Kaur (Migration) - [2025] ARTA 890

KAUR (MIGRATION) [2025] ARTA 890 (3 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mrs Tajinder Kaur
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2312226

Tribunal:General Member H Kim
Place:Sydney
Date: 3 February 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Student (Temporary) (Class TU) visa for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212(a) of Schedule 2 to the Regulations.

Statement made on 03 February 2025 at 3:11pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – lengthy stay in Australia – good academic progress to benefit future career – sons studying in Australia – applicant’s research on setting up a café business – value of courses to future career – significant family ties in home country – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 499; Direction No 108
Migration Regulations 1994, Schedule 2 cl 500.212
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 July 2023 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 2 June 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 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia (cl 500.212(a)).
The applicant appeared before the Tribunal on 20 January 2025 by video to give evidence and make submissions. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was assisted in relation to the review and the representative attended the Tribunal hearing.
For the following reasons, the Tribunal sets aside the decision under review and remits the visa application for reconsideration.
BACKGROUND
The applicant is a 45-year-old female citizen of India from Ludhiana, Punjab. Her parents and 1 brother have passed away and she has 1 brother who lives in Ludhiana with his family. She last saw her brother when she visited India in 2015.
After completing senior secondary education in May 1999, she married her husband, Mr Amandeep Singh, in June 1999. She gave birth to her first son, Angadpreet Singh, in March 2000 and her second son, Harpreet Singh, in May 2003. Her husband resides in Ludhiana, Punjab, with his mother and his brother’s family. He owns and operates a shawl manufacturing business. He travels overseas for work but has never visited the applicant and their sons in Melbourne. Their sons live with the applicant in Melbourne, Australia, and hold Student visas as they are studying tertiary education.
The applicant has never worked as she focused on raising children and managing household responsibilities. Her husband has been financially supporting her and her children. She arrived in Australia on 21 April 2014 on a Student Guardian Subclass 580 visa and has since held another Student Guardian Subclass 580 visa (granted 2 July 2015, ceased 15 March 2022), a Subclass 600 Visitor visa (granted 21 September 2021, ceased 21 March 2022) and another Subclass 600 Visitor visa (granted 7 December 2022, ceased 7 June 2023). She had held the Student Guardian visas as the guardian for her minor sons attending school in Australia at the time. Since 21 April 2014, the applicant returned to India once, from 16 September 2015 to 13 October 2015. She travelled to Bali, Indonesia from 27 January 2024 to 12 February 2024 for a family holiday with her husband and children.
She applied for the student visa that is the subject of this review on 2 June 2023 proposing to study a package of courses in hospitality management. The information before the Tribunal indicates that the applicant completed Certificate III in Commercial Cookery (4 September 2023 – 1 September 2024) at AVETA and is currently studying Certificate IV in Kitchen Management (28 October 2024 – 30 March 2025) at the same institution. She proposes continue her study at AVETA in Diploma of Hospitality Management (7 April 2025 – 7 September 2025).
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 at the time of decision. The issue in the present case is whether the applicant satisfies cl 500.212(a), that she intends genuinely to stay in Australia temporarily.
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.
Based on the available information, while I accept that the applicant has personal ties to India, I do not consider that they have been strong incentives for her to return to India. She only has one married brother who lives with his family in Ludhiana and she hasn’t seen him since 2016. Although her husband lives in Ludhiana with his family (the applicant’s in-laws), she has not returned to India to see him or her in-laws since 2016 and she only met her husband for their 25^th wedding anniversary family trip in 2024. In contrast, she has been living in Australia with her sons for more than 10 years since 2014. The fact that she only returned to India once in 2015 for a month since coming to Australia in 2014 to care for her sons suggests her preference to stay with her sons in Australia.
The applicant provided numerous documents to support her financial circumstances in India. I accept that her husband has substantial assets in India and he has been financially supporting the applicant in Australia with his assets and business earnings. The applicant does not herself have any savings or bank accounts of her own in India. She jointly holds the title to the business factory with her husband. The document setting out the total ‘net worth’ of the applicant and her husband notes assets in gold and cash in hand. The applicant herself has never worked in India or in Australia, and she has never participated in her husband’s business in any capacity. I accept that the applicant may consider she jointly has access to her husband’s assets as he has been fully and solely financially supporting her. Given that her husband has been supporting the applicant abroad for over 10 years, I am not persuaded that the economic circumstances of the applicant in India presents as a significant incentive for her to return.
The applicant’s sons are currently studying a trade course in painting (Angadpreet) and a university degree in computer science (Harpreet), as well as working as a security guard at a museum (Angadpreet) and in customer service at the airport (Harpreet). They are also on temporary student visas to complete their tertiary studies. As noted above, the applicant has lived in Australia with her sons since 2014, and I consider their current residence in Australia presents as a strong incentive for her to remain with them, at least until they complete their studies and return to India. However, I also note that there is no information before the Tribunal to indicate she has any other ties to Australia. At the hearing, she claimed that she maintains strong connection to her friends and community in Ludhiana through video or phone calls, and through them and her husband’s business network she will be able to resettle in Ludhiana, find work and start her business. On this basis, I consider that the applicant has stronger ties to India than Australia.
When the significant length of her stay in Australia since 2014 was raised as a concern, the applicant explained that she came as a guardian for her 10-year-old son (Harpreet), then her 16-year-old son (Angadpreet) joined and she cared for both sons in Australia. After her sons graduated high school and started tertiary studies, she remained to continue care for them throughout the Covid pandemic period. She considered her own education and career now that her sons were older and that is why she wanted to study. Cooking was something she had always done and was good at, but she knew studying in India would be difficult because of her advanced age. She claimed that in India, students and teachers are not as welcoming and nice if you are a mature aged student, whereas in Australia, the institutions welcomed students of all ages and treated with respect. She felt this was the biggest barrier to her studying in India.
The evidence before the Tribunal indicates that the applicant has been granted Student Guardian visas and Visitor visas to maintain her residence in Australia. However, I accept the applicant’s reasons for remaining in Australia, being that she continued to care for her sons throughout their education. I consider this is not unusual given her life history as a mother and housewife, and I do not consider she has been using the temporary visas and the student visa programme to circumvent the intentions of the migration programme. I also accept her reasons for wanting to study as a mature-aged student in a more welcoming and diverse environment such as Australia and her natural inclination to commercial cookery and hospitality as her chosen area of study. She gave reasonably detailed evidence about what she has learnt in her courses to date and how it was of value to her than undertaking the same study in India. In summary, she gave examples of learning about planning for food safety and adjusting the menu and recipe according to special dietary requirements which she didn’t know in India, learning to create different bases for international cuisine and utilising different tools as required. She appreciated the practical training in both working as a team and independently and theory classes teaching about how to open a business and manage business finances. I accept the applicant’s oral evidence at the hearing to have demonstrated a realistic level of knowledge about her course and her reasons for the proposed course of study in Australia.
I accept her explanation that she had to change her institution from Holborne to AVETA because Holborne advised they didn’t have sufficient students to start the course. When she changed to AVETA, they offered up to the diploma level in Melbourne so she did not follow through with the original plan to go to Perth for the diploma. The evidence before the Tribunal indicates that the applicant has been committed to studying the courses and her enrolment in Diploma of Hospitality Management has been approved. At the hearing, she stated that when she is not attending classes (2 days face-to-face and 1 day online), she is busy completing assignments, looking after her sons and in free time, she watches cooking videos online.
In terms of her future plans, in contrast to the detailed written evidence, her oral evidence at the hearing was general. For example, in her statement dated 21 November 2024, she claimed that her goal is to open a cloud kitchen/café in Ludhiana, operating from evening to 4am, focusing on delivery and takeaway food via online food ordering apps. She then submitted on 29 January 2025 detailed architectural plans for a large dine-in restaurant ‘Punjabi Fusion Kitchen’ with a brewery and a dance floor at SOHO Greens in Ludhiana, which appeared to contradict her business plan as stated in the November 2024 statement. At the hearing, when asked about the architectural plans, she stated that these are not of an existing restaurant and that her brief to the architect for these plans was for a café accommodating up to 15-20 people where people can enjoy coffee and cakes. In relation to the revenue and profit figures stated in her November 2024 statement, she claimed that she learnt to project the earnings from her theory classes in the Australian course. Her evidence raised concerns about whether she had carefully thought through her future plans to utilise her Australian study.
She conceded at the hearing that she obtained help from her migration agent to write the detailed statements and she had not as yet researched about setting up the proposed café business or securing employment in Ludhiana. However, she explained she was still exploring various options, she wants to concentrate on her studies for the next 8 months and upon return to India, her intention is to first join a restaurant as a worker to gain experience for 3-4 years and open the cloud-based kitchen (as per her written evidence) or the restaurant (as per her recently submitted architectural plans). She explained that because she has never had any work or business experience, she wants to first learn and explore available opportunities by working in jobs. When asked how she would obtain such job opportunities, she claimed that many of her husband’s friends and business networks have opened businesses and it will not be difficult for her to find jobs through these contacts.
While I have reservations about the applicant’s lack of clear direction in her proposed plans, having regard to her life history and personal circumstances, I consider it plausible that her focus is on completing the study first and then she will explore various options that may be available to her upon return to India. The documentary evidence including the detailed architectural plans indicates that she has the resources and the support in India to plan for a business. Her oral evidence indicates that she has tried to implement her learnings in the basic business plan. Having regard to the information about her husband’s successful business, I am willing to accept that she can utilise her Australian qualification and her husband’s business connections in Ludhiana to find jobs and/or start her hospitality business. In the specific circumstances of this applicant, who has never studied since completing secondary education in 1999, has never worked or even involved herself in her husband’s business and has dedicated to raising her children, I accept her frank and somewhat general evidence as credible and that she is committed to completing her studies and returning to India after acquiring her Australian diploma. Overall, I am satisfied on the evidence before the Tribunal that the applicant has reasonably demonstrated the value of her courses to her future in India.
Having regard to all of the above, I am satisfied on the information before the Tribunal that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).
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.
Dates of hearing(s): 31 January 2025
Representative for the Applicant: Mr Jujhar Bajwa (MARN: 0742209)
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.