Kaushal Rani (Migration) - [2025] ARTA 893

KAUSHAL RANI (MIGRATION) [2025] ARTA 893 (12 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mrs Kaushal Rani
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2313517

Tribunal:General Member B Butler
Place:Melbourne
Date: 12 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 12 February 2025 at 5:08pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – good academic progress to benefit future career – plan to start an age care facility and agency – business and family ties in home country – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 65, 499; Direction No 108
Migration Regulations 1994, Schedule 2 cl 500.212
STATEMENT OF REASONS
APPLICATION FOR REVIEW

The applicant is a 42-year-old woman who is a national of India. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant her 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 July 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 29 August 2023 on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because they were not satisfied that the applicant intends genuinely to stay temporarily in Australia as required by cl 500.212(a).
The applicant applied to the Administrative Appeals Tribunal (AAT) for review of the delegate’s decision on 1 September 2023.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 10 February 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
The applicant was assisted in relation to the review.
For the following reasons, the Tribunal sets aside the decision under review and remits the visa application for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student because 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.
Applicant’s evidence
The applicant is currently enrolled in, and studying, a Diploma of Community Services at Lead College. She commenced this course in August 2024 and is scheduled to complete it by 15 February 2026. She has provided to the Tribunal a course progress report, which shows she was, by November 2024, undertaking two units and had received a credit transfer for two units of the course. She completed a Certificate IV in Ageing Support from July 2023 to July 2024 and has provided to the Tribunal her record of results and completion certificate for this course.
The applicant has two children, a daughter (born in 2005) and a son (born in 2007). Her two children are currently in Australia and studying.
The applicant arrived in Australia in May 2023 and has not declared any return travel to India since her arrival. She stated in her ‘Request for Student Visa Information form’ that she travelled to Australia on a visitor visa to visit her daughter who is pursuing a Bachelor of Nursing in Sydney. She said that her son is now pursuing an automotive course.
During her time in Sydney, she visited a friend’s parents who live in an aged care facility in Sydney. The applicant states that she was impressed by the facilities and noted that there were no such facilities in her hometown in India. She states that she is aware of families in India in which the adult children have moved overseas or to other parts of India for work, and the parents remain in the hometown with limited care. Her husband owns an MRI clinic and has elderly patients. She realised that there was an opportunity to complete a course in Australia which would enable her to start a similar facility or offer services to elderly people in India. She said that she assumes there will be demand for aged care services in India, and she has provided articles to the Tribunal on the growing demand for such services in the elder care market in India.
The applicant said she intends to return to India after she completes her course in February 2026. She intends to open her aged care business upon her return. Her husband owns a plot of land where she intends to open the business. She said they would hire staff and workers, and would train them. She said that initially, her plan is for the workers to go door-to-door to provide care to clients in their homes and then, once the business grows, she will establish a facility on her husband’s land where clients can live. She also wants to expand her business into other cities in the future.
Initially, she plans to have eight to ten employees, train them, and then accept up to twenty clients. She would charge 20,000 Indian rupees a month per client (resulting in 400,000 Indian rupees per month), and after salaries for staff are paid, she thinks she would have approximately 150,000 Indian rupees per month to reinvest.
I asked whether she had made enquiries about whether she would require any licences to open such a business in India. She said that as her husband works in the healthcare sector, he will be able to facilitate the opening of the centre and the business. She said she has done some research and her husband will help.
The applicant has stated that she is not aware of similar courses, such as caring and aged care sector courses, being available in India. She said she is familiar with the available courses because she has a business in the education sector. The courses available in India are not of a comparable standard to the courses available in Australia and she states they do not offer practical training of a high quality. She states that she chose Lead College because it is close to the place her daughter was living.
I note that the applicant, in her statement of purpose, submitted to the delegate, referred to wanting to open an NGO to assist elderly people in India. She said this would be in addition to her plan to open an aged care facility/service in India.
The applicant has operated a home tutoring business since 2011. I asked why she would change her business interests from education to the aged care sector. She said that her home tutoring business has continued while she has lived in Australia and that she has hired tutors in India whom she communicates with via WhatsApp. She said that when she saw the aged care facility in Sydney, she was very impressed and thought that she could start this business in India and that it would be beneficial for elderly people. She said that there is potential for growth in the coming four to five years.
As noted above, the applicant’s two children are studying in Australia. She said that she thinks her children will finish their studies in 2026. She said that her children are considering their options after study (in respect of whether to pursue further studies or apply to remain in Australia), and they will decide later.
She said that she spends her time in Australia either studying, or looking after her children. She also attends to her home tutoring business in India. She does not work in Australia and said she doesn’t have the right to work. She funds her stay and studies in Australia using her income from her home tutoring business, income from agricultural land and from her husband.
The applicant’s husband lives in India and visits his wife and children in Australia occasionally. The applicant stated that she does not have any relatives living in Australia (apart from her two children). She states that her extended family are in India, and her husband lives in India.
Consideration
The applicant has successfully completed a Certificate IV in Ageing Support and is now undertaking a Diploma in Community Services. She has continued studying since making the student visa application and after the delegate’s refusal. The course she has completed, and the course she is undertaking, are the courses she listed in her visa application. She has not changed her study pathway.
I have considered the applicant’s circumstances in India. She has said that the courses available in India in the aged care sector are not of the same quality as those available in Australia, and I accept that the applicant has reasonable reasons for undertaking the study in Australia as she perceives the course standard to be higher in Australia.
The applicant has personal ties to India. These include her husband, her parents, her mother-in-law and two brothers. She also has her home tutoring business, and her husband has agricultural land. Her children are currently in Australia. I have considered whether her ties to India would serve as a significant incentive to return to India. Her husband has an MRI clinic in India. I find that these ties (her husband and his business) serve as a significant incentive to return to India. While her husband has been able to visit her in Australia, I acknowledge that this appears to be a temporary arrangement and in the long-term, her husband’s primary location in India would serve as a significant incentive to return. The applicant has continued to run her home tutoring business while in Australia, and as such I do not find this to be a significant incentive to return to India.
I have considered the applicant’s economic circumstances and whether they would present as a significant incentive for her not to return to India. The applicant has assets in India and runs a business. She also benefits from agricultural land. She has not worked in Australia and her stay has been funded by her business and her husband. She appears to have access to funds in India, which will continue to generate income for her, and allow her to enjoy a modest or comfortable life. As such, I do not consider that her economic circumstances would present as a significant incentive for her to not return to India.
I have considered the applicant’s ties to Australia, and whether these would present as a strong incentive for her to remain in Australia. She has declared having some friends in Australia (such as the friend with whom she visited the nursing home) and her children are both in Australia, on temporary visas. While her children remaining in Australia would appear to be a strong incentive for her to remain, I proceeded on the basis that their stay in Australia is temporary as they are also students in Australia, and they have not yet decided what their future intentions are. Accordingly, I do not consider that the applicant’s ties to Australia present as a strong incentive for her to remain in Australia.
The applicant has provided evidence on how she intends to use the skills she has acquired and will acquire in India, and has presented a moderately detailed business plan. She has also provided an estimate for how much she expects to earn.
The applicant has already established a home tutoring business, and I consider that she intends to open an aged care business. She said that the home tutoring business is a separate matter to the aged care business, and it will continue. The courses she has selected are relevant to her pathway of opening an aged care business. Based on the material provided, it appears that there is a need for such businesses in India.
The applicant said that she chose the course provider because it was close to where her daughter was living. She has some knowledge of the course provider, and has noted that such courses are not available in India, however, her reasons for selecting the course provider in Australia are limited. I have considered that the applicant said she spends time caring for her children in addition to her studies. Her children are both pursuing higher education in Australia. It may appear that the applicant is spending her time in Australia caring for her children, particularly given she selected a course provider near where her daughter was living.
In weighing up all the evidence and material before me, I acknowledge that the course she is currently studying will offer a benefit to her in India, as it aligns with her business goals she discussed in detail at the hearing. While I also acknowledge that she considers the courses in Australia offer her greater benefit than a course in India because of practical components, I am concerned that she selected a course provider so that she can be close to her daughter. It may appear that one of her primary motivations to seeking to remain in Australia is to be close to her children who are also students in Australia. However, I acknowledge her ties to her family and community in India, and do not consider that her ties in Australia (i.e., her children) present as a significant incentive to remain given her children are not in Australia on permanent visas. I have also considered her income and access to assets in India, and I do not consider that her economic circumstances in India present as a significant incentive for her not to return to India.
I am persuaded by the applicant’s evidence that she intends to depart Australia at the completion of her current course. This is the applicant’s first student visa application. I place significant weight on the fact that she has completed her studies since the delegate refused the visa application, and that she has continued to study. Given her demonstrated study history since she applied for the student visa and her reasons for wanting to complete the course and return to India, I find that these outweigh my concern about her selection of course provider.
I note that the applicant has stated she has no concerns or fears about returning to India, and that she will return to India after she completes her current course. I have relied upon the applicant’s statements in this regard in reaching my conclusion on cl 500.212(a). If the applicant makes a further visa application, including one on the basis of an intention to undertake further study after February 2026, her submissions and evidence to the contrary in connection with this matter will clearly be relevant to any assessment of her intention to stay in Australia temporarily and her evidence in any future visa applications.
On the basis of the above, I am satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant 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): 10 February 2025
Representative for the Applicant: Mr Nishant Maroo (MARN: 0637341)
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.