Chandan (Migration) - [2025] ARTA 301

CHANDAN (MIGRATION) [2025] ARTA 301 (25 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mrs Shanjida Chandan
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2316071

Tribunal:General Member X Emery
Place:Sydney
Date: 25 February 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 25 February 2025 at 5:28pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant and compliance with conditions – incentives to depart or remain – applied after arriving on visitor visa to assist brother and sister-in-law during medical treatment – encouraged to study by boss, and offered employment on return – completion of diploma and early progress in advanced diploma – detailed knowledge of courses and requirements – advantage for career – husband and extended family in home country, and return travel – political and socio-economic conditions – previous compliant travel to other countries – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
STATEMENT OF REASONS
BACKGROUND

The applicant is a 34-year-old citizen of Bangladesh. She first arrived in Australia on 2 May 2023 on a Visitor visa.
On 26 July 2023 she applied for a Student (Temporary) (Class TU) visa. 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.
On 20 September 2023 a delegate of the Minister for Home Affairs refused to grant the applicant the student visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is an application for review of that decision.
The applicant applied for review of the delegate’s decision with the former Administrative Appeals Tribunal (the AAT) on 6 October 2023.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the ART).[1] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1)Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the ART. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the ART.
[1] References in this decision to ‘the Tribunal’ are intended to include both the AAT and the ART.
Student visa application
The applicant applied for the student visa to study a Diploma of Leadership and Management, and an Advanced Diploma of Leadership and Management at the Australian Academy of Hospitality and Management between July 2023 and April 2026.
The Department file before me relevantly includes the following documents:
a.    The visa application form.
b.    A copy of the biodata page of the applicant’s Bangladeshi passport.
c.     A ‘statement of purpose’ of the applicant.
The applicant was granted a Bridging A visa in connection with her student visa application, which is subject to a ‘no work’ condition.
The delegate considered a range of matters. The delegate was concerned with the applicant’s incentives to return home after her study, and with her family in Australia who may be an incentive for the applicant to remain. The delegate was also concerned with the applicant’s claim that she would return to her previous employment in Bangladesh following her study, and therefore the value of the course to the applicant’s future and her motivations for studying in Australia. The delegate 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 intended genuinely to stay temporarily in Australia.
Evidence before the Tribunal
The applicant provided several documents to the Tribunal in support of her review application including:
a.    Evidence of her previous employment at Leads Corporation Ltd in Bangladesh and their support for her studies in Australia.
b.    Evidence of her successful course progress and completion of her Diploma of Leadership and Management.
c.     Evidence of her ongoing study in the Advanced Diploma of Leadership and Management.
d.    A completed Tribunal ‘Student Visa Information’ form.
The Tribunal also has before it records from PRISMS relating to the applicant’s enrolment.
The applicant appeared via MS Teams video at a hearing before the Tribunal on 25 February 2025 to present her case. The applicant’s brother also attended the hearing, but I did not consider it necessary to take evidence from him as a witness.
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 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 satisfies cl 500.212.
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 108, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The applicant initially arrived in Australia on a visitor visa in May 2023. Her evidence is that she travelled to Australia to visit and assist her brother and his wife, who reside in Australia, because they were both undergoing treatment for cancer. She intended to remain in Australia for about six or seven months. She had previously been working for Leads Corporation Ltd in Bangladesh, and her boss there encouraged her to study while she was in Australia and to obtain a qualification which would assist with her future career.
The evidence before the Tribunal, including from PRISMS, is that the applicant completed her Diploma of Leadership and Management in January 2025 and is currently studying her Advanced Diploma of Leadership and Management, which commenced only recently and which she is scheduled to complete in April 2026. These are the two courses that she applied for the visa to study. She has had no change to her proposed courses. She was able to describe in some detail her course, the unit she is currently studying, and what her coursework involves. The evidence before me is that she is engaged in and has progressed in her studies throughout her time in Australia including while awaiting the outcome of this review. I consider this is strong evidence the applicant is genuinely in Australia to study as claimed.
Having lived in Australia since May 2023 and studied here since July 2023, I am satisfied the applicant has a good understanding of living in Australia, her course, and her education provider.
The applicant holds a Bachelor of Science in Electrical Electronic Engineering from United International University in Bangladesh. She has prior work experience working as a project coordinator and assistant project manager, which she said was in telecommunications engineering. This may indicate that the further study the applicant has undertaken in Australia and proposes to complete is unnecessary. However, I accept the applicant considered she had technical knowledge but lacked managerial and leadership skills to work as a project leader. I accept she hopes to acquire skills and qualifications to enable her to obtain leadership roles and a promotion from her previous employment in Bangladesh.
I accept the applicant considers that qualifications from Australia are valuable and highly regarded in Bangladesh, and will assist her in her career there. The study she is undertaking appears commensurate with and relevant to her previous employment experience. In oral evidence, the applicant spoke to the value of international study and her ability to convey international methods of communication and leading projects to her work in Bangladesh. I accept this would give her an advantage in Bangladesh and that her studies are important to her. I am satisfied she has reasonable reasons for wanting to study in Australia as opposed to undertaking the course in Bangladesh. I am satisfied that she is genuinely motivated to study in Australia for her career advancement.
The applicant does not have employment or a job offer in Bangladesh at present. However, on her most recent trip to Bangladesh at the end of 2024 she spoke with her former employer who advised that employment would be available to her at Leads Corporation Ltd should she return with her qualifications from Australia. I accept the applicant is hopeful of returning to work there and that she would be in a position to earn a higher salary than in her last role in the organisation. The evidence before me supports a conclusion that her course of study is valuable to her future.
Most of the applicant’s personal ties are in Bangladesh. She is married, and her husband resides in Bangladesh with his elderly parents in the family home. He works as a banker. She also has her mother and sister in Bangladesh, as well as extended family including uncles, aunts, and her sister’s children. The applicant has travelled back to Bangladesh on two occasions since she first arrived in May 2023. I consider that this is indicative of her close personal ties to Bangladesh and her incentives to return there. While the applicant has a brother in Australia who is an Australian citizen (as well as his wife and children), I am not persuaded that any incentive to remain in Australia that her brother provides, outweighs her other incentives to return home.
The applicant spoke to the requirement that she return to Bangladesh at the end of her studies. She explained that her husband’s parents are elderly and that her husband is required to remain in Bangladesh to care for them. He did not travel with her to Australia because of his parents and that is also why she needs to return home.
I accept that the applicant’s personal ties, particularly her husband, serve as a significant incentive to return to Bangladesh and I weigh this strongly in her favour.
In Bangladesh, the applicant resides with her husband and his parents in their family home that they own. Her husband is employed, and the applicant has provided evidence of her previous employment there. She is not working in Australia and there is no evidence she has economic ties to Australia. While I accept the applicant may earn a higher salary in Australia were she to work as a project manager here, there is insufficient evidence before me to conclude that any possible higher salary in Australia in the future would be a significant incentive for the applicant to remain here, particularly in light of the cost of living in Australia and her close personal ties to Bangladesh. The evidence before me does not support a conclusion that the applicant’s economic circumstances present as a significant incentive not to return to her home country.
There is no evidence before me that the applicant has military service commitments in Bangladesh. At the hearing I discussed with the applicant the recent civil and political unrest that Bangladesh has experienced. The applicant conceded that the situation in Bangladesh had been very serious. However, she noted that she had travelled there from September to December 2024 and had observed that the environment there had calmed down and that the new government appeared to be functioning well. Her evidence was that her family did not have any problems during the significant unrest in July and August 2024. Her evidence was that there were no other reasons why she could not return to Bangladesh. As at the time of this decision, I am not persuaded that the somewhat uncertain political future of Bangladesh would induce the applicant not to return there, particularly given that her husband, parents-in-law, and her mother continue to reside there.
The applicant has travelled to Nepal, Thailand, India, and Australia. There is no evidence before me that she has any adverse immigration history including because she has overstayed a visa or had a visa cancelled. While the applicant was refused a visitor visa in the past, I give this only marginal weight against her, particularly given she was subsequently granted a visitor visa.
As I have found above, the applicant is actively studying and progressing in her courses. She continues to study the courses she applied for the visa to complete. She has not spent a lengthy amount of time in Australia and has been studying for the majority of that time. The evidence before me does not support a conclusion that the applicant is using the student visa to circumvent the intentions of the migration program or to maintain residence.
On the basis of the above, particularly the applicant’s positive study record and her strong personal ties to her home country, I am 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.
At the hearing I discussed with the applicant the mandatory conditions that would apply to her student visa, should it be granted. The applicant expressly stated her intention to comply with the conditions to which she would be subject. The applicant’s oral evidence is that she is not working in Australia because she doesn’t have work rights. She is financially supported by her brother, her husband, her own savings, and her in-laws. There is no evidence before me that she has not complied with the conditions to which her previous visitor visa and her current bridging visa are subject.
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).
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 are no other relevant matters to consider.
Accordingly, I am 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): 25 February 2025
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.