaurant.
·The applicant’s passion for cooking arose from his mother’s background in ‘European gastronomy’.
·The applicant maintains strong connections with family in Colombia, especially his mother, and has community ties demonstrated by his voluntary work for the Colombian Civil Defence.
·His partner will return to Colombia with him and has secured a permanent position at an architectural firm where she works.
·His studies in Australia will provide him with the culinary and business skills needed to manage a restaurant. Courses in Australia, unlike those in Colombia, integrate both skills, and are shorter (and therefore cheaper).
·He forecasts a significant increase in income which will enable him to recover the costs of his studies in Australia within a few years.
·He has been praised by his employer – the restaurant Olive and Angelo – and has a high attendance rate and is performing well in his current studies: Certificate IV in Kitchen Management.
Hearing
The applicant gave his evidence in English. The interpreter stood by in case required.
The Tribunal noted that the issue before it is whether the applicant meets the genuine temporary entrant criterion as per cl 500.212. It outlined these requirements and Direction No.108.
The applicant’s oral evidence was consistent with the written material.
He told the Tribunal that he continues to be in frequent contact with his mother in Colombia, and is also in contact with his half-sister and grandparents there.
His mother is running the business, El Amarillo, which he intends to join and to expand on returning to Colombia. He described the business, which is a shop selling food items, including those that his mother makes.
He confirmed that he travelled to Australia with his de factor partner: Andrea Fabiola BECERRA PEREZ, who is also a Colombian citizen. She also entered as a student and has a separate matter before the Tribunal in relation to the refusal of her student visa application lodged in Australia.[2] The applicant stated that it is his intention to return to Colombia with his partner once their courses end. He said that his partner’s course ends in January 2026, before his in May 2026, and that she would return to Colombia before him if necessary.
[2] Tribunal number: 2312587
The applicant confirmed his educational and employment history in Colombia.
He said that he came to Australia to learn English, which he believed would help him professionally. He had tried to learn English in Colombia without success and believed that he needed to learn it in an English-speaking country. He confirmed completing the two English courses in Australia. Another provider cancelled his enrolment in an English course after his visa application was refused (which is confirmed by PRISMS records).
He did not intend to study cookery/hospitality in Australia until after he arrived. He said he was already downhearted about his low income in Colombia as a psychologist and was considering alternative professions. He said he earned there the equivalent of about $850 a month. He had always enjoyed cooking but had not previously considered it as a career. After commencing work at Olive and Angelo and enjoying the work there he reconsidered his career pathway. He confirmed that he continues to work for Olive and Angelo. He works as a kitchenhand but has increasingly been trained to prepare dishes.
The Tribunal indicated that it would need to consider whether the change of career is reasonable. The applicant repeated his enthusiasm for cooking, emphasised his desire to work in partnership with his mother, and his belief that he can earn more money with the proposed business than he can as a psychologist.
He confirmed his current study on the kitchen management course and his enrolment in the hospitality management course. He described the module he is currently studying and how the kitchen management course is relevant to his proposed business in Colombia. He also described the content of the hospitality management course and how it is relevant to his proposed business. He praised the quality of the college and courses.
He said he is paying his course fees from his employment at the restaurant, and also saving as much as he can so he can take savings back to Colombia and invest it in the proposed business. He currently has $11,000 in savings.
The Tribunal noted the high cost of studying in Australia and asked why he did not study in Colombia. The applicant gave evidence consistent with the written material: that courses were shorter in Australia and therefore cheaper, and combined culinary and business skills. He also emphasised the importance of working in a multicultural context, which will enable him to offer different types of cuisine, not just traditional Colombian food, which is important to maintain custom.
The Tribunal discussed information, which it has identified, that the average salary in Colombia for a psychologist is over $3000 per month.[3] The representative disagreed that this is the average salary and pointed to a website which would indicate otherwise. The Tribunal checked this website after the hearing, which indicates that the average salary for a psychologist is lower ($2,285) but still significantly higher than that earned by the applicant.[4] The Tribunal notes the representative’s oral submission that salaries for psychologists vary significantly, and that the applicant did not do the type of work as a psychologist that commanded a salary in the higher range, and also information provided in his written submissions.
[3]
[4]
The applicant confirmed his plan to expand his mother’s business by opening a restaurant. In addition to $10,000 he aims to invest from his savings, the current business will invest $5000. The business will need another $25,000 which it would obtain either from a local bank which offers a low interest rate, or from the Colombian government which provides loans to small businesses. He said it was too early to approach a bank or the government but that he knew people who had obtained loans in this way.
The Tribunal discussed his potential business income in Colombia as a restaurant owner. The applicant contended that he would receive an annual salary from the business as a chef of $12,000. He contends further that the business would receive an income of $129,000 and would make a profit of $86,000 after expenses in the first year, from which $36,000 would be invested in the business and the remainder shared equally with his mother: so that his share would be $25,000.
The Tribunal considered the business plan. The Tribunal questioned the applicant’s assertion that the business income would be $129,000 in the first year and asked how he arrived at this figure. He replied that he already had data from his mother’s existing business. The proposed business would take online orders in addition to the restaurant, and he aimed to establish a brand. He also said that 1.1 million tourists pass through his home city annually.
The Tribunal indicated that his projected income is much higher than the average salary for a restaurant owner which the Tribunal had identified: about $10,000.[5] The representative indicated that there is information that restaurant managers earn more than this. The Tribunal has identified information after the hearing that indicates that a restaurant and food service manager earns on average about $21,000 annually in Colombia.[6]
[5]
[6]
The Tribunal indicated its concern that higher salaries in Australia relative to those in Colombia would provide an incentive to remain in Australia. The applicant consistently stated his desire to return to Colombia so that he could work in partnership with his mother. He said that 50% of his desire to return to Colombia was simply to be with his family, especially his mother and his grandparents who are in their 90s. The representative also submitted that the cost of living is about a third of the cost in Australia.
Does the applicant intend genuinely to stay in Australia temporarily?
The Tribunal has had regard to the factors specified in Direction No 108.

The Tribunal found the applicant to be genuine in his enthusiasm for his change in career and his desire to return to Colombia to form a partnership with his mother and open a restaurant. The Tribunal weighs in his favour the completion of the two English courses (and his ability to give his oral evidence in English – his grasp of which he said was very limited when he arrived in Australia) – and his good progress in his current studies. He spoke knowledgeably about his current studies and the proposed hospitality management course.
The applicant spoke in some detail about his business plan. He has provided detailed and consistent oral and written evidence as to his future employment plans and the value of studying in Australia to his future. The Tribunal has some concern that the applicant’s income from the business will not be as much as he believes but accepts that the applicant has a genuine desire to run a restaurant in Colombia – even if he could work in a similar role in Australia on completing his study – and believes that he can earn more from the business in Colombia than he can as a psychologist.
The Tribunal finds that the applicant provided a reasonable explanation for his proposed career change. It notes that the applicant has been in relevant employment since arriving in Australia and has indicated consistently to the Department his desire to learn English in order to support his career change and then to attend courses relevant to his proposed business in Colombia.
The Tribunal found the applicant’s desire to join his family in Colombia to be genuine.
The Tribunal also found that the applicant’s reason to study in Australia rather than in Colombia to be reasonable.
The Tribunal notes the high cost of studying in Australia but accepts that the applicant is financing it through his work in Australia and that he believes that it is a good investment for his proposed business in Colombia.
In a separate decision the Tribunal has remitted the applicant’s partner’s matter. There is nothing to indicate that the applicant has ties with Australia which would provide a strong incentive to remain in Australia. It accepts his intention to return to Colombia with his partner after she has also completed her studies as genuine. The Tribunal notes that according to information provided by his partner in her matter, her studies are due end in April 2026.
There is no information to indicate that the applicant has ties in Australia which would present a strong incentive to remain in Australia.
There is no evidence before the Tribunal that political and civil unrest would result in the applicant choosing to remain in Australia indefinitely. There is no evidence before the Tribunal of military commitments that would present as a significant motive not to return.
The Tribunal weighs favourably that the applicant entered Australia on a student visa and has been studying consistently since then.
The Tribunal assesses that the applicant’s circumstances do not indicate that the student visa is intended primarily for residence in Australia.
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.
There is no information before the Tribunal to indicate that the applicant does not intend to comply with any conditions subject to which the visa is granted.
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 has not identified any other relevant matter to consider.
Conclusion
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): 5 February 2025
Representative for the Applicant: Mr Juan Carlos Bedoya Leal (MARN: 2117696)
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.