Wilianto (Migration) - [2025] ARTA 404

WILIANTO (MIGRATION) [2025] ARTA 404 (9 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Wilianto
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2318329

Tribunal:General Member G Deal
Place:Melbourne
Date: 9 March 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 09 March 2025 at 3:50pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – the applicant’s family in Indonesia, family business, and church community may act as some incentive for his return to Indonesia – applicant successfully progressed in his studies – satisfied that the applicant is a genuine applicant for entry and stay as a student – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 500.212
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 7 November 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 applied for the visa on 26 August 2023 (Application). 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. At the primary stage the applicant also provided the Department with documents in relation to his health insurance cover, a copy of his passport and a Genuine Temporary Entrant letter (GTE Statement).
The delegate 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 noted the applicant arrived in Australia on a visitor visa, that the applicant’s employment in Australia was a significant incentive to remain in Australia, had concerns about the value of the Australian courses to his future, and found that the applicant was using the Student visa as a way to prolong his stay in Australia and was not satisfied the applicant intended genuinely to stay temporarily in Australia.
On 13 November 2023 the applicant lodged an ‘Application for review’ in respect of the delegate’s decision with the then Administrative Appeals Tribunal (AAT), including a copy of the delegate’s decision refusing the visa.
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. In addition, under the Transitional Act, anything validly done in, or in relation to, a proceeding before transition continues to have effect and is taken to have been validly done under the new law for the purposes of the proceeding after transition.
On 20 January 2025, the Tribunal wrote to the applicant requesting additional information and asking the applicant to complete and return a hyperlinked ‘Student Visa Information’ form (SVI), among other things.
On 31 January 2025, the applicant provided the signed and completed SVI to the Tribunal. At the review stage the applicant also provided a Certificate of Completion in relation to his Certificate IV in Marketing and Communication dated 25 August 2024.
In February 2025 the applicant provided the Tribunal with copes of an Indonesian Certificate of Business Licence dated 13 June 2023, and Confirmation of Enrolments (CoE) showing he was enrolled in the Certificate IV in Marketing and Communication, Diploma of Marketing and Communication, and an Advanced Diploma of Marketing and Communication.
The applicant appeared before the Tribunal on 7 March 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
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 500.212(a).
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.
Based on the applicant’s Application and Indonesian passport I accept he is in his mid-20s, a citizen of Indonesia, and from Indonesia. In his Application he said he was never married. He has consistently said his parents and adult siblings live in Indonesia, which I accept as plausible. In the SVI he said the last time he saw them was before he left for Australia in June 2023, but that he remained in regular contact by phone and video calls. He also said he had a Christian church and community in Indonesia that he was involved with in Indonesia. At hearing he said he lived with his parents and siblings in the family home before he left for Australia. He also said his sister recently travelled to Australia to study and that his mother was visiting, but his mother was only on a visitor visa and would be returning to Indonesia soon. When asked why his mother was in Australia, the applicant disclosed for the first time that he had an aunt in Australia, and said his aunt had just had a child and so his mother travelled to Australia to help her. On the broadly consistent evidence and spontaneous and detailed oral evidence at hearing I accept the applicant’s parents and siblings reside in Indonesia in the family home where he normally lives, his aunt is in Australia, his sister recently travelled to Australia to study, and his mother is visiting but will return to Indonesia shortly.
In terms of assets in Indonesia, in the SVI the applicant said his parents owned a motorbike workshop in Indonesia with a value of A$15,600, and a house with a value of A$108,000. At the review stage he provided an Indonesian Certificate of Business Licence dated 13 June 2023, which showed his father as the registered officer in respect of motorbike reparation and maintenance business. At hearing he said his father also had a workshop or workshops, several vehicles, and referred to the business licence previously submitted. At hearing I noted the licence in relation to his father’s business was dated in 2023 and asked if the business were only established then. The applicant claimed the business operated prior to this date and provided an explanation for why the document was dated in 2023, although this was not persuasive. He seemed to say that there were different levels of registration, and they only previously had regional registration (although I note he has not provided anything to evidence this), the licence provided to the Tribunal was at another level, that they did not have this previously because they relied on the regional registration in the past. He seemed to state that they had to obtain licence he submitted because of a system change or new law. When I asked if what he was saying was that a new law in 2023 meant they had to also obtain the licence that was submitted to the Tribunal and that was why it was dated in 2023 the applicant said that was not the case, and that the law applied prior to this. He then said that the paperwork and licencing was something his parents handled, and that they understood this, indicating he did not understand this aspect of the business and could not explain why it was only dated in 2023. At hearing I noted that while his parents and adult siblings may live in Indonesia, may have a house they live in, a business they run to support themselves, and he may have a church, I was concerned that as a young man who may naturally want more independence from his childhood family, his personal ties to Indonesia may not act as a strong incentive for his return. The applicant said he was the oldest, his parents had expectations of him in terms of taking over the family business, and that the family business was doing well. He said that when he returned, he would be living in the family home with his parents, because the business was located nearby. While I have some concerns about the documentary evidence, based on the broadly consistent claims, and detail provided, I am willing to accept the applicant’s family have a family business in Indonesia. I consider the presence of the applicant’s family in Indonesia, family business, and church community may act as some incentive for his return to Indonesia.
In the Application and SVI the applicant said he completed year 12 in Indonesia in 2017, and then worked as an administrative supervisor from 2017 until 2023 in Indonesia which he reiterated in the GTE Statement. He said in his SVI that in this role he earnt $14,400 annually. At hearing he advised that this role was for a Pharmaceutical company and that he worked in the role for about 5 years which is consistent with his earlier evidence and I accept this.
In the SVI the applicant said he first arrived in Australia on a visitor visa in August 2023. In the GTE Statement the applicant said he had enrolled in the Certificate IV, Diploma, and Advanced Diploma of Marketing and Communication. In the SVI at the review stage he said he had completed the Certificate IV in August 2024 (and provided a Certificate of Completion to evidence this), was now studying the Diploma (set to complete in September 2025) and would be commencing the Advance Diploma in October 2015 (and finishing it in October 2026). The CoEs provided by the applicant at the review stage show he is enrolled in a Certificate IV in Marketing and Communication (set to end in August 2024), Diploma of Marketing and Commission (set to end in September 2025) and an Advanced Diploma of Marketing and Communication (set to end in October 2026).
In the SVI in addition to stating he searched the internet to find his current education provider, he also said he asked friends. He said the course would improve his digital marketing and communication skills (such as writing marketing plans and so forth) allowing him to effectively interact with customers and work in teams. In the GTE Statement the applicant said he decided to study in Australia because the course offered a practical understanding of marketing communication planning, marketing audit, financial management, and customer relationship management. He said he searched courses and chose the one he landed on because the trainers were experienced. At hearing he said he spent about 2 months researching before deciding on the course, and asked others about the different colleges, and thought that it would be worth studying in Australia, especially as he was still young. Then he discussed his hope to study with his parents and sold them the idea by promising he would return to Indonesia to work in the family business afterwards. He said he had no intention of remaining in Australia after completing his studies and that he had promised his parents this. In the SVI he said that there were similar courses on offer in Indonesia, but they did not include the component on communication, indicating that was why he preferred to course offered in Australia. In this regard at hearing he said that while there were similar courses in Indonesia, he decided the quality of education was better in Australia and that given the option of a better-quality education he thought he should choose to study in Australia instead. He also said that by studying in Australia he could improve on his English which was important for communication, especially if the family business went international, and that he would not get opportunities to improve his English if he were to study a course in Indonesia. In the GTE Statement he said that in undertaking the Certificate IV he had already learnt presentation skills, marketing, and analysing customer behaviour, among other things. He believed that as he progressed through the proposed courses he would learn how to identify and evaluate marketing opportunities, design and develop marketing communication plans, develop social media engagement plans, and create multiplatform advertisements for mass media, among other things. At hearing he said he was currently undertaking a unit about analysing the target market, attended the course for a full day on Monday and Tuesday and half a day on Wednesday. He said he did not miss classes, only when sicks, and that that was because his parents had certain expectations of him. He said he would finish his course in October 2026 (which he said was when the Advanced Diploma ended) and then return to Indonesia.
In the Application and GTE Statement the applicant said that after completing his studies in Australia he would join and expand his family’s motorbike repair business in Indonesia and would expand the services on offer. He said motorbikes were a huge business in Indonesia as every family had at least one. He said he had told his parents how sales now involved more than direct sales, and that modern marketing or digital marketing was increasingly important in the retail sector. After hearing his explanation his parents agreed to support him in his studies. He said he wanted to expand the family business and make it more successful in the national market. His parents would handle business operations and finance, and he would focus on marketing, create social media profiles regularly post engaging content, offer referral incentives, participate in local events, collaborate with other businesses, and focus on delivering high-quality repairs and excellent customer service which he reiterated in the SVI. He said he believed his studies in Australia could bring the family business in Indonesia success and that he could expand their profits. While he was previously working in administration in the Pharmaceutical area, I note he did not appear to progress in this role in the 5 years that he worked in this role, and that the change in direction in all the circumstances appears reasonable. On the evidence I am satisfied he has provided reasonable reasons for not undertaking his studies in Indonesia. I consider he has demonstrated a realistic level of knowledge in relation to his studies, that the courses are consistent with his current level of education, are a logical progression, and that he has demonstrated how they might assist him in improving his career prospects and remuneration.
In the Application the applicant said he had $35,000 in his Commonwealth Bank account to meet his costs while studying in Australia. In the GTE Statement he said that his parents supported him in his studies in Australia. In the SVI the applicant provided a breakdown of his living expenses in Australia. He also said he had joined a Christian church and community in Australia. As noted above, at hearing disclosed he had an aunt who was in Australia and that he lived with her. He said his aunt had been in Australia for a long time, had a business in Australia, and was a permanent resident. At hearing I noted he attended his course 2.5 days a week and asked what he did in his spare time. He said in addition to homework, he would hang out with friends and family, would go with his aunt, or visit popular tourist attractions in Australia. He also said he was quite involved with his church, that he was involved with the Ministry and in music and singing. When asked if he were in a relationship, he said he was not. He said he did not work in Australia. He indicated he was aware of the conditions of his visa which meant he could not work and that he had not been working and consistently with his earlier evidence he said his family supported him financially while he studied in Australia. At hearing I noted the applicant’s ties with Australia, including his aunt who was a permanent resident in Australia and his church, and said this might present as a strong incentive for him to remain in Australia. The applicant said that he was just visiting Australia initially, but then thought it might be good to study, and that that was his only intention, and that as he was the eldest it was hoped he would take over the family business, that they had that expectation in his family, and that his parents let him study in Australia only after he promised he would return after completing his studies. At the conclusion of the hearing the applicant said that while he hoped his visa would not be refused, he would respect whatever decision was made, but that he felt like it was a bit unfair as the reason he was in Australia was genuinely to study, he had not been working, was not able to leave, had just been staying and studying, had complied with the conditions, he had already completed the Certificate IV, and he did not want to disappoint his parents who initially did not want him to study in Australia. While the presence of the applicant’s aunt might act as some of an incentive for him to remain in Australia, I consider he has closer family ties in Indonesia, that his sister is only in Australia temporarily on a Student visa, and as he noted at hearing he also has a church community in Indonesia which he has been very involved with. I do not consider his ties with Australia would present as a strong incentive for him to remain in Australia.

In the Application the applicant said he travelled to Singapore for a holiday for 2 days in June 2022. In the Application the applicant said he had never failed to comply with the visa conditions and had never had an application for entry or further stay in Australia or any other country refused, or ever had a visa cancelled. In the SVI the applicant said that he did not have any other outstanding decision in relation to Australian visas, had never otherwise been refused a visa to Australia or elsewhere, and had never held a visa to Australia or any other country that had been cancelled or considered for cancellation and there is nothing to indicate otherwise. I also note the applicant has been in Australia for a relatively short period, namely since June 2023 and is progressing the program of courses he initially proposed in accordance with his proposed timelines.
The applicant has consistently said he does not have any concerns about military service commitments or political or civil unrest in Indonesia and there is nothing to indicate otherwise.
Importantly in this matter the applicant provided additional evidence at the review stage including supporting documentation and oral evidence at hearing.
On the basis of the above and having considered the applicant’s circumstances, immigration history, and other matters considered relevant, on balance 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)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).
The evidence is that the applicant has abided by conditions of the visas he had held to date.
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)).There is no other relevant matter to consider. The Tribunal finds the applicant meets cl 500.212(c).
Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
DECISION
The Tribunal sets aside the decision under review and remits the application for a Student (Temporary) (Class TU) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.
Dates of hearing(s): 7 March 2025
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.