Arackal (Migration) - [2025] ARTA 897

ARACKAL (MIGRATION) [2025] ARTA 897 (10 JUNE 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Nisha Varghese Arackal
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2313995

Tribunal:General Member N Schmitz
Place:Melbourne
Date: 10 June 2025
Decision:The decision under review is affirmed.

Statement made on 10 June 2025 at 2:22pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant and compliance with conditions – applied one day before visitor visa due to expire – value of course to applicant’s future – study progress and career plan – upskilling to supervisory or administrative role – employment and salary expectations – husband, children and most other family in home country and one brother in Australia – husband’s business and property – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
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 22 August 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 25 June 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 515.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant intended genuinely to stay in Australia temporarily.
On 8 September 2023, the applicant applied to the Administrative Appeals Tribunal (the AAT) for a review of that decision.
On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (the Tribunal). The Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth) (“the Transitional Act”) provides that review applications which were not finalised before 14 October 2024 are deemed to be applications for review by the ART and are to be continued and determined as such.
The applicant appeared before the Tribunal on 14 April 2025 via Microsoft Teams video technology to give evidence and present arguments. The applicant was assisted in relation to the review by her representative who attended the hearing.
For the following reasons, the Tribunal considers the decision under review should be affirmed.
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 genuinely intends to stay in Australia temporarily as a student.
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.
Evidence before the Tribunal
The Tribunal has had regard to documents filed prior to hearing, post-hearing and the applicant’s oral evidence at hearing. The Tribunal has also considered the applicant’s record in the Provider Registration and International Student Management System (PRISMS) and travel movement records.
Delegate’s decision record
At hearing, the Tribunal explained to the applicant the reason for her visa refusal and the issue under review. As set out in the delegate’s decision record the delegate had a number of concerns:
a.Whilst the applicant has family including a spouse and children and declared her highest qualification to be a Bachelor of Nursing in 2019, she has not had employment in India since 2021. She also provided limited information regarding her financial circumstances. The delegate was therefore not satisfied that the applicant would return home due to employment and that the financial incentives to return would outweigh the financial incentives to remain in Australia;
b.The applicant also did not demonstrate that she had researched study options outside of Australia. Given she had significant family ties in Australia, including a brother, the delegate had serious concerns that these ties would reduce her incentive to return after the completion of her studies;
c.While the delegate accepted individuals may study to enhance their knowledge and skills, the applicant had not demonstrated how her course would significantly improve her future employment or remuneration compared to a qualification that could be acquired domestically; and
d.The applicant arrived in Australia on a visitor visa and extended her stay until 14 July 2024 for study purposes. The significant change in migration intentions raised concerns that the applicant was not a genuine temporary entrant and may be utilising the student visa program to maintain an ongoing residency in Australia.
Background and immigration history
The applicant is a 41-year old national from Kerala, India. She is married and has two children aged six and 10 years. In India the applicant completed a Bachelor of Arts in 2004, a Diploma of Nursing and Midwifery in 2007 and a Bachelor of Nursing in 2019.
Academic transcript certificates submitted by the applicant show that she has undertaken a range of nursing subjects including but not limited to advanced nursing practice, management in nursing, midwifery, paediatric nursing, psychiatric nursing and mental health, medical surgical nursing, gynaecological and orthopaedic nursing, ENT, fundamentals of nursing, community health nursing, anatomy and physiology, physics and chemistry and professional trends and adjustments.
She told the Tribunal that she worked as a registered staff nurse at Lisie Hospital from November 2008 to March 2011 and September 2011 to September 2013 and at Palace Hospital from October 2019 to November 2021
The Tribunal noted to the applicant that she declared in her visa application form that she previously held various senior nursing roles including as a Nursing Superintendent and Nursing Director. The Tribunal asked the applicant to explain the inconsistency. The applicant claimed that she mistakenly input the job title of her referee into her own employment history job description. The Tribunal has carefully perused both the Department and Tribunal files which show that the applicant has provided a consistent employment history and that the error is confined to the visa application form. The Tribunal accepts the applicant’s explanation and the circumstances in which she made the error in her visa application form.
The applicant travelled to the United Arab Emirates (UAE) between January 2021 and April 2021 and December 2021 and January 2023. From March 2022 until December 2022 she was employed as a medical secretary in an administrative health care role. She returned to India for approximately three months but did not resume paid employment.
The applicant first arrived in Australia on 27 March 2023 as the holder of a visitor visa (Subclass 600). She claimed the purpose was to visit her brother who is an Australian citizen, his wife and the applicant’s mother who was visiting from India but has since returned. At the time her brother was working as an immunisation officer at a local council and his wife as a registered nurse. On 25 June 2023, she applied for a student visa which was refused and is the subject of this review.
At the time of application she applied to study a Diploma of Leadership and Management at Education Training & Employment Australia [ETEA] from July 2023 until July 2024 (tuition fee AUD5,500). Confirmation of enrolment (COE) records submitted by the applicant confirm the same. Since the visa refusal, the applicant has completed her Diploma of Leadership and Management and in support submitted a certificate of completion showing she undertook the course from 17 July 2023 until 14 July 2024.
The applicant subsequently enrolled in a Masters of Nursing from 1 July 2024 until 30 June 2026 (tuition fee AUD48,000). COE records submitted by the applicant confirm the same. A course progression letter submitted by the applicant shows that she has an attendance record of 96.33% and received credits for her three completed course units.
The applicant’s career plan
At hearing, the Tribunal asked the applicant what her future employment plans were after finishing her course and whether she had any evidence in support. The applicant replied that she had already completed a Diploma of Leadership and Management, had a husband and children and extended family residing in India. She believed she would therefore have an opportunity to be a Nursing Supervisor or Manager. She stated she had previously worked in India and ‘will get a good job’.
The Tribunal asked the applicant whether she had departed Australia since her initial arrival in March 2023, and if so, when she departed and where she returned to. The applicant replied that she returned to India to visit her ill mother departing on 16 February 2025 and returned to Australia on 2 March 2025.
The Tribunal asked the applicant whether she used this recent travel opportunity to engage in discussions and/or make arrangements regarding future employment in India and if not, why not. The applicant replied, ‘I already told you after this Masters I can secure good job in hometown because already work as a staff nurse at Lisie’. The Tribunal indicated she had not answered the Tribunal’s question and gave her a further opportunity to respond. She then replied ‘Yes. It was a short trip. Only took two weeks. Didn’t have much opportunity. Already researched job opportunities’. The Tribunal indicated again that she had not answered the Tribunal’s question and gave her a third opportunity to respond. She then replied that she had not undertaken any enquiries or made arrangements regarding future employment in India stating she just visited her mother, children and husband.
The value of the applicant’s course to her future
The Tribunal asked the applicant what value her course was to her future employment. The applicant claimed she would be ‘able to be a leader or Nursing Supervisor’ and live a ‘better family life’. She claimed a Nursing Manager earns INR80,000-INR120,000 per month (equivalent to AUD1,432-AUD2,148). The Tribunal asked her the source of these figures to which she replied a google search. The Tribunal indicated that it did not consider the information from such a search to be credible.
The Tribunal explained that it had some concerns regarding the value and relevancy of her course noting her educational history, including a Bachelor of Nursing in India and her employment history as a registered nurse, including in the Intensive Care Unit (ICU) and Emergency Department. The Tribunal asked her why she needed these qualifications when she was already a qualified nurse and had coal-face frontline nursing experience. The applicant replied that she only had experience as a registered nurse and had worked as a medical secretary and did not have any previous nursing administration experience and wanted to upskill her knowledge.
The Tribunal asked the applicant why she needed a Masters in Nursing when she already held a Nursing Bachelor Degree and noting her practical nursing experience. The Tribunal explained that it made it question whether her aim was to study for the reasons claimed given she already held various relevant qualifications and had nursing experience. The applicant claimed she could not work as a Nursing Supervisor or Superintendent with a Bachelor of Nursing. She claimed in order to be a Nursing Manager it was a requirement to have a Masters or PhD. No evidence was provided to support this oral assertion.
The Tribunal noted to the applicant her claims that she wanted to study Leadership and Management because she wanted to pursue an administrative role in healthcare. However, she was now claiming she needed to study a Masters because it provided her with practical training. The Tribunal explained that it raised concerns that she was studying to maintain an ongoing residency in Australia. The applicant replied she came to Australia to visit her brother and mother and then became aware that Australia was a good place to get a higher qualification and started the Leadership and Management course.
The Tribunal referred to information submitted by the applicant that she would expect to earn INR23,987 per month (equivalent to $AUD440 per month) and INR2,87,844 per annum (equivalent to $AUD5,300). The Tribunal indicated that this remuneration did not appear a lot compared to the monetary outlay (i.e. AUD48,000 and AUD5,500) and the time commitment the study required in Australia (i.e. a total of three years) and if she wished to comment. The applicant replied that after completing her Masters that this was a basic salary scale and that it depended on experience and that it was possible to earn more. She claimed that an international qualification would assist her obtain employment and that Australia living expenses were very high compared to India and therefore this income would be ‘sufficient for me’
The Tribunal referred to various statistics including from the Australian Bureau of Statistics, regarding the salary for registered nurses in Victoria who earn on average between AUD70,000-AUD120,000 per annum and AUD2,156 per week or AUD40 per hour.[1] The Tribunal indicated that these figures raised concerns that the applicant may consider that she had better financial and employment prospects in Australia than in her home country of India and may reduce her incentive to return home on the completion of her studies. The applicant replied that to start a new life in a foreign country would be hard. She stated her husband operates a learner driving school business in India and earns a sufficient income and that he had property. She also claimed her children were studying in India. The Tribunal also indicated that Australian nurses had better work conditions including double time, over time and had strong nurses unions unlike India. The applicant replied she has a husband and children in India and that her husband did not want to settle in Australia.
[1]
The Tribunal noted to the applicant that she was last employed in India in 2021 and had some concerns that she would not return after the completion of her studies given she had no recent employment experience in India. The applicant was asked if she wished to comment. The applicant did not directly engage with the question stating she worked in Dubai for a small business and that her husband was working in a labour supply company there.
The Tribunal asked the applicant why she could not undertake her course in India or a neighbouring country and that information indicated that similar courses were available. The applicant replied she had already done research including in European countries but they were more focused on theory rather than practical learning. The applicant claimed that Australia was multicultural. The Tribunal asked how that would help her if she was planning on returning to work in India as claimed. The applicant claimed she got to experience other country aspects and Australia was a more welcoming country.
The Tribunal asked the applicant why the Australian qualification assisted her achieve her goal in comparison to a qualification that could be acquired domestically in India. The applicant claimed having an international qualification would help her stand out from other candidates and earn a higher salary.
The applicant’s circumstances in her home country
The applicant has a husband and two children who reside in India, along with her mother and four sisters. The applicant’s other brother resides in Canada. The applicant’s children currently attend school and the applicant’s husband owns property and operates a learner driving school business. The Tribunal indicated that whilst her husband owns property and motor vehicles they were not in the applicant’s name which the applicant agreed with. The Tribunal further indicated that such assets could be sold.
The Tribunal noted the applicant’s claims that her husband is a ‘businessman’ and earns an income of INR470,470 per annum (equivalent to AUD8,600). The Tribunal indicated that his taxable income places him well below the base pay in India of INR945,489[2] and that therefore it had some difficulty accepting that her husband’s employment would incentivise her to return after the completion of her studies, this is particularly so, noting what the applicant could earn as a registered nurse in Australia. The applicant was asked if she wished to comment. She stated her husband ran a driving school, had lots of workers and earned a sufficient income and that living expenses were less in India.
The applicant’s circumstances in Australia
[2]
The applicant has a brother who is an Australian citizen as indicated by his Australian passport. The applicant told the Tribunal that her brother has since moved to Brisbane and that she is now residing with cousins in Shepparton. The applicant stated she has not worked since being in Australia due to having a no work condition on her current bridging visa. Information submitted by the applicant shows that her tuition fees have been financed by her brother in Australia and husband. At hearing she claimed she was also financially supported by her sister.
The applicant’s immigration history

The Tribunal referred to information submitted by the applicant which showed that she first arrived in Australia on a visitor visa on 27 March 2023. On 26 June 2023, one day before her visitor visa was due to expire she applied for a student visa to study until July 2024. The Tribunal indicated that the significant change in her migration intentions raised concerns that she was not a genuine temporary entrant and may be using the student visa program to maintain an ongoing residency in Australia and if she wished to comment. The applicant claimed she came to Australia to visit her brother and mother an only learnt about higher education when here and that she had an ambition to be a Nursing Supervisor in India.
Other than the student visa, which is the subject of this review, there is no evidence before the Tribunal that the applicant has had a visa in Australia or any other country refused or cancelled.
Submissions
The representative was asked if she wished to make submissions which were as follows: The applicant came to visit her brother and only after her arrival she undertook research regarding further education; she has strong country ties with her immediate family being in India, her husband is ‘well-off’; her children attend school in India and whilst property is sellable it is ‘not fast moving’; and she has not returned much to India due to being committed to her studies.
Findings
The Tribunal has considered the written and oral evidence before it, as well as the factors set out in the above Direction.
The Tribunal accepts that the applicant has some family who reside in India including her husband, two children, sisters and mother that could act as an incentive to return home. However, the Tribunal does not consider that these circumstances in and of themselves demonstrate a significant incentive for the applicant to return home. The Tribunal notes that the applicant has only briefly returned to India for approximately 14 days despite being onshore in Australia for over two years and her children being young and in their formative years. Rather, the applicant has managed to maintain personal relations with her family from abroad (as evidence by chat records submitted by the applicant) and the Tribunal considers that the applicant and her family are used to being apart for significant periods and in such circumstances, the Tribunal places less favourable weight in this regard.
The Tribunal acknowledges that the applicant’s family in India have provided her with financial support in the past and they continue to provide her with financial support while offshore in Australia. However, the Tribunal considers that the applicant has been able to remotely obtain these funds from her family in India while in Australia which reduces the need for her to be home to access any financial benefits. Accordingly, the Tribunal places less favourable weight in circumstances where the applicant has been able to manage financial ties to her homer country from afar.
The Tribunal accepts that the applicant’s husband owns property and motor vehicles for his driving school business. However, after considering all the evidence the Tribunal is not satisfied that it constitutes a sufficient economic incentive to return to India. Despite the applicant’s claims that her husband was a wealthy and successful businessmen, his financial records demonstrate that it is not a high-income producing business. For example, in 2021-2022 he earned a total of INR440,100 equivalent to AUD7,886 for the year and paid no taxable income. In 2023-2024, his income slightly increased to INR470,470 equivalent to AUD8,430 for the year and he paid INR76 equivalent AUD1.36 in tax. This places the applicant’s husband in the second lowest income tax level in India. Overall, the financial documents submitted to the Tribunal do not support the applicant’s claims that her husband is a successful entrepreneur and operates a high income producing business which would incentivise her to return home after the completion of her studies.
Whilst the applicant’s husband owns various motor vehicles, the Tribunal considers that these assets can be easily sold or transferred and in this regard places limited weight on them. Similarly, whilst the applicant’s husband owns property, the Tribunal notes that the property is not in the applicant’s name and that such property can be sold, be it in the medium to longer term and places less weight in this regard.
The Tribunal accepts that the applicant has previously been employed as a registered nurse in India, however notes that she has not worked as a nurse since November 2021. The Tribunal considers this to be a significant lapse of time and therefore is not satisfied she will be compelled to return home upon the completion of her studies. This is particularly so, noting the monetary outlay for her courses in Australia totalling AUD53,500 and the higher income she could expect to earn in Australia. In contrast, the Tribunal does not regard the applicant’s expected salary in India to be a strong incentive to return despite lower cost of living and family support in India.
The Tribunal has carefully considered the applicant’s reasons for undertaking her Masters of Nursing and her career plans, however, considers that there is no substantial or compelling reason why the applicant would need to undertake a Masters qualification to work as a Nursing Supervisor and/or Director in India. The Tribunal notes that the applicant prior to her arrival in Australia already held various tertiary education qualifications including a Bachelor of Arts, Diploma of Nursing and Midwifery and Bachelor of Nursing. She also has extensive coal face work experience including as a registered nurse at various hospitals in India totalling six and a half years. She also has administration experience working in Dubai. Since being in Australia she has also completed a Diploma of Leadership and Management where according to her certificate of completion she has already learnt about workplace management, leadership and communication. The Tribunal is not satisfied by the applicant’s response when questioned that she needs a Masters or PhD qualification to work in India as a Nursing Supervisor and/or Director. No evidence was provided to support this claim and when pressed she simply repeated the oral assertion. The Tribunal also regards her reasons for studying in Australia and the need to obtain a foreign degree as unsatisfactory and lacking in detail. The Tribunal places significant weight on the applicant’s previous qualifications and work record and finds that it significantly outweighs the applicant’s evidence regarding why her proposed study is of any value. For this reason, the Tribunal does not accept that the applicant genuinely requires a Masters in Nursing to be able to return to work in India.
The Tribunal has considered the applicant’s evidence regarding her career plans however regards her evidence as vague, unsatisfactory and unconvincing. The applicant’s plans lacked detail despite recently returning to India where she could have made enquiries and despite having contacts at various hospitals in India. The applicant was unable to provide the level of detail that the Tribunal would expect to see from someone genuinely preparing to return home to commence work.
The Tribunal notes the applicant first arrived in Australia on a visitor visa for the purposes of visiting her brother and mother. The Tribunal does not consider it likely that she travelled to Australia for the first time on a visitor visa without her two children and husband and then decided to commence courses of three years duration once here. The Tribunal does not accept that she would have been in a position to change her plans in such a significant way. The Tribunal finds that she more likely travelled to Australia with the intention to commence her studies here and apply for a student visa. This causes the Tribunal some doubt about her stated intentions regarding her student visa.
Weighing up all the available evidence and based on the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
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.
Dates of hearing(s): 14 April 2025
Representative for the Applicant: Mrs Vidanagama Arachchige Swargika Crystal Thiola Cabral (MARN: 1794972)
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.