2407384 (Migration) - [2025] ARTA 1736

2407384 (MIGRATION) [2025] ARTA 1736 (18 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2407384

Tribunal Member: General Member B Gogarty
Place:Hobart
Date: 18 July 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 18 July 2025 at 4:28pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – applied after arriving on visitor visa – previous study at family’s expectations – enrolment at lower level and different subject area – death of father, mental health and support from uncle and aunt – vocational interest, choice of course and provider, and offer to work in friend’s business – only child of widowed mother, with beneficial interest in property – compliant travel history – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Citizenship on 19 March 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 is a 23-year-old Indian national who arrived in Australia [in] August 2023 on a Visitor visa (Subclass 600), later applying for a Student visa (Subclass 500) on 27 October 2023. He is currently enrolled in a Certificate III in [Subject 1] (commenced 13 November 2023) and holds a Confirmation of Enrolment for a Certificate IV in [Related subject] (approved to commence on 8 December 2025), both through [College].
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 they were not satisfied the applicant demonstrated a genuine intention to stay in Australia as a student. The key concerns raised by the delegate included field misalignment between the applicant’s university studies in India and the Australian vocational course; weak incentives to return based on the available evidence; a lack of documentary proof of his financial claims; apparent lack of research into course options; and the timing of the application to be a student after arriving on a student visa.
The applicant appeared before the Tribunal on 9 July 2025 to give evidence and present arguments. The applicant was represented in relation to the review by a lawyer who assisted him at the hearing.
The applicant gave a range of probative evidence during and after the hearing which provided the Tribunal with a more complete picture of his personal circumstances and why he had changed study pathways and come to Australia. Having considered and accepted that evidence the Tribunal is satisfied the applicant intends to stay temporarily in Australia as a student. For the following reasons 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 issue in the present case is whether the applicant intends to stay in Australia temporarily as a student for the purposes of cl 500.212. That clause 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.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 108, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to:
·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;
·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 are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The applicant told the Tribunal that he grew up as an only child in Delhi, India. His parents, with whom he was very close, owned and operated a [business]. His evidence, which the Tribunal accepts, was that he grew up in relatively comfortable surroundings in Delhi, although he was forthcoming about the social and structural issues that residents of that city face compared to places like Australia. However, he reported no major incidents involving any direct threat to his welfare that affected him personally while he lived there. He told the Tribunal that he considers Delhi to be his home and somewhere he will return to.
The applicant’s documented travel history to Australia and other indicates that he has complied with the conditions of his visa and returned to India after is visit.
The applicant completed his schooling in Delhi in 2019 and immediately enrolled in a Bachelor of [Subject 2] at a private university in Northern India. The applicant explained that he had enrolled in that degree due to family expectation that he would work towards a master’s degree and go into business. He said that he did not feel especially engaged in his course of study, nor particularly interested in working in business. He noted that he had always experienced social anxiety and worried about having to interact with customers and clients.
The applicant told the Tribunal that his father died in 2021, while he was still studying for his bachelor’s degree. He explained that he had been very close to his father, and he was deeply affected by the loss, both in the sense of personal grief but also as a traumatic event which affected his mental health and exacerbated his existing social anxiety. The applicant subsequently provided the Tribunal medical records relating to his diagnosis and treatment for anxiety and depression following his father’s death. The Tribunal accepts this evidence. It also accepts the evidence that the applicant has always felt uncomfortable disclosing and discussing his mental health diagnosis for personal and cultural reasons. It was clear even at the hearing that it took some effort to admit these things, and, at times, he required some encouragement and assistance to discuss the relevance of his father’s death and mental health to his claims.
The applicant told the Tribunal that, while he determined to complete his business degree his father’s death caused serious self-reflection about his life and career pathway. He said that his anxiety had become so profound that he could not envision regularly working and interacting with strangers, either in his parent’s business – which had been taken over by his mother – or in wider industry in which he assumed he would be required to work with customers. The applicant said he had always loved working with [products], and had a keen interest in emerging [specialised product] technology. He said a friend, who owns several successful [product] businesses in Delhi recommended the applicant re-train to be [a product] specialist and work for him. The applicant considered this to be a preferable career pathway given that he would not need to be customer facing and could largely pursue an existing passion in a closed social environment.
The Tribunal accepts the applicant’s evidence that he has a job offer to work in his friend’s [product] business in Delhi, and that this is an incentive to return to India after completing his studies. While the Tribunal agrees with the delegate, who considered the applicant’s estimate of potential earnings of AU$1809 per month in this role to be somewhat unrealistic, the applicant explained how he had arrived at this figure based on his friend’s representations and some online research. The Tribunal accepts that the applicant has dedicated some effort to ensuring that he will be able to earn a suitable income for his chosen career. The Tribunal places particular weight on the applicant’s stated personal reasons for making a vocational switch which it accepts as credible and compelling and is less concerned about whether the applicant has a realistic understanding of how much he will make in his chosen profession.
The applicant told the Tribunal that, after completing his studies he looked for opportunities to study in India but had difficulty finding suitable was not convinced that those courses he could be accepted into had suitable facilities or would provide him with appropriate qualifications for modern and future [product] technology. The applicant provided evidence to the department and Tribunal outlining the research he undertook into relevant courses in India and why he was either not able to enrol in those courses or why they were not acceptable to him. The Tribunal accepts those submissions as evidence that he dedicated some time considering and comparing the merits of pursuing a new career pathway in each respective country and why he personally considers Australia to be preferable to undertake his studies.
The applicant also explained that he had travelled to Australia while he was at school to stay with his uncle and aunt and had felt safe and comfortable here and was encouraged by his uncle to return after he graduated from his bachelor’s degree to allow him to consider study options. After arriving he said that he explored different providers online and visited the premises of his current course provider and was impressed by the modern facilities and equipment available to students. The provider is also within geographic proximity to his uncle and aunt who were willing to provide, and subsequently have provided, accommodation, food and family support while he studies. The Tribunal is satisfied these matters collectively explain why the applicant came to Australia on a tourist visa, chose the educational provider he did and applied for a student visa to study here.
The applicant is young and has little close family members in India and Australia. He has, to this date, always been a student and reliant on his family he has few assets of his own. The delegate understandably concluded that, on the available evidence, the applicant did not appear to have not have sufficient personal or economic ties to incentivise return to India when he completed his studies in Australia. The Tribunal discussed these findings with the applicant, who acknowledged the issues and the perception they generated. He explained that, as he is the sole child of his parents and his father has passed away, he and his mother consider that he has a familial interest in all family property and assets notwithstanding those things are currently in his mother’s name. Following the hearing the applicant provided financial evidence of immovable property and assets held in his mother’s name totalling around AUD195,000 and no recorded debts. The Tribunal has no reason to doubt the applicant’s evidence that he has a beneficial interest in that property as an only child and the willingness of his mother to provide the relevant financial records in support of the applicant’s claim indicates that she shares that understanding. The Tribunal accepts that the applicant has a familial beneficial interest in property and assets in India which act as an incentive to his return.
The applicant also spoke about his mother being alone and his need to return to support her emotionally and, in the future, financially. He told the Tribunal that his mother has visited Australia but has no skills or capacity to live in Australia long term, and that her home is in Delhi. The applicant also expressed a conviction that he needs to pay back the support his mother has given him financially for the sacrifices she has made to pay for his studies in Australia and India by returning to support her as she moves towards retirement. While he expressed concerns about her age which the Tribunal considered somewhat unwarranted – she is in her late 40s – his sensitivities about a parent’s wellbeing is understandable given the relatively recent loss of his father. The Tribunal considers the applicant to have given honest and genuine evidence about his belief that his mother “needs me to come back” to India and his commitment to live in Delhi and support her. The Tribunal puts significant weight on the applicant’s commitment to returning to his mother as her only nuclear family member once he has completed his studies.
On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets clause 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 applicant gave evidence that he is appropriately supported financially and that his courses fees have been paid by his mother. The applicant’s accommodation and basic needs are provided for by his Australian family. The applicant stated that he understands and will comply with the conditions of a student visa stated clearly that he is not working in Australia and does not intend to work. Movement records for the applicant indicate that he has complied with the conditions of his Australian visas. The Department did not identify any evidence to indicate the applicant has or is breaching any conditions of his Australian visas. The applicant’s enrolment records indicate that he is enrolled in his course of study and is progressing appropriately. There is no other objective evidence before the Tribunal to indicate the applicant is not or would not comply with his visa conditions.
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?
The Tribunal is satisfied there are no other matters which indicate that the applicant is not a genuine applicant for entry and stay as a student for the purposes of cl 500.212(c).
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): 9 July 2025
Representative for the Applicant: Mr Stephen John
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.