Tan (Migration) - [2025] ARTA 1469

TAN (MIGRATION) [2025] ARTA 1469 (1 AUGUST 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Jo Phing Tan
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2410067

Tribunal:General Member J Lock
Place:Adelaide
Date: 1 August 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Student (Temporary) (Class TU) visa for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.

Statement made on 01 August 2025 at 1:08pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – good academic progress to benefit future career – land in Malaysia for business development – currently enrolment – close family ties in home country – decision under review remitted
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 106
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 65, 499; Direction No 108
Migration Regulations 1994, Schedule 2 cls 500.212, 500.611
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 17 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 17 October 2023. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied the applicant intended to stay temporarily in Australia.
On 1 May 2024 the applicant applied to the Administrative Appeals Tribunal (AAT) for a review of the delegate’s decision.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), 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.
The applicant was assisted in relation to the review by her representative, Ms Liu.
The applicant provided further evidence to the Tribunal which is discussed in the reasons below. After a consideration of all the evidence now before the Tribunal, the Tribunal is satisfied that the criterion in cl 500.212 of the Regulations is met.
The Tribunal has had regard to the circumstances in which it may reach its decision without holding a hearing as set out in s 106(3) on the Administrative Review Tribunal Act 2024 (Cth) (the ART Act). Noting that the Minister for Immigration and Citizenship (the Minister) does not participate in these proceedings and the Tribunal’s decision is wholly in favour of the first applicant, the Tribunal is satisfied the decision can be made without holding a hearing in the proceeding.
For the following reasons, the Tribunal sets aside the decisions under review and remits the visa applications for reconsideration.
BACKGROUND
The applicant is a 24 year old woman who was born in Langkawi, Malaysia. She is a Malaysian citizen. She completed high school in Langkawi in 2015. Following school, the applicant worked as a sales promoter and sales representative. The applicant’s father lives in Malaysia and her mother unfortunately passed away in 2019. The applicant has one sister and a niece who live in Malaysia and one sister who lives in Australia. The applicant visited Australia for approximately 3 months in 2018.
In 2020, during the COVID pandemic, the applicant undertook a Diploma of Business by correspondence and graduated with a Diploma of Business from the International Association of Accounting Professionals (IAAP) in the United Kingdom in June 2021. Following this the applicant worked as a general clerk until leaving for Australia in August 2023.
On 30 August 2023 the applicant arrived in Australia on a visitor visa (Subclass FA-600).On 17 October 2023 she lodged an application for a student visa (Subclass TU-500). The applicant was granted a Bridging Visa A (Sublcass WA-010) on 17 October 2023 with a condition that the applicant not work in Australia. The applicant has not returned to Malaysia since arriving in Australia.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
The Department of Immigration and Citizenship (formerly the Department of Home Affairs) (the Department) provided the Tribunal with a copy of the applicant’s file, which contained:
a.the applicant’s student visa application lodged on 17 October 2023 with attachments that included copies of the applicant’s birth certificate and identity documents, a statement addressing the genuine temporary entry requirement (GTE statement) and the applicants bank records
b.the delegate’s decision dated 17 April 2024.
Evidence before the Tribunal
The applicant provided the following documents to the Tribunal:
a.application for review filed on 1 May 2024;
b.applicant’s academic records for a Certificate III in Commercial Cookery issued 20 September 2024, Certificate IV in Kitchen Management issued 9 May 2025;
c.Student Visa Information Form (SVI form) signed by the applicant on 3 July 2025;
d.Confirmation of enrolment Certificate III in Commercial Cookery for 9 October 2023 – 6 October 2024
e.Enrolment verification from Oak Leaf Education Institute dated 23 July 2025 confirming the applicant’s enrolment in:
i.Certificate III Commercial Cookery,
ii.Certificate IV in Kitchen Management, and
iii.Diploma of Hospitality Management
f.Submissions from the applicant’s representative dated 25 July 2025 attaching:
i.Certificate III in Commercial Cookery – graduate certificate and academic transcript
ii.Certificate IV in Kitchen Management – graduate certificate and academic transcript
iii.Certificate of Enrolment for Diploma of Hospitality Management for 7 April 2025 to 5 October 2025
iv.Letter from Oak Leaf Education Institute dated confirming the applicant’s course completion and attendance
g.Interim academic transcript from Oak Leaf Education Institute dated 30 July 2025
The Tribunal obtained from the Department a copy of the applicant’s PRISMS record[1] confirming the applicant’s enrolment status and records confirming the applicant’s entry to and exit from Australia.
[1] PRISMS is a computer system of the Department of Education, Skills and Employment and is used by the Department of Home Affairs as evidence of enrolment for the purposes of assessing the grant of student visas..
This evidence is discussed in detail in the sections below, to the extent that it is relevant to the relevant criteria for a student visa.
Relevant statutory provisions and Ministerial Directions
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 genuinely intends to stay temporarily in Australia.
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.
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.
Does the applicant intend genuinely to stay in Australia temporarily?
Circumstances in Malaysia
In the applicant’s GTE statement submitted with her student visa application, the applicant stated her intention to study Certificate III Commercial Cookery, Certificate IV in Kitchen Management and Diploma of Hospitality Management at Oak Leaf Education Institute in Victoria. She recounted her experiences in childhood of helping her mother in a Malaysian snack bar she operated in Langkawi and the formative impact this had on her passion for cooking. She spoke of her profound grief at the loss of her mother in 2019. In 2020 she studied for a Diploma of Business by correspondence and graduated in 2021. Following this she obtained a role of general clerk in an importing and distribution company in Langkawi. She stated that she felt dissatisfied with the role and felt a desire to pursue her passion for cookery, with a goal of opening a Western-style restaurant in Langkawi. The applicant spoke of her firm commitment to pursue culinary education in Australia. The applicant stated that she has the support of her family in pursuing a goal to become a chef. She stated the sister who lives in Australia would provide her with financial assistance and contribute to her tuition and living expenses.
In her SVI form signed on 3 July 2025, the applicant stated her reasons for choosing her course in Australia were its practical training and training aligned with international standards. The Tribunal acknowledges the applicant has not provided any evidence of alternative courses that she could have undertaken in Malaysia and why she has not pursued these options. The Tribunal accepts the applicant’s reasons for wishing to study in Australia rather than Malaysia. The Tribunal finds it reasonable, given the recent loss of her mother, that the applicant would seek to study in Australia where she had the support of her older sister while she studied.
The applicant stated in the GTE statement and SVI form that her mother left the family a block of land in Perlis, Malaysia when she passed away and the applicant has a dream to build a restaurant on that land. She estimates the value of the land is $195,000AUD. She recorded that she owns a vehicle in Malaysia with an estimated value of $25,000. The applicant had a consistent employment history in Malaysia and, as discussed below, anticipates being able to earn a higher income with the qualifications she has attained in Australia. The Tribunal finds the applicant’s economic circumstances in Malaysia are not a disincentive to her returning to live in Malaysia.
The applicant recorded in the SVI form that her father and niece visited Australia from Malaysia in February 2025. She states she is close to her father, niece and older sister in Malaysia. She talks with her father daily and regularly contacts her older sister in Malaysia. She states she is close with all her family members in Malaysia. The Tribunal accepts this as evidence of the applicant’s close family ties in Malaysia, which serve as a significant incentive for her to return to Malaysia.
The applicant declared in the SVI form no concerns about military service commitments or political or civil unrest in Malaysia. The Tribunal is satisfied that these factors would not act as a disincentive for her to return to Malaysia.
Circumstances in Australia
In her GTE statement, the applicant spoke of relishing her visit to Australia in 2018 and the experience she gained of Australian culture and culinary habits. The applicant has been studying in Australia since 2023. The Tribunal is satisfied the applicant now has sufficient knowledge of living in Australia and the course she is studying.
The delegate expressed concern in the decision refusing to grant the applicant a student visa, that the applicant’s proposal to study at a diploma level in Australia represented a step-down from the applicant’s most recent education in the United Kingdom. The delegate had regard to the applicant graduating from the International Association of Accounting Professional with a Diploma of Business Studies. In submissions dated 25 July 2025, the applicant’s representative submitted that the applicant’s current course is a packaged programme leading to a Diploma of Hospitality Management which is at a level equivalent to her earlier studies. They further submitted that the diploma was completed via correspondence during the COVID-19 pandemic. The Tribunal accepts the submissions put on behalf of the applicant that the applicant’s current course does not represent an educational regression but instead represents qualifications that align with the applicant’s current goal to establish a restaurant in Malaysia.
The applicant has been living with her older sister, who lives in Australia and provides her with financial support. The Tribunal acknowledges this is a significant family tie in Australia and may be a disincentive for the applicant to return to Malaysia.
The applicant has provided copies of her the Certificate III in Commercial Cookery and Certificate IV in Kitchen Management. The PRISMS record confirms the applicant has completed these courses. The Tribunal is satisfied the applicant has completed these courses.
The applicant has provided a Confirmation of Enrolment for the Diploma of Hospitality Management, a letter from Oak Leaf Education Institute dated 23 July 2025 confirming her enrolment in the Diploma and her 100% attendance rate in the course, and an interim academic record that shows successful completion of one subject in the course, with 4 subjects yet to be completed. The PRISMS record confirms the applicant is currently enrolled in the Diploma of Hospitality Management with a course completion date of 5 October 2025. The Tribunal is satisfied that the applicant is currently enrolled in the Diploma of Hospitality and is progressing in her studies. The Tribunal is satisfied the applicant is a genuine student.
Future plans
In the SVI form the applicant stated a hope to gain experience in reputable restaurants in Australia. This would be subject to the applicant obtaining the necessary visa to enable her to stay and gain work experience. This hope is not inconsistent with an intention to remain in Australia temporarily. The applicant states her intention is to return to Malaysia and open a restaurant built on land left to the family by her mother.
The applicant stated in the SVI form that the course she is undertaking will assist her to achieve that goal. The applicant envisaged earning approximately 8,000 – 10,000RM / month initially ($2,900 - $3,626AUD/month)[2] as she gained experience in her trade. However, she states a confidence that once she established her own restaurant or café her earnings could be substantially higher. The Tribunal notes the applicant declared in the SVI form that she was earning approximately $516AUD / month in Malaysia as a general clerk prior to coming to Australia. On the applicant’s evidence, it appears she will be able to earn significantly more on return to Malaysia with her qualifications than what she was able to earn previously. The Tribunal notes that the applicant’s potential earnings in Malaysia are likely to be significantly less than her potential earnings in Australia, however, this would be the case for many students from overseas. The relative difference in cost of living between Australian and Malaysia also needs to be considered. The Tribunal accepts that the applicant owns a motor vehicle in Malaysia and her family own a block of land bequeathed to them by her mother. The Tribunal finds the applicant’s economic circumstances in Malaysia are not a disincentive to her returning to live in Malaysia.
[2] The Tribunal has applied the current exchange rate of the Reserve Bank of Australia (RBA) as at 30 July 2025 to convert these amounts, specifically $1 Australian dollar (AUD) being worth 2.7577 Malaysian Ringgit (RM): Exchange Rates | RBA.
There is no evidence before the Tribunal that the applicant is using the student visa to circumvent the intentions of the migration programme or to maintain on-going residence in Australia. The applicant has only been in Australia since August 2023 and has been engaged in full-time study consistently since October 2023.
Immigration history
The conditions of the applicant’s Bridging Visa A did not permit her to work. The applicant stated in the SVI FORM that she has not worked in Australia. The applicant’s representative has made submissions to the Tribunal stating the applicant has not worked in Australia. There is no evidence before the Tribunal that the applicant has not complied with visa conditions while in Austraila. The Tribunal is satisfied that the applicant has complied with the conditions of her visas while in Australia.
Other relevant factors
In submissions dated 25 July 2025, the applicant’s representative submitted that a key aspect of the applicant’s study experience has been impacted by the no work condition (condition 8101) placed on the applicant’s Bridging Visa A. It is submitted the effect of this is the applicant has been unable to engage in part-time work in hospitality and consolidate the skills learned in class, observe professional kitchen dynamics and gain the confidence necessary to operate a business in the future.
While the Tribunal notes that the applicant chose the course she did because of the practical training it offered, it accepts that the applicant’s desire to obtain part-time employment in the hospitality industry to gain relevant experience before returning to Malaysia reflects a genuine intention to apply the knowledge she has gained from the Diploma of Hospitality Management and pursue a career in hospitality. The Tribunal is satisfied that this is consistent with a genuine intention to remain in Australia temporarily.

There is no other information provided by the applicant or available to the Tribunal that is relevant to the assessment of the applicant’s intention to stay temporarily in Australia.
Conclusion on cl 500.212(a)
Having considered all of the above factors, and the applicant’s intention as stated in her GTE statement and the SVI form, the Tribunal is satisfied the applicant genuinely intends to return to Malaysia.
On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).
Does the applicant intend to comply with visa conditions?
For the applicant to meet cl 500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl 500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). For visa applications made on or after 1 July 2022, condition 8208 (no critical technology related study without approval) must also be imposed. The following conditions may also be imposed in some cases (cl 500.611(2)): 8535 (limited visa entitlement), 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).
The evidence before the Tribunal indicates that the applicant has complied with the conditions of the visas she has held to date and has been continuously enrolled. There is no evidence before the Tribunal that she has breached any of the above conditions since her arrive in Australia in 2023.
On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl 500.212(b).
Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?
For the applicant to meet cl 500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl 500.212(a) and (b)). The Tribunal finds there are no other matters relevant to the assessment of this criteria.
Conclusion on cl 500.212
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): No hearing held
Representative for the Applicant: Ms Kathy Xiao Liu (MARN: 0958014)
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.