Ahmed (Migration) - [2025] ARTA 345

AHMED (MIGRATION) [2025] ARTA 345 (27 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Mehroz Ahmed
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2312488

Tribunal:General Member P Hunter
Place:Sydney
Date: 27 February 2025
Decision:The decision under review is affirmed.

Statement made on 27 February 2025 at 3:04pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – significant period of time living in Australia – not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student – applicant is using the student visa programme as a means of maintaining ongoing residence in Australia – poor academic record – no strong incentive to return to home country – lack of demonstrated value of the proposed course to the applicant’s future – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 375
Migration Regulations 1994, r 1.03, 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 13 December 2021 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 18 August 2021. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) ) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant is a 25 year old male citizen of Pakistan. He arrived in Australia on 27 April 2018. The visa under review is the second student visa application applied for by the applicant. At the time of the visa application he was seeking to undertake study in Bachelor of Business with course dates from 27 September 2021 to 30 May 2024.
In support of his visa application the applicant submitted to the Department evidence of Overseas Student Health Insurance, evidence of his English language ability, and his identity and financial documents.
On 2 January 2022, the applicant sought a review of the decision before the Administrative Appeals Tribunal (AAT).
On 2 February 2022, the applicant submitted a copy of the delegate’s decision record to the AAT with his review application.
On 29 March 2022, the Tribunal received correspondence from Canterbury Institute of Management, advising that the applicant had outstanding fees.
On 6 September 2022, the Tribunal wrote to the applicant pursuant to what was s 359(2) of the Act, inviting the applicant to provide evidence that he was enrolled in a registered course and to complete a Student Visa Information form.
On 21 September 2022, the applicant provided a completed Student Visa Information form. In the form the applicant disclosed, among other things, that he had returned to Pakistan on 3 occasions since 2018, and that he did not complete the Bachelor of Business.
On 3 February 2023, the applicant submitted the following documents:
·A letter of submission dated 31 January 2023.
·A CoE in a Diploma of Community Services with course dates from 20 February 2023 to 16 February 2025, created on 2 February 2023.
·An undated photograph of the applicant and his partner.
·A certificate of completion of a course of Academic English 2 dated 17 August 2018.
·A certificate of completion of a Diploma of Leadership and Management issued 12 January 2021.
·Prescriptions issued to the applicant, dated 3 January 2022.
·A screenshot of a flight booking reference for the applicant on 7 February 2019 and 7 August 2019.
On 3 February 2023, the representative for the applicant submitted a hospital discharge report for the applicant for an admission dated 5 September 2020, following a motor vehicle accident after a break up with his partner.
The applicant appeared before the AAT on 6 February 2023 by MS Teams, to give evidence and present arguments. The applicant was represented before the AAT and his representative attended the hearing and provided submissions. On 3 March 2023, the AAT affirmed the decision under review.
On 2 May 2023, the applicant appealed the decision of the AAT before the Federal Circuit and Family Court.
On 14 August 2023, the matter was remitted back to the Tribunal by consent for reconsideration.
On 27 February 2024, the applicant appeared before the AAT via MS Teams video to give evidence a present arguments.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
On 2 December 2024, the matter was reconstituted to a member of the Tribunal, a further hearing was scheduled for the applicant to provide any additional information in relation to the review application.
On 22 January 2025, the applicant appeared before the Tribunal via MS Teams video to give evidence a present arguments.
On 2 February 2025, the applicant submitted to the Tribunal a Confirmation of Enrolment in the Diploma of Community Services at Trinity Institute Australia, with course dates from 17 February 2025 to 3 January 2027, created on 31 January 2025, and a letter of offer from Trinity Institute issued 30 January 2025.
On 4 February 2024, the applicant submitted the following documents;
·    A deed of sale for agricultural land, situated in Tehsil Burewala District Vehari, to the applicant and translation.
·    A deed of sale for a house, Mozia Nizam Town Tehsil Burewala District, to Farooq Ahmad and translation,
·    A deed of sale for a house, Mozia Chak Tehsil Burewala District, to Farooq Ahmad and translation.
·    A deed of sale for a shop, Usman Block Tehsil Burewala District, to Farooq Ahmad and translation.
·    Rental agreement between Farooq Ahmad and Muhammad Jameel for a shop, Usman Block Tehsil Burewala District.
·    A deed of sale for a shop, Mozia Chak Tehsil Burewala District, to Farooq Ahmad and translation.
·    Rental agreement between Farooq Ahmad and Tahir Ali in respect of a shop, Mozia Chak Tehsil Burewala District.
·    A deed of sale in respect of a shop, Mozia Chak Tehsil Burewala District, and translation.
·    Rental agreement between Amir Afzak ad Farooq Ahmad in respect of a shop Mozia Chak Tehsil Burewala District.
On 5 February 2025 the applicant submitted a statement of purpose.
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 the applicant satisfies cl 500.212 of Schedule 2 to the Regulations.
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.
The Tribunal accepts that the applicant since he finished high school intended to travel overseas for his further education. It also accepts that he considers that a degree obtained in Australia may be of greater value than a similar degree achieved in his home country. However, the applicant is not currently proposing a degree qualification.
As to the applicant’s circumstances in his home country, it is accepted that he has family members including his father and sisters. He also has his mother and another sister in a third country. The applicant has also provided evidence that his father owns several properties and has placed other properties, such as agricultural land and a goat farm in the name of the applicant. It is accepted that he hails from a family that is financially comfortable and there is no evidence of any economic circumstances that would present a significant incentive for the applicant not to return to his home country. The applicant further confirmed at hearing that he did not have any military service obligations and he claimed he had no fears of returning to Pakistan. There is no evidence of any incidents of civil or political unrest that may induce the applicant to apply for a student visa as a means of remaining indefinitely. The Tribunal acknowledges that these circumstances in his home country are generally favourable for the applicant.
As to the applicant’s circumstances in Australia, he is now partnered and living with his partner. They are the parents of a newborn son. His partner is also from Pakistan and she is undertaking studies in Australia in childcare. She had at least another year left of her studies, while his partner may also be the holder of a temporary visa, the ongoing presence of these immediate family in Australia may act as a strong incentive for him to remain onshore. Further, the fact that the applicant has determined to establish a family in Australia, suggests that this may not be just a temporary place to study.
Having been in Australia since 2019, it is accepted that the applicant has a reasonable knowledge of living in Australia. His evidence at hearing, on 22 January 2025, was that he loved Australia and he felt that he had grown up in Australia. At the time of his hearings on 27 February 2024 and 22 January 2025, the applicant did not have an enrolment in a course of study. It is accepted that the no study condition on his bridging visa acted as a prohibition on the applicant engaging in study since 2023. However, it is noted that his initial enrolment in the Diploma of Community Services was created on 2 February 2023, four days before his first appearance before the AAT. The Tribunal also notes that he had previously advised the AAT in the Student Information form on 21 September 2022, that he had already ceased studying the Bachelor of Business. He was on notice in September 2022, that the AAT was progressing his review, yet he left his enrolment to the eleventh hour. This causes the Tribunal to question his motivation for enrolling in the course.
The Tribunal is also concerned about his lack of academic of progress in the five years while he held study rights. The applicant has demonstrated only the completion of an eight week English course and a Diploma of Leadership and Management in 2020. He did not complete his either of his initial proposed Diploma or Bachelor of Information Technology, then he switched to Leadership and Management, then back to a Diploma of Information Technology, the applicant then returned to Leadership and Management, and again to Information Technology before enrolling in in the Bachelor of Business. The applicant would have the Tribunal accept that his changes in enrolment were a consequence of his immaturity and events which impacted him during that period, particularly his mother’s illness and an accident that befell a family friend, and the relationship breakdown with his former partner. The Tribunal is not satisfied that these events explain all of the applicant’s changes in his enrolment. The medical evidence in relation to the applicant’s motor vehicle accident in September 2020, contained in the hospital discharge report of 5 September 2020, suggests that the applicant’s relationship had ended around this time, not as set out in his representative’s submissions July 2021. His evidence to the Tribunal at hearing on 22 January 2025, was mother’s illness and the loss of his friend occurred in 2019. The applicant also conceded to the Tribunal during the hearing on 22 January 2025, that he could not decide what he wanted to study, that he wasn’t engaged initially with his studies. He did however argue that his return to IT qualifications on several occasions was indicative of the fact that he did want to achieve a degree and IT qualifications. The Tribunal has difficulties with this proposition, and reconciling it with his current enrolment in Community Services. It adds to concerns of the Tribunal that the applicant was using the student visa program as a means to maintain residence and in effect circumventing the intention of the migration program.
The applicant has provided several explanations for his change in pathway from IT to community services. When he was before the AAT in February 2023, the applicant claimed that the change was borne of his desire to help people and that the applicant offered that he wished to do the course to help people and that it his main purpose in life was to help his community. At his hearing on 27 February 2024, the applicant identified that his past relationship was with a healthcare worker and she suggested that he find out about the course. At the hearing on 22 January 2025, he offered that he was changing because he had some interactions with NDIS workers, particularly his former partner, and he had seen how they work with people in the community and he thought he would give it a try. If the applicant had been inspired by his passion for helping people, his former partner, and his engagement with NDIS workers, it is considered that the applicant could have enrolled in relevant studies at the time he applied for the visa under review, rather than waiting until his first AAT hearing.
Further, the Tribunal holds concerns about the applicant’s level of knowledge of his intended course of study. While the Tribunal acknowledges that the applicant has been unable to pursue his studies without study rights, it is the case that he has spent several years awaiting review and had time to contemplate the value of a Diploma of Community Services to his future and what he expected to learn from the course. When asked what he would be studying in the Diploma during his hearing on 27 February 2024, the applicant offered that it was to do with personal care, cooking and management, like creating a food chart for someone’s food and managing their daily schedules and medication routines. In response to questions about his knowledge of the course during his hearing on 22 January 2025, the applicant offered that he liked how it would improve his management and communication skills. He also offered that it was a subject that was easier and more convenient for him. The Tribunal considered that these general responses did not demonstrate a reasonable level of knowledge or engagement in the proposed study, given that the applicant was seeking to have his visa reinstated so he could resume this study. This was identified to the applicant during the hearing on 22 January 2025, and he was invited to provide further submissions. The Tribunal acknowledges the further submissions of the applicant received on 5 February 2025 as follows:
The reason behind my interest in Diploma of Community Service is that it enables students to assist individuals with disabilities in achieving greater independence and quality of life, help families with crises such as poverty, addiction and mental health issues, to support young people facing challenges such as homelessness, substance abuse or family issues, enhancing the wellbeing of specific communities by collaborating with residents, organizations, schools and local governments to identify needs, develop programs and advocate for positive change. This course also trains to respond to emergencies such as natural disasters, domestic violence and financial or mental health crisis.
This response, while more detailed refers to outcomes for students, rather than the applicant himself. It appears to be lifted from a course handbook or third party source and the Tribunal does not place much weight upon it. His comments that it may be an easier or convenient course further may indicate that he may be seeking to enrol in a course for the purposes of obtaining the visa rather than his future in his home country.
Pursuant to the provisions of s 359A of the Act on 22 January 2025, the Tribunal invited the applicant to comment on information provided to the AAT by the applicant’s former education provider, the Canterbury Institute. The applicant was provided with particulars of the information, and the Tribunal also notes that this correspondence was also discussed with the applicant during his first AAT hearing. The applicant was informed that Canterbury Institute had advise that they considered that the applicant was not a genuine student because;
·He was currently studying and had outstanding fees of $11,400 from two terms.
·That they had notified the applicant via calls, SMS and emails to pay fees but he was refusing to pay.
·The matter was in the hands of debt collectors; and
·The applicant was waiting for the AAT to overturn the decision and then he would change providers without clearing his overdue fees.
It was identified to the applicant that the information may be important because it was expected that all oversea students have sufficient funds, and that the information that he was intending to change his provider again once the visa refusal was overturned may indicate that he was using the student visa program to maintain residence and these considerations may form a reason or part of a reason for finding that he was not a genuine student. The applicant responded that it was correct that he had outstanding fees to the Canterbury Institute, he said he believed that he had negotiated a payment plan with them but they continued to harass him for payment. He claimed that the dispute further deteriorated when he asked them for a transcript to show to the AAT in 2022. The Canterbury Institute had demanded that he pay his outstanding fees before they produce a transcript and he did not think that was fair because he already had paid them $5,000 and had studied for two semesters. The applicant claimed that he had additional expenses with the costs incurred as a consequence of his AAT review. At that time he had not told his family that his visa was refused and could not ask for additional funds. It is transparent to the Tribunal that if the Canterbury Institute was still requesting fees be paid and had taken the option of writing to the Tribunal, that it had not come to an agreement with the applicant. The Tribunal remained concerned about the applicant’s level of engagement in his previous studies at Canterbury Institute, it notes that the comment of that the applicant would shortly change providers were borne out. The Tribunal continued to have concerns that the applicant was using the student visa program to maintain residence in Australia.

The Tribunal also had before it a copy of the Provider Registration and International Student Management System (PRISMS) records of the applicant. These were shared electronically with the applicant during the hearing on 22 January 2025. The applicant was asked to comment on the information contained in the records that at least six of his past enrolments had been cancelled before the courses completed. It was identified to the applicant that it was the general expectation of applicants on a student visa that they would maintain enrolment and progression through the courses in which they had enrolled. Further, that if relied upon it may cause the Tribunal to have concerns that he was genuinely in Australia for the purposes of study. The applicant responded that he was not sure about his career at the start of his studies, when he took admission in Leadership and Management he found it to be of low quality so he returned to IT but he had a problem with the language, he returned to Leadership and Management, but he again when back to IT. During these times he had a lot of distractions, he spent some time in Pakistan, had a couple of motor vehicle accidents and his relationship ended. He said that it took him a long time to get over things and when he enrolled in his Diploma of Community Services in 2023, it was actually the beginning of his comeback. The Tribunal noted that according to the CoE he submitted, his initial studies in the Diploma of Community Services did not commence until 20 February 2023, after his first AAT hearing. That the applicant was consistently distracted in his studies during his previous five years, does not provide the Tribunal with confidence that the applicant was seeking to remain in Australia for the purposes of study and academic achievement. It is difficult to reconcile comments that the Diploma of Leadership and Management was a low quality course, with the fact that the applicant enrolled in it for a second time and obtained the qualification. It questioned whether this was also an easier and convenient course for the applicant. These considerations add to the Tribunal’s concerns that he was using the student visa program to maintain residence and circumvent the intentions of the migration program.
Furthermore, although the applicant claims that it was poor quality courses, the fact that he travelled overseas, relationship issues and motor vehicle accidents that led to his poor performance the Tribunal is not satisfied that this is reflected in reporting from his education providers. Again pursuant to the provisions of s 359A of the Act, at the hearing on 22 January 2025, information was identified to the applicant from his PRISMS records that a number of enrolments cancelled for non-payment of fees. The applicant was advised that the information was important because as well as raising concern as to whether he had access to relevant funds for his support, that it may indicate that he was obtaining enrolments for the purposes of the visa, rather than any genuine interest in the proposed courses of study, and that it may form a reason for finding that he was using the student visa program to maintain residence and consequently the visa being refused. The applicant responded that when he enrolled in courses that they would make you pay the whole fees whether on not you like the course, they did not want you to change courses and there was limited help available if you wanted to obtain a release. The Tribunal has evaluated this response and considers that it is a reasonable expectation that an international student, who had travelled to Australia for the purposes of obtaining qualifications at considerable expense, would have a realistic knowledge of their intended course of study prior to commencing courses. The applicant’s responses further indicate to the Tribunal that he may not have genuinely engaged in his previous studies in Australia. Given this past experience the Tribunal’s concerns about the applicant’s level knowledge of his proposed Diploma of Community Services were further amplified.
As to the value of the applicant’s course, it is that case that the applicant already possesses a Diploma of Leadership and Management, his further study in the Diploma of Community Services, while in a different discipline is not advancing his level of academic qualification. He told the Tribunal at his hearing on 22 January 2025, that his Diploma of Community Services could lead to a Bachelor level qualification. He said that there would be 18 months of study in the Diploma and then he could go on to a graduate diploma. The Tribunal questioned the applicant as to what his intentions were, and whether he was genuinely just seeking to complete the Diploma. Although the applicant replied that he would just to the Diploma, the Tribunal holds concerns that this was his true intention.
At the hearing on 22 January 2025, the Tribunal questioned the applicant as to the value of his Diploma of Community Services and how it would assist him in his future career. The applicant made claims about setting up his own facility for either persons with Down syndrome or the elderly. He indicated that there was not much competition in the market and no similar facility in his home town. It was identified to the applicant at the hearing on 22 January 2025, that just because there was no similar facility did not mean that there would be a market for one in his hometown, the costs of establishing a relevant facility were considered to by the Tribunal to be considerable, depending on the scope he intended and the endeavour would require significant financial investment. The applicant acknowledged this and he said that he would fundraise and hoped to establish an NGO. He believed that his parents may help. The application was questioned as to whether he would receive sufficient remuneration through fundraising or as an NGO to support his child and his partner in the future. The applicant responded that as he only had one child, he thought he could support himself with income from his existing property and family support. Given the considerable further costs associated with ongoing overseas studies, the Tribunal was not persuaded as to the value of his course if the applicant was intending a not for profit venture in the future. In response to these concerns, the applicant told the Tribunal on 22 January 2025, that with an overseas qualification it would be easier for him to obtain investment in his NGO or future facility. Once more it is noted that the applicant already holds and overseas qualification in the level he is proposing to study in Leadership and Management. Following his hearing on 22 January 2025, in his written submissions of 5 February 2025, the applicant made further claims that studying abroad would polish his skills and make him more competent. He again referred to initial investment from his father, as well as sponsorship from charity organisations around the globe. The applicant further identified working with the Alkhidmat Foundation in his province and with local governments. This was the first mention of the applicant of an existing charitable organisation in his home country. There is no evidence that the applicant has at any time engaged with the Alkhidmat Foundation, or how he will work with their objectives or whether this foundation has capacity to support his future NGO. In his written submissions of 5 February 2025, the applicant also identified a slightly different career path and set out that after completing the diploma he will have the opportunity to specialise in the area of youth work, mental health support, aged care and family services. Further, he claimed in these submission that his goal was to be a successful community facilitator who facilitated the voice of children, youth and old people with disabilities. Given the mobile expression of the applicant’s future career intentions, the Tribunal was also not satisfied of the value of an Australian qualification which was not directed to the community services facilities in his home country within which he would have to work in the future, deliver services and facilitate voices.
The Tribunal has also considered the applicant’s stated future desire during his hearings to work with people with Down syndrome or the elderly. The Tribunal has considered the claim of the applicant that helping people has always been his passion and his desire to help his community. However, the applicant has not established to the Tribunal how he has demonstrated this passion in the past. When asked about his involvement with the community sector he has provided evidence at hearing on 27 February 2024 and 22 January 2025, that he had met individuals with Down syndrome indirectly when his former healthcare worker partner was working and that he had driven some clients in the past when employed as a driver. It is not actually evident to the Tribunal that the applicant has demonstrated his stated long held passion for helping others and working in the community in the past. Considering these factors, and the evidence of the applicant overall, the Tribunal is not persuaded that the value of the applicant’s course is demonstrated. It is a course at the same level as his previous education, the Tribunal is not satisfied that it will greatly improve the applicant’s employment prospects in his home country given the costs of the qualification and that it is targeted for the Australian community services system. The evidence further indicates that there is limited remuneration that the applicant could receive in his home country using the qualification.
As to the immigration record of the applicant, there is nothing in the travel history of the applicant that gives rise to concern for the Tribunal. He has not previously applied for any visas which have been refused, and there is no evidence that he has had any other visas cancelled or considered for cancellation. It is also accepted that there is no evidence before the Tribunal that he has not complied with his past visas. Yet, the amount of time that the applicant spent onshore, and that he is seeking to remain for a further period, to undertake further study when the Tribunal is not satisfied as to the value for his future, may also indicate that the applicant is using the student visa program as a means to maintain residence.
In respect of other matters, it is identified that before the Tribunal was the applicant’s Department file which contained several certificates of non-disclosure issued pursuant to s 375A of the Act in relation to some particularised electronic document on the Department file. These certificates were dated 25 August 2023, 8 February 2024 and 9 February 2024. Copies of the certificates were sent to the applicant on 23 February 2024. At the hearing on 22 January 2025, the Tribunal invited submissions from the applicant as to the validity of the certificates. This was not disputed by the applicant. The Tribunal is satisfied that they clearly identify the documents to which they purport to apply, and the grounds for the claim of confidentiality, that is the information contains details of a Department’s officer and that it may lead the applicant to find out how the Department conducts its internal processes and may affect the capacity to use those methods. It is satisfied that the certificate is signed and dated by the relevant officer. The Tribunal finds that the certificate is valid. The applicant was provided with the substance of that information, which related to a review of his PRISMS records and consolidation of those records. There is nothing in the mechanism by which a consolidated record was achieved that is, in the assessment of the Tribunal, adverse to the applicant. The Tribunal places no adverse weight on the documents the subject of the certificates. The applicant was shown a copy of the most recent PRISMS records during the hearing on 22 January 2025, and relevant adverse information was discussed with him pursuant to the provisions of s 359A of the Act as set out above.
Conclusion
In conclusion, in weighing the relevant factors, the Tribunal accepts that the applicant has family ties in Pakistan, has complied with visa conditions, and has some other personal circumstances favourable to the granting of the visa. On balance, the Tribunal is not satisfied that these factors including his personal circumstances in his home country offer a significant incentive for him to return. It places greater weight on his circumstances in Australia, the length of his past and proposed stay, concerns relating to his engagement with his studies in the past, his knowledge of his courses, and the lack of demonstrated value of the proposed course to the applicant’s future. Having considered the evidence provided of the applicant’s circumstances overall, and other matters the Tribunal considers relevant, including those in respect of Direction 108, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student. This is because the Tribunal is not satisfied that he intends to genuinely stay in Australia temporarily.
The applicant does not meet cl 500.212(a). 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
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.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
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.