Does the applicant intend genuinely to stay in Australia temporarily?

1. I have considered the applicant's circumstances in Australia and India.
2. The applicant's parents and extended family reside in India, where her father is a farmer and owns land, and her mother a homemaker. She has one brother who studied in Canada and then secured a work permit in the USA, where he currently resides. I draw inference from this that the applicant's parents are open to their children pursuing a life apart from them and the farm. The applicant said that she is in regular contact with her parents.
3. The applicant does not own a house or other assets in India - nor is this surprising at her age. However, it adds to the absence of ties to her home country.
4. She has never worked in India but has worked in Australia for over 7 years.
5. Having regard to her having been in Australia almost continually since July 2018, when she was 18 years old, I give little weight to her parents, or work, being a strong incentive for her to return. This is especially so having regard to her written comment that even while studying in Australia, she still felt closely connected to her roots in India.
6. The applicant has family in Perth in the form of her aunt and uncle who supported her in her early years in Australia. I give significant weight to them as ties to Australia. The applicant gave evidence (discussed further below) that after being expelled from her Bachelor of Biomedical Science degree in Perth, she only explored other Bachelor degrees in Perth, and then only considered Vocational Education and Training (VET) courses in Perth to the exclusion of all other Australian cities. This was despite their limitations to her pursuit of a science-based pathway that was comparable to the science degree she was blocked from completing. Being the only personal ties to Perth that the applicant evidenced, I draw inference that her aunt and uncle are an integral part of her life - even though she does not have much spare time to see them - and were more important than pursuing a comparable pathway to the Biomedical Science degree interstate.
7. The applicant said that she was not in a relationship in Australia but that her parents were planning a wedding for her in India, potentially for 2027. Having regard to the current lack of certainty of the marriage, and the fact that any future husband could apply to join the applicant in Australia if she was granted a student visa, I give little weight to this as constituting a strong tie to India.
8. I have also considered the value of the course to the applicant's future. In doing so, I acknowledge that the applicant has had satisfactory academic performance and attendance in her Civil Construction Design pathway courses.
9. The applicant moved to Australia after completing Year 12 in the medical stream in India in 2017, to pursue a Bachelor of Biomedical Science at Edith Cowan University. Being enrolled from 2018 to 2022, the course was undertaken at a cost of over AUD 87,000, but a plagiarism issue resulted in her being expelled and she did not complete the course. She gave evidence that other universities would not accept her because of the plagiarism matter, and she was therefore unable to continue in a science-based degree.
10. The applicant gave evidence that she did not pursue a comparable pathway at the VET level because the options that were available in Western Australia did not lead to standalone qualifications, so a change of pathway became 'unavoidable'.
11. She then enrolled in and completed the Advanced Diploma of Civil Construction Design at a cost of AUD 20,800.
12. The applicant subsequently enrolled in a Diploma of Project Management and an Advanced Diploma of Program Management. She withdrew from the Diploma in May 2025 but did not withdraw from the Advanced Diploma.
13. In place of the Diploma of Project Management, she enrolled in a Diploma of Civil Construction Design at a cost of AUD 11,000. She is scheduled to complete the course by late February 2026.
14. The applicant said that she then planned to return to India where she has a cousin working in civil engineering who would help her to find a job which she expected would pay about INR 500,000 (the equivalent of about AUD 8,500) annually.
15. The applicant provided reasons for undertaking the Diploma of Civil Construction Design after having completed the Advanced Diploma, being that the college at which she had studied the Advanced Diploma did not include software-related subjects, so she changed to a college that had more software subjects at the diploma level. Also, because software skills were required to secure a job. I draw adverse inference from this evidence. It indicates that she did not, as she claimed she had, adequately research her Advanced Diploma course, or the education provider, or the skills that might be required to secure a job from it, prior to undertaking it. I give moderate weight to this.
16. When asked how the cost of all the courses presented value for money, the applicant did not address the concern but said that her main motive was to obtain a qualification that could get her a job in India. She said she decided to do something that would get her an entry job so that she could then prepare to study a bachelor degree.
17. Having regard to the applicant's expected salary upon return in February 2026, and that any rise in salary would take time according to her evidence, I give little weight to the study representing value for money in relation to cost and recouperation aspects. This conclusion is exacerbated when having regard to the fact the applicant could have capitalised on what she had paid for the Biomedical Science degree, by seeking recognition of prior learning for the many subjects she finished, to complete a similar degree in India and pursue her original goal.
18. In her Student Via Information form (SVI) that was submitted in August 2025, the applicant wrote, in response to whether there were similar courses in India and why she did not study there, that in India a diploma was more academic and provided technical training, leading into engineering degrees. She wrote further that completion of a diploma in India would guarantee only local recognition and help her with entry to bachelor degree.
19. The Tribunal put to her that she had said that she wanted to do a Bachelor of Civil Engineering in the future, so her SVI statement had not seemed to address why she could not have undertaken her studies there.
20. The applicant did not address the concern but said that she already had the skills for an entry level job but after that, she needed to consider a bachelor degree in India.
21. I am doubtful that a similar diploma in India, that prepared students for a bachelor degree with both academic and technical training, would not qualify her for an entry level job there as was indicated by the applicant. I accept that such a course in India would guarantee only local recognition in that country, but having regard to the applicant's claim that she would return to work in India, the Indian courses appear to suit her desired outcomes.
22. I therefore give little weight to her reasons for not having undertaken her studies in India.
23. I have considered the applicant's immigration history.
24. The applicant first arrived on a student visa and has returned home once since 2018. There is no evidence before the Tribunal to indicate that the applicant has ever been refused a visa, had a visa cancelled by Australia or any other country, or that she has failed to comply with conditions of her current bridging visa in Australia. I give a small degree of weight to this.
25. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).

Does the applicant intend to comply with visa conditions?

1. 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.
2. 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.
3. There is no evidence before the Tribunal to indicate that the applicant has failed to comply or intends to not comply with the conditions to which any student visa would be subject.
4. At first glance, the applicant may seem to have failed to comply with the conditions to which a student visa would be subject, specifically cl 8202(2). She applied for the student visa to study the Advanced Diploma of Civil Construction Design (Australian Qualifications Framework Level 6). After completing this however, she began studying the Diploma of Civil Construction Design (AQF Level 5) - a lower level than the registered course in relation to which the visa was sought. However, the applicant was never granted a student visa for the Advanced Diploma of Civil Construction Design, so while she is in fact now studying at a lower AQF level in the Civil Construction Design pathway, this decision relates only to her application to study the Diploma of Civil Construction Design because she was not previously granted the visa, and so she has not failed to comply with cl 8202.
5. There is no information before the Tribunal to suggest that the applicant failed to comply with the conditions to which she was subject under her previously and currently held visas.
6. I give this compliance moderate weight.
7. 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?

1. 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)).

1. The Tribunal put information to the applicant pursuant to s359A obligations, that she was also enrolled in an Advanced Diploma of Program Management, scheduled to begin in mid-January 2026 and that this may lead the Tribunal to find that she was seeking purely to extend her stay in Australia, thereby not satisfying cl 500.212.
2. The applicant denied that she was enrolled in the course and claimed she had withdrawn in February 2025. She said the education provider had sent her a confirmation email that the CoE had been cancelled, and undertook to provide proof of it immediately after the hearing.
3. The applicant subsequently filed an email from the provider dated '6 May' that was titled 'CoE cancelled due to non-enrolment in Term 2, 2025' and went on to say 'this letter is to confirm that your CoE has been cancelled on 6/05/2025 due to non-enrolment into your subjects for the Term 2, 2025'. The email included a significant blank space between text, and did not show the name of the course it referred to, or its code.
4. The applicant also sent another email to the Tribunal on the same day, including three attachments. One was a personal statement telling the Tribunal that she had contacted the college after the hearing to confirm the cancellation of the Advanced Diploma of Program Management, but they had told her it had never been cancelled; they had only cancelled the Diploma of Project Management. She wrote that when she had received confirmation of her CoE cancellation via the 6 May 2025 email (referenced above), she had taken it for granted that the college had cancelled both CoEs. She said that she formally requested the CoE be cancelled that day (the day of the hearing) as she did not have the intention to undertake that course.
5. In the same email, the applicant also attached a copy of the Student Request Form by which she had, shortly after the hearing, submitted the withdrawal request for the Advanced Diploma to the education provider, and the email that she had attached the form to. In that email, she had told the provider that she had spoken with one of the college staff about the cancellation of her CoE earlier in the year and she had been told that 'it would be done'.
6. On 10 December 2025, the Tribunal wrote to the applicant, giving her until 11 December 2025, to provide evidence of her having requested both cancellations of enrolments from the provider, for the Diploma and the Advanced Diploma. The Tribunal also requested that the applicant submit the full email sent by the university on 6 May 2025, noting that it expected the email to have details of the course name or code that they had agreed to cancel.
7. In response to that request, on 11 December 2025, the applicant filed copies of the cancelled CoE for the Advanced Diploma and another for the Diploma. The Diploma CoE showed that it had been updated on 6 May 2025 while the Advanced Diploma noted 9 December 2025 as the latest update. She also re-sent the 6 May 2025 email with the same blank space in it, and the email chain through which she confirmed with the provider that both CoEs had now been cancelled. Each email in the chain that was in communication with the education provider, was dated 9 December 2025. The applicant did not provide evidence of having previously sought cancellation of the CoEs.
8. Also on 10 December 2025, the Tribunal wrote to the education provider to enquire whether they allowed students to seek cancellation of CoEs via phone call or whether they required it to be done in writing. If the latter, was it required to be done via a particular form, or could it be done via email or other written communication? If a form was required, how was it required to be submitted - via an email or directly through an internal system?
9. The education provider responded on 11 December 2025, confirming that 'all withdrawal requests must be submitted via email. Students requesting a withdrawal are required to complete the withdrawal form, which is available on our website, attach it to the email, and include all supporting documents relevant to their request'.
10. On 12 December 2025, the Tribunal sent the applicant a s359A letter reflecting the advice from the provider about the withdrawal process, and advising her that, having regard to her previous successful course cancellation in May 2025 for the Diploma, the Tribunal found it highly improbable, to the point of being implausible that, being aware of the process for withdrawals, she would have submitted a form via email for one course and not the other. The letter further advised that the information was relevant because it strongly suggested that the claims she had made were contrived and that she had not made any attempt to withdraw from the Advanced Diploma until after the hearing on 9 December 2025.
11. The applicant's response, received on 16 December 2025, included the following:

I contacted my college by phone in May 2025 to request the cancellation of both of my CoEs, being for the Diploma and the Advanced Diploma courses.

I genuinely believed that the CoE for the Advanced Diploma would be withdrawn at the same time as the CoE for the Diploma. I was not asked to complete any official or written request form to withdraw my CoEs. My request was made orally during a telephone conversation with a student services employee at the college, and it was clearly communicated that I wished to withdraw from both courses.

When I received an email from the college on 6 May 2025, I believed that both CoEs had been cancelled, as this was my clear intention when I spoke to the college. At that time, I was not aware that the CoE for the Advanced Diploma course had remained active. I relied on the college's email confirmation and did not have access to the student or immigration portal to independently verify the status of my CoEs.

I only became aware that the Advanced Diploma CoE was still active during the Tribunal hearing, when this issue was raised by the Tribunal Member. As soon as I became aware of this issue, I immediately contacted the college again by phone and email and requested the cancellation of the remaining CoE. The college then cancelled the Advanced Diploma CoE on 9 December 2025.

I respectfully submit that there was no intention on my part to keep an active CoE. Any misunderstanding occurred due to my genuine belief that both CoEs had been withdrawn following my oral request, my reliance on the college's email correspondence, and my lack of access to systems that would have allowed me to independently confirm the CoE status.

I sincerely apologise for any confusion this may have caused and confirm that I acted promptly and in good faith once I became aware of the issue.

1. I do not accept that the education provider would have sent the email to the applicant on 6 May 2025 without referencing or otherwise indicating which CoE had been cancelled. Furthermore, the email clearly referred to a single CoE, and not 'CoEs' which would have been the case if multiple CoEs were cancelled.
2. I also do not accept that the applicant did not have access to her student portal to confirm the status of her CoEs. The applicant was already studying with the same institution, as the email addresses from the provider on the various emails show.
3. Adding to my concerns is that the applicant listed each of the different courses she had been enrolled in, in her SVI that was submitted in August 2025. This included the Diploma of Project Management. Missing from this list was the Advanced Diploma of Program Management for which the Confirmation of Enrolment (CoE) was created in January 2025.
4. The applicant had claimed that she had thought she had withdrawn from the Advanced Diploma at the same time she had withdrawn from the Diploma, in May 2025. Having regard to her having included the enrolment for the Diploma in the SVI list, but not the Advanced Diploma, I draw inference that the omission was deliberate.
5. Based on the evidence before me, I see the situation as being one in which the applicant applied in the proper and only acceptable way, for the cancellation of her Diploma CoE, being via a form attached to an email. The provider either sent confirmation in the same email chain, with the chain showing which course had been cancelled, or the provider sent a standalone email to confirm the withdrawal of the Diploma, including details of the course that had been cancelled. Either way, the applicant erased that information prior to sending it to the Tribunal, so that the details of the withdrawn course were not visible.
6. I find that at best, the applicant realised her error of having failed to withdraw from the Advance Diploma during the Tribunal hearing and then covered it up in subsequent correspondence with the Tribunal. At worst, she fully intended to pursue the Advanced Diploma of Program Management and deliberately sought to mislead the Tribunal.
7. Either way, having regard to all of the evidence before me, I find that the applicant deliberately misled the Tribunal, and this goes to the credibility of her evidence.

1. The applicant was expelled from university in 2022 for a plagiarism offence. By this time, the applicant had been studying in Australia for about 4 years. The applicant explained the issue to have been an isolated incident when she was still adjusting to a new academic environment and learning expectations. She gave evidence that it was related to a single sentence that was not referenced in her assignment and claimed that it was simply an oversight on her part. She confirmed when questioned again that it was a single sentence. The applicant appealed the decision with the university, but it was upheld.
2. Curiously, the applicant was unable to provide any evidence related to this offence and was unable to support her claim that it was minor. She said that she was unable to access her university email, and the university was unable to find the evidence to send it to her.
3. I find it implausible, and I do not accept that the applicant was unable to get any evidence of the university's findings regarding her plagiarism. I find that this goes to the credibility of her evidence.
4. I am also unconvinced that it was a single missed reference as claimed, and an unintentional slip. While I acknowledge that such an event would likely be referred to as plagiarism, I find it implausible that a major university would not categorise the severity of the plagiarism and that they would expel the applicant for anything but egregious or repeated instances. I find that this goes to the credibility of her evidence.
5. On 18 December 2025, the Tribunal wrote to the applicant that it considered that the plagiarism incident may impact the overall credibility of her evidence as to whether she was a genuine applicant for entry and stay as a student, and invited her to provide evidence in response to this by 2 January 2026.
6. On 22 December 2025, the applicant replied with a 3-page statement in which she admitted to there having been three academic misconduct findings and that the third, which she claimed to be the only serious one and the only one she thought was relevant to the Tribunal's consideration, included 'paragraphs'. The applicant wrote that she had previously only referred to the one plagiarism incident because she thought it stood alone in her suspension outcome.
7. I do not accept the applicant's explanations. Having been given every opportunity in the hearing to detail all of her plagiarism incidents, with the Tribunal highlighting its doubt that expulsion would have resulted from a single incident involving a single sentence as she had repeatedly claimed, the applicant nonetheless failed to mention the other two incidents, and understated the third. I find this to have been a deliberate attempt to mislead the Tribunal, and this goes to the credibility of her evidence.

1. The applicant gave evidence that she was unable to pursue another bachelor degree at another university in Perth after her plagiarism matter, due to 'full intakes, and eligibility restrictions arising from the disciplinary matter'. She provided evidence of a letter from Murdoch University, but it did not refer to either a full intake or to any disciplinary matter. Rather, it referred to the applicant having submitted an incomplete application and the deadline for the start of the semester having had passed. As a result, they were unable to process any subsequent applications. This is a significantly different reason to those given to the Tribunal, and when considered alongside other examples, I find that this goes to the reliability of her evidence.
2. I weigh these collective adverse reliability and credibility findings heavily. They lead me to find that the applicant is using the student visa program to maintain ongoing residence in Australia.
3. On the basis of the above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter. Accordingly, the applicant does not meet cl 500.212(c).

1. 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.
2. 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.

1. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Representative for the Applicant: Mrs Natalia Labayova (MARN: 1680300)

DIRECTION NUMBER 108 - ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

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).

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.

This Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

Direction No. 69, given under section 499 of the Act, is revoked.

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.

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.

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.

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.

1. Decision makers should have regard to the applicant's circumstances in their home country and the applicant's potential circumstances in Australia.
2. For primary applicants of Student visas, decision makers should have regard to the value of the course to the applicant's future.
3. 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

1. 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.

2. 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

1. 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.

1. 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.

1. An applicant's immigration history refers both to their visa and travel history.
2. 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: > > 1. 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 > 2. 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. > 3. b. Previous travels to Australia or other countries, including: > 4. 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; > 5. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances; > 6. 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 > 7. 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

1. 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.

1. 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.

[1] Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25; (2022) 288 FCR 1 [32] (Jagot, Bromwich and Lee JJ).