Bhattarai (Migration) - [2025] ARTA 399

BHATTARAI (MIGRATION) [2025] ARTA 399 (4 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Sudesh Bhattarai
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2316748

Tribunal:General Member A. Faram
Place:Melbourne
Date: 4 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 04 March 2025 at 10:29am
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – the time taken by the applicant has been primarily in aid of applicant finding his preferred career path – satisfied that the applicant is a genuine applicant for entry and stay as a student – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 Immigration and Multicultural Affairs on 4 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 10 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 (known as the genuine temporary entrant criterion) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because, among other things, they were concerned that the Applicant, having completed an Advanced Diploma of Leadership and Management, had not explained why they were now studying cookery and hospitality courses and they were unclear as to how those courses would assist the Applicant in the future. Considering this and that the Applicant had already been in Australia for some time on student visas, they were not satisfied he was a genuine temporary entrant.
Following refusal by the delegate, the Applicant lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the AAT) on 18 October 2023.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed.
The Applicant provided the Tribunal with information in support of their review application. That information included:
-Copy Certificate IV in Kitchen Management issued 24 January 2025;
-Copy academic transcript for same;
-Letter confirming his enrolment in and completion of the above; and
-Copy Confirmation of Enrolment (CoE) for current course, a Diploma in Hospitality Management due to conclude in June 2025.
Further information before the Tribunal included a copy of the Applicant’s record from the Department’s Provider Registration and International Student Management System (PRISMS). That record, of some concern to the Tribunal, indicated the Applicant had a relatively long and varied history of study in Australia, and was the subject of discussion during the hearing of this matter.
The Applicant appeared before the Tribunal on 3 March 2025 to give evidence and present arguments. The Applicant was assisted in relation to the review.
For the following reasons the Tribunal sets aside the decision under review and remits the visa application for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the Applicant is a genuine applicant for entry and stay in Australia as a student, per cl 500.212 of the Regulations.
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the Applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212, 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. For the purposes of this matter, the Direction, a copy of which is attached to this decision, requires the Tribunal to have regard to factors including:
·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; 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 and are intended only to guide decision makers when considering an applicant’s circumstances, as a whole, in reaching a finding about whether an applicant satisfies the genuine temporary entrant criterion. The Tribunal has considered the Applicant against the factors specified in the Direction.
The Applicant gave oral evidence to the Tribunal about his family background. He explained that his parents remain in Gaindakot, near Bharatpur. His father owns agricultural land. He farms some himself, and rents other sections to others for their use. He also makes money by buying and selling agricultural land. His mother works in the home. His brother, two years younger than him, recently completed his Master of Business Administration and is working at a bank. The Applicant explained that he returned to Nepal for two weeks in 2024, because he had not been back for some time. It was during this trip that he met his now wife: he returned to Nepal in November 2024 for around two months and during this time they were married. The Applicant gave evidence that his wife is the eldest daughter of her family and one of two children. She is studying business and works in her family’s clothes business. The Applicant said that she is obligated to look after her parents, and that it is their intention as a couple, that he return to Nepal after his current studies, due to be completed in June 2025, and for them to ultimately open a business together.
The Applicant gave evidence that after finishing high school in Nepal he had wanted to work. He did so by, primarily, working within his maternal uncle’s construction business and by also working with his father. In his mid-20’s, and after some years in the workforce, he decided that he in fact did want to complete further studies, and he undertook to do so in Australia. He was initially refused a student visa, in 2018, but was subsequently granted two student visas to study in Australia. He has been in Australia since April 2019.
The Tribunal raised with the Applicant its concerns that he had been in Australia for several years and had taken a rather scattergun approach to his studies, which might suggest studying was not the motivation for his time in Australia. The Tribunal noted, for example, that he had initially applied to study (3) courses in information technology. He had then enrolled in an English for Health Professionals course, and a diploma of nursing, before he enrolled in, and actually undertook some study in, a Certificate III in Mechanical Technology. He did not, however, complete this course, or the subsequent two courses he had enrolled in as part of a bundle of courses aimed at the automotive industry.
The Applicant explained that when he first contemplated study abroad, he thought information technology would be a useful course. By the time the first visa application was refused, however, he thought he might instead study health, and it was for this reason that he switched to the health and nursing course. He quickly realised, however, that that was not the sector for him, and having had an interest in cars, changed his studies to the Certificate III in Mechanical Technology. It was at this point that the Applicant’s studies were disrupted by COVID-19. He was unable to complete many components of his course. He found this frustrating, and he was also realising that the automotive industry was less impressive than he had imagined it would be.
Pressed to explain the steps he then took, the Applicant gave evidence that he went looking for a course that he would enjoy more, and that could more easily be undertaken in lockdown conditions. He decided that a course in Leadership and Management would be useful no matter the field he ended up in. He therefore enrolled in, and in fact completed, a Diploma and an Advanced Diploma in Leadership and Management between 2021 and 2023. The Applicant gave evidence that through this study he gained insight into himself and overcame the lack of discipline he had previously experienced in his earlier studies. He added that the course demonstrated the importance of a leader knowing themselves first, so that others can trust them and will follow them.
Asked why he did not return to Nepal after completion of that course, but then undertook a package of courses in the cooking and hospitality field, the Applicant said that while the leadership course was and will be valuable to him, he was anxious to also gain a specific skill set. He knew that hospitality was a huge sector in Nepal and thought that completing studies in that field would best assist him to gain employment in his home region. This region, he added, is very beautiful, and tourism is flourishing there. It is close to the forest and is on a river. Asked if his family has been impacted in the past by flooding or other natural disaster, the Applicant said that they had not been affected.
The Applicant gave evidence that on his return trip to Nepal in March of last year he had met with a friend of his father’s, who had offered him a job on his return from Australia. The family friend owns a hospitality business that includes a restaurant and a function venue known as a ‘party palace’. It primarily serves Nepali food but is keen to introduce international cuisines and it is envisaged that the Applicant will assist with that.
The Applicant gave evidence that in Australia he has most recently been working for Baptcare as a Food Service Assistant. In this role, he serves the residents, and he assists the Chef to prepare their meals, a part of his job that he particularly enjoys. On return to Nepal, he is keen to take up work in the hospitality sector to gain more experience, before he and his wife open their own business. He anticipates this would be in the hospitality or textile sectors.
It was the Applicant’s evidence that, upon completion of his current course in the next few months, he wants to return to Nepal: to rejoin his family, to work in hospitality and to ultimately embark on a career in business there. He reiterated that completing his course will be really helpful to his future and that he is soon to finish his course and will return to Nepal.
While the Applicant’s enrolments were initially unfocused and, in his words undisciplined, there is no information before the Tribunal to indicate that the Applicant (or a relative of the Applicant), has not complied with previous visas or that previously held visas were cancelled or considered for cancellation.
The Applicant does not have military service commitments and there is no evidence before the Tribunal to indicate that there are any intra familial issues or environmental fears or issues of political or civil unrest that are of concern to him or his family.
The Applicant’s representative submitted that the Applicant, faced with the many options available to students in Australia, was like a kid in a candy store, and that it was for this reason that he had initially had so many aborted enrolments. He added that had he wanted to simply maintain residence in Australia, his automotive studies would have more directly assisted him to achieve this. His changes, viewed in this light, were more reflective of a young man finding his way than one simply seeking to maintain residence in Australia. The Tribunal considers that there is some merit in these submissions and accepts that the time taken by the Applicant has been primarily in aid of him finding his preferred career path.
On the evidence before it, and after weighing up the Applicant’s circumstances and immigration history, the Tribunal is satisfied that the Applicant intends to stay in Australia temporarily and for the purpose of study. It accepts that following completion of his studies this year, it is his intention to return to Nepal, to work in the hospitality industry and to ultimately, and with his wife, start his own business.
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 he 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.
There is no evidence before the Tribunal to indicate that the Applicant has breached past or current visa conditions. While he may not have adequately progressed through his automotive studies, the Tribunal accepts that this was due to the disruptions caused by COVID-19 and by shifts in the Applicant’s motivations and areas of interest. He has progressed through his most recent and current studies. He has also given evidence that he understands the rules and obligations of a student visa, and that it is his intention to continue to progress through his studies.
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)). Neither the Applicant nor the Tribunal have identified any other matter relevant to this determination.
Conclusion on cl 500.212
In light of the above, the Tribunal is satisfied that the Applicant is a genuine applicant for entry and stay as a student as required by cl 500.212. As such, 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: 3 March 2025
Representative for the Applicant: Mr Suraj Khatri (MARN: 0747797)
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.