K C (Migration) - [2025] ARTA 1322

K C (MIGRATION) [2025] ARTA 1322 (10 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mrs Sushila K C
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2408075

Tribunal:General Member A Ho
Place:Melbourne
Date: 10 July 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(a) of Schedule 2 to the Regulations.

General Member A Ho

Statement made 10 July 2025 at 10:24 am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study, work and visa history – arrival as dependant on husband’s visa, relationship breakdown, study difficulty and COVID disruptions – enrolment at lower level in different subject area – reasonably necessary enrolments, investigation of providers and courses, course progress and future business plans – parents, child and reconciliation with child’s father – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
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 8 April 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 29 September 2023. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The applicant appeared before the Tribunal on 9 July 2025 to give evidence and present arguments.
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.
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.
Where used in this decision:
a.COE refers to Confirmation of Enrolment;
b.PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;
c.VET refers to Vocational Education and Training;
d.The Department refers to the Department of Home Affairs;
e.“written material” refers to material the applicant submitted to either the Department or the Tribunal in writing in relation to the current review applicant or its related visa application;
f.GTE statement refers to the applicant’s written statement to the Department;
g.Questionnaire refers to the Tribunal’s “Request for Student Visa Information” document which the Tribunal invited the applicant to complete with answers and return to the Tribunal.
On the applicant’s written material, and with reference to relevant considerations laid out in Direction 108, the applicant claims to have incentives to cease living in Australia and a basis for asserting that there is no intention to remain in Australia beyond the stay now proposed:
a.   The applicant has provided reasonable explanations for why the applicant chose Australia as a study destination over the applicant’s home country, for valuing Australian education and the experiences that brings, and for having made a selection of education providers and courses, including demonstrating an ample knowledge of living in Australia and having researched the study and education provider now proposed;
b.   The applicant’s immigration, visa, and travel history both in connexion with Australia and other countries is unremarkable, is not of concern, and is not a basis for finding that there is an incentive to remain in Australia or any incentive not to return to the applicant’s country (the applicant’s proposed study and study history are considered separately below);
c.   On the evidence, there are no economic circumstances, military service commitments, or political or civil unrest that would serve as an incentive for the applicant not to return to the applicant’s country;
d.   The applicant has close family members and friends outside Australia.
With reference to Direction 108, the Tribunal finds that each of these factors, and all of them taken together, constitute an incentive for the applicant to cease leaving in Australia. A person may have such incentives to return to their country, and either intend or not intend to yield to those incentives. The Tribunal finds, at this stage, only that the applicant has such incentives, and now proceeds to give further consideration to factors indicated by Direction 108.
The applicant is from Nepal. She completed high school in 2010 and a bachelor of education in 2013. She was a social worker and field coordinator in water and hygiene from 2013 to 2017. She came to Australia in 2017 on a dependent student visa. She worked in a laundrymat to help support her husband. That relationship ended in 2019. She applied for her own student visa but found it difficult to function without her husband and was stressed from the breakup. She did not complete the initial VET sector accounting she attempted and her study was affected by Covid lockdowns. Later, she completed the diploma of project management in 2023, which she chose because it would help her in all areas of work especially when running social welfare projects as she had done.
She next completed a certificate III in commercial cookery in late 2024. Her interest in cooking and food was sparked by the variety of options on offer in Australia. She conceived of a plan to open her own restaurant to leverage inbound tourists in Nepal. She is studying in the related certificate IV to finish in September 2025, before the related diploma which will finish in March 2026. She then plans to return to Nepal where her 13 year-old son lives with her parents. She has also rekindled her relationship with her son’s father – who is not the husband she came to Australia with. She now plans to live with him and her son.
Her plan is to work as a chef for two years and then use the products from her family farm in an organic restaurant she wants to open. She disavows any need for further stay or study beyond March 2026.
The applicant was a talkative and attentive witness who was able to go into detail on all topics of interest to the Tribunal. When she came to Australia in 2017 she already had a son in Nepal and on the evidence she has not yet applied to bring him onshore. The Tribunal accepts that the breakup of her relationship here in Australia and Covid lockdowns where disruptive to the applicant. Both accounting and project management are useful skills when running development projects in the field as all projects have budgets and expenditure, as well as project timelines and goals.
The Tribunal accepts her study of accounting was adversely impacted by Covid lockdowns, while her project management qualification will help her generally in an endeavour where planning is required.
The applicant’s own history illustrates something which is very common for many people; while she has a degree in education, she has never directly utilised that qualification. In serves the purpose of being a general education but not necessarily as a source of vocational skills. Her choice to study cookery is but the second vocational choice she has made in her career; the first having been to be a social worker. She having been in Australia already, on a secondary visa, the Tribunal considers it an opportune time for her to acquire fresh skills to take home, and a fresh direction considering that she had by the time her relationship ended had a clean break from social work.
The applicant was able to articulate her plan to open her own restaurant and her study in Australia allows her to bring an international element to the menu she will be able to offer customers. Her PRISMS record indicates she is making steady progress in her studies, with her entire package to finish in March 2026.
More broadly, she retains incentives to return home as noted above. She has a clearly articulated future overseas plan for which she has chosen study of an appropriate level and duration. She has not included any extraneous courses which would serve to prolong her stay, VET sector management courses being commonly seen rounding out study package. Her package of course is therefore lean and focused only on what the Tribunal considers to be reasonably necessary. Her study has value to her future overseas plans.
Placing the greatest weight on the factors indicated by Direction 108 discussed above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).
The applicant disavows any need for further stay or study beyond the applicant’s last course. The Tribunal considers that by that time the applicant will have the skills and qualifications reasonably necessary to embark upon the applicant’s overseas plan, and any proposal for further stay or study beyond that time is a distinct reason to reconsider the applicant’s intentions for a temporary stay.
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(a) of Schedule 2 to the Regulations.

Date(s) of hearing: 9 July 2025
Representative for the Applicant: Mr Chintan Dhungel (MARN: 1805758)

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.