Afzal (Migration) - [2025] ARTA 1457

AFZAL (MIGRATION) [2025] ARTA 1457 (3 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Muhammad Bilal Afzal
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2319134

Tribunal:General Member M. Bray
Place:Melbourne
Date: 3 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(a) of Schedule 2 to the Regulations.

Statement made on 03 July 2025 at 3:42pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – good academic progress to benefit future career – multiple courses completed – security situation in Pakistan – course delays during the COVID19 pandemic – family ties in home country – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 499; Direction No 108
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 30 August 2023. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because cl 500.212(a) was not met.
The applicant appeared before the Tribunal on 29 May 2025 to give evidence and present arguments.
The applicant was assisted in relation to the review.
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 whether cl. 500.212(a) is met.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
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 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.
For context, the applicant is a Pakistani citizen aged around thirty from the Punjab region, who arrived in Australia in early 2019. Before that, he states he completed a pre-engineering course (in 2014) and then a Bachelor of Science in Mechanical Engineering (in 2018) in Pakistan. Prior to the current student visa application (the subject of this review) he indicates he held three previous (successive) student visas, between January 2019 and August 2023.
In Australia, the applicant said he initially commenced a Master of Engineering Course at Swinburne University of Technology in 2019. Following delays and disruption (for reasons set out and considered further below), he ultimately completed that course in December 2023. He provided copies of a transcript and award for this course: I accept these documents on their face and therefore accept he holds this course qualification.
The applicant indicated in a pre-hearing Tribunal form and in oral evidence at the hearing that, since 2019, he has engaged in paid worked as a sub-contractor with construction companies in Australia, which I accept.
In September 2024 he enrolled in a Graduate Diploma of Management (Learning) at the Institute of Business Management, which he completed in February 2025. He provided a copy of the award for this course to the Tribunal: I accept it on its face and therefore accept he completed this course.
At the time of the Tribunal hearing in late May 2025, the applicant provided a Certificate of Enrolment in a Master of Business Administration course at The Institute of International Studies (TIIS), which is due to end in January 2027. He also provided a letter of offer to him from TIIS regarding this course. The applicant stated at the hearing that he expects to be granted credit for some units of this course, based on previous studies.
In pre-hearing written evidence to the Tribunal (in responses in a pre-hearing form, and in a Statement of Purpose) the applicant addressed in some detail a range of matters regarding his background and family and community connections in Pakistan, his family’s economic circumstances, his experiences of, and reasons for delay in completing, the Master of Engineering course, his reasons for pursuing studies in Management and enrolling in the MBA at TIIS, and his future plans and aspirations for work and pay in Pakistan, and the overall country and security situation in Pakistan. His oral evidence at the hearing was generally consistent with the written evidence on these matters.
On the overall evidence before me, I make the following findings.
I accept that the applicant has close ongoing family ties (and some broader cultural and community ties) to Pakistan, and give the benefit of the doubt that his parents and siblings currently live in Pakistan, that his siblings are well-educated, that his father has business interests and income in Pakistan, and that with the overall qualifications and experience the applicant would have after the MBA course, he expects to be competitive in future for relatively high-paying senior roles in Pakistan, and to assist in managing his family’s financial interests.
I accept the applicant’s account that his completion of the Master of Engineering Science degree was affected in various ways during the Covid pandemic period (approximately from early 2020 to early 2022), that he was delayed in completing that course, that his course provider was ultimately satisfied that he met the practical elements of the course requirements and awarded the qualification, and that he felt the lack of hands-on and in-person team learning experiences normally associated with the course left him with lesser skills and experience than he had hoped. These things are not illogical or implausible given the pandemic context and the nature of the course.
The written pre-hearing evidence and submissions offer a detailed account of the applicant’s reasons for re-orienting to management studies and the MBA after he completed the Swinburne Master course. As the applicant appeared able to speak about these matters knowledgeably, consistently and flexibly at the hearing, I am prepared to accept the overall narrative the evidence offers about his mindset and plans regarding further study in Australia and his future employment goals and prospects in Pakistan.
Given his completion of a Master’s course already, and given his account that he has had ongoing paid work in the construction industry for years in Australia, I did have some doubts about the applicant’s stated need to complete a second Masters course in Australia, and/or his stated intentions to complete the MBA and then return to Pakistan. However, overall, I find the applicant’s written and oral explanations of his experience of the first Master’s course (noted above), his motivations to do the MBA, and his purpose and goals to return to Pakistan is detailed and generally coherent and plausible, when considered against the overall picture of his past study and qualifications, circumstances and stated interests.
The applicant’s written pre-hearing information (in the form and statement) and oral evidence at the hearing included comments about the overall political situation in Pakistan. He indicates he has ‘some concerns about the ongoing political instability and occasional civil unrest, which can disrupt normal life and impact both personal safety and business operations’ and and ‘affect continuity of services, create job market uncertainty and delay development initiatives’. He indicates these things have not directly affected him or his family in the past and that his goal remains to return to Pakistan and ‘navigate these challenges’ with resilience and judgement. He indicates his family live in Bahawalpur, Punjab, and has not indicated anything about his or his family’s personal circumstances that suggests a strong incentive for him not to return. I acknowledge that political circumstances in Pakistan are generally complex and somewhat fluid in response to ongoing national and global developments. However, for the purposes of this decision, I am prepared to accept the applicant’s assurances on this matter at this point, that he could and would return to Pakistan after his MBA course.
Given the above matters and findings, I am prepared to give the benefit of the doubt in accepting the applicant’s overall account that his reasons for wanting to complete the MBA course at TIIS, its value to him, and his intention to complete that course then (soon after) return to Pakistan to pursue work there. Following this decision, were the applicant to not proceed with his stated study and/or his departure plans, that might (depending on the context) offer cause for concern about the reliability of his account of his circumstances, mindset, goals and plans. However, this would be a matter for future consideration by any relevant decision-maker, based on the evidence before them at the time.
Given the above matters and findings, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).
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(a) of Schedule 2 to the Regulations.
Dates of hearing: 29 May 2025
Representative for the Applicant: Mr Prabhat Krishhna Dwarampudi (MARN: 1462995)
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.