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Practical Implications of the Ministerial Direction No. 106



The Minister of Home Affairs, Clare O’Neil has signed off the Ministerial Direction No. 106, specifying the procedures for the case officer on how to assess a student visa application. This Ministerial Direction acts as a guide for the case officer when determining the Subclass 500 (Student) visa application.


In the last article, we discussed the Genuine Student (GS) requirements and this procedure guideline is the application of how to examine the student visa application met the GS requirements.


Clause 7 (2) of the direction states that ‘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 student criterion’.


GS Requirements 1 – Applicant’s circumstances in their home country

Case officer must consider the following:

a) For primary applicants - whether the primary 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 primary applicant;

b) the nature 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 for the applicant to apply for a Subclass 500

(Student) visa as means of obtaining entry to Australia for purposes other than

study or other than to accompany a Subclass 500 (Student) visa holder to

Australia (as applicable);

c) economic circumstances of the applicant that would present as a significant

incentive for the applicant to apply for a Subclass 500 (Student) visa as means of

obtaining entry to Australia for purposes other than study or other than to

accompany a Subclass 500 (Student) visa holder to Australia (as applicable).

These circumstances may include consideration of the applicant’s circumstances

relative to the home country and to Australia;


GS Requirements 2 – Applicant’s potential circumstances in Australia

(4) In considering the applicant’s potential circumstances in Australia, decision makers

should have regard to the following factors:

a) the primary applicant’s knowledge of living in Australia and of their intended

course of study and the associated education provider; including previous study

and qualifications.

b) the level of research the primary applicant has undertaken into their proposed

course of study and living arrangements;

c) whether the Subclass 500 (Student) visa is being used to maintain ongoing

residence and not for the purposes of study; and

d) whether the primary and secondary applicant(s) have entered into a relationship

of concern for a successful Subclass 500 (Student) visa outcome, i.e. whether

the primary and secondary applicants have contrived their relationship for the

purpose of obtaining a Subclass 500 (Student) visa


GS Requirements 3 – Value of the course to the applicant’s future

(5) When considering the primary applicant’s circumstances, decision makers should

have regard to the value of the course to the primary applicant’s future, and in doing

so should have regard to the following factors:

a) whether the primary applicant is seeking to undertake a course that is consistent

with their past employment and their current level of education, and whether the

course will assist the primary applicant to obtain employment or improve

employment prospects in their home country or another country. Decision makers

should allow for reasonable changes to career or study pathways; and

b) remuneration the primary applicant could expect to receive in their home country

or another country, using the qualifications to be gained from the proposed

course of study


GS Requirements 4 – Applicant’s immigration history

(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 and 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 subsections 5(9) and (9A) of the Act), were granted, or

grounds on which the application(s) were refused, or whether the visa was

cancelled; 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; and

b) previous travels to Australia and other countries, including:

i. if the applicant previously travelled to Australia - whether they complied

with the conditions of their visa and left Australia before their visa ceased,

and if not, were there circumstances beyond their control;

ii. whether the applicant has previously been refused entry into Australia,

and the circumstances associated with that outcome; and

iii. 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.


The case officer may also consider other relevant factors when determining the visa application.

(1) For primary applicants, decisions makers should have regard to the following

matters:

a) if multiple course loads would make successful completion of a course by the

primary applicant impossible or highly improbable;

b) if the primary applicant previously held a student visa - whether they were

reasonably engaged in the course of study for which the visa was granted, having

regard to whether:

i. they satisfied course requirements for the course;

ii. they participated in assessment activities for the course;

iii. they commenced and completed their course as scheduled;

iv. they demonstrated logical course progression;

v. there is a history of starting, but not completing courses; and

vi. there are study gaps of concern, a pattern of changing or deferring courses,

changing to unrelated courses or changing education providers.

(2) Decision makers must also have regard to any other relevant information provided in

respect of the visa application when assessing applicants against paragraph

500.212(c) or 500.312(c) (as applicable). This includes information that may be

either beneficial or unfavourable to the applicant.

 

It seems pretty similar to the Genuine Temporary Criterion, but the visa applicant may have more to prove to obtain a student visa. It will be a short-term pain for educational providers and potential student visa holders, and we will see a growing number of refusals.


There is also high scrutiny in onshore applications for those who are swapping visas, i.e. from tourist to student or from working holiday to student visa.


I am predicting a reshuffle in the industry.


My advice would be if you are holding a substantive visa in Australia without ‘No further stay conditions’, you can lodge an onshore student visa. If you have a refusal, you still be able to appeal to the AAT. I am not encouraging bogus visa applications but if you are fulfilling the GS requirements, there is no reason you cannot lodge an onshore student visa.


S55 of the Migration Act states that ‘Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.’

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