Mateo (Migration) - [2025] ARTA 2073

Mateo (Migration) [2025] ARTA 2073 (11 September 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Jericho Calanas Mateo
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2402186
Tribunal:General Member S Waring
Place:Brisbane
Date:  11 September 2025

Decision:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 11 September 2025 at 5:06pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – changes to study path – no clear career goals – scant study details – non-attendance of hearing – re-scheduling request – repeatedly cancelled course enrolment – uncertain value of courses to future – girlfriend and family ties in home country – involved in family business – no personal ties to Australia – no employment in relevant sector – not guided by academic achievement and career advancement – vague and inconsistent testimony – no prior research of courses – complying with visa conditions – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 499; Direction No. 108
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 January 2024 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 14 January 2024. 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’s decision was made 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) determining that he is not a ‘genuine temporary entrant’ (GTE).
The applicant is now 26 years-of-age. His home address is in Davao City, the Philippines.
On 9 February 2024 Mr Mateo applied for a Tribunal review of the delegate’s decision. He appeared at a re-scheduled hearing on 7 August 2025 to give evidence and present arguments. An interpreter in the English and Filipino languages provided assistance at the hearing. A number of documents were provided to the Administrative Review Tribunal (the Tribunal), for consideration, prior to the hearing. These are enumerated and discussed below.
The applicant first arrived in Australia on 19 October 2023 on a subclass 600 visa in order to participate in the Revolution International Dance Championship. He has not departed the country since then – having been granted a subclass 010 bridging visa on 14 January 2024.
Student visa application
The student visa application lodged on 14 January 2024, identified that:
· the applicant had been studying (and was at that time enrolled in) the Certificate III course in Individual Support which had commenced on 27/11/2023 and would be completed on 25/11/2024
· the applicant had been accepted into the Certificate IV course in Ageing Support to run from 06/01/2025 to 05/01/2026.
In support of his student visa application, Mr Mateo attached a statement he had prepared (the GTE statement) claiming that, having broadened his skill set by undertaking “diverse encounters” in education and employment in his home country, the opportunity to enhance his English skills (by studying in Australia) would result in numerous opportunities opening up for him in the Philippines. He listed 3 customer service-related jobs in call centres as positions he plans to apply for.
The applicant stated that he had recently graduated from studies in Healthcare Services NC II at San Pedro College in Davao City, Philippines and had chosen St. Mary’s Institute of Healthcare (St. Mary’s) as his education provider in Australia (following extensive research) because it offers an internationally oriented curriculum. He assessed the teaching approach at St. Mary’s as ‘practical’ using the latest techniques and having an updated syllabus to ensure graduates are ‘industry-ready’.
The applicant stated that, upon completion of a hospital internship in his home country, he decided to broaden his experiences to realise his future aspirations. Scant details of these aspirations are provided and the applicant did not describe the courses he intends to study in Australia in any detail.
The delegate in this case determined that the applicant is not a genuine applicant for entry and stay as a student for a range of reasons – including that:
·the visa application contained no reasonable account of the applicant’s reason for not undertaking the study in his home country
·the visa application failed to demonstrate how the proposed study will improve Mr Mateo’s employment prospects in his home country and did not demonstrate that he had considered prospective remuneration or job profiles related to the proposed field of study
·having completed education in Aircraft Maintenance (in 2018) and national Certificate studies in Health Care Services (in July 2023) the applicant failed to demonstrate that he had used either qualification to gain employment in a relevant field in his home country
·while the application declared previous unemployment in the Philippines, there was no evidence of his employment (or unemployment) history there, leading the delegate not to be satisfied that his circumstance of unemployment will serve as a significant incentive for him to return to his home country
·the GTE statement did not include sufficient information on alternate options of education providers in Australia (or abroad) to establish the extent of research conducted by the applicant to gather the relevant information on St. Mary’s. This led the delegate not to be satisfied that he had conducted the extent of research into education options available to him in and outside Australia which would be expected of a genuine student
·while the application declared the applicant would, on returning to his home country, seek employment and apply for jobs as a Healthcare QA Manager, BPO Quality Manager and Blended Account for PH Nursing Graduate, insufficient information and supporting evidence was provided to show how (or why) this Australian course of study would assist the applicant to achieve his goals more than a qualification undertaken domestically would
·the GTE statement did not clearly and logically articulate how the proposed course of study alone would substantially benefit his remuneration level and career prospects – considering the significant time and monetary commitment the course would require.
Evidence before the Tribunal
On 17 February 2025 the Tribunal sent to the applicant (using the email address of his authorised recipient Mr Wong), a s 359(2) letter, which stated as follows:
As you applied for the visa based on undertaking a course of study in Australia, it is a requirement of the visa for the applicant to be:
· enrolled in a registered course of study; and
· a genuine applicant for entry and stay as a student.
The applicant will need to provide sufficient information to satisfy us that they meet both of these visa requirements.
Request to provide information
You are now invited to give, in writing, all relevant information about the course(s) of study they are undertaking and their entry and stay in Australia as a student. Details of the information requested are set out in the Student Visa Information Form (the information form).
The Tribunal also advised that in considering whether an applicant is a genuine applicant for entry and stay as a student, the Tribunal must have regard to Ministerial Direction No.108 ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’. A link to the Direction was provided.
Mr Wong was nominated by the applicant as the authorised recipient for Tribunal communications in Mr Mateo’s application for review submitted on 9 February 2024. The ‘acknowledgement of application’ letter sent to the applicant (via Mr Wong in accordance with Mr Mateo’s nomination) on 16 February 2024 stressed the importance of informing the Tribunal immediately if he changed his contact details.
The applicant did not amend his contact details however, on 7 March 2025 documents were submitted by Ms Jing Pan identifying herself as authorised recipient at a different email address to Mr Wong. The applicant did not return a completed Student Visa Information Form to the Tribunal. This had been sent to Mr Wong on 17 February 2025.
On 24 June 2025 the Tribunal sent a hearing invitation to the applicant via the recipient he had notified to the Tribunal (Mr Wong). The hearing was listed for 31 July 2025 but the applicant did not attend. He contacted the Tribunal regarding the non-attendance (on 31 July 2025 and 1 August 2025) stating:
“I am writing to respectfully request a rescheduling of my upcoming hearing for my student visa appeal, originally scheduled for 31 July 2025…Unfortunately, I did not receive the hearing notification in time and only found out through a text message “Reminder” that didn’t include full details.”
“I’m sincerely sorry, just saw your message and voicemail. I haven’t received any emails about my ART HEARING for my Student Visa. The Agency that forwarded my appeal didn’t send me any email about it as well. I’m trying to call again on the ART contact number but there is no response.”
On 1 August 2025 the Tribunal approved the applicant’s re-scheduling request. Confirmation of his current contact details was sought from the applicant and an invitation to the re-scheduled hearing on 7 August 2025 was issued to the updated email address. The applicant was also requested, on 4 August 2025, to complete a Student Visa Information Form and return it to the Tribunal as soon as possible. A link to the form was provided but the applicant did not submit this form.
The applicant provided a Response to Hearing form which disclosed the documents he would rely on at hearing included Certificates of enrolment and an ‘Informal Confirmation of Satisfactory Academic Progress’. These documents (the pre-hearing materials) are in evidence before the Tribunal. Other evidence before the Tribunal includes the Department file containing:
·    the applicant’s student visa application
·    the evidence taken into account by the Delegate including a statement by the applicant (the GTE statement)
·    supporting materials provided with the visa application including personal identifiers sighted by the Department as part of an identification test.
Also before the Tribunal is the applicant’s testimony at hearing and:
·records from the Provider Registration and International Student Management System (PRISMS) relating to the applicant’s enrolment/s
·official movement records which set out the applicant’s immigration history in Australia.
The hearing
At the commencement of proceedings on 7 August 2025, the Tribunal noted that the issue before it is whether the applicant meets the genuine temporary entrant criterion in ‘the regulations’ per cl 500.212. The requirements (set out in the Tribunal’s letter of 17 February 2025) and Direction No.108 (the Direction) were raised.
At hearing, the Tribunal queried the applicant’s study history in Australia – in particular his reasons for ceasing participation in the Certificate III course in Individual Support which was to have run between 27/11/2023 and 25/11/2024. The Tribunal referred to the PRISMS record showing that his enrolment in this course was cancelled when, on 28 April 2024 Mr Mateo notified St. Mary’s that he had ceased his participation.
The applicant responded that he attended 2 or 3 months of classes in the Certificate III course but did not complete any assessments. By 28 April 2024, he felt his agent in Australia was not being supportive and he became discouraged because his student visa status was uncertain. He stopped attending classes, notified St. Mary’s and travelled around Australia to ‘enjoy his stay’.
Mr Mateo elaborated on his GTE statement (and made submissions based on the documents set out above) stating, in relation to his current studies, that he is unsure how many units he has completed since he re-started the Certificate III course. He stated:
I spoke with the school, they said 12 units, but they're still pending that needs to be rechecked… I'm really confused as to the number of units I've completed… because the school keeps on changing the units and every time there's a new student they change it every week.
The Tribunal queried the applicant’s understanding of ‘pending’ status and the applicant explained “pending means they haven't checked the written assessments like the role plays.”
It was further explained that “as of now, I finished 12 units and there's still more pending which is being re-checked. So it could come up to 17 to 18 units.” The applicant later corrected his evidence on this issue when he recalled that the Certificate III course only comprises 14 units. As such, he conceded that he could not have already completed 17 or 18 as he had previously stated.
Regarding his current study-load, the applicant stated that he is studying 2 units:
·they are both ‘pending’
·he could not recall the names
·for one unit he attends classes on Wednesdays (onsite) between 10 am and 2 pm. He does the other course at home.
Mr Mateo stated that he is uncertain what the value of the courses will be to his future. He does not know what he will be able to earn as a result of completing them but is “sure that it will open many doors for [him] and most likely [he] will be able to take on higher ranking jobs.”
In relation to his history in the Philippines leading up to his arrival in Australia (to attend a dance competition) the applicant acknowledged that he has undertaken numerous courses and jobs. He stated that:
·he was never involved in the transport business his family had operated. The business was sold when he came to Australia
·he did not work in aircraft maintenance (despite completing relevant training in 2018) as he discovered, before graduating, that licences were expensive and had to be obtained in Manila. Funds were not available because the family’s resources were expended on dialysis treatment for his father. He lost his interest in working in aircraft maintenance
·he worked casually ‘on-call’ for a kitchen but does not have proof that he was engaged on a 6 month work contract
·he decided to move away from aircraft maintenance and commenced study in Healthcare. He studied at San Pedro College from 2022 and undertook an internship at San Pedro Hospital. In July 2023 he completed an assessment at Parklane West Academy
·despite his training he did not progress to work in a hospital. After the assessment in July 2023 he was not 100% sure what he wanted to do. He signed up for the dance competition in Australia and arrived in October 2023 as part of a group of 11.
·The cohort lived together in Preston, Victoria until the applicant (and 4 others in the group) moved elsewhere in Victoria (Tralalgon) in mid-2024. He has since moved into a share house in Lalor so he can be nearer to his school
·after he came to Australia, he thought he would apply for a student visa “because when I was here, I realized since I'm here and I'm here already anyway, why don't I apply for a student visa?”
·he did not research educational courses in healthcare (or other disciplines) before arriving in Australia.
In relation to his current circumstances in Australia and the Philippines, the applicant stated that:
·he remains in a relationship with his girlfriend (Cathy) mentioned in his GTE statement. She lives with his mother in Davao City, Philippines and works full-time at a call centre. He contacts Cathy using messenger video calls every day “if he has the chance” to do so
·although he mentioned in his GTE statement that he wishes to build a home in the Philippines, he has not taken any steps to do so
·his family earns part of its living from rice fields located 2 to 3 hours from the family home in Davao City. His mother single-handedly runs a grocery store from the family home
·his cousin lives nearby the fields (which are rented to share-croppers) and he proposes renters to the applicant’s mother when ‘leases’ need to be reviewed. The last time this occurred was October 2024.
·his contribution to managing the rice fields is to confer with his mother regarding tenants and how much rent to charge. This is the limit of his role in relation to the family’s property as he entrusts that business to his mother and cousin
·while the ownership of the rice fields remains in his father’s name he considers himself as the person with responsibility. He believes he “really needs to be there” and has plans to develop the land. No planning (or other) steps have been taken regarding such development. He has not considered anything in this regard and might seek advice from experts
·When he lived in Davao City he simply ‘overlooked the management of the rice fields’. It was not necessary for him to ‘check’ the fields all the time because the tenants have responsibility
·He does not have close friends or family in Australia.
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 regulation). 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 cl 500.212.
For the following reasons, the Tribunal sets aside the decision under review and remits the visa application for reconsideration.
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 the Direction, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Migration Act (the Act). The 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.
The applicant completed higher education studies in aircraft management and healthcare in his home country however he has not held paid jobs in employment related to either discipline. Upon completion of a hospital internship (shortly before he came to Australia) the applicant was not, in fact, sure he wanted to work in the healthcare sector.
The applicant is now undertaking study in healthcare-related disciplines in circumstances where he has not held paid employment in the healthcare sector (and did not have clear career goals in the sector at the time he departed his home country). This indicates to the Tribunal that the applicant’s motivations for undertaking study in Australia are not genuinely related to academic achievement and career advancement.
For the reasons below the Tribunal is of the view the applicant is using the Student visa process to maintain residence rather than as a genuine student and not for any value to his future.
The PRISMS record shows the applicant has repeatedly cancelled his enrolment in educational courses in Australia including:
·in the Certificate III in Individual Support course which was to run from 27 November 2023 to 25 November 2024, his enrolment was cancelled when, on 28 April 2024 Mr Mateo notified St. Mary’s that he had ceased his participation in the course
·In the Certificate IV in Ageing Support course which was to run from 6 January 2025 to 5 January 2026, his enrolment was cancelled when, on 28 April 2024, St. Mary’s recorded that Mr Mateo had not commenced the course
·in the Diploma of Community Services course which was to run from 8 April 2024 to 5 April 2026, his enrolment was cancelled when, on 5 September 2024, St. Mary’s recorded that his enrolment fees had not been paid.
Based on the evidence of the applicant’s repeated cancellation of courses, the Tribunal is not satisfied that the applicant has demonstrated a sound commitment to his studies. In forming this view, the Tribunal has taken into account the letter dated 6 August 2025 provided by St. Mary’s stating that Mr Mateo “has been maintaining satisfactory course progress and regular attendance.” The Tribunal places greater weight on the official PRISMS records in relation to the applicant’s enrolment and participation history.
At hearing, the Tribunal found the applicant to be vague and inconsistent in his testimony. He was unable to provide detailed and thoughtful evidence about his courses of study and repeatedly amended his account of the number of Certificate III subjects he has completed. He was confused as to the number of units included in the Certificate III course overall. The Tribunal does not accept as credible, the applicant’s assertion that St. Mary’s is constantly changing, pending and/or re-checking units or enrolments in such a way that it is difficult to discern how many subjects a student has completed (or is currently undertaking).
Taking into account the wide range of estimated units completed that were provided by the applicant (4 – 18) the Tribunal finds his evidence relating to the Certificate III course to be unreliable. The Tribunal finds that Mr Mateo has little knowledge of how his course at St. Mary’s is structured.
At hearing, the applicant was unable to recall the names of the subjects he is currently studying. That the applicant could not provide this evidence, leads the Tribunal to a poor assessment of his engagement with his studies.
On the whole, the applicant appeared to have little awareness of his courses of healthcare-related study or how they fit into his plans for the future and his personal motivations. At hearing, the applicant did not provide detailed or convincing testimony to demonstrate how the proposed study will improve his employment prospects in his home country. The Tribunal gives little weight to the call-centre (customer service) job advertisements submitted by the applicant as they are dated and do not demonstrate that Mr Mateo has (as he claims) the clear intention of working in the ‘hands-on’ healthcare environment, using the skillset acquired through Australian studies upon returning to the Philippines.
Taken together with the GTE statement, the applicant’s oral evidence that he does not know what he will be able to earn as a result of completing the Australian studies but is “sure it will open doors” leads the Tribunal to conclude that the applicant has not actively apprised himself of the prospective remuneration he could receive in the Philippines as a result of completing the Australian studies.
Based on the applicant’s GTE statement and oral evidence that he is uncertain what the value of the Australian courses will be to his future, the Tribunal is not satisfied he is undertaking the studies because he believes his career prospects (in the Philippines) will be improved to such an extent that future benefits justify the significant time and monetary commitments these courses require.
The Tribunal accepts the applicant’s evidence that:
·when his dance competition concluded he thought he would apply for a student visa because he thought, since he was here in Australia ‘already anyway’, why not apply for a student visa
·he did not research educational courses in healthcare (or other disciplines) before arriving in Australia.
Based on this accepted evidence, the Tribunal is not satisfied the applicant conducted the extent of research into education options available to him in and outside Australia which would be expected of a genuine student.
In view of the findings above, the Tribunal concludes that the applicant has enrolled in the courses, including the current Certificate III course, not as a genuine student for any of the reasons he claims, nor for the claimed value to his future, but rather that he is using the student visa process to maintain residence. The Tribunal views this as strongly indicative of a person who does not intend genuinely to stay in Australia temporarily.
As to the applicant’s immigration history, there is no evidence Mr Mateo has applied for a permanent visa and there is no evidence he has not complied with migration laws. While the Tribunal observes the applicant applied for a Student visa after coming to Australia on a Visitor visa; it does not find that this indicates a disincentive to return, or that he is not a genuine temporary entrant.
In making its decision, the Tribunal has considered all the evidence before it, including: that he is currently enrolled in a course (and has approval for 2 more); that he has family ties in the Philippines; that he says he will return home after the completion of his current course and that both he and his family have assets in the Philippines. However, for the reasons outlined above, the Tribunal does not accept Mr Mateo is undertaking the current study for the reasons he claims and for the value to his future he claims, but rather is using it as a pathway to maintain residence in Australia. The Tribunal is of the view that the student visa programme is only being used to maintain ongoing residence. In assessing all the evidence it does not accept Mr Mateo intends genuinely to stay in Australia temporarily and it follows it is not satisfied that he is 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.
Date of Hearing: 7 August 2025
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.