Bariya (Migration) - [2025] ARTA 904

BARIYA (MIGRATION) [2025] ARTA 904 (28 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Sunitaben Dineshbhai Bariya
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2401375

Tribunal:General Member, J McLeod
Place:Melbourne
Date: 28 April 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 28 April 2025 at 5:28pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – satisfied that the applicant is a genuine applicant for entry and stay as a student – proposed course of study will be of value to future – strong ties to home country – familial and economic incentives for her to return to home country – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 15 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 14 September 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 they were not satisfied the applicant’s intention was genuinely to stay in Australia temporarily.
On 29 January 2024, the applicant applied to the Tribunal[1] to have this decision reviewed. The applicant appeared before the Tribunal on 7 April 2025 to give evidence and present arguments. She was assisted in relation to the review and her representative gave oral submissions at the hearing. The hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
[1] On 14 October 2024 the Administrative Appeals Tribunal (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 considering all the submissions, documentary evidence and the applicant’s evidence at hearing and in the post-hearing submissions, for the reasons set out below, the Tribunal sets aside the decision under review and remits the visa application for reconsideration.
STATUTORY FRAMEWORK - CRITIERA IN ISSUE
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 the applicant at the time of decision. The issue in the present case is whether the applicant is a 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.
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 CLAIMS AND EVIDENCE
cl 500.212(a) Genuine applicant for entry and stay as a student:
The applicant is a 31 year old woman from Vadodara in Gujarat state, India. She is university educated, having completed a Bachelor of Business Administration through Sadar Patel University in Anand, India between 2012 and 2015.
She first came to Australia as a subsequent entrant applicant on her husband’s student visa. She was then granted subsequent visas as his spouse/secondary applicant on his student visa while he studied a Master of Professional Accounting, on his subclass 485 (Temporary Graduate) visa and his 408 (Temporary Activity) visa during the COVID restriction period. While her husband was studying, she worked several different jobs in Australia in hotels, as a cleaner, petrol station attendant and doughnut shop. Her husband returned to India in September 2023 and instead of going with him, the applicant stayed behind, to study on her own student visa.
This current review concerns the applicant’s first student visa application as a primary applicant – it is the first visa for which she herself has applied to stay and study. Initially and during most of her husband’s studies she and her husband hadn’t had any plans for the applicant to study, but later they decided she too should have the opportunity and make plans for herself. They considered whether she should study here or in India. They decided on Australia in part because with her remaining here independently, it alleviated the pressure they were facing from their families to start a family. The applicant submits that her studying here gives her a chance to start her own successful career. So, while her husband returned to India in September 2023, the applicant applied for this visa.
In her application, the applicant proposed to study three courses including: (1) Certificate III in Commercial Cookery; (2) Certificate IV in Kitchen Management and (3) Diploma of Hospitality Management. However, she did not complete any of these courses and pivoted instead to study an Advanced Diploma in Civil Construction Design through Reach Community College. She has an active confirmation of enrolment (CoE) in this course.
The applicant explained her change in studies and career direction in her written submissions and evidence at the Tribunal hearing. She in fact completed a large portion of the Certificate III in Commercial Cookery but she dropped out just before the end, and at the same time cancelled her enrolments in the Kitchen Management and Hospitality courses. She said she had been passionate about the field when she commenced it and she had thought she would go back and start her own business in Gujarat. But most of the course was geared between non-vegetarian foods, which was of no use in her home region, where her customer base would be over 90 percent vegetarian. She had felt she had made a mistake in studying cookery and after talking and seeking feedback from her Indian friends here about their studies and the opportunities back home, and doing some of her own research, she identified the civil construction and design course. She decided this was a more suitable option for her and would be more applicable once she returns back. When she reached this decision, she felt it made no sense for her to waste further time and money even finishing off the Certificate III or going on to start the other courses, so she cancelled her enrolments in all.
She has been studying the Advanced Diploma in Civil Construction Design course through Reach Community College since April 2024 and expects to complete it by April 2026. At the hearing she said she is halfway through and has completed nine of the total 18 units required. She acknowledged that she doesn’t have any background in construction or engineering, but she said there were no prerequisites, and she identified that this is a growth sector with lot of opportunities with a lot of scope. Infrastructure in India’s growth economy is booming but even when people do personal construction there is scope to engage designers in this field. She believes these studies will help her to establish her own successful career in Gujarat, where her husband and parents are.
I consider the applicant has given credible evidence about her motivations and purposes for studying the courses she has, and for her change of focus. She has submitted examples of her research into the civil construction and design sector including examples of the types of jobs she expects she will be able to apply for when she returns to India. I accept that this courses of study the applicant is undertaking in Australia has future value in supporting her employment and other personal goals. Relevantly too, I consider that her Bachelor of Business Administration previously undertaken will also likely support the applicant’s ability to succeed in her chosen industry.
I accept the applicant’s explanations about why she is pursuing her studies in Australia rather than in India. As noted above, her initial motivations were about creating space for herself to start her career absent the expectations of starting a family and on pursuing the civil construction and design course she submits there are additional benefits including gaining internationally recognised qualifications, learning specific branded technology, the curriculum and learning environment suited to her needs, including having smaller classes and a focus for mature learners. I consider such explanations to be reasonable and plausible reasons for pursuing her studies here.
Overall, I accept that the applicant has demonstrated ample reasons for pursuing her studies in Australia rather than in India, for her pivot to civil construction and design, for her choice of education provider and knowledge of the course, and the value of this course to her future. She has demonstrated satisfactory progress in her courses so far and I see no reason this would not continue, or that she will not complete her studies within the expected timeframe. I am satisfied that the applicant is genuinely studying and committed to her course of study.
I accept that the applicant no longer has any family in Australia and that she has strong family, financial and community ties in India. Her husband has returned to their home in India and is working in the family’s accounting business. There are no indicators that they separated or that he returned for any reason other than to resume life in their home state, with the arrangement that the applicant will also return when she completes her studies. Her parents are also a reason for her to return, and her brother and grandmother. She has returned to India six times to visit home and see her family since arriving in 2017.The applicant has worked in different jobs and industries in Australia, but the Tribunal accepts they were not career driven or high income roles and do not reflect the career she hopes to attain. She and her husband also have property and other assets, and the applicant has given credible indications about her studies here will present realistic career options for her in India. I accept there a familial and economic incentives for her to return to India.
The applicant’s immigration history is not of concern. Perhaps she could have sought to study earlier but I accept she was working and supporting her husband through his studies. I accept there are reasonable reasons she has been in Australia so long. She has returned home to India many times and there is no indication she has ever been unlawful or breached any visa conditions. There is nothing to indicate she has ever been refused a visa to any country nor had a visa cancelled or considered for cancellation. There is nothing to indicate she would not comply with any conditions imposed on this visa, if granted.
The applicant is not required to do military service, and she submits she has no concerns about political or civil unrest in her region in India. I accept this is not a disincentive for her to return.
Overall, having regard to the applicants’ circumstances, her immigration history and other relevant matters discussed above, I am satisfied that the applicant intends genuinely to stay in Australia temporarily as a student. Accordingly, the applicant meets cl 500.212(a).
cl 500.212(b) Intention to comply with visa conditions:
For the applicant to meet cl 500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl 500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). For visa applications made on or after 1 July 2022, condition 8208 (no critical technology related study without approval) must also be imposed.
The applicant has stated that she intends to comply with the conditions of the student visa. There is nothing to indicate that she has breached any visa conditions ever imposed on her. There are no indications she would breach any work limitations or conditions, or that she would not continue to attend and progress in her studies. She has provided evidence of her health insurance cover, which is still valid until August 2025, but which the Tribunal considers she would extend if granted this visa. There are no indicators she has any intention not to comply.
On the basis of the above, I am satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl 500.212(b).
cl 500.212(c) 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)).
There is nothing else in the material before me which is of concern, or which indicates that the applicant is not in fact a genuine temporary entrant and a genuine applicant for entry and stay in Australia as a student. I am satisfied that cl 500.212(c) is satisfied.
Conclusion on cl 500.212
I am satisfied that the applicant meets cl 500.212(a), cl 500.212(b) and cl 500.212(c).
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.
Date of hearing: 7 April 2025
Representative for the Applicant: Mr Sukhvinder Singh (MARN: 1803330)
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.