Kostoski (Migration) - [2025] ARTA 843

KOSTOSKI (MIGRATION) [2025] ARTA 843 (26 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicants:Mr Vasko Kostoski
Mrs Ristanka Kostoska
Master Viktor Kostoski
Master Stefan Kostoski
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2307279

Tribunal:David Thompson
Place:Perth
Date: 26 March 2025
Decision:The Tribunal sets aside the decisions under review and remits the applications for Student (Temporary) (Class TU) visas for reconsideration in accordance with the order that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.

Statement made on 26 March 2025 at 1:54pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – value of course to benefit future career – plans to expand business – property ownership 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, 359, 499; Direction No 108
Migration Regulations 1994, Schedule 2 cls 500.212, 500.611
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 17 May 2023 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 13 April 2023. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas 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 he intended genuinely to stay in Australia temporarily.
The applicants lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal (AAT) on 25 May 2023. Pursuant to the provisions of Part 5 of Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, that application is to be determined by the Tribunal.
The applicants appeared before the Tribunal on 25 September 2024 and 22 January 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Macedonian and English languages.
The applicants were assisted in relation to the review.
For the following reasons, the Tribunal sets aside the decisions under review and remits the visa applications 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 meets the requirements of cl 500.212.
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.
Evidence
As well as giving oral evidence at hearing, the applicants provided the following items of documentary evidence to the Tribunal:
a.the delegate’s decision record and notification letter, both dated 17 May 2023;
b.a completed ‘Request for Student Visa Information’ form, provided by the applicant in response to a request for information made by the Administrative Appeals Tribunal on 15 July 2024;
c.identification pages from the applicants’ Republic of North Macedonia passports;
d.a statutory declaration made on 23 July 2024 by the applicant;
e.a property list transcript issued by the Republic of North Macedonia Agency for Real Estate Cadastre giving details of real estate owned by Zhivko Kostoski;
f.traffic licenses for a car and tractor owned by the applicant;
g.an automotive liability policy document issued to the applicant by Evroins Insurance in respect of a Mercedes-Benz passenger vehicle;
h.a further property list transcript issued by the Republic of North Macedonia Agency for Real Estate Cadastre giving details of agricultural land owned by Zhivko Kostoski;
i.a notice of registration of agricultural land owned by the second named applicant for honey production, issued by the Republic of North Macedonia Ministry of Agriculture, Forestry, and Water, dated 5 April 2022;
j.the applicant’s Republic of Macedonia birth certificate;
k.a property list transcript issued by the Republic of North Macedonia Agency for Real Estate Cadastre giving details of real estate a share in which is owned by the second named applicant, and noting the grant of a lease of that land;
l.a further property list transcript issued by the Republic of North Macedonia Agency for Real Estate Cadastre giving details of further parcel of real estate a share in which is owned by the second named applicant.
Prior to constitution of this matter, the Tribunal obtained the Departmental file on the applicants’ student visa applications. That file contained the following relevant documents provided by the applicants and not already listed above:
a.the third and fourth named applicant’s birth certificates;
b.a GTE statement prepared by the second named applicant, dated 6 April 2023;
c.letters dated 6 April 2023 written by the applicant on behalf of the third and fourth named applicants;
d.the applicant’s and the second named applicant’s marriage certificate;
e.letters of offer dated 6 April 2023 from the Victorian Government Schools International Student Program offering school places to the third and fourth applicants;
f.a Genuine Temporary Entrant statement prepared by the applicant, dated 6 April 2023;
g.a diploma issued to the applicant by State Traffic School “Boro Petrushevski” in Skopje, Republic of North Macedonia, certifying his completion of a four-year course in automobile mechanics;
h.letters dated 17 April 2023 from the Victorian Department of Education, confirming school placements for the third and fourth named applicants.
Where the Tribunal refers to any of the documents listed above in these reasons, it does so by reference to the paragraph number at which the document is listed. Thus, the document noted in paragraph 10(a) above is referred to simply as ‘document 10(a)’, and so on for the other documents listed.
The Tribunal has also had reference to the applicant’s record from the Provider Registration and International Student Management System (PRISMS), and the applicants’ movement records. It did not prove necessary to put any of the information in those records to the applicant at hearing pursuant to s 359A of the Act.
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 following paragraphs 17 to 33 set out the Tribunal’s findings of fact on various background points relevant to the disposition of this review application.
The applicants are citizens of the Republic of North Macedonia. The applicant and the second named applicant have been married for 18 years (see document 11(d)). Their eldest son, the third named applicant, is the third and fourth named applicants, are 17 and 13 years of age respectively
The applicant first arrived in Australia on 10 September 2022, as the holder of an FA-600 visitor visa granted on 23 May 2022 and valid until 27 May 2023.
In or about early November 2022, the applicant enrolled in the following package of courses:
a.General English I, scheduled to run from 28 November 2022 to 26 November 2023;
b.Certificate III in Light Vehicle Mechanical Technology, scheduled to run from 27 November 2023 to 13 April 2025;
c.Certificate IV in Automotive Mechanical Diagnosis, scheduled to run from 26 May 2025 to 23 November 2025; and
d.Diploma of Business Information Systems, scheduled to run from 10 November 2025 to 8 November 2026.
He departed from Australia on 5 December 2022.
The applicant did not commence his studies, and his enrolments were cancelled for non-commencement of studies.
The applicant returned to Australia on 27 February 2023.
Shortly afterwards, he enrolled in a further package of courses, as follows:
a.Certificate III in Light Vehicle Mechanical Technology, scheduled to run from 27 March 2023 to 11 August 2024;
b.Certificate IV in Automotive Mechanical Diagnosis, scheduled to run from 25 November 2024 to 25 May 2025; and
c.Diploma of Business Information Systems, scheduled to run from 26 July 2025 to 12 July 2026.
The applicant’s Certificate III enrolment was varied for compassionate or compelling circumstances on or about 11 April 2023, and the other enrolments in his package were varied in consequence, so that he was enrolled in:
a.General English I, scheduled to run from 24 April 2023 to 22 October 2023;
b.General English I, scheduled to run from 26 October 2023 to 12 May 2024;
c.Certificate III in Light Vehicle Mechanical Technology, scheduled to run from 27 May 2024 to 12 October 2025; and
d.Certificate IV in Automotive Mechanical Diagnosis, scheduled to run from 24 November 2025 to 24 May 2026.
On 13 April 2023, the applicants applied for TU-500 student visas, and were each granted a Bridging Visa A, which remained valid until 5 July 2023.
The applicants student visa applications were refused on 17 May 2023.
The applicants commenced this review proceeding on 25 May 2023.
On 5 July 2023, the applicant was granted a further Bridging Visa A, which remained in place until 11 August 2023.
On 11 August 2023, the applicant was granted a third Bridging Visa A, which remains in place at the date of these reasons.
The applicant completed both of his General English courses by 12 May 2024.
The applicant did not commence his Certificate III in Light Vehicle Mechanical Technology, and his enrolments in it and the Certificate IV in Automotive Mechanical Diagnosis were cancelled on 4 June 2024.
Instead, the applicant enrolled in:
a.Certificate III in Light Vehicle Mechanical Technology, scheduled to run from 29 July 2024 to 14 December 2025; and
b.Certificate IV in Automotive Mechanical Diagnosis, scheduled to run from 26 January 2026 to 26 July 2026.
At the date of this decision, the applicant is studying for his Certificate III in Light Vehicle Mechanical Technology.
The applicant’s circumstances in his home country
The applicant gave evidence at hearing that he has family in his home country, namely, his parents and his wife’s family. He stated that he and the other applicants contact his family in North Macedonia everyday by internet video calls, using apps such as Viber, WhatsApp, and Messenger. He stated that he had no particular community involvements in his home country, although he claimed a wide circle of friendship and acquaintance in his hometown of Ohrid.
The Tribunal finds that the applicant has personal ties to his home country that would provide him with a strong, although not overwhelming, incentive to return there when he has finished his studies in Australia.
On the applicant’s evidence, the highest training qualification he achieved in his home country was the completion of a four-year secondary vocational education in automotive mechanics. Document 11(g) gives the completion date for that course as 15 June 2019. The applicant explained that between leaving school and undertaking his secondary vocational education, he apprenticed and worked as a diesel mechanic. Following completion of his course, and before coming to Australia, he was engaged in setting up his own mechanics workshop, as well as being employed as a mechanic. From his employment in that field, he was earning the equivalent of approximately AU$70,000 per annum.
The applicant provided evidence that he owns two cars, a tractor, and various tools of trade and similar equipment in North Macedonia. He also stated that he owned real property, and that his wife owned a honey production business. After hearing, he provided documents 10(e) to (l) as verification of some of these claims. Those documents corroborate the applicant’s evidence regarding personal property. As regards real property, it is apparent from those documents that the applicant’s father and wife are recorded as each owning a number of plots, but that the applicant has no real estate recorded against his name. That is not to say that he has no interest in the real estate registered in the second named applicant’s name. The Tribunal is not in a position to make any detailed findings on the martial property laws of North Macedonia, but available country information indicates a common ownership regime applies, at least when the property in question was acquired whilst the marriage was on foot. The documents referred to above tend to indicate that this was the case in respect of the real estate listed in the second named applicant’s name.
The Tribunal finds that the applicant has economic ties to his home country that would provide him with a strong incentive to return there when he finishes his studies in Australia. Certainly, there is no evidence before the Tribunal to suggest that the applicant has any positive economic incentive to avoid returning to his home country.
The applicant stated at hearing that he has no military service obligations to complete on his return to North Macedonia. The Tribunal accepts this evidence, country information indicating that there is no compulsory military service in that country. The applicant also stated that he had no concerns regarding civil or political unrest in his home country. Country information indicates that North Macedonia, whilst it has had periods of unrest, is currently stable. The Tribunal accepts the applicant’s evidence on that point also. These matters will not give the applicant any incentive to avoid returning to North Macedonia in due course.
The applicant was asked at hearing whether he could study equivalent courses to his Australian courses in his home country. His response was that a course was available, but that it was not as advanced as his Australian courses, lacked the cache of an international qualification or training, would take approximately twice as long as the applicant’s Australian courses to complete, and that the applicant’s age would make it difficult for him to gain a place. He added that in order to study this course he would have to travel to a centre several hours from his home. The Tribunal finds that the applicant has good reasons for deciding to study in Australia despite the availability of courses in his home country.
Taking the matters discussed above together, the Tribunal finds that the applicant’s circumstances in his home country give reasonably strong support to his claim to be a genuine temporary entrant.
The applicant’s circumstances in Australia
The applicant has a sister living in Australia as an Australian citizen. The evidence before the Tribunal indicates that the applicant is relatively close to his sister: It was the desire to visit her that originally brought him and one of his sons to visit Australia. The applicant stated that he had no community ties or involvements in Australia. There is no evidence to the contrary before the Tribunal, and the Tribunal finds this to be the case. Even so, the Tribunal finds that the presence of his sister in Australia gives the applicant some incentive to remain in Australia once he finishes his studies.
The applicant gave evidence that he has no property in Australia beyond the cars that he and his wife use. Those cars are, he said, each worth approximately $3,000. The also gave evidence that he has worked in Australia, initially cleaning and more latterly assisting servicing diesel engine vehicles. He stated that he is making approximately $1,000 to $1,500 per week by that means. The applicant is an experienced diesel mechanic and could no doubt find permanent work in Australia in that field if he wished to, especially with some Australian experience. For that reason, and despite his lack of tangible assets in Australia, the Tribunal finds that the applicant has some economic ties to Australia that would give him an incentive to remain in this country once he has finished his studies.
There is no evidence before the Tribunal to suggest that the applicant has entered into any relationship of concern in this country, in the sense of a relationship contracted or contrived to improve his chances of being granted a visa. Indeed, the evidence and the circumstances giving rise to this review application are directly to the contrary: the applicant has come to Australia with his wife and family and continues to live with them. There is no direct evidence before the Tribunal that the applicant is simply using the student visa system to maintain residence in Australia, or that he is attempting to circumvent the intentions of the Australian migration programme in any other way. That does not necessarily exclude, of course, the possibility of indirect inferences to that effect being made on the basis of the evidence before the Tribunal. Nonetheless, these considerations give some support to the applicant’s case.
There is no evidence before the Tribunal that the applicant made any preparations for life as student in Australia before coming to the country. In some cases, that could indicate an ulterior motive for seeking a student visa. However, in this case the applicant’s evidence was that he initially visited Australia with one of his sons to see his sister, and that it was his sister who suggested that he consider studying in Australia as a way of improving his situation in his home country. The applicant’s movements and pattern of enrolment as consistent with that evidence. The lack of evidence of preparation noted above does not, therefore, indicate an intention to remain in Australia permanently or indefinitely in this case.

The applicant completed his English courses at Della International College, and is enrolled with Lennox College to study his various automotive mechanical courses. He was asked at hearing how he came to choose those course providers. His response was that he chose Della International College on the basis of an education agent, and Lennox College on the same basis. There is nothing in his evidence to suggest or indicate that the applicant considered any other course provider, or researched or visited either Della International College or Lennox College before enrolling. He did give evidence, however, that both course providers are conveniently located for him, and are reasonably priced and friendly, welcoming, and helpful. These are good reasons to remain with a course provider, and ameliorate to some extent the adverse implications of the failing to research available courses more widely.
Taking all of the matters discussed in paragraphs 42 to 46 above together, the Tribunal finds some indications in the applicant’s circumstances in Australia to suggest that he and his family may be intending to remain in this country permanently or indefinitely, but finds also that the applicant’s (and his family’s) incentives to return to North Macedonia are stronger. This provides some support to the applicant’s case.
The value of the applicant’s courses for his future
The applicant’s highest level of formal education achieved in his home country was the completion of high school, as a mature age student. He is currently studying at a post-secondary vocational level. The Tribunal finds that he has not regressed in his level of education.
The applicant stated at hearing that his plan on completion of his Australian studies is to return to his home country and to open his own workshop. At hearing, the Tribunal asked why he could not do so on the basis of his North Macedonian qualifications, which appeared to be in the same area as the courses he has undertaken in Australia. The applicant explained that his North Macedonian qualifications and experience (including that gained in the course of his apprenticeship) are in the area of diesel mechanics, and that his current studies focus on petrol-fuelled vehicles. It is the case that there are sufficient differences between those fields. The applicant further explained that there are no workshops in his hometown of Ohrid servicing and repairing both diesel and petrol vehicles, and that he sees an opportunity for a workshop that can deal with both kinds of vehicle. He added that as Ohrid is a tourist destination, the English language proficiency his is gaining through study in Australia will be an asset when dealing with foreigners needing work and assistance during Ohrid’s tourist season. The applicant’s studies are consistent with these plans.
The applicant gave evidence that he could earn approximately €1,500 per month as an employed mechanic with his Australian qualifications, and €2,000 or more per month in his own business. In either case, this is considerably more than the amount his was earing as a employed diesel mechanic alone (approximately €7,000 per annum). The applicant has provided no detailed evidence to support these estimates, but the Tribunal does not consider them to be some high as to be fanciful or otherwise unrealistic.
The Tribunal finds that the applicant’s courses are more than likely to have real value to him on his return to North Macedonia. This provides considerable support for his claim to be a genuine temporary entrant.
The applicant’s immigration history
The applicant gave evidence of extensive travels, having visited Hungary, Turkey, Bulgaria, Slovenia, and Germany before coming to Australia. He stated at hearing that he had never before been refused a visa, had never had a visa issued to him by any country cancelled, and had no other Australian visa application on foot. There is no evidence before the Tribunal to contradict any of these statements, and the Tribunal accepts them. These circumstances give some support to the applicant’s claim to be a genuine temporary entrant.
There is no evidence before the Tribunal to suggest that the applicant has ever breached the immigration laws of Australia or of any other country.
The applicant’s current visit to Australia has lasted just over two years at the date of these reasons. In that time, the applicant has made significant progress in his package of courses. His final course is scheduled to finish on 26 July 2026 and (if that proves to be the case) his total stay in Australia will have lasted approximately 3 ½ years. The applicant is not, therefore, proposing an indefinitely long stay in Australia, or indeed an unreasonably long course of study.
The Tribunal finds that the applicant’s immigration history lends some support to his claim to be a genuine temporary entrant.
Conclusion on cl 500.212(a)
On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).
Does the applicant intend to comply with visa conditions?
For the applicant to meet cl 500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl 500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). For visa applications made on or after 1 July 2022, condition 8208 (no critical technology related study without approval) must also be imposed. The following conditions may also be imposed in some cases (cl 500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).
At hearing, the applicant demonstrated an awareness both that conditions would be imposed on any student visa granted to him, and of the general nature of those conditions. He expressly undertook to observe any such conditions as might be imposed on him. He has no record, on the evidence before the Tribunal, of past breaches of visa conditions.
On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl 500.212(b).
Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?
For the applicant to meet cl 500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl 500.212(a) and (b)).
No other relevant matter arises on the evidence before the Tribunal.
Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212. That being the case, the grounds upon which the delegate refused visas to the second to fourth named applicants fall away.
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 decisions under review and remits the applications for Student (Temporary) (Class TU) visas for reconsideration, in accordance with the order that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.
Dates of hearing(s): 25 September 2024 and 22 January 2025
Representative for the Applicant: Mr Harjeet Singh Chahal (MARN: 1688913)
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.