Sandeep Kaur (Migration)
[2025] ARTA 1969
•15 September 2025
SANDEEP KAUR (MIGRATION) [2025] ARTA 1969 (15 SEPTEMBER 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Miss Sandeep Kaur
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2409925
Tribunal:General Member S Fitzsimons
Place:Melbourne
Date: 15 September 2025
Decision:The decision under review is affirmed.
Statement made on 15 September 2025 at 1:22pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – applied for successive student visas after arriving on visitor visa – enrolment at lower level and different subject area, with similar subjects – limited understanding of course content and relevance to future work – limited research into work sector and general business plans – parents and brother in home country and sister permanent resident in Australia – compliant part-time work – advanced diploma completed and graduate diploma in progress – graduate diploma unlikely to be of additional value – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
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 19 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 26 October 2023. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The applicant applied to the Administrative Appeals Tribunal (AAT) for a review of the delegate’s refusal decision on 30 April 2024.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
CLAIMS AND EVIDENCE
Background
The applicant is a 31-year-old Indian citizen.
On 5 July 2019 she arrived in Australia as the holder of a visitor visa.
In November 2019 she was granted a student visa and in February 2022 she was granted a second student visa.
The applicant completed a General English course in which she was enrolled between 23 September 2019 and 13 December 2019.
On 15 January 2020 the applicant started a Certificate III in Commercial Cookery which she completed on 14 January 2021.
On 5 February 2021 the applicant started a Certificate IV in Commercial Cookery which she completed on 18 June 2021.
On 12 July 2021 the applicant started a Diploma of Hospitality Management which she completed on 2 January 2022.
On 26 February 2022 the applicant started an Advanced Diploma of Hospitality Management which she completed on 29 July 2022.
On 7 September 2022 the applicant started a Diploma of Leadership and Management which she completed on 5 September 2023.
On 25 October 2023 the applicant started an Advanced Diploma of Leadership and Management which she completed on 23 October 2024.
Her third student visa application, which was lodged with the Department in October 2023 and was subsequently refused, is the subject of this decision.
Evidence before the Department
With her student visa application, as well as the information in the visa application form, the applicant provided the delegate with a copy of her Indian passport; a written statement explaining why she was a genuine temporary entrant; evidence of her overseas student health cover; and certificates of completion for the Certificates III and IV in Commercial Cookery; the Diploma and Advanced Diploma of Hospitality Management and the Diploma of Leadership and Management.
In October 2023, when the applicant applied for the student visa that is the subject of this review, it was on the basis of her enrolment in an Advanced Diploma of Leadership and Management, a course that was due to commence in October 2023 and finish in October 2024.
There is no evidence before me that the Department either offered to interview the applicant or requested further information from the applicant throughout the Department’s processing of the applicant’s student visa application.
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). The delegate was not satisfied the applicant had provided evidence of an incentive for her to return to India. The delegate gave significant weight to the applicant’s employment in Australia, which the delegate found may be a financial incentive to remain in Australia, together with the applicant’s prior Australian study and the delegate’s concerns that the applicant’s proposed study would not be of value to her future plans, resulted in the delegate not being satisfied the applicant was a genuine temporary entrant.
Evidence before the Tribunal
Prior to the hearing the applicant or her representative sent the Tribunal:
a)The decision of the delegate;
b)A completed Student Visa information form (SVI form);
c)Her current Indian passport bio-identity page;
d)Her Indian matriculation examination certificate dated March 2009;
e)Her certificates of completion for the Certificates III and IV in Commercial Cookery; the Diploma and Advanced Diploma of Hospitality Management;
f)A Confirmation of Enrolment (CoE) for an Advanced Diploma of Leadership and Management for the period 25 October 2023 to 23 October 2024; and
g)A written statement of the applicant.
The applicant appeared before me on 12 September 2025 to give evidence and present arguments. The applicant was assisted in relation to the review. The person assisting her did not attend the hearing. The hearing was conducted with the assistance of an interpreter in the Punjabi languages.
The hearing was conducted on MS Teams and the internet connection was stable and the audio and video were clear. In considering all of the evidence before me, where relevant, I have referred to both the oral evidence of the applicant at hearing and written evidence in my reasons and findings below.
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 person who satisfies the requirement for entry and stay as a student which is in cl 500.212 of the Regulations.
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.
For the following reasons, the Tribunal affirms the decision under review.
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 Direction also indicates that decision makers should take a reasonable and balanced approach in deciding whether or not the applicant genuinely intends on remaining in Australia temporarily.
Throughout the hearing the applicant gave her evidence in Punjabi but she did speak English from time to time when she felt comfortable to do so.
As discussed below the applicant’s length of time she has been in Australia combined with the current course content being very similar to the previous course completed by the applicant raised significant concerns for me, which were discussed with the applicant at the hearing.
The applicant’s circumstances in her home country
The applicant told me that her parents and brother live in India in a village in the Punjab. She told me she is close to her family and she speaks with them every day.
In 2014 she completed a Bachelor of Arts degree and in 2017 she completed a Master of Political Science, both at Punjab University. In her completed SVI form she stated she did not engage in paid work in India prior to coming to Australia. She has no personal assets in India but her parents own property and land.
She told me at the hearing that she is particularly close to her father and that he has said he will help her financially open her own restaurant when she returns to India. She declared in her SVI form that she had spent a month in India in early 2023 to spend time with her family, which is corroborated by her movement records.
In the hearing I asked the applicant what her plans were when she first came to Australia in 2019, noting that she had arrived as a visitor. She told me that she came here as a tourist and when she arrived she really liked Australia and decided to apply for a student visa because she wanted to gain an international good quality education. In asking her what made her choose cooking and hospitality courses given her arts and political science studies in India, she told me that she had always been interested in cooking and that she would like to start her own restaurant. When I asked her if that was still her plan, she said she wanted to go back to India and work in one of several famous restaurant companies in hotels, either the Taj Hotel group or Oberoi group.
In discussing her future plans to work in the hospitality industry in India, I asked the applicant how she would go about getting a job on her return and she said she would speak with her friends. I asked if those friends currently worked in the hospitality industry and had industry contacts that she could approach and she said no but her friends know people that might help her get a job within the hospitality industry. In response to my further questions about the applicant’s plans to open her own restaurant in India, her answers were vague and amounted to broad general statements about the hospitality industry in India and did not satisfy me that she either had any personal contacts within the hospitality sector or had spent time recently seeking to educate herself about the hospitality sector in India. In circumstances such as this, having been in Australia for six years with her current course is due to finish reasonably soon (April 2026), I would have expected at this stage, if the applicant was genuinely intending on returning to India at the end her current course, she would have been able to explain to me in more detail than she did, the steps she was taking to use her Australian qualifications to help her realise her dream of working in the hospitality sector in India.
There is no evidence before me that there is political or civil unrest in India that would result in the applicant choosing to remain in Australia indefinitely. There is no evidence before me of military commitments that would present as a significant motive not to return and the applicant confirmed this in her completed SVI form provided to the Tribunal prior to the hearing.
I have considered the applicant’s oral and written evidence about her circumstances in India. I accept that the applicant is close to her parents and brother and that she maintains regular contact with them. I accept that they are a reason for her to return to India. However, given the length of time the applicant has been in Australia, that she did not demonstrate to me knowledge and research of the Indian hospitality sector that would be indicative of someone close to finishing their studies in Australia who was planning to leave, I do not consider that the applicant has significant ties to India that would act as a significant incentive for her to return to her home country.
The applicant’s potential circumstances in Australia
At the hearing the applicant told me she is single and that her sister lives in Australia. I asked the applicant about her sister’s circumstances and she told me her sister came to Australia in 2014 as a student. Her sister studied IT and about 8 months ago her sister was granted a permanent visa on the basis of her IT qualifications and experience. The applicant told me she does not live with her sister, as she shares with other people, but that she does spend time with her sister. The applicant told me she has no community ties in Australia.
I asked the applicant to tell me about her employment history in Australia and particularly her current role. She told me that for the past three years she has been working as a kitchen hand in an aged care facility. Her role involves preparing food for the residents and checking their paperwork to ensure their dietary requirements are met. I response to questions from me, she told me her current role will help her with her future career plans in India. When I asked her to explain why, she told me that the way she puts food on the plates of the residents would help her in a future role working in a restaurant in India. When I asked her how much she was earning in her current role, she told me that she likes her current job as she gets paid well, and that the money is good in aged care. She told me even working part-time in compliance with her student visa, she can still earn about $700 per week which is more than what she earned in her previous job in Australia (as a cleaner).
The applicant’s completed SVI form indicates that her previous role as a cleaner between 2020 and 2022 earned her an annual salary of AUD$9,729.00 whereas her current role, which she has had since September 2022 earns her AUD$27,000.00 annually.
Whilst I accept the applicant is single and does not have community ties in Australia, based on the above, in particular her current employment and her family ties via her sister, I find the applicant’s circumstances in Australia weigh against her being a genuine temporary entrant.
The value of the course to the applicant’s future
During the hearing I asked the applicant about the value of her current course to her future career plans. She told me repeatedly that she wanted to work at a “famous restaurant” when she returned to India. When I asked to give me examples of what she meant about a “famous” restaurant, she first told me she could not remember the names of any and then she did tell me the names of two corporate organisations Taj Hotels group and the Oberoi group.
The applicant’s current course, a Graduate Diploma of Management (Learning) contains subjects that are similar and in some cases identical as subjects in the applicant’s Advanced Diploma of Leadership and Management that she completed 12 months ago. For example both courses offer a subject called “Apply critical thinking for complex problem solving” and “Lead and manage organisational change.” During the hearing I explained to the applicant (in a manner that I considered met my obligations under s359A of the Act) that I had reviewed the course information and syllabus of her current course via the education provider’s website, Melbourne Institute Australia[1] and that given the similarities between the two courses, I was confused as to how the current course would equip her with additional knowledge that she did not already have from her previous study. Her response was that she needed to study both cooking and management to be in a position to run her own restaurant.
[1]
I put to the applicant that she had already completed both a Diploma and an Advanced Diploma in Leadership and Management that contained academic content she could use in India to demonstrate leadership skills and that the Graduate Diploma of Management (Learning), her current course, seemed to be in the same vein of her already obtained qualifications. I asked her to give me examples of how the current course would help her in a practical way with her career goals, and her response to me was that because she would have Australian qualifications she would earn more money if she worked at a famous restaurant in India.
During the hearing the applicant did not satisfactorily address my concerns in a way that convinced me that she both understood the content of her current course nor how she would apply that course in a future hospitality environment, whether that be working in a famous restaurant or running her own restaurant in India. For example when I asked her how she would make her own restaurant a reality in India she told me she would start running a catering company and then transition to a restaurant but when I asked how she would make that happen she answered in the broadest terms about using catering experience to then work in her own restaurant. I asked if she had a business plan to set up her own restaurant and she did not directly answer my question, instead saying that she would try and get experience working for someone else and then if she could not get a job she would then start her own restaurant. When I asked where she would set up her restaurant she said in a famous city like Delhi or Kolkata but could not give me detail beyond that. Whilst the applicant told me during the hearing it would cost her between 20 to 25 lakhs to set up her restaurant she did not impress upon me that she had researched and planned her financial approach to establishing her own business in India with any level of detail or planning.
When I asked the applicant to describe to me how the current course would assist with her future plans, she told me that it will teach her how to manage staff and manage marketing and the finances of an organisation. Her response I found to be vague and generalised and did not satisfy me that the current course would add any value to the qualifications she has already obtained in Australia nor would it add any value to her stated intention of either working at a famous restaurant or running her own restaurant.
On the basis of the applicant’s written statement, her completed SVI form and her oral evidence I accept that she has completed all of the courses listed above at [8] to [14].
I accept that the applicant has, in October 2024, completed the course (the Advanced Diploma of Leadership and Management) that was the reason for her student visa application that is the subject of this review. Whilst I also accept that the applicant has been attending classes and maintaining her enrolment in her current course, the Graduate Diploma of Management (Learning), for the above reasons, I am not satisfied that the Graduate Diploma of Management (Learning) will be of any additional value to the applicant’s future plans than the Advanced Diploma of Learning and Management that she already holds.
Based on the above, I not satisfied that the value of the course to the applicant’s future weigh in favour of the applicant being a genuine temporary entrant.
The applicant’s immigration history
The applicant came to Australia as a visitor in 2019. Since that time she has had two student visas granted and had applied for a third, which is the visa application refused that is the subject of this review.
In the hearing I put my concerns to the applicant regarding the length of time she had been living in Australia, particularly combined with the fact that her current course is very similar to the Advanced Diploma of Leadership and Management that she completed in October 2024 and that those two factors may lead me to find that she was using the student visa program to maintain ongoing residency in Australia. In response to my concerns the applicant told me that she said she does intend to leave Australia once her course finishes in April and that her parents are proud of her and that she does not want her parents or her friends to know she had a student visa refusal on her record in Australia.
The length of time the applicant has been in Australia combined with the fact that since September 2022, a period of three years, the applicant has completed two courses and is now undertaking a third, all of which are very similar and all in the areas of Leadership and Management which I consider to be indicative of someone who is using the student program to maintain ongoing residence in Australia and weighs against her being a genuine temporary entrant.
My overall assessment/conclusion regarding whether the applicant genuinely intends on remaining in Australia temporarily
I considering the applicant’s circumstances as a whole, I am mindful that the factors in Direction 108 are a guide and should not be use as a checklist and that I must balance all of the above with other relevant factors. At the end of the hearing when I asked the applicant if she had anything else she wanted to tell me she thanked me for giving her the opportunity to put “her things” to me “very comfortably” which indicated to me that the applicant understood the review process and the purpose of the hearing. I note that the applicant has completed multiple courses in Australia and has maintained her enrolment and has not had any significant gaps of time between her courses. However as explained above, of significant concern to me is the fact that the current course in which the applicant is studying is in the field of leadership and management, a study field in which she has already gained a Diploma and Advanced Diploma and whilst there are some subject differences between the current course and her previous management and learning courses, I am not satisfied that the difference is such that the applicant’s current course will give her any further leadership and management knowledge that she would require to either work in a restaurant in India or run her own restaurant and this combined with the length of time the applicant has been in Australia were of concern to me.
The applicant’s claims to be a genuine student in Australia were unconvincing. Her evidence at the hearing was vague and undetailed. The applicant could not tell me with any conviction as to how she would go about opening her own restaurant in India nor could she tell me with any detail about any of the types of restaurants she may want to work in as an employee nor did she demonstrate any detailed knowledge of those companies. During the hearing she frequently spoke of wanting to work in a “famous restaurant” in India but when I asked her for examples of those famous restaurants she was not sure and took some time to then give me the names of two corporate hospitality groups.
Of significant concern to me was the fact that the applicant is currently undertaking her third course in the same study area as the previous two courses she has completed, where the subjects in each of three courses in some respects are identical. Not only do I accept that the applicant requires three virtually identical qualifications to give her leadership and management skills to assist her with her claimed future career plans, but the applicant could also not tell me with any level of detail in the hearing how in a practical sense, her current course could help her in any different way to the qualifications she has already completed.
The applicant’s oral evidence about the value of her studies to her future plans, the length of time she has been in Australia and her evidence regarding her current employment paying well did not satisfy me that she is a genuine student for temporary stay in Australia.
On the basis of the above, having considered the applicant’s circumstances as a whole, and having weighed the factors set out in Direction 108, I am not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, I am not satisfied that the applicant meets cl 500.212(a).
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.
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.
Dates of hearing: 12 September 2025
Representative for the Applicant: Mrs Neha Singh (MARN: 0901444)
Attachment – Direction No 108
DIRECTION NUMBER 108 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, CLARE O’NEIL, Minister for Home Affairs and Minister for Cyber Security give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated:
Clare O’Neil
Minister for Home Affairs and Minister for Cyber Security
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 - Preliminary
Name of Direction
This Direction is Direction No. 108 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 108.
Commencement
This Direction commences on 23 March 2024.
Revocation
Direction No. 69, given under section 499 of the Act, is revoked.
Interpretation
Act means the Migration Act 1958.
Finally determined has the same meaning as is set out in subsections 5(9) and (9A) of the Act.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant against the genuine temporary entrant criterion for Student visa applications and Student Guardian visa applications (as applicable).
This Direction also applies to members of the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; who review the decisions of primary decision-makers in relation to a Student visa or Student Guardian visa application.
This Direction applies in relation to Student visa applications and Student Guardian visa applications made before 23 March 2024 but not finally determined on that date, including such visa applications that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for a Student visa and seek to satisfy the primary or secondary criteria, or an application for a Student Guardian visa and seek to satisfy the primary criteria.
Note: Direction No. 106 applies in relation to Subclass 500 (Student) visa applications and Student Guardian visa applications made on or after 23 March 2024, including visa applications made on or after that date that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.
Preamble
The Australian Government operates a student visa program that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa program must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a) the applicant’s circumstances; and
b)the applicant’s immigration history; and
c)if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d)any other relevant matter
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a) to d), to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily.
Part 2 – Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a)considering the applicant against all factors specified in this Direction; and
b)considering any other relevant information provided by the applicant (or information otherwise available to the decision maker)
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a)information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b)the applicant or a relative of the applicant has an immigration history of reasonable concern;
c)the applicant intends to study in a field unrelated to their previous studies or employment; and
d)apparent inconsistencies in information provided by the applicant in their Student visa application or Student Guardian visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a)whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b)the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c)economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d)military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e)political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a)The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b)evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c)whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
d)whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e)the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a)whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b)relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c)remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a)Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
iii.b. Previous travels to Australia or other countries, including:
iv.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
v.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
vi.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
vii.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance.
If the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.
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