CHAVA (Migration) - [2025] ARTA 910

CHAVA (MIGRATION) [2025] ARTA 910 (9 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Dilip Sai Chava
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2429222

Tribunal:General Member F Russo
Place:Sydney
Date: 9 April 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Student (Temporary) (Class TU) visa for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.

Statement made on 9 April 2025 at 4:10pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – satisfied that the applicant is a genuine applicant for entry and stay as a student – genuine interest in study – positive study record – proposed course of study will be of value to his future – strong ties to his home country – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.212, 500.213

STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 August 2024 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 2 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 applicant is a 25-year-old Indian national. He arrived in Australia in February 2018 to undertake a package course leading to a Bachelor of Information Technology at University of Technology, Sydney (UTS). He successfully completed the Diploma of Information Technology in 2019, and while he commenced the Bachelor of Information technology, he did not complete this course and ceased studying it in March 2022. The Student visa application under review was made on 2 August 2023 in respect of the applicant’s enrolment in an Advanced Diploma of Civil Construction Design.
On 22 September 2023 a delegate of the Minister refused to grant the Student visa because the delegate was not satisfied that the applicant met the requirements of cl 500.213 of the Regulations, namely, the English language proficiency requirement.
The applicant appealed that decision to the Administrative Appeals Tribunal (AAT) and on 3 July 2024 the AAT remitted that application for review back to the Department with the direction that the applicant met cl 500.213 of the Regulations.
The applicant’s application for the Student visa was again assessed by a delegate of the Minister. In this case, 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 the delegate was not satisfied that the applicant is a genuine applicant for entry and stay as a student.
The applicant lodged an application for review of the delegate’s decision of 8 August 2024 with the former AAT on 20 August 2024. 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 (Cth) (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
At the date of the Tribunal hearing, the applicant had completed an enrolment in the Advanced Diploma of Civil Construction Design and had a further enrolment in the same course.
The applicant appeared before the Tribunal on 9 April 2025 by video to give evidence and present arguments. The applicant was assisted in relation to the review and his representative also attended the hearing.
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 is a genuine temporary applicant for entry and stay as a student.
The applicant provided with his application for review a copy of the delegate’s reasons for decision and notice of the decision from the Department, the biodata pages of his Indian passport and a confirmation of enrolment (CoE) for the Advanced Diploma of Civil Construction Design, issued by Valley International College with a course start date of 20 February 2023 and a course end date of 9 December 2024.
In response to an order of the Tribunal, dated 29 October 2024, to complete a ‘Request for Student Visa Information Form’, on 13 November 2024 the applicant provided a copy of the completed form.
The applicant provided responses to hearing invitations issued by the Tribunal, as well as a request dated 28 January 2025 for postponement of the hearing date, with this request granted by the Tribunal.
On 2 April 2025 the applicant provided evidence of the award of the Advanced Diploma of Civil Construction Design by Valley International College on 4 December 2024, together with a course completion letter and a record of results. Despite providing these documents, the applicant also provided a further CoE for the Advanced Diploma of Civil Construction Design, issued by Valley International College with a course start date of 28 April 2025 and a course end date of 21 July 2025.
On 7 April 2025 the applicant provided the Tribunal with a further 17 attachments, including:
a.A covering letter, including submissions/arguments;
b.A genuine temporary entrant (GTE) statement;
c.Student records for his previous enrolment in the Diploma of Information technology at UTS, CoEs issued for this course and letter of offer;
d.Flight itinerary for travel from Sydney to Hyderabad on 6 March 2020;
e.COVID-19 test results for members of his family;
f.Email regarding accommodation arrangements at a quarantine hotel in Sydney during December 2021 to January 2022;
g.Payslip for the applicant’s employment with Square Yards in India in April 2021; and
h.Email from Engineers Australia, dated 15 March 2025, regarding assessment of the applicant’s qualification in the Diploma of Civil Construction Design for standing as a member of the engineering profession in Australia.
The Tribunal has had regard to the above documents. The Tribunal also has a copy of the Department file, which includes a system-generated copy of the Student visa application, a GTE statement from the applicant, overseas student health cover, copy of flight itinerary for flight booked for international students to travel to Australia in December 2021, evidence of Indian qualifications and evidence of the award of a Diploma of Information Technology by UTS in June 2019, as well as copies of documents also provided to the Tribunal. The Tribunal has had regard to these documents as well.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 108, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
Background information provided by the applicant in written submissions
In the covering letter the applicant provided to the Tribunal, the applicant explained that although he has completed and been awarded the Advanced Diploma of Civil Construction Design by his education provider in December 2024, he undertook a skills assessment with Engineers Australia following the completion of this course. On 15 March 2025, he received Engineers Australia’s response to the assessment, where he was advised that he the units he had completed as part of this qualification were insufficient to achieve a positive assessment, and therefore he needs to complete additional units in order to meet the assessment requirements. He therefore has a further enrolment in the Advanced Diploma of Civil Construction Design until 21 July 2025. He claims that his intention after completing the course and obtaining the award was to return to live with his parents in India, however, he does not wish to depart Australia until he completes a meaningful course which is recognised with a positive skills assessment.
In his GTE statement to the Tribunal, the applicant provides background information regarding his studies in Australia since first arriving in February 2018. The applicant states that he first arrived in Australia holding a Student visa, which was granted for the purpose of completing a package course involving a Diploma of Information Technology and a Bachelor of Information Technology at UTS. He completed the Diploma of Information Technology in June 2019 and then commenced the Bachelor of Information Technology, which he studied for one semester before taking a semester break in the first half of 2020 due to some family issues which arose in India. He travelled to India in March 2010, for which he has provided a copy of a travel itinerary for his departure from Sydney on 6 March 2020. Due to travel and border restrictions which were introduced shortly after that in response to the COVID-19 pandemic, he was unable to return to Australia for almost 20 months.
In August 2021 he applied for a second Student visa so he could continue with his studies towards the Bachelor of Information Technology. He was granted the visa on 9 September 2021, even though Australia’s borders were closed to international students until December 2021. He continues to study the Bachelor of Information Technology while he was offshore and completed a semester from July 2021 to November 2021, but did not pass any of the subjects he studied. The applicant claims that as a result of the break in his studies he had lost momentum and interest and found it difficult to manage attendance of online classes from a different time zone, which affected his results.
After the re-opening of Australia’s borders in December 2021, he returned to Sydney on a flight which had been organised for students. He stayed in quarantine for 14 days in accommodation organised by UTS.
After returning to Australia, he found it difficult to focus on his studies for a number of reasons. He was staying with his uncle in Sydney, but as a result of a family dispute between his father and uncle, he had to move out. He felt caught in the middle of the family dispute. He then decided to move from Sydney to the Gold Coast in February 2022. As a result, his CoE in for the Bachelor of Information Technology was cancelled by UTS. The applicant claims that he hoped to enrol in a course in the Gold Coast, but in early 2022 another wave of COVID-19 swept through India. His immediate family members contracted the virus, which made him anxious and made it difficult for him to focus on his education.
The applicant decided to enrol in the Advanced Diploma of Civil Construction Design because while he was in India during the COVID-19 pandemic, he worked for a real estate company called Square Yards from April to August 2021, during which time he developed a passion for the construction industry.
Findings on factors set out in Direction No.108
Having considered the applicant’s claims against all the factors specified in Direction 108, and taking into account all the relevant information, the Tribunal is satisfied that the applicant meets the genuine temporary entrant criterion. The Tribunal notes in particular that the applicant completed and was awarded the Advanced Diploma of Civil Construction Design, which is the subject of the Student visa application under review, in December 2024. While it is unusual that the applicant has now re-enrolled in the same course from April to July 2025 for which he has earned a recent qualification, the applicant has explained the reasons why he has done so, which relate to professional recognition of the qualification by Engineers Australia.
The applicant’s circumstances in his home country
The applicant gave evidence that his ties to India include the presence there of his parents and sister, as well as most of his relatives and extended family. The applicant gave evidence that he returned to India in March 2020 due to a family issue, which resulted in him remaining in India until December 2021 because of border closures implemented in response to the COVID-19 pandemic. The applicant also returned to India for close to two months from 22 November 2019. The applicant has provided evidence that from April to August 2021 he worked as a business development manager with a real estate company in India. Prior to arriving in Australia in February 2018 he had not worked in India because of his relative youth at the time.
The applicant claims that after he completes his current enrolment in the Advanced Diploma of Civil Construction Design, he intends to return to India to take up roles in the construction industry, which include potential roles as a civil site engineer, civil contractor or civil draftsperson. The applicant told the Tribunal that he has no current employment offers in India, although he may obtain some options through his previous employment and connections to India. The applicant gave evidence that he has no assets of his own, though his parents’ assets include the family home and some land.
I accept that the applicant has strong family ties and some financial ties to India which would serve as a significant incentive for him to return to his home country on completion of his proposed studies in Australia. I give weight to the applicant’s return to India for periods of approximately 22 months since first arriving in Australia, as well as to the evidence of his employment in India in 2021 and take this into account in assessing his circumstances as a whole.
There is insufficient evidence before the Tribunal to indicate that the applicant’s economic circumstances would present as a significant incentive for him not to return to his home country. The applicant gave evidence that for the past eight months he has worked part-time as a console operator at a fuel station. In the ‘Response to Student Visa Information’ the applicant declared that he previously worked as a store assistant for Harris Farms from 2018 to 2019. There is insufficient evidence to indicate that the applicant has been building a career in Australia.
I have considered the applicant’s evidence that he has applied for professional recognition of his qualification in the Advanced Diploma of Civil Construction Design with Engineers Australia but given there is no evidence that the applicant has been working in a related field or has any job offers in this field, I do not consider that this raises any issues regarding his economic circumstances. I consider the applicant’s current part-time employment would not act as a strong incentive for the applicant not to return to his home country.
I make no adverse findings regarding the applicant’s reasons for not undertaking the proposed study in his home country rather than Australia. I note that the applicant has already completed and been awarded the Advanced Diploma of Civil Construction Design in December 2024, and he now has a further enrolment in this course because his current qualification does not meet the requirements for professional standing with Engineers Australia. As evidence of this, the applicant has provided an email from Engineers Australia, dated 16 March 2025, which indicates that his current qualification does not meet their requirements for professional standing. I accept that the applicant has provided a reasonable explanation for why he wishes to undertake the proposed course of study in Australia.
There is no evidence of any military service requirements or of any civil or political issues which would act as an incentive for the applicant to remain in Australia. There is no adverse evidence before the Tribunal regarding the applicant's circumstances in India, relative to others in that country, and the Tribunal makes no adverse findings in relation to these factors.
The applicant’s potential circumstances in Australia
The applicant first arrived in Australia in February 2018, holding a Student visa, which was granted so he could undertake a package course at UTS leading to the Bachelor of Information Technology. I accept that the applicant completed the Diploma of Information Technology in June 2019, a copy of the award for which he provided to the Department. After this he undertook a semester of study towards the Bachelor of Information Technology.
I accept that in March 2020 the applicant travelled to India and was unable to return to Australia until December 2021. I accept also that in Semester 2 of 2021 the applicant undertook units of the Bachelor of Information Technology online from India and give weight to the applicant’s attempts to study this qualification, which supports his claim that his intention in applying for the Student visa was to obtain a qualification which would be of value to his future. I accept the applicant’s reasons for why he was unable to study effectively from India, which include the difficulties of online study, the difference in time zones between India and Sydney and the loss of momentum encountered as a result of lockdowns caused by the COVID-19 pandemic. I also accept that on return to Australia in December 2021, the applicant intended to continue with his studies towards the Bachelor of Information Technology, but encountered difficulties, including difficulties in his living arrangements in Sydney and the support he was receiving from his uncle.

The applicant’s enrolment in the Bachelor of Information Technology was cancelled on 17 March 2022. The applicant then remained unenrolled for a full year until 20 February 2023, while he was holding a Student visa which was granted from September 2021 until 30 August 2023. This gap in the applicant’s enrolment of over five months while holding a Student visa raises potential concerns regarding his intention in remaining in Australia. I note, however, the applicant’s evidence of the difficulties he faced in his home environment, which necessitated him moving to the Gold Coast, as well as the anxiety he faced as members of his family contracted COVID-19 in India in the first half of 2022. In addition, I give weight to the applicant’s enrolment in the Advanced Diploma of Civil Construction Design approximately six months before his second Student visa was due to end, and to the progress he has shown in completing this course. I therefore find that there is insufficient evidence to indicate that the applicant is using the Student visa programme to maintain ongoing residence or circumvent the intentions of the migration programme.
I make no adverse findings regarding the applicant’s ties to Australia. The applicant gave evidence that his uncle lives in Sydney, whereas the applicant now lives independently in the Gold Coast. The applicant gave evidence that he lives in a share household with people he has met in Australia and that he is not in a relationship. I also do not consider that the applicant’s part-time employment at a fuel station would act as a strong incentive for him to remain in Australia on completion of his proposed studies. There is nothing to suggest that the applicant is working or building a career in Australia, and no evidence of any relationship or community ties to Australia. Overall, I find that there is no evidence of ties with Australia which would present as a strong incentive to remain in Australia.
There is no evidence before the Tribunal to suggest the applicant has entered a relationship of concern for a successful Student visa outcome.
Given the length of time the applicant has lived in Australia, I make no adverse findings regarding the applicant’s knowledge of living in Australia. Given he has already technically completed and been awarded the Advanced Diploma of Civil Construction Design by Valley International College, I make no adverse findings regarding his knowledge of the course of study or his education provider either. The applicant has explained that he has enrolled again in the Advanced Diploma of Civil Construction Design in order to complete four units of study which are needed so the qualification will be recognised by Engineers Australia. I am satisfied that the applicant has a high level of knowledge of his proposed course of study and education provider.
Value of the course to the applicant’s future
The applicant completed high school in India and has no tertiary qualifications from India. The applicant completed a Diploma of Information Technology at UTS in 2019 but has no experience working in the IT industry. He has worked as a business development manager for a real estate company in India and for a fuel station in Australia. The applicant completed and was awarded the Advanced Diploma of Civil Construction Design by Valley International College in December 2024. The applicant has now taken the unusual step of re-enrolling in the same course from April 2025 to July 2025. While on the face of it, this may look like an attempt by the applicant to re-enrol in a short course for which he has recently obtained a qualification in order to meet the enrolment condition of the Student visa, the applicant has explained the reasons why he has re-enrolled in this course. The applicant has also provided evidence in the form of an email from Engineers Australia, which indicates that his current qualification in the Advanced Diploma of Civil Construction Design does not meet the professional requirements for recognition as an engineer by that organisation. The applicant gave evidence that he wishes to obtain a qualification which is recognised professionally in Australia prior to returning to India. In order to do this, he is required to complete an additional four units of study.
The applicant gave evidence of the professional roles which he hopes to apply for on return to India, including civil site engineer, civil contractor and civil draftsperson. I accept that the proposed course of study is relevant to the applicant’s future employment plans in his home country and given he has no formal tertiary qualifications other than the Diploma of Information Technology, which he has not utilised in any professional capacity, that his proposed course of study will assist him to obtain employment as well as improve the potential remuneration he may receive. I accept that the applicant has also provided a reasonable explanation for why he has re-enrolled in a course for which he has recently obtained a qualification, namely, to obtain professional recognition as an engineer prior to returning to his home country. I accept that the applicant has genuine concerns about the utility of the qualification he completed in December 2024 if this qualification is not capable of being recognised by a professional body. I therefore accept that the proposed course of study, including the applicant’s current enrolment from April 2025 to July 2025, will be of value to his future.
The applicant’s immigration history
The applicant’s immigration history refers to both his visa and travel history. As noted above, the applicant first arrived in Australia in February 2018, holding a Student visa. He successfully completed a Diploma of Information Technology and studied one semester of the Bachelor of Information Technology before he returned to India in March 2020 for family reasons. He then remained in India for approximately 20 months and was unable to return to Australia as a result of border closures in response to the COVID-19 pandemic. On return to Australia in December 2021 he recommenced his studies in the Bachelor of Information Technology before moving to the Gold Coast in March 2022. His enrolment in the Bachelor of Information Technology was therefore cancelled. The applicant remained unenrolled for approximately one year, until February 2023, when he commenced the Advanced Diploma of Civil Construction Design.
I have already discussed above the concern that the applicant remained unenrolled for a period of approximately 12 months, during which time he held a Student visa for five months. As noted already, the applicant has provided some explanation for this significant gap in his enrolments. I have also given weight to the applicant’s successful completion of the Advanced Diploma of Civil Construction Design, which he was awarded in December 2024. The applicant has now re-enrolled in the Advanced Diploma of Civil Construction Design from April 2025 to July 2025 despite already holding this qualification. While I have already raised potential concern regarding why the applicant would seek to re-enrol in a course for which he has already earned a qualification, I have accepted that the applicant has provided a reasonable and convincing explanation for his current enrolment. I accept that the applicant wishes to obtain professional recognition as an engineer in Australia prior to returning to his home country, and that unless he completes an additional four units of study in the Advanced Diploma of Civil Construction Design, he will not gain such professional recognition.
There is no evidence that the applicant has undertaken a series of short, inexpensive courses, or that he has been onshore for some time without making progress with or completing a qualification. I therefore find there is insufficient evidence to indicate that the Student visa is intended primarily for maintaining ongoing residence. The applicant wishes to remain in Australia until at least July 2025, a duration of approximately four months. Given the applicant’s enrolment and immigration history as a whole, I consider he should be given the opportunity to complete his current enrolment before returning to his home country.
I make no adverse findings regarding the remaining factors relevant to the applicant’s immigration history. The applicant gave evidence that he has complied with the conditions of his visas to Australia. I have already addressed the potential concern regarding the gap in his enrolment while holding his second Student visa. Given his explanation for the gap and the difficulties he experienced with his stay in Australia and his enrolments as a result of the COVID-19 pandemic, I make no adverse findings regarding this factor.
There is no evidence of an adverse visa or migration history to any other country. There is nothing to suggest the applicant has previously been refused a visa application or had a visa cancelled or considered for cancellation. There is no evidence that he has lodged applications for other classes of visa which are yet to be finally determined.
Any other relevant matters and conclusion regarding findings
The Tribunal has also given regard to whether there are any other relevant matters. I note that the applicant is relatively young, having arrived in Australia at the age of 19, and is looking to obtain a qualification which will be of value to his future.
I consider the applicant’s behaviour in completing the Advanced Diploma of Civil Construction Design despite the visa refusal decision, is consistent with the behaviour to be expected of a genuine applicant who wishes to remain in Australia only temporarily for the purpose of undertaking a course which will be of value to his future. I have made no adverse findings regarding his decision to re-enrol in this course, given his evidence that he is required to complete four additional units in order to gain professional recognition as an engineer.
I have accepted that the applicant’s proposed course of study will be of value to his future and that he has strong ties to his home country. I have made no adverse findings regarding any of the factors in Direction No. 108.
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). The following conditions may also be imposed in some cases (cl 500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).
The applicant has provided with his visa application an undertaking to comply with any conditions subject to which the visa is granted. The applicant has a current enrolment of four months duration and has provided an explanation for why completion of this enrolment will be of value to his future, as it will provide him with the opportunity for professional recognition as an engineer. I also note the applicant’s compliance with the enrolment requirement in completing his previous enrolment in the Advanced Diploma of Civil Construction Design in December 2024.
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 evidence before the Tribunal of any other relevant matter that gives rise to a concern that the applicant is not a genuine applicant for entry and stay as a student.
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): 8 April 2025
Representative for the Applicant: Mr Satya Ganga Ravikanth Gundepalli (MARN: 1909737)
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.