Baniya (Migration) - [2025] ARTA 1618

Baniya (Migration) [2025] ARTA 1618 (21 August 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Mahesh Baniya
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2400110

Tribunal:General Member J Lock
Place:Adelaide
Date: 21 August 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Student (Temporary) (Class TU) visa for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.

Statement made on 21 August 2025 at 11:13am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – employment prospects – close ties to family in home country – value of Australian courses – impact of the COVID-19 travel restrictions – changes to study path – course relevant to future plans – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 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 2 January 2024 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 17 October 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 the delegate was not satisfied the applicant genuinely intended to stay in Australia temporarily as a full time student, but rather appeared to be using the student visa program as a means of extending his stay in Australia.
On 4 January 2024 the applicant applied to the Administrative Appeals Tribunal (AAT) for a review of that decision. 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), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The applicant appeared before the Tribunal on 22 July 2025 to give evidence and present arguments. The Tribunal hearing was conducted in English, and the applicant had access to an interpreter in the Nepali and English languages for the duration of the hearing as required. The applicant did not require the assistance of the interpreter during the hearing.
The applicant was assisted in relation to the review by his representative, Ms Rong.
For the following reasons, the Tribunal sets aside the decision under review and remits the visa application for reconsideration.
BACKGROUND
The applicant is a 24-year-old man who is a citizen of Nepal. He first arrived in Australia on 9 March 2019 on a student visa (subclass TU-500). He initially studied information systems at Federation University from March 2019 to December 2021 and was awarded a Bachelor of Information Technology.
Following the completion of his course, in February 2022, the applicant applied for a temporary activity visa (subclass GG-408) which was sponsored by his employer and he worked in the hospitality industry in Melbourne. The applicant held a Bridging Visa A (subclass WA-010) from February 2022 until he was granted the subclass 408 visa in October 2022 for a period of 12 months. It was a condition of that visa that the applicant remain employed in the hospitality sector, as a critical sector (condition 8107).
The applicant lodged a further application for a student visa (subclass TU-500) on 17 October 2023 and proposed to study a Graduate Diploma in Early Childhood Education and Master of Education over the period from February 2024 until November 2025. The applicant was granted a further Bridging visa A (subclass WA-010) with the same work limitation condition (condition 8107). The applicant’s application for a student visa was refused on 2 January 2024.
The applicant commenced a Master of Business Administration (Information Systems) at Lyons College in March 2024. He is currently in his final semester and intends to finish the course in December 2025.
The above background information was obtained from visa records obtained from the Department and the applicant’s PRISMS record.[1] The applicant confirmed this information at the hearing. The Tribunal accepts this background information as true.
[1] PRISMS is a computer system developed by the Department of Education, Skills and Employment, which is the department responsible for the Commonwealth Register of Institutions and Courses for Overseas Students. It was developed by the Department in association with the Department of Home Affairs for the purpose of receiving and storing information about accepted overseas students that is given to the Secretary under the ESOS Act. PRISMS is a business record of the Department of Education, Skills and Employment and is used by the Department of Home Affairs as evidence of enrolment for the purposes of assessing the grant of student visas.
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 intends genuinely to stay in Australia temporarily.
Evidence before the Department
The Department provided to the Tribunal a copy of the applicant’s file that included:
a.student visa application lodged 17 October 2023, attaching:
i.Academic transcript from Federation University dated 9 December 2021 for the Bachelor of Information Technology
ii.identity documents – including a copy of the applicant’s Nepalese passport
iii.record of English test results from Pearson PTE academic dated 30 August 2022
iv.a statement from the applicant addressing the “genuine temporary entrant” criteria (GTE statement)
b.the delegate’s decision record dated 2 January 2024
Evidence before the Tribunal
The applicant provided the following further evidence to the Tribunal:
a.Confirmation of enrolment dated 15 February 2024 for Master of Business Administration (Information Systems) [MBA(IS)] from Lyons Education for 18 March 2024 – 31 December 2025
b.a further GTE statement provided 18 March 2024 (2024 GTE statement)
c.Interim academic transcript dated 15 November 2024 for the MBA (IS) from Lyons Education
d.Student Visa Information form (SVI form) completed by the applicant and provided to the Tribunal on 26 February 2025
e.bundle of documents provided on 30 June 2025 relating to the income and assets of the applicant’s parents
f.bundle of documents provided on 1 July 2025 relating to bank account statements for the applicant’s brother
g.a relationship certificate dated 26 November 2018 from the Ratnanagar Municipality No. 14 Ward Office
h.the applicant’s attendance and academic results records for the MBA(IS) from Lyons College provided on 14 July 2025
The applicant gave oral evidence to the Tribunal at the hearing on 22 July 2025. Following the hearing, the applicant provided a letter from Newton College dated 6 August 2025.
The evidence set out above is discussed below, to the extent it is relevant to the criteria, in the sections below.
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.
Applicant’s circumstances in Nepal
The applicant gave evidence at the hearing that he lived in the Chitwan province in Nepal. Prior to coming to Australia, the applicant lived with his parents, his older brother Manish, and younger sister, Manisha. The applicant completed high school in Nepal. His parents and siblings continue to live in Chitwan. His brother married recently, but the applicant did not attend the wedding due to his studies. His brother works in manufacturing in Chitwan and has advised the applicant he will assist him to get a job with his employer when the applicant returns to Nepal.
The applicant’s mother visited the applicant in Australia for a period of 3 months from around July – October 2024. He said that she cooked for him and provided him with emotional support. He found it hard to say goodbye to her. He stated that he contacts his family weekly via social media platforms. The applicant said that when he returns to Nepal he will return to live in the family home in Chitwan with his parents and siblings.
The Tribunal finds that the applicant’s ties to his family in Nepal are close and genuine and serve as an incentive for the applicant to return to Nepal.
The applicant gave evidence at the hearing that his mother owns their house in Chitwan. His parents run an animal husbandry business, selling milk. His father is retired and receives a military pension. The applicant’s brother earns a salary from work at Sy Panel Nepal. A certificate from the Ward Chairman of the No. 14 Ward Office of the Ratnanagar Municipality, Chitwan dated 29 June 2025 confirms the family’s income of 1,857,996 Nepalese Rupee (NPR) or $20,737AUD. The financial records provided by the applicant to the Tribunal confirm that the applicant’s parents and brother earn regular incomes consistent with this level of family income. A land tax receipt provided from the Ratnanagar Municipality dated 29 June 2025 confirms the value of a property in the applicant’s mother’s name at10,342,942.50 NPR (approximately $114,922AUD). A statement from the Prabhu Bank, Nepal dated 30 June 2025 confirms the balance of an account in the applicant’s mother’s name in the amount of 5,000,825 NPR or $56,002AUD.[2]
[2] The exchange rate applied by the Prabhu Bank is $1AUD = NPR 89.29775 as at 29 June 2025. The Tribunal accepts this as the exchange rate for the purposes of this decision.
The applicant gave evidence to the Tribunal that his parents provide financial support to him in Australia by paying his college fees. During the COVID-19 pandemic, when the applicant could not work, they financially supported him. While the applicant has been working in hospitality over the past 2 years, he has not required their support. The applicant gave evidence of his older brother, Manish, working in a business that manufactures building panels for houses. Manish has provided the applicant with advice to continue his studies in information technology and obtain his Masters. Manish has assured the applicant he will assist him to obtain work with his employer when he returns to Nepal.
The Tribunal notes that the applicant does not own any assets in Nepal. However, he is able to live in the family home and access to financial support from his family in Nepal. The applicant appears to have good prospects of obtaining employment through his brother’s employer. The Tribunal finds that the applicant’s financial circumstances in Nepal are not a disincentive for him to return.
The applicant stated in the SVI form that he used to participate in community activities through a group called Laliguras and the Rotaract Club in Nepal. These activities included cleaning the community and organising cultural events. The Tribunal is not satisfied that these community ties in Nepal would be of enough strength after being away for over 6 and a half years to act as a significant incentive for the applicant to return to Nepal.
The applicant does not have any military service commitments in Nepal and did not raise any concerns about civil or political unrest in Nepal. On the evidence before it, the Tribunal is satisfied these factors do not act as a disincentive for the applicant to return to Nepal.
In a further GTE statement provided to the Tribunal on 8 March 2024 (the 2024 GTE statement), the applicant stated he chose to undertake the MBA(IS) in Australia due to the high academic standards and quality of education in Australia, and because Australian qualifications are widely recognised and respected internationally. The applicant further stated that Nepal is a developing country with a shortage of qualified experts in IT. He noted there is good opportunity for internationally qualified IT professionals in Nepal. However, he found the study environment in Nepal is vastly different to that in Australia, being more focussed on theoretical understanding rather than the combination of theory and practice that the applicant has experienced studying in Australia.
At the hearing, the applicant stated that while he considered undertaking further study in Nepal, he chose to undertake it in Australia as he had completed his undergraduate degree successfully in Australia and was familiar with the teaching system in Australia. He also wanted to get work experience in Australia, and having an Australian qualification would assist in this.
The Tribunal accepts as reasonable the reasons given by the applicant for not undertaking his course of study in Nepal.
Applicant’s circumstances in Australia
The applicant arrived in Australia in March 2019 on a student visa (subclass 500). He undertook a Bachelor of Information Systems at Federation University from March 2019 – December 2021. The applicant’s academic transcript dated 9 December 2021 indicates that the applicant successfully completed the degree and attained a grade point average of 5.833.
The Tribunal notes that the applicant was studying in Victoria during the period of the COVID-19 pandemic from 2020 to 2022 in which significant restrictions were in place in Victoria. The applicant stated at the hearing this was a difficult time during which he was unable to obtain part-time work and he required financial support from his family. The applicant noted in his initial GTE statement that COVID-19 had a great impact on his life and he went through some of the toughest times in his life over that period. He referred to a need to take a break from study to assist his mental health.
The applicant was granted a temporary activity visa (subclass 408) in October 2022. The applicant’s representative submitted at the hearing that this was a COVID-stream temporary activity visa which required the applicant to remain employed in the hospitality sector.
The applicant has been employed by the Commune Group since April 2019. While he was studying he worked as a kitchen hand. While on the sc408 visa, he worked as a cook. He stated he found it stressful and hectic at times, with people having mood swings and shouting during busy times. He stills works with Commune part-time as a cook in a Vietnamese restaurant, earning about $600-$700AUD per week. He stated his visa conditions do not allow him to work for another employer. His representative clarified that he is not permitted to work outside of the hospitality sector. The applicant stated at the hearing that when he applied for the sc408 visa he contemplated a career in the hospitality industry, but found the work stressful and decided against it.
At the time of applying for a student visa in October 2023, the applicant proposed a course of study in early childhood education. Specifically, the applicant intended to study a Graduate Diploma in Early Childhood Education and a Master of Education at Victoria University. The applicant’s initial GTE statement lodged with the Department on 17 October 2023 stated an intention to complete training and obtain skills in the field of education before returning to Nepal to do wonders back in his homeland. He stated his intention to return to Nepal and advance his career as a teacher or lecturer at secondary or higher education level, pursue leadership roles such as a school principal or department head and ultimately open his own school or educational institution. The delegate noted in the decision dated 2 January 2024 that qualifications in early childhood education would not contribute to the applicant’s intention to teach at a secondary or tertiary level. The Tribunal shares this concern.
The applicant stated at the hearing that when his student visa was refused, his enrolment in the Graduate Diploma of Early Childhood Education was cancelled and he needed to reconsider his options. He stated he felt very frustrated and sought advice from his older brother, Manish, in Nepal. Manish urged him to concentrate on the field of his bachelor’s degree in information technology. Manish assured the applicant he would be able to assist him to get a job in the company where he works, manufacturing panels for housing. The applicant stated that he had been changing his mind for a while and wanted to concentrate on one field.
In the 2024 GTE statement, the applicant stated that after consulting with his parents and friends he realised he had made a mistake in pursuing study in education and that he should continue his studies in the field of his undergraduate degree. He then changed his mind to study the MBA(IS). He enrolled in the MBA(IS) and commenced study in March 2024.

The applicant has provided academic records from Lyons College that confirm the applicant completed 6 subjects in 2024 and has completed 3 subjects in Semester 1 of 2025 in the MBA(IS). Attendance records from Lyons College confirm the applicant had an attendance rate of 94.6% in 2024.
The applicant is currently in his last semester of the MBA(IS). He stated at the hearing that the course has covered business and information systems, marketing and finance and change management and leadership. Information gathered from the college’s website[3] confirms the applicant is required to complete 3 subjects in Semester 2 in 2025. The applicant stated at the hearing he is enrolled in an internship related subject and a business information system course. This is broadly consistent with the course information on the website.
[3] Master of Business Administration (Information Systems) – Lyons College – High Quality Education in Melbourne
The Tribunal is satisfied that the applicant is a genuine student and is progressing in his course of study.
The applicant’s PRISMS record shows that the applicant undertook a Certificate III in Commercial Cookery from 7 November 2022 – 5 November 2023, and successfully completed the course. This was put to the applicant in the hearing. The Tribunal raised a concern that since 2019, the applicant had completed studies in IT and cookery, had proposed to study early childhood education and is now proposing to study a MBA (IS). This may indicate a pattern of study that is not relevant to one area of study or employment and that the applicant is undertaking study as a means of maintaining residence in Australia, rather than to further his education and employment prospects in Nepal. The applicant stated at the hearing that he enrolled in the Certificate III of Cookery but decided that it was not for him. He maintained that he withdrew from the course. Following the hearing, the applicant provided a letter from Newton College dated 6 August 2025 confirming the applicant was enrolled in a Certificate III in Commercial Cookery but had not achieved any competency from the course. It does not appear that the applicant formally withdrew from the course.
The Tribunal accepts that the applicant did not complete the Certificate III in Commercial Cookery. The applicant held a temporary activity visa (subclass 408) over this period (24 October 2022 – 17 October 2023) and was not required to be enrolled in a course of study over this period.
The applicant currently resides with his cousin, Sumina, in Glenroy, Victoria. He stated at the hearing that Sumina is about around 30 years old and became divorced a few years ago. She has a son aged 9 years. The applicant states he gets on well with her son. She is currently working in the disability sector. Sumina is the applicant’s mother’s sister’s daughter. She helped the applicant’s mother come to Australia when she saw the applicant needed support. His mother encouraged the applicant to move in with Sumina so that they could support each other. The applicant clearly has a close relationship with his cousin and her son and the Tribunal finds this may be an incentive for the applicant to remain in Australia following his studies.
The applicant has not had any close personal relationships in Australia. He used to have a close personal relationship in Nepal but this was some time ago. In the SVI form the applicant stated he spent time with other members of the Nepalese community in Australia, sharing activities, playing games and providing emotional support for each other as they are far from family. At the hearing, he stated he had been spending time with members of the Nepalese community since moving to Glenroy, hanging out and going for refreshments. The Tribunal finds that the applicant’s main community ties in Australia are with members of the Nepalese community. The Tribunal is not satisfied this amounts to a strong disincentive to return to Nepal.
At the hearing, the applicant stated that his ties and his family are in Nepal and that he had an intention to return to Nepal. The Tribunal finds that, on balance, the applicant’s ties to his family in Nepal serve as more of an incentive for him to return to Nepal than the ties to his cousin and her son and community ties in Australia.
Future plans
The applicant stated at the hearing that he hopes to obtain employment as a data analyst. He has found the MBA(IS) course to be of direct relevance to his future plans, in that it covers enterprise resource planning and use of software and technology to measure business performance. He expects he could earn NPR 40,000 / month ($448AUD) in this field. In the SVI form he estimated that MBA graduates could earn NPR 60,000 – 150,000 per month ($672 - $1,680AUD per month). The Tribunal is satisfied that the applicant’s earning capacity in Nepal is not a disincentive for him to return to Nepal.
The Tribunal is satisfied that the MBA(IS) is consistent with his previous field of study, and represents a progression from his bachelors degree in Information Technology. The Tribunal is satisfied that the course will assist the applicant to obtain employment in Nepal in the field of IT and information systems, specifically as a data analyst.
The applicant stated in the 2024 GTE statement, the SVI form and at the hearing, an intention to gain work experience in the field of information technology in Australia before returning to Nepal. He conceded at the hearing he would require a post-graduate visa to remain in Australia and that if he was not granted this visa he would return home. He also stated an intention to update his computer programming skills to assist him in business analytics. He had identified a 3-month course available online that he could undertake after he has completed his studies, either here or in Nepal. The Tribunal notes that while the applicant has been on the Bridging Visa A with the work limitation that he work in the hospitality sector, he has been unable to engage in paid work experience in the IT or business fields relevant to his course of study.
The Tribunal is satisfied that the applicant’s intention to obtain work experience in Australia, following the completion of his course, if permitted, is still consistent with an intention to remain in Australia temporarily.
Applicant’s immigration history
The applicant initially came to Australia on a student visa (subclass 500). This is his second application for a student visa (subclass 500). The Tribunal has had regard to the several significant changes in the applicant’s study intentions since graduating from the Bachelor of IT. Initially he enrolled in a Certificate III in Commercial Cookery and considered working in hospitality, applying for a temporary visa to work in the hospitality sector in 2022. Having worked in the sector, he decided against hospitality and applied for a student visa in 2023 intending to study early childhood education. When this visa application was refused he enrolled in the MBA(IS). The Tribunal has also considered that these changes occurred against a backdrop of the COVID-19 pandemic and lockdowns in Victoria. The applicant gave evidence of the significant impact this had on his life and his mental health and concedes it had an effect on the decisions he made. The Tribunal is required to make an assessment of the applicant’s intention at the hearing. The applicant gave evidence in a consistent and open manner. The applicant gave evidence of his intention to return to Nepal and work in IT, specifically as a data analyst. The Tribunal accepts the applicant’s stated intention is genuine.
The Tribunal noted at the hearing that the applicant has not returned to Nepal since coming to Australia in 2019, although his mother has visited him here. The Tribunal expressed a concern that this may indicate the applicant’s ties in Australia were stronger than his ties in Nepal. The applicant explained at hearing that initially his studies prevented him from returning to Nepal and then there were the COVID lockdowns. He further explained that when he was on the temporary activity visa (subclass 408) his employer would not give him leave. He then started studying again and could not go back to Nepal. The applicant’s representative submitted at the hearing that the applicant was stuck in Australia during COVID and then when he was on a Bridging Visa A he was not permitted to travel. While acknowledging that the applicant could have applied for a change to his bridging visa, the applicant was unsure when his hearing would be listed and did not want to risk being out of the country.
The Tribunal is satisfied with the applicant’s explanation for the length of time he has been in Australia and his lack of travel home to Nepal. The Tribunal is not satisfied there is evidence of the applicant using the student visa application to maintain residence in Australia.
Conclusion
The Tribunal accepts the applicant’s explanation for the change in his intended course of study and accepts his stated intention that he genuinely intends to return to Nepal. The Tribunal is satisfied the applicant is not using this student visa application to circumvent the intentions of the migration programme.
There is no other information relevant to the assessment of whether the applicant is a genuine temporary entrant.
On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).
Does the applicant intend to comply with visa conditions?
For the applicant to meet cl 500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl 500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). For visa applications made on or after 1 July 2022, condition 8208 (no critical technology related study without approval) must also be imposed. The following conditions may also be imposed in some cases (cl 500.611(2)): 8535 (limited visa entitlement), 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).
Since being granted a temporary activity visa (sc 408) on 24 October 2022, the applicant has been subject to a work limitation that he work in the hospitality sector (condition 8107). The applicant has abided by this condition by continuing to work for his employer. This is even though he finds the work stressful at times and no longer wishes to pursue a career in hospitality. The applicant declared in his student visa application that he would abide by any conditions imposed on a student visa, if granted.
On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl 500.212(b).
Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?
For the applicant to meet cl 500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl 500.212(a) and (b)). The Tribunal is satisfied there is no other relevant matter that requires consideration.
Conclusion on cl 500.212
Accordingly, the Tribunal is 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 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 of Schedule 2 to the Regulations.
Dates of hearing(s): 22 July 2025
Representative for the Applicant: Miss Yujie Rong (MARN: 1801289)
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.