CLEMENTE (Migration) - [2025] ARTA 660

CLEMENTE (MIGRATION) [2025] ARTA 660 (16 MAY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Nelie Rose Lanipa CLEMENTE
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2402223

Tribunal:General Member N Schmitz
Place:Melbourne
Date: 16 May 2025
Decision:The decision under review is affirmed.

Statement made on 16 May 2025 at 1:36pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 600 (Student) – genuine temporary entrant – applied after arriving on visitor visa – study, work and relationship history – casual work in business owned by ex-partner’s family – change of subject area – repeat enrolment in lower-level course – study gap and new enrolment after receiving hearing invitation – partner’s post-graduate visa application in progress – employment possibilities in Australia and home country – young child in home country – vague and unconvincing evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
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 22 January 2024 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 17 November 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 515.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant intended genuinely to stay in Australia temporarily.
On 11 February 2024, the applicant applied to the Administrative Appeals Tribunal (the AAT) for a review of that decision.
On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (the Tribunal). The Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth) (“the Transitional Act”) provides that review applications which were not finalised before 14 October 2024 are deemed to be applications for review by the ART and are to be continued and determined as such.
The applicant appeared before the Tribunal on 16 April 2025 via Microsoft Teams video technology to give evidence and present arguments. The applicant was assisted in relation to the review. The representative attended the hearing.
For the following reasons, the Tribunal considers the decision under review should be affirmed.
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 genuinely intends to stay in Australia temporarily as a student.
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
The applicant is a 27-year-old national of the Philippines from Zamboanga City. She is unmarried and has a five-year-old daughter from a previous relationship. She grew up in a household comprising of her parents and four siblings.
The applicant completed a Bachelor of Science in Information Technology (IT) but did not use the qualification to gain employment in her home country. She claimed to work at a pastry/party business.
The applicant first arrived in Australia on 18 October 2023 as the holder of a visitor visa. On 17 November 2023, she applied for a student visa which was refused and is the subject of this review.
At the time of visa application, she applied to study a Certificate III in Individual Support (Certificate III) from 27 November 2023 until 25 November 2024 (tuition fee AUD4,350) followed by a Certificate IV in Aging (Certificate IV) from 6 January 2025 until 5 January 2026 (tuition fee AUD7,000) each at the Allied Institute.
In her genuine temporary entrant (GTE) statement she stated her motivation for studying Individual and Aging support was as follows:
Life in our city was never easy; I personally experienced hunger and financial hardship. It was a challenging time, with many people living in poverty, facing hunger, and homelessness. I witnessed homeless elderly individuals and children living on the streets, begging for food. Seeing them hungry, hopeless, and without shelter stirred deep sympathy within me. I felt sorry for these individuals who received little to no assistance, rendering them helpless.
In her Request for Student Visa Information form submitted to the Tribunal, the applicant declared at question 12 that she had not completed her Certificate III and was re-enrolling. She also declared that she had not completed her Certificate IV and would be obtaining a confirmation of enrolment (COE) from the institution.
At question 15 she declared that she had not enrolled in a registered course between 9 February 2025 and 2 March 2025 due to not finishing a pre-requisite unit on time (i.e. the Certificate III)
The applicant submitted to the Tribunal a COE showing that she was enrolled to study a Certificate III between 16 April 2025 and 4 December 2025 (tuition fee AUD4,350) and a Certificate IV between 12 January 2026 and 10 January 2027 (tuition fee AUD7,000) each at the Allied Institute.
Evidence to the Tribunal
The applicant’s circumstances in her home country
At hearing the applicant was asked about her employment history in the Philippines. She told the Tribunal that she was self-employed and ‘had an investment’ owning and operating an events business. When pressed, the applicant conceded that the business did not belong to her, but her ex-partner’s family and that it involved casual/seasonal sales work only.
The applicant claimed to own various assets in the Philippines including land. When questioned further by the Tribunal, she conceded the assets were not in her name.
The applicant told the Tribunal that directly before coming to Australia she and her daughter were residing with her parents in Zamboanga City. She stated the father of her child was also living with his parents in Zamboanga City.
The Tribunal asked the applicant given she was not working full-time, how she financially supported herself in the Philippines. The applicant originally claimed she was ‘independent’. When pressed, she conceded she was financially supported by her parents and sister.
The Tribunal asked the applicant what immediate family she had in the Philippines. The applicant replied, her parents, four siblings and daughter. Since the applicant’s departure for Australia, the applicant’s daughter has remained in the care of her grandparents. The applicant confirmed she last saw her family on 16 October 2023 when she departed for Australia via Manila.
The Tribunal asked the applicant whether her child had any contact with her father. The applicant told the Tribunal that she had contact at the ‘end of each week from Friday to Sunday’. The Tribunal asked the applicant how the father contacted the child. The applicant replied through ‘Social media platform. Just video calls’. The Tribunal asked the applicant why the father did not see the child in-person. The applicant replied ‘Because she grew up in my side and were separate. She lives far from her father’.
Only when the Tribunal asked the applicant where the father was living, did the applicant then disclose that he was residing in Australia stating, ‘Last time I heard he is in Australia as well’.
When asked what he was doing in Australia, the applicant replied that he had applied for a student visa studying ‘automative’. When asked if she knew when he came to Australia the applicant replied, ‘We came out together as a group’. The Tribunal asked the applicant about the nature of the group and who it comprised of. The applicant replied that she and her ex-partner came to Australia as part of a dance group representing the Philippines for a dance competition and travelled on the same aeroplane. When asked where he was currently living, she told the Tribunal that she spoke to him a month ago and he was living in Truganina. She stated her ex-partner’s student visa had been refused but that he had applied to the Tribunal for a review of that decision. She claimed he was not working in Australia.
There is no evidence to support the applicant has military obligations in the Philippines. The Tribunal is not aware of any political and/or civil unrest in the Philippines that would be a relevant consideration for this applicant
The applicant’s circumstances in Australia
The applicant does not have family in Australia, however, has a de facto partner who she has been in a relationship with since March 2024 and resides with. He is a national of the Philippines and has applied for a Post Graduate visa which is yet to be determined by the Department. The applicant told the Tribunal that he was currently employed as a cook full-time.
The applicant stated she was not currently employed and had never worked whilst in Australia. When asked how she was financially supporting herself, she replied that she was financially supported by her de facto partner and her sister in the Philippines.
The value of the applicant’s course to her future
The Tribunal asked the applicant about what her future employment plans were after she finished her courses and whether she had any evidence in support. The applicant replied she would ‘find employment and begin working on personal plans to improve the wellbeing of Philippines’.
The Tribunal asked what value her courses were to her future employment and how it would enhance it. The applicant claimed she would learn how to take care of the elderly and work as a personal care attendant (PCA) back in the Philippines.
The Tribunal asked the applicant why she had changed her entire career direction from IT to personal care work. The Tribunal indicated that her education background was inconsistent with her proposed courses and asked if she wished to comment. The applicant replied that she wanted ‘to do something different’ and ‘gain more knowledge from a different path’. The applicant claimed there were a lot of elderly in the Philippines who needed care.
The Tribunal indicated it had some concerns regarding the value and relevancy of her courses, as they appeared to be at a significantly lower educational level to her current qualifications and if she wished to comment. The applicant acknowledged that her proposed studies were inconsistent and at a lower level than her completed bachelor degree. She however claimed that ‘I still want to do it’ and was keen to train and gain knowledge.
The Tribunal asked the applicant why she now wanted to work in aged care. The applicant replied because she had previously organised parties for children and the elderly. The Tribunal expressed concerns regarding the value and relevancy of the course noting the applicant had no relevant work history in the Philippines and if the applicant wished to comment. The applicant claimed she looked after her grandparents and did not know about dementia.
The Tribunal referred the applicant to her Student Visa Information form at question 12 where she declared that she had not completed her Certificate III. The applicant replied, ‘That’s correct’.
Pursuant to s 359A of the Act, the Tribunal advised that there was some information that would be the reason or a part of the reason for the Tribunal affirming the decision under review. That information was that PRISM records disclosed that the applicant had already successfully completed a Certificate III in Individual Support between 27 November 2023 and 25 November 2024 and that the applicant was enrolled to start a Certificate IV in Aging Support on 6 January 2025 but failed to commence the studies. The Tribunal advised that this information was relevant to the review because it showed that the applicant was enrolling in repeat courses which raised concerns about the value of her courses and concerns that she was a genuine student and using the student visa to maintain an ongoing residency in Australia. A consequence of relying upon this information was that the Tribunal may find that the applicant is not a genuine temporary entrant. The applicant was asked if she wished to comment on this information orally or in writing.
Only when confronted with this information did the applicant admit that she had finished her Certificate III in November 2024. She claimed she did not enrol in her Certificate IV as she missed the submission date. The Tribunal asked the applicant why she was enrolling in repeat courses at the same institute. The applicant claimed her educational provider was not allowing her to enrol in her Certificate IV.
The Tribunal indicated that COE documents submitted by the applicant showed that the applicant had re-enrolled in the Certificate III and Certificate IV on 4 April 2025, merely three days after she was invited to attend a Tribunal hearing and after a five month study gap. The Tribunal indicated this raised concerns that the applicant was not a genuine student but using the student visa program to maintain an ongoing residency and whether she wished to comment. The applicant replied that she had missed a submission date, had tried to talk to her educational provider but there was ‘nothing she could do’ and therefore she had to re-enrol. The applicant was asked if she had any evidence in support to which she replied in the negative.
The Tribunal asked the applicant what remuneration she would expect to receive in the Philippines from her qualifications and whether she had any evidence in support. The applicant claimed she could get a job in Manilla earning PHP30,000-40,000 (equivalent to AUD835-1,113). The Tribunal indicated that remuneration did not appear to be a lot compared to the monetary outlay and time commitment the study would require in Australia until 10 January 2027.
The Tribunal referred to statistics from the Fair Work Ombudsman which demonstrated that aged care employees earn a weekly rate of between AUD973.40 and 1179.30 with over time on weekends, and allowances such as sleep over and night shifts.[1] The Tribunal put to the applicant that those figures indicated that the applicant may consider that she had better employment prospects in Australia than the Philippines and whether she wished to comment.
[1] Fair Work Ombudsman – Pay Guide – Aged Care Award [MA000018] published 17 October 2024 -
The applicant claimed that the cost of living expenses in the Philippines were cheaper than in Australia and that PHP30,000-40,000 was a large salary in the Philippines. She stated she would be far away from her family and that she did not wish to work in Australia rather obtain training and qualifications.
The applicant’s immigration history
The Tribunal referred to information provided by the applicant and in the delegate’s decision record which showed that the applicant arrived in Australia on a visitor visa on 18 October 2023. Less than one month later, on 17 November 2023, the applicant applied for a student visa to study for one year. The Tribunal indicated that the significant change in the applicant’s migration intentions raised concerns that she was not a genuine temporary entrant and may be using the student visa program to maintain a residency in Australia. The applicant was asked if she wished to comment. The applicant denied having an intention to study when she first arrived in Australia for a dance competition. She stated she was a genuine student and was only after knowledge, training and studies to work in the Philippines.
The Tribunal referred to information provided by the applicant that showed she had not departed Australia since her arrival in October 2023, despite completing her Certificate III in November 2024 which raises concerns that she was using the student visa program to maintain an ongoing residency. She was asked if she wished to comment. She stated she wished to gain an internationally recognised qualification to enhance her professional skills.
Other than the student visa, which is the subject of this review, there is no evidence before the Tribunal that the applicant has had a visa in Australia or for any other country refused or cancelled.
Submissions
The Tribunal asked the applicant if she wished to tell the Tribunal anything which she felt had not be adequately covered in the hearing. The applicant stated her primary purpose was to gain an internationally recognized qualification, that she had strong ties to her daughter and that she was committed to retuning to contribute to the wellbeing of the Filipino people, particularly the elderly and disabled. The representative stated that the applicant had to re-do her Certificate III as when the applicant went to submit a logbook she was told she could not submit. He claimed her institution never gave her course completion certificate. No evidence was provided in support.
The Tribunal referred to PRISM records which indicated that the applicant had completed her Certificate III and therefore had difficulty accepting that the educational provider would not provide the applicant with the required documentation. The Tribunal further explained that PRISM records are considered to be a reliable record of enrolment unless there is evidence to the contrary. This is because there are strict obligations for educational providers to register international students.
Findings

The Tribunal has considered the written and oral evidence before it, as well as the factors set out in the above Direction.
The Tribunal accepts that the applicant’s parents, siblings and her five-year old daughter reside in the Philippines and that this could act as an incentive to return home. However, the Tribunal does not consider that these circumstances in and of themselves demonstrate a significant incentive for the applicant to return home. The Tribunal notes that the applicant has not returned to the Philippines, even for a temporary visit, in approximately 18 months and despite her only child being in her formative years. Rather, the applicant has managed to maintain personal relations with her family from overseas and the child has continued in the care of her grandparents which the Tribunal notes has been the arrangement even prior to the applicant’s departure for Australia.
The Tribunal acknowledges that the applicant’s family have provided her with financial support in the past and that her sister continues to provide her with financial support while offshore in Australia. However, the Tribunal considers that the applicant has been able to remotely obtain these funds from her sister while in Australia which reduces the need for her to be home to access any financial benefits. The Tribunal further notes that the applicant has a de facto partner in Australia who provides her with financial support and accommodation. Although he is on a temporary visa, the Tribunal has concerns that given he is onshore with the applicant it will act as an incentive for the applicant to remain in Australia.
The Tribunal has considered the applicant’s claims that she owns property and various assets in the Philippines that would incentivise her to return and that she has an employment history including a business. Only when pressed did the applicant concede that the assets were not in her name and that her employment record was limited comprising of casual and sporadic work for a business belonging to her ex-partner’s family rather than her own business or investment. The Tribunal is not satisfied that the applicant has a significant economic incentive to return. The Tribunal considers that the applicant was prone to exaggerating and these exaggerations cause the Tribunal to treat with caution her evidence.
The applicant also told the Tribunal she had a strong incentive to return home due to her child who has contact with her father at the ‘end of each week from Friday to Sunday’. Only after the Tribunal asked further questions was it revealed that the father was in fact in Australia and not in the Philippines which the Tribunal had been led to believe. The Tribunal does not accept that this was a mistake given the applicant travelled to Australia with her ex-partner for a dance competition 18-months prior; as part of the same dance group; on the same date; on the same flight; given she knew his residential address in Victoria and had communicated with him approximately one month prior to the hearing. The Tribunal considers that the applicant initially told the Tribunal what she did as she was aware that it would lessen the strength of her argument regarding her child. This evidence in combination with the Tribunal’s other credibility concerns outlined in this decision record demonstrates that the applicant is prepared to make any representations or omissions she thinks will advance her case to obtain a student visa.
Whilst the Tribunal accepts that an individual may seek to re-educate themselves and change their career direction, the Tribunal is unconvinced by the applicant’s evidence which was scant and lacked detail. The Tribunal is not satisfied that the applicant has given her future career plan much thought. When asked what her future employment plans were, the applicant was unable to provide the Tribunal with any career plan or detailed consideration as to how she intends to use her courses to work in the Philippines other than ‘find employment’ and improve the wellbeing of people in the Philippines. The Tribunal considers this unusual in circumstances where the applicant has abandoned many years of study in IT to pursue a new career direction and given she has been in Australia for 18 months apparently working towards this goal and completed her Certificate III. The applicant was unable to provide the level of detail that the Tribunal would expect to see from someone genuinely preparing to return home to commence work. The Tribunal has also considered the applicant’s reasons for changing her career direction but regards them to be vague, unsatisfactory and unconvincing. As such, the vagueness of her future career plans and reasons for changing her career aspirations does not give the Tribunal confidence that the applicant is a genuine applicant for entry and stay as a student.
Of significant concern to the Tribunal is the applicant’s repeat enrolment in her Certificate III and Certificate IV at the same educational provider. This is despite the applicant successfully completing her Certificate III in November 2024 five months prior to the Tribunal hearing. The Tribunal has considered the applicant’s reasons for doing so but regards them to be vague, unsatisfactory and unconvincing. Her claims were also not supported by any credible evidence. This issue was extensively ventilated at hearing with both the applicant and representative. The Tribunal notes that through to the time of decision no evidence has been submitted to the Tribunal to support these claims. As such, the Tribunal does not accept her explanation. The repetition of her course of studies including from the same educational provider suggests to the Tribunal that the applicant is using the student visa program to maintain an ongoing residency in Australia.
The Tribunal has significant concerns regarding the applicant’s credibility. The applicant made representations in both a written declaration (i.e. her Request for Student Visa Information form) and at hearing under oath that she had not completed her Certificate III. As outlined above, this is contrary to PRISM records which the Tribunal regards to be a credible record. Only when this information was put to the applicant did she admit that she had completed her Certificate III. In this regard, the Tribunal does not consider the applicant to be a credible witness and considers that she is prepared to make any representations to facilitate a migration outcome. The Tribunal further notes that the applicant only re-enrolled into her Certificate III and Certificate IV after being invited to a Tribunal hearing. As outlined above, the Tribunal does not accept her reasons for doing so.
The Tribunal has considered the applicant’s evidence regarding the remuneration she could expect to receive in her home country from undertaking her proposed courses but does not regard it to be a significant incentive to return despite lower cost of living and family support in the Philippines. Rather, the Tribunal considers it to be a paltry sum compared to the monetary outlay and time required to undertake her courses in Australia, this is particularly noting the applicant’s claims that she must repeat both her Certificate III and Certificate IV. The Tribunal considers that the applicant has better employment and financial prospects in Australia which may incentivise her to remain noting the Fair Work Ombudsman statistics referred to above which the Tribunal regards as credible.
The Tribunal notes the applicant first arrived in Australia on a visitor visa for the purposes of competing in a dance competition with her ex-partner. The Tribunal does not consider it likely that she travelled to Australia for the first time on a visitor visa without her child and then decided to commence courses of over two years duration once here. The Tribunal does not accept that she would have been in a position to change her plans in such a significant way. The Tribunal finds that she more likely travelled to Australia with the intention to commence her studies here and apply for a student visa. This causes the Tribunal some doubt about her stated intentions regarding her student visa.
Weighing up all the available evidence and based on the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
Accordingly, the Tribunal is not 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 Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Dates of hearing(s): 16 April 2025
Representative for the Applicant: Mr Deepak Kami (MARN: 2418563)
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.