Batdorj (Migration) - [2025] ARTA 302

BATDORJ (MIGRATION) [2025] ARTA 302 (12 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Ariunsaikhan Batdorj
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2318573

Tribunal:General Member J Horsley
Place:Melbourne
Date: 12 March 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 12 March 2025 at 10:22am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – applied after arriving on tourist visa – completed English course and diploma course in progress, and enrolment in advanced diploma – knowledge of provider and course – offer of employment in cousin’s company – employment, financial and property documentation provided – family in home country, and no family members in Australia – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
CASE
Rodrigues Mendoca Dos Santos (Migration) [2021] AATA 771
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 31 October 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 August 2023. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) on the basis that the applicant is not a genuine applicant for entry and stay as a student.
On 15 November 2023, the applicant applied for a review of the delegate’s decision to the Administrative Appeals Tribunal (AAT). On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is made by the Tribunal.[1]
[1] 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.
The applicant appeared before the Tribunal on 6 March 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages. The applicant was assisted in relation to the review by his representative, who also attended the hearing.
For the following reasons, the Tribunal sets aside the decision under review and remits the visa application for reconsideration.
BACKGROUND
Claims and evidence before the Department
Student visa application
According to the applicant’s Student visa application, he is a 50-year-old Mongolian national, who was born and raised in Ulaanbaatar, Mongolia.
The applicant is married and has 2 adult sons. His wife and sons continue to reside in Mongolia, as do the applicant’s father, 3 brothers and 2 sisters.
The applicant first travelled to Australia on 4 July 2023 as the holder of a Visitor (subclass 600) visa. On 25 August 2023, the applicant applied for a Student visa, with the intention of studying General English at the UK English College, and upon completion, a Diploma of Project Management at the Australian Vocational Training Institute (AVTI).
In support of his Student visa application, the applicant provided the following documents from Australia:
·Statement of Purpose – Genuine Temporary Entrant (GTE Statement); and
·BUPA Overseas Student Health Cover Verification Letter, dated 11 August 2023.
In support of his Student visa application, the applicant provided the following documents from Mongolia:
·Copies of Mongolian Passports of the applicant, his wife, and sons;
·Copies of Citizen Identity Cards of Mongolia for the applicant, his wife, and sons;
·Copies of Birth Certificates of his 2 sons (in Mongolian, with English translations);
·Copy of Marriage Certificate, dated 5 January 1996 (in Mongolian, with an English translation);
·Reference Letter from APU Company (states the applicant worked as a Forklift Driver from ‘March 2014 to today’), dated 6 April 2023 (in Mongolian, with an English translation);
·Reference Letter from NOT TRADE (states the applicant’s wife has worked as a Manager from ‘2015 until today’), dated 20 April 2023 (in Mongolian, with an English translation);
·Reference Letter from Dashvaanzil (states that the applicant’s son works as a Director of Sales for the company), undated (in Mongolian, with an English translation);
·Bank Statement from Khan Bank for the applicant, dated 4 July 2016;
·Bank Statement from Khan Bank for applicant’s wife, dated 4 July 2016;
·Copy of Federal Certificate of Profession, dated 13 September 2010 (in Mongolian, with an English translation);
·Evidence of real estate ownership in Mongolia (in Mongolian, with an English translation);
·Evidence of Mongolian Social Insurance Contributions; and
·Copy of Certificate awarded by the Ministry of Rural Affairs and Light Manufacturing, dated 8 February 2021 (in Mongolian, with an English translation).
In the GTE Statement, which covers some 11 pages, the applicant provides many details about his personal background, why he wants to pursue further studies, why he chose to study in Australia, why he chose not to further his studies in Mongolia, why he chose to study General English, why he hopes to study a Diploma of Project Management in future, his future career prospects, and financial circumstances. In summary, the applicant also made the following claims in his GTE Statement:
·He is applying for a Student visa to study a Diploma of Project Management at the Australian Vocational Training Institute (AVTI) packaged with General English at the UK English College.
·The applicant holds a Bachelor of Automotive Mechanics from Mongolia. From 2014 to 2023, the applicant worked as a Forklift Operator for the APU Joint Stock Company in Mongolia, where he was responsible for technical repair, servicing, and logistics.
·After experiencing a ‘lack of progress and career stagnation’, he realised that he needed to ‘elevate [his] career to a managerial level’ and that ‘in order to achieve career advancement and financial benefits’ he needs to ‘take a new path.’
·His employer in Mongolia, APU Joint Stock Company, had been seeking ‘professionals who possess project management experience and English proficiency.’
·When he returns to Mongolia at the completion of his Diploma of Project Management, he plans to work in the Logistics Project Team at his old employer, APU Joint Stock Company. Similar positions in Mongolia pay around 2,210,000 MNT to 4,670,000 MNT.
·He chose to study in Australia because it is one of the safest countries in the world, and by studying here he will gain a range of life skills and be able to study with a multicultural mix of students, while learning in an English-speaking country that has high quality education.
·He researched studying in the United States of America and the United Kingdom, but he valued the diversity and multiculturalism in Australia, which also has a high standard of living, and considerably lower tuition costs.
·He decided not to pursue further study in Mongolia because employers value international experience and English proficiency, and the similar courses in Mongolia are brief, intensive, and not well-regarded.
·The applicant’s family is supportive of his decision to study in Australia. The applicant intends to use his, and his wife’s, savings to fund his living expenses and tuition fees in Australia. In Mongolia, he has a ‘duty to look after [his] elderly parents.’
Summary of the delegate’s decision
As stated above, the delegate refused to grant the applicant a Student visa. The delegate did not invite the applicant to an interview or request any additional information from him prior to the decision being made. In essence, the delegate found:
·The applicant’s wife is listed as an unaccompanied family member in his Student visa application form, which indicates that she may be eligible to join him in Australia if he were granted the visa.
·The applicant’s past employment in Mongolia is not an incentive for him to return because he is ‘proposing an extended absence.’
·The applicant’s financial circumstances and family ties in Mongolia (including his wife, adult children and father) ‘do not of themselves, determine [the applicant] to be a genuine temporary entrant.’
·The applicant provided insufficient information about why he chose Australia as his study destination and failed to demonstrate that he sufficiently researched his options, both of which raise concerns about his motivation to study in Australia. For these reasons, the delegate was not satisfied that the applicant intends a temporary stay in Australia.
·While the applicant hopes to return to work with his old employer in Mongolia, he provided insufficient information or evidence about how his proposed course of studies would assist him in his future career path. The applicant failed to demonstrate the value of the proposed courses to his future career.
·Finally, the delegate raised concerns that the applicant may be using the Student visa program as a way to maintain residence in Australia because he first arrived in the country on a Visitor visa, and is now applying to extend his stay for a considerable period.
Claims and evidence before the Tribunal
Procedural history and pre-hearing documents
On 20 January 2025, the Tribunal emailed the applicant, with a request to complete a ‘Student Information Form.’ On 3 February 2025, the applicant’s representative sent this completed form to the Tribunal, via its online portal. In summary, the ‘Student Information Form’ contains the following:
·From 1980 to 1990, the applicant studied at Secondary School. From 1994 to 1995, the applicant studied an Automotive Technician course in Mongolia.
·From 2014 to 2023, the applicant worked as a Forklift Operator at APU Company, receiving an annual salary of some $14,000 (AUD).
·The applicant first arrived in Australia on 4 July 2023 on a Visitor Visa, granted on 10 May 2023.
·The applicant is currently studying a Diploma of Project Management, which he began on 15 July 2024 and is due to complete on 13 July 2025. He previously studied General English, commencing the studies on 7 August 2023 and finishing on 6 March 2024. The applicant plans to study an Advanced Diploma of Program Management from 14 July 2025 to July 2026.
·The applicant last saw his wife and two adult sons in July 2023, when he departed Mongolia. He has not returned to Mongolia since his arrival in Australia. Other than travelling to Australia, the applicant has never travelled outside Mongolia.
·The applicant maintains daily contact with his family in Mongolia via Facebook Messenger.
·In Mongolia, the applicant has property valued at some $50,000 (AUD) and a new apartment valued at some $80,000 (AUD).
When providing the completed ‘Student Information Form’, the applicant’s representative also provided the following documents in support:
·Pre-hearing Submissions, dated 3 February 2025;
·Confirmation of Enrolment (CoE) for Diploma of Project Management at the AVTI (course from 15 July 2024 to 13 July 2025), issued on 24 August 2023;
·CoE for Advanced Diploma of Program Management at AVTI (course from 14 July 2025 to 12 July 2026), issued on 23 January 2025;
·Evidence of payment of tuition fees;
·Confirmation of Enrolment letter issued by AVTI, dated 30 January 2025, which states that the applicant is studying a Diploma of Project Management;
·Statement of Attainment from AVTI, dated 30 January 2025, which states that the applicant completed 5 units in his Diploma of Project Management;
·Reference Letter from Enkhjin Jil LLC, stating that upon completion of the course of Project Management, the applicant will be hired as a Manager, dated 24 January 2025 (in Mongolian, with an English translation);
·State Registration Certificate for Enkhjin Jil LLC, dated 20 June 2024 (in Mongolian, with an English translation);
·Bank Statement from Khan Bank, dated 24 January 2025;
·Reference Letter from Suzuran LCC, dated 25 January 2025, which states that the applicant’s wife has been working as an Assistant Teacher at the company’s Preparatory Class (in Mongolian, with an English translation); and
·Evidence of the building of the applicant’s new apartment in Mongolia (in Mongolian, with an English translation).
The applicant’s representative’s pre-hearing submissions refers to the above documents, and states that these documents indicate that the applicant is enrolled in a registered course of study and is a genuine applicant for entry and stay as a student. The submission concludes by referencing an AAT decision from 2021, in which the Tribunal (differently constituted)[2] gave the applicant the ‘benefit of the doubt’ on the genuineness of their entry and temporary stay as a student in Australia. The representative submitted that the Tribunal should give the applicant the ‘benefit of the doubt as the overall factors indicate, as discussed above, that [the applicant] is a genuine temporary entrant to Australia.’
[2] Rodrigues Mendoca Dos Santos (Migration) [2021] AATA 771 (7 January 2021).
On 19 February 2025, the Tribunal emailed the applicant’s representative with a Hearing Notice, listing the hearing for 6 March 2025. Prior to the hearing, the applicant’s representative submitted a ‘Response to Hearing Notice’, confirming his and his client’s attendance at the hearing.
PRISMS record
On 4 March 2025, the Tribunal conducted a Provider Registration and International Students Management System (PRISMS) record search for the applicant, which indicates that he is currently enrolled in a Diploma of Project Management, a course which commenced on 15 July 2024 and is due to finish on 13 July 2025.
The PRISMS record indicates that the applicant completed a General English course, studying from 7 August 2023 to 23 June 2024.
Finally, the PRISMS record indicates that the applicant has been ‘approved’ to study an Advanced Diploma of Program Management, a course that will run from 14 July 2025 to 12 July 2026.
Summary of the Tribunal hearing
Below is a summary of the applicant’s oral evidence at hearing.
The applicant has finished his General English course and is now midway through his Diploma of Project Management, which he is due to finish in July 2025. He is currently studying the ‘Manage Project Time’ subject and the ‘Manage Project Quality’ subject. Previously he has studied ‘Manage Project Risk’, a subject about managing business structure, and an elective subject called ‘Manage Personal and Professional Development.’ In future, he is looking forward to studying the elective subject called ‘Manage Business Risk.’ The applicant studies on Tuesdays and Wednesdays.
The applicant clarified his education history and work experience in Mongolia. He stated that he studied an Automotive Mechanics and Operator course at a Polytechnic University in Mongolia, graduating in 1995. From 1995 to 2002, the applicant worked for his younger sibling’s farming business. From 2002 to 2014, the applicant and his cousin worked together as sole traders, importing spare car parts from Korea and Japan.
From 2014 to 2023, the applicant worked as a Forklift Operator at APU Company in Mongolia. He had remained in the same position for a long time and could not advance in his career at the company. After his arrival in Australia, he applied for a Student visa, with the intention of studying General English and a Diploma of Project Management. He had hoped to return to work for his former employer, APU Company, in a more senior position.
However, while waiting for a Tribunal hearing, the applicant’s intentions changed following a business decision taken by himself and his cousin in Mongolia. In 2024, the applicant’s cousin in Mongolia created a company called Enkhjin Jil LLC. The applicant invested some 115 million (MNT) [approximately $52,000 AUD] to help establish the company. The company imports car parts from Korea and Japan and resells them in Mongolia, but on a larger scale than before. It currently has 5 employees. The incorporation documents the applicant provided pre-hearing lists his cousin as the sole owner of the company. It would have listed the applicant as an owner, but he was in Australia at the time, so he could not be listed. The applicant’s cousin agreed to allow the applicant to finish his Diploma of Project Management and then return to Mongolia to work as a Manager at Enkhjin Jil LLC.
Nonetheless, after further consideration and discussion with his cousin, they agreed that it would be better that the applicant further upskilled in Australia, before returning to Mongolia. The applicant and his cousin plan for the applicant to manage the company’s foreign trade and dealings with international companies. To do this work, the applicant needs to have good English and project management skills. For this reason, the applicant now intends to study an Advanced Diploma of Program Management from 14 July 2025 to July 2026. After completion of his Advanced Diploma, the applicant intends to return to Mongolia and work as a Manager for Enkhjin Jil LLC.
The applicant’s wife and children remain residing in Mongolia, and the applicant wants to return to live with them. Since his arrival in Australia, he has not returned to see them, but he maintains regular contact. Before returning to Mongolia, he wants to further upskill and gain knowledge, and then return to Mongolia to expand his business and provide for his family.
At the conclusion of the hearing, the applicant’s representative gave brief oral submissions. In summary, the applicant’s representative submitted that the applicant has strong family ties in Mongolia, including his wife and children. The applicant also has economic ties, in the form of property and a business. The representative reiterated the job offer from Enkhjin Jil LLC, stating that this is a strong incentive for the applicant to return to Mongolia. Regarding his studies in Australia, the representative submitted that the applicant is a genuine student, who has been steadily progressing in his studies. To conclude, the representative stated that the applicant is a 50-year-old man and having reached over the age of 45 years old, he has limited options for remaining in Australia. The representative stated that this indicates that the applicant is not using the Student visa program as a way of maintaining ongoing residence in Australia.
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 meets the criteria in cl 500.212.
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’ (Direction 108), made under s 499 of the Act. Direction 108, 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.
Direction 108 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.
During the hearing, the applicant demonstrated a sufficient level of knowledge of his past, current, and future studies in Australia, as well as the education providers. He correctly named the subjects he has studied, and his answers in this respect are consistent with information available online on the course outline of the Diploma. The applicant has maintained active enrolment since his arrival in Australia, steadily progressing through his courses, and there have been no long breaks in his studies. The Tribunal accepts the applicant’s written evidence pre-hearing about his reasons for not pursuing further education in Mongolia, and his motivations for studying in Australia.
For the following reasons, the Tribunal is satisfied that the applicant’s personal ties, financial ties, property interests and business interests are all strong incentives for him to return to Mongolia.
First, the applicant’s wife and two adult sons continue to reside in Mongolia. The applicant provided evidence pre-hearing about his sons’ and wife’s current employment. The applicant maintains regular contact with his immediate family members. The applicant’s father and 5 siblings also continue to reside in Mongolia. While the delegate raised concerns that the applicant listed his immediate family members on the Student visa application form as unaccompanied family members (meaning they may join him in Australia, if he is granted a Student visa), the Tribunal does not share these concerns. On the evidence before the Tribunal, the applicant’s wife and adult sons have commitments in Mongolia, such as their jobs and their families. During the hearing, the applicant did not express any intention to arrange for his family members to join him in Australia. The Tribunal is satisfied that the applicant’s personal ties in Mongolia are strong incentives for him to return home.
Second, the applicant has property interests in Mongolia (property and a new apartment). He is in the process of building a new apartment in Mongolia. The Tribunal is satisfied that these property interests are strong incentives for him to return to Mongolia.
Third, the applicant has invested a considerable amount of his savings into his cousin’s company, Enkhjin Jil LLC, which was formed in 2024. This company has offered the applicant a job upon the completion of his studies. While this is discussed in further detail below, the Tribunal is satisfied that his business interests and job offer are strong incentives for the applicant to return to Mongolia.
The Tribunal has considered the applicant’s age in the context of his decision to change career from being a Forklift Operator in Mongolia to being a senior Manager at a company run by his cousin, which imports and resells car parts from abroad. In the pre-hearing information, the applicant provided personalised detail about his decision to pursue studies in Australia, including how he had experienced a lack of progress in obtaining a promotion at APU Company and was in the middle of career stagnation. At the time the applicant made the decision to study in Australia, he was approaching 50 years old. The Tribunal accepts that at this stage in his life, he may have decided to ‘take a new path’ and attempt to ‘elevate his career.’
The Tribunal has considered the applicant’s change of intentions since lodging his Student visa application. As outlined above, when he lodged his application, the applicant had intended to study a Diploma of Project Management, and then return to work at APU Company. However, given the passage of time, the applicant now intends to further his studies by commencing an Advance Diploma in Program Management, and work for his cousin’s company instead of APU Company.
Direction 108 states that decision makers should allow for reasonable changes to career or study pathways. The Tribunal is satisfied that the applicant sufficiently explained his change of career from being an employee at APU Company to working for his cousin, and the Tribunal is satisfied that this is a reasonable change to his career. The Tribunal also notes that the applicant has in fact worked with his cousin before, on a more informal basis, from 2002 to 2014, so in that sense, the applicant is not necessarily intending to change career, but instead seeking to further advance in his career in a more professional role.
During the hearing, the applicant explained in a convincing manner his discussion with his cousin about pursuing an Advance Diploma in Program Management, before returning to work for the company in Mongolia. The Tribunal is satisfied that pursuing this further study will enhance his business and communication skills, improve his English language, and will be a benefit to him in his new role as being responsible for foreign trade and dealing with foreign companies for Enkhjin Jil LLC upon return to Mongolia. For these reasons, the Tribunal is satisfied that the applicant’s current (and future) courses of study will add value to the applicant’s future.
The Tribunal accepts the representative’s submissions that the applicant is now over 45 years old, meaning he has limited immigration pathways in Australia, and has no intention to study beyond an Advance Diploma of Program Management. Should the applicant seek to apply for a further Student visa (or other temporary visa) in future, after the completion of his Advanced Diploma, his motivations, and reasons for doing so will need to be carefully considered, in light of the applicant’s stated intentions and evidence provided related to this application for review.
The applicant is not working, and there is no evidence before the Tribunal to indicate that the applicant has worked in Australia. Even though the applicant is not currently working in a field related to his studies, the Tribunal is satisfied there are reasonable explanations. First and foremost, on the evidence before the Tribunal, the applicant has a ‘no work’ condition imposed on his Bridging Visa. Second, even if the applicant had ‘work rights’, he has a clear career path in mind, with a job offer in Mongolia in a specialised field of importing car parts from Korea and Japan. It may be difficult for the applicant to find casual work in Australia related to his specialised career path and current studies.
The applicant has some personal or community ties in Australia, based on his evidence pre-hearing in the applicant’s answers in the ‘Student Information Form’. The Tribunal is satisfied, however, that these personal and community ties are not strong incentives for him to remain in Australia.
While the Tribunal acknowledges that the applicant first arrived in Australia on a Visitor visa, the Tribunal is satisfied that he intends genuinely to stay in Australia temporarily, that he decided to study Australia only after first arriving in the country, and that he is not using the Student visa program as a means to maintain ongoing residence in Australia
There is no evidence before the Tribunal to suggest that the applicant has any military service obligations in Mongolia. There is no evidence before the Tribunal to suggest that there is any civil or political unrest that would act as an incentive for the applicant to remain in Australia.
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 evidence before the Tribunal indicates that the applicant has abided by conditions of the visas he has held to date.
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)).
There is no other relevant matter to consider. The Tribunal finds the applicant meets cl 500.212(c).
CONCLUSION
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): 6 March 2025
Representative for the Applicant: Mr Vladamir Cabigao
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.