Lamichhane (Migration) - [2025] ARTA 526

Lamichhane (Migration) [2025] ARTA 526 (13 March 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Raj Kumar Lamichhane
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2314525

Tribunal:General Member M Hanna
Place:Melbourne
Date: 13 March 2025
Decision:The decision under review is affirmed.

Statement made on 13 March 2025 at 9:07am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – education, employment and travel history – applied after arriving on visitor visa – change of subject area – completed Cert IV but lack of detailed knowledge of diploma and graduate diploma courses – value of courses to future employment – family and community ties in home country and Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 August 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 23 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 was a genuine applicant for entry and stay as a student.
On 15 September 2023, the applicant sought a review of that decision from the Administrative Appeals Tribunal (AAT). The applicant provided the AAT with a copy of the delegate’s decision.
On 14 October 2024, the 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), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
On 11 November 2024, the Tribunal wrote to the applicant requesting that he provide information that he is enrolled in a registered course of study; and a genuine applicant for entry and stay as a student. The Tribunal referred the applicant to the Request for Student Visa Information Form and noted that in considering whether an applicant is a genuine applicant for entry and stay as a student, it must have regard to Ministerial Direction No.108 ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.’ The Tribunal provided the applicant with a link to Ministerial Direction No.108. In response, the applicant provided a completed form and additional documents.
The applicant appeared before the Tribunal by video on 6 March 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
The applicant was assisted in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal considers the decision under review should be affirmed. In reaching this decision, the Tribunal has had regard to:
a.the oral evidence of the applicant given at the hearing;
b.all written material filed by or on behalf of the applicant; and
c.other relevant documents on the Tribunal and Departmental files.
CRITERIA FOR STUDENT VISA
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 temporary applicant for entry and stay as a student.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 108, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant is a 32-year-old citizen of Nepal who first travelled to Australia on 18 October 2022 as the holder of a subclass 600 visitor visa (600 visa). He later departed on 6 January 2023 and returned to Australia a second time as the holder of the 600 visa on 29 March 2023. On 23 June 2023, the applicant lodged an onshore application for a student visa in order to undertake studies in Australia. This visa, to which this decision relates, is the applicant’s first student visa application.
Confirmation of Enrolment documents (CoE’s) provided with the applicant’s primary visa application refer to the applicant as having been enrolled to undertake the following package of courses:
·     Certificate IV in Kitchen Management (10 July 2023 – 05 January 2025) – this CoE was later cancelled and reissued with new CoE course dates of 14 August 2023 – 09 February 2025;
·     Diploma of Hospitality Management (17 February 2025 – 17 August 2025); and
·     Graduate Diploma of Management (Learning) (29 September 2025 – 26 September 2027).
In support of his visa application, the applicant also provided a genuine temporary entrant (GTE) statement in which he referred to his academic background, employment history in Nepal, and his reasons for seeking to undertake further studies in Australia. He outlined why he chose his education provider and his reasons for seeking to undertake the abovementioned package of courses. In his GTE statement and his visa application the applicant stated his intention to gain “practical experience in Kitchen management and hospitality…” with a career plan that he would return to Nepal following his studies where he would seek future employment prospects as a chef in national and international hotels and businesses such as “Hyatt Regency, Hotel Annapurna, Radisson Hotel, Hotel Yak and Yeti, Gokarna Forest Resort, and various others all over the country...” The applicant stated:
“In the long run, I have planned to open my own hospitality business in my home country using the knowledge, education, and experience that I gain from Australia and Nepal, as the hospitality sector is booming and in high demand. I want to contribute to the Nepalese economy and local community as well through the means and resources that I have.
Post hearing, the applicant provided a further GTE statement which in summary reiterated the applicant’s background and future intentions as set out above.
As noted above, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212. The delegate found that having considered all of the information provided by the applicant in support of his application, on balance, the delegate was not satisfied that the information provided by the applicant regarding his circumstances in his home country, potential circumstances in Australia, the value of his proposed courses to his future, his immigration history and other relevant matters were sufficient to demonstrate that the applicant was a genuine applicant for entry and stay as a student.
On 16 July 2024, in support of his application for review, the applicant provided the Tribunal with an attendance certificate and academic progress statement evidencing his progression in his studies of the Certificate IV in Kitchen Management course. On 21 November 2024 in response to the Tribunal’s request for further information the applicant submitted a completed Request for Student Visa Information form in which he provided the following additional relevant information:
·The combination of his proposed courses of study will position the applicant for a successful and fulfilling career in the hospitality industry where, after completion of his courses, he sees himself in roles such has kitchen manager, food and beverage manager or general manager in renowned hospitality establishments.
·Such qualifications will also position the applicant for competitive renumeration in Nepal’s growing hospitality sector.
·The applicant has strong community ties in his home country noting his membership to organisations such as the Nepal Red Cross Society, a local sports club and the local cultural community. In support of these ties to his home country, the applicant provided a Life Membership Certificate issued by the Nepal Red Cross Society and a letter of support from the Simara Youth Society.
·The applicant has strong community ties to Australia including his sister, his only sibling who lives in Sydney, and ties to the local Nepalese community in Melbourne including his association with the Australian Nepalese Multicultural Centre.
·He owns property in the form of plots of land in Nepal demonstrating his financial and economic ties to his home country.
·He has no concerns regarding military service commitments or political or civil unrest in his home country of Nepal.
Whilst the Tribunal notes that at the time of his primary visa application, the applicant had provided the Department with evidence of a property valuation report, with such a report referencing ownership of a plot of land in Nepal in the name of the applicant’s mother, the applicant has not provided any further evidence of property or asset ownership as claimed in the Student Visa Information form.
On 26 February 2025, the applicant provided the Tribunal with evidence as to the completion of his Certificate IV in Kitchen Management qualification.
Evidence at hearing
At hearing, the applicant gave evidence that in reference to his family circumstances in Nepal, his father is now retired having previously worked as a supervisor at the Parewashwori Milk Producer Co-operative Ltd, the same organisation at which the applicant had previously worked as a junior accountant. The applicant’s mother was a homemaker and his sister and only sibling was currently in Australia together with her husband and son. He gave evidence that it was his understanding that his sister had initially come to Australia on a business visa before undertaking studies in Australia. He stated that she had recently completed her nursing studies and was in the process of applying for her permanent residency. The Tribunal notes that in his primary application, the applicant had not listed any siblings and/or their current location.
The applicant also confirmed at hearing that his family assets consisted only of the plot of land in his mother’s name and that neither he nor his family members owned any other significant assets.
The applicant gave evidence that he was single, had never been married and/or in a de facto relationship and he did not have any children. The Tribunal finds that the applicant has not entered into a relationship of concern for a successful student visa outcome.
As to his education and employment background in Nepal, the applicant confirmed that he had completed high school in Nepal but did not undertake any further studies. His employment history consisted of a role as a junior accountant at a Milk Co-operative where his father was formerly employed and during the period of 2017 – 2023 the applicant was employed as a branch manager for an education consultancy. He gave evidence that this agency specialised in international education assisting Nepalese students to apply for study abroad in countries such as Australia, USA, UK and Canada. The applicant confirmed that the education agent who prepared and is listed on his primary visa application was his former employer.
When asked, given his employment history for over 6 years at an international education agency, why he had not sought to apply for a student visa from Nepal in order to undertake the proposed studies, the applicant stated that because he had completed his high school studies in 2012, it was his knowledge that no education provider in Australia would offer him a placement in a course due to the length of time since he last studied. The applicant gave evidence that he knew from his experience of the industry, colleges in Australia did not offer overseas placements in a course if a student had not been studying for more than 2 – 3 years.
The Tribunal then discussed with the applicant its concerns that given his previous employment history and his knowledge of the international education industry, particularly his knowledge of the Australian international education sector requirements, it appeared that he had knowingly travelled to Australia as the holder of a visitor with the intention of then seeking to lodge an onshore student visa application as he was aware that this was a way for him to be able to obtain an offer into a course. The applicant responded that at the time of his initial visit, it had not been his intention to apply for a student visa. Rather during his initial visit to Australia he observed Australia’s thriving hospitality industry and the opportunities that the hospitality sector presented, and he was aware of Nepal being a country with many opportunities in hospitality. The applicant gave evidence that he had always had an intention of doing something in the hospitality and when he observed other Nepalese people in Australia thriving in the sector, he decided to return to Nepal to do his own research. He gave evidence that when he did his research, he saw the potential for the hospitality industry in Nepal and that is when he had decided to further his studies in such an industry.
When asked if his proposed courses of study were available in Nepal, the applicant gave evidence that whilst hospitality courses were available, Nepal’s education system was not progressive and does not provide the practical components of the courses as offered in Australia. He said there were no good mentors or good chefs in Nepal and any such courses in Nepal would not provide worldwide exposure and limited practical experience.
When asked why he had chosen to study hospitality given his employment background as an accountant and in the international education sector, the applicant gave various reasons including the hospitality industry is booming in Nepal, his cousin who is in the industry inspired him to do hospitality and his parents always inspired him to do things. When asked if he had had an interest in cookery himself the applicant gave a generic response that he always had an interest in the hospitality industry, and it was not until he had visited Australia and he witnessed the professionalism and occupational health and safety in Australia that he became inspired to do such studies.
When asked what subjects or units he was currently studying, the applicant responded that he had just completed the Certificate IV and was yet to commence his Diploma qualification. When asked what units he was enrolled in, the applicant responded “management, control mechanism, decision making, how to manage kitchen – operational management of the kitchen and planning and sifting staff.” When asked how many units he needed to complete for his Diploma qualification, the applicant stated that he needed to complete almost 30 units. When asked if any of those units had been completed as part of his Certificate IV qualification, the applicant initially said “no” and following what appeared to be prompting by his representative, the applicant stated, “there is little bit same like the Certificate IV also”. When asked how many units he had completed as part of his Certificate IV qualification, he stated 33 units and when asked if he still needed to complete all 30/32 units of his Diploma qualification over the next 6 months, he confirmed that he did.
The Tribunal then put to the applicant that according to the information as to course units that was available on his education provider’s website[1], and the academic transcript he had provided in reference to his completed Certificate IV qualification, it appeared that he had in fact already completed 18 of the required units towards his Diploma qualification as part of his Certificate IV qualification meaning he only had 10 – 12 units to complete for his Diploma qualification. When provided with an opportunity to respond, the applicant initially stated he did not understand. When the information was put to him again, he then gave an incomprehensible response and later stated that he had some 14 – 15 units still to complete towards his Diploma qualification. When asked to name some of the remaining units of study he needed to complete, the applicant responded, “Leadership and management, personality development and kitchen hygiene and safety”. Whilst the Tribunal notes listed units of study for the Diploma qualification include a unit titled Lead and manage people and use hygiene practices for food safety [2] no such units are listed for topics such as personality development in the online curriculum.
[1] SIT50422 – Diploma of Hospitality Management
[2] Ibid
Finally when asked to describe or list what units he would be studying in his Graduate Diploma qualification, the applicant provided generic responses such as “how to manage organisation, planning and policy, how we adopt the things.” When asked how many units he was required to complete for his Graduate Diploma qualification, the applicant gave evidence that he did not know and had not researched what he will study as he still had 8 months before he was to commence his Graduate Diploma qualification. When asked how the Graduate Diploma qualification would benefit his future in hospitality given his stated career plans and the fact that his Diploma of Hospitality Management seemingly provided him with a broad range of leadership, managerial and operational business decision making skills via the units offered in that course, the applicant responded with generic responses to the effect that it will help him be a successful leader in the future.

The Tribunal discussed with the applicant his employment history, if any, since his arrival in Australia. The applicant gave evidence that he is not working and has not worked in Australia as his bridging visa conditions do not allow him permission to work. When asked how he survives financially, he gave evidence that his family and sister help him. He stated that his sister lives in a rental property in Sydney with her family and is working in a hospital whilst her husband is employed in aged care and disability. The applicant lives in Melbourne in a 3-bedroom share house which he is sharing with three other people and in Nepal his family has ancestral property under his father’s name, his father has money in his bank account and together with his sister, his parents support him.
The Tribunal discussed with the applicant its concerns as to how the applicant was able to manage financially given the significant cost of his proposed courses of study, his independent living expenses and his evidence that his father is retired with limited funds, the family only own one plot of land in Nepal and that his sister herself is maintaining her own independent family and household expenses in Sydney. The applicant responded that when he had come to Australia, he had been under the impression that he would have been able to obtain a student visa and when his application was unsuccessful, he had intended to return to Nepal, but his family encouraged him to remain in Australia. His sister said she would support him, and his parents provided him with mental support. The applicant stated that his sister pays for all of his course fees and that he would provide evidence to this effect to the Tribunal. Post hearing, the applicant submitted a one-page document containing a transaction extract from a Westpac bank account in the name of KAA FEE Trust evidencing payments made by Anita Lamichhane Guatam during the period of 20 November 2023 – 17 February 2025 with transaction reference being Raj K Lamichhane fee. The Tribunal accepts such evidence as evidence of the applicant’s sister assisting the applicant with his course fees.
The Tribunal summarised its concerns regarding the value of the applicant’s proposed courses to his future, his previous employment and knowledge of the international education sector, his and his family’s financial circumstances and the fact that he had arrived on a visitor visa indicating an intention to come to Australia temporarily and is now seeking to remain in Australia for some 4.5 years to undertake studies. In summary, the applicant responded that he wishes to assure the Tribunal that his mother and father are in Nepal and that he will return to his home country following completion of his studies as his family needs him in their old age. The applicant reiterated such intentions in his post hearing GTE statement.
Findings as to the genuine temporary entrant criterion
The Tribunal finds that the applicant has personal ties to his home country Nepal in the form of his parents and his association with various community and cultural organisations such as the Nepal Red Cross Society and the Simara Youth Society. It also finds that the applicant’s family own property in the form of a plot of land titled in the name of the applicant’s mother and that there is currently no political or civil unrest in Nepal nor does the applicant have any military service commitments that would present as a significant incentive for the applicant not to return to his home country.
As to his immigration history, the Tribunal finds that there is no evidence that the applicant has previously applied for a permanent visa and there is no evidence that he has not complied with migration laws.
The Tribunal further accepts the applicant’s evidence as to why he chose and chooses to undertake studies in Australia and not Nepal, and the benefits of an Australian education on return to Nepal. It accepts that the applicant is currently enrolled in a Diploma of Hospitality Management from 17 February 2025 – 17 August 2025 followed by a Graduate Diploma of Management (Learning) from 29 September 2025 to 26 September 2027[3]. It also accepts that the applicant has completed his Certificate IV in Kitchen Management qualification during the period of 14 August 2023 to 9 February 2025 and that his successful completion of the above Certificate IV qualification, his current enrolment as well as his continuous enrolment in the above courses is indicative of a genuine student.
[3] Provider Registration and International Student Management System (PRISMS) electronic records accessed on 24 February 2025 -
However, the extent of the applicant’s personal ties to his home country, his immigration history, his successful completion of his Certificate IV qualification and his continuous enrolment, are but some of the many considerations relevant to the assessment of whether the applicant, in regard to the current student visa application, is a genuine applicant for entry and stay as a student genuinely intending to stay in Australia temporarily.
For the reasons set out below, the Tribunal finds that given the applicant’s overall circumstances, the applicant is seeking to obtain a student visa in order to maintain ongoing residence in Australia rather than as a genuine student and not for any value to his future.
Firstly, whilst as noted above, the Tribunal finds that the applicant has some personal ties to his home country Nepal in the form of his mother and father, the Tribunal notes the applicant’s evidence that his only sibling, his sister, and his sister’s family are all currently living in Australia and seeking to remain in Australia permanently having applied for permanent residency following the completion of his sister’s onshore nursing studies. The Tribunal accepts the applicant’s evidence that his sister had initially come to Australia as the holder of a temporary visa, studied in Australia and is now seeking to remain in Australia on a permanent basis. It further accepts the applicant’s evidence that despite his initial student visa refusal, and his willingness to return to Nepal at that time, it was at his sister’s encouragement and offer of financial support that he decided to remain in Australia to pursue his studies. In addition to his only sibling living in Australia, the Tribunal also accepts the applicant’s evidence of his close ties to the local Nepalese community in Melbourne and his active involvement with the Australian Nepalese Multicultural Centre. Consequently, in weighing up the applicant’s circumstances in both Nepal and in Australia, the Tribunal finds that whilst his parents live in Nepal, and he has some association with his community back in Nepal, on balance, such ties do not serve as significant incentive for him to return to his home country. The applicant is single, does not own any assets himself in Nepal and given his strong ties to Australia, namely his sister and her family as well as his connections to the local Nepalese community in Melbourne, the Tribunal finds that such ties present a strong incentive to remain in Australia.
Secondly, the Tribunal has significant concerns regarding the applicant’s lack of detailed knowledge regarding both his Diploma of Hospitality Management and the Graduate Diploma of Management (Learning) courses. When asked what subjects or units he was currently enrolled in, the applicant gave generic responses such as “management, control mechanism, decision making, how to manage kitchen – operational management of the kitchen and planning and sifting staff.” Whilst the Tribunal accepts that such general concepts would be applicable to such a qualification, the Tribunal finds that the applicant was unable to name any of the listed units of his proposed Diploma qualification with any specificity. Whilst the applicant was able to identify that his Diploma qualification was made up of approximately 30 units of study, when asked if he had completed any of these units as a part of his certificate IV qualification, the applicant initially said no. It was apparent to the Tribunal that only when prompted by his representative, the applicant changed his response stating that “there is little bit same like the Certificate IV also.” When questioned as to how many units he still needed to complete his Diploma qualification, the applicant confirmed that he needed to complete all 30 units. However when it was put to the applicant that from the information available as to the units of study required for his Diploma qualification, and the academic transcript that he had provided of his Certificate IV qualification, it seemed that he had in fact completed almost 18 of those units required for his Diploma course as part of his Certificate IV qualification, the applicant initially provided an incomprehensible response and later stated that he had some 14 – 15 units he still needed to complete, not all 30 units. When asked to name some of those remaining units of study, the applicant once again provided generic responses such as leadership and management.
When asked comparable questions in regard to his Graduate Diploma of Management (Learning) qualification, including what units he would be studying, the applicant provided generic responses such as “how to manage organisation, planning and policy, how we adopt the things.” Significantly, when asked how many units he was required to complete for his Graduate Diploma qualification, the applicant gave evidence that he did not know, that he had not researched it yet as there was still some time before he needed to start that course. When asked how this qualification would benefit his future in hospitality given his stated career plans and the fact that his Diploma of Hospitality Management qualification seems to offer a broad range of leadership, managerial and operational business decision making skills via the units offered in that course, the applicant once again responded with generic responses to the effect that it will help him be a successful leader in the future. Given the above, the Tribunal finds that if the applicant were a genuine student studying the proposed package of courses for value to his future, he would have more detailed knowledge of the courses he is studying, the units on offer in such courses including being able to name accurately the units he is currently enrolled in. The Tribunal further finds that given his employment history in the international education sector, if the applicant was genuinely seeking to study such courses for his future, he would have been particularly aware of the offerings of such courses and their value to his proposed future plan. The above matters add to the Tribunals findings that the applicant is seeking to use the student visa program to circumvent the intentions of migration program and in order to maintain ongoing residence in Australia.
Finally, the Tribunal finds that the applicant’s overall economic circumstances do not present a significant incentive for the applicant to return to his home country Nepal. As noted above, the applicant does not own any assets in Nepal and whilst the Tribunal accepts that the applicant’s proposed courses of study will assist the applicant to obtain employment or improve his employment prospects in his home country, given his evidence as to his expected renumeration in Nepal if he was to work in the hospitality industry, such renumeration when compared to prospective renumeration/employment prospects in Australia together with the overall significant costs of the applicant’s qualifications would not provide the applicant with a significant incentive for him to return to Nepal.
The Tribunal accepts that the applicant is unable to work in Australia given the conditions placed on his bridging visa and places no weight nor does it make any adverse findings as to the applicant’s lack of employment in the hospitality sector in Australia.
However, having cumulatively assessed all of the available evidence and material before it, including the relevant factors set out in Direction 108, the Tribunal does not accept that the applicant is undertaking his current package of proposed study for the reasons he claims and for the value of such courses to his future. Rather the Tribunal finds that the applicant has enrolled in these courses and applied for the student visa as a means of maintaining ongoing residence in Australia. In assessing all the evidence before it, the Tribunal does not accept that the applicant genuinely intends to stay in Australia temporarily and it follows that he is not a genuine applicant for entry and stay as a student.
On the basis of the above, the Tribunal is therefore not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a). It follows that the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Dates of hearing(s): 6 March 2025
Representative for the Applicant: Miss Yujie Rong (MARN: 1801289)
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.