Mohiuddin (Migration) - [2025] ARTA 530

Mohiuddin (Migration) [2025] ARTA 530 (27 March 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Muhammad Nouman Mohiuddin
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2315239

Tribunal:General Member M Hanna
Place:Melbourne
Date: 27 March 2025
Decision:The decision under review is affirmed.

Statement made on 27 March 2025 at 2:20pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – arrived as dependent on wife’s visa then held own visa – study and work history – similar courses at similar levels – value to future employment – significant cost – family and community ties in home country and none in Australia – now divorced, with former wife returned to home country – 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 21 September 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 14 July 2023. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on 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 25 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 23 December 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 27 February 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
The applicant was assisted in relation to the review. 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 34-year-old citizen of India who first travelled to Australia on 22 March 2019 as a dependent student visa holder on his then wife’s subclass 500 student visa. The applicant was subsequently granted a subclass 500 student visa as a primary visa holder valid from 13 October 2020 until 9 September 2023. The student visa application which is the subject of this review is the applicant’s second student visa application for which he is seeking to meet the requirements as the primary applicant.
Confirmation of Enrolment (CoE) documents and information provided with the applicant’s primary visa application and accessed via the Provider Registration and International Student Management System (PRISMS)[1] refer to the applicant as having been enrolled to undertake the following package of courses:
·     Diploma of Project Management (17 July 2023 – 14 July 2024);
·     Advanced Diploma of Program Management (12 August 2024 – 10 August 2025);
·     Graduate Diploma of Management (Learning) (6 October 2025 – 4 October 2026) – this CoE was later cancelled with a variation reason being the Provider unable to deliver course; and therefore substituted by
·     Graduate Diploma of Strategic Leadership ( 6 October 2025 – 3 October 2027).
[1]
In support of his visa application, the applicant provided a genuine temporary entrant statement (visa application GTE statement) in which he referred to his background circumstances including his academic background, family connections in India 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 the applicant stated that the proposed package of courses “…will provide me, and industry relevant qualifications equip me with scholarly knowledge of administration, professional and interpersonal skills required to confidently and ethically conduct work in corporate sector” with a career plan that he would return to India following his studies where he could “…work in companies like Tata, HSBC, Power Finance Corporation Limited, Bajaj Finance Limited, Mahindra & Mahindra Financial Services Limited, Muthoot Finance Ltd, HDB Finance Services, Tata Capital Financial Services Ltd. Etc.. I can work as a banking project manager, Business banking consultant, project manager etc with salaries ranging between 100 to 120 thousand INR per month.”
Prior to hearing, the applicant provided a further updated review application GTE statement which in summary elaborated on the applicant’s background and future intentions, provided an update as to the completion of the first course of his package of courses (i.e. the Diploma of Project Management) and provided further information as to how the remaining package of courses would assist the applicant in his future. In his review application GTE statement the applicant provided additional evidence that:
·The most compelling reason for pursuing Advanced Diploma of Program Management and Graduate Diploma of Strategic Leadership is that it equips us with comprehensive skills and knowledge that align with the demands of modern leadership and program management roles”; and that
·such qualifications will provide him with career prospects in the following industries: “Human resources; Banking and Finance, Marketing and Retail management; Consultancy” with prospective employment roles as “Chief Strategy Officer (CSO), Strategic Planner, Program Director, Business Development Manager; Operations Manager” for companies in India such as, but not limited to “Accenture, Deloitte, IBM, Google” with estimated renumeration packages ranging from 18,000 – 60,000 INR per annum.
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. Having considered all of the information provided by the applicant in support of his application, including but not limited to, his circumstances in his home country, potential circumstances in Australia, including his previous studies and proposed qualifications, the value of such studies in light of the applicant’s educational level, the significant cost of additional education and the delay in the implementation of his education already attained, the delegate was not satisfied, that on balance, the applicant was a genuine applicant for entry and stay as a student.
On 5 January 2025 in response to the Tribunal’s request for further information the applicant submitted a copy of his current CoE, his review application GTE statement referred to above together with a completed Request for Student Visa Information form in which he provided the following additional relevant information (summary only):
·Prior to his arrival in Australia, and following completion of his secondary school studies, the applicant had been involved in two businesses, a pharmacy and a stones and tiles business. The applicant was a partner in these business drawing a self-employed salary.
·In Australia the applicant had completed the following qualifications:
oDiploma of Business at the Institute of Advancing Careers completed on 19 June 2020;
oDiploma of Banking Services Management at Western Sydney College completed on 8 August 2022;
oAdvanced Diploma of Banking Services Management at Western Sydney College completed on 28 June 2023; and
oDiploma of Project Management at Nomi College completed on 14 July 2024.
·His employment history in Australia included having worked as a console operator at a BP fuel station, Menulog delivery driver and currently as a taxi driver.
·His immediate family consists of his father and two sisters, all of whom reside in India. He also has other community ties in India including siblings of his parents and their families and a large group of friends. He has no community ties in Australia.
In his completed Request for Student Visa Information form the applicant did not provide any information as to any significant assets or property in India nor did he claim any concerns regarding military service commitments or political or civil unrest in his home country of India.
Prior to hearing the applicant also provided the Tribunal with additional supporting evidence including a copy of his Graduate Diploma of Strategic Leadership CoE, evidence of the completion of his Australian qualifications listed above as well as evidence of financial support from the applicant’s father in India in the form of an affidavit in support together with documentary evidence of his father’s identity, and property ownership documents. The applicant also provided documentary evidence of his partnership in his two businesses in India and evidence of former income in India.
Evidence at hearing
At hearing, the applicant gave evidence that in reference to his family circumstances in India, the applicant’s father and two sisters reside in India and his mother passed away sometime in March 2020. He is in contact with his father on a daily basis. The applicant confirmed that his family assets in India consist of a plot of land owned by the applicant’s father and that the applicant himself does not own any significant assets. He also confirmed that upon his return to India he intends to live with his father. The Tribunal accepts the above to be true.
The applicant gave evidence that he is currently single, was previously married, is now divorced and does not have any children. His former wife has returned to India. 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 India, the applicant confirmed that he had completed his secondary school certificate sometime in 2008 following which sometime in 2010 he became a partner in a pharmacy business. Sometime in 2014 he became involved in a second business involving tiles and stones, but this business was only formally registered in 2018. The applicant gave evidence that he sold all of his shares in both businesses sometime in 2020 and confirmed that he has not had any involvement with these business since that time.
The applicant confirmed that he had arrived in Australia on 22 March 2019 together with his then wife who was the primary student visa holder and the applicant a dependent on her student visa. The applicant stated that he initially came with his then wife to Australia to settle her into her studies before returning back to India for a period of approximately 2 months at which time he then returned to Australia. The applicant has since returned to India for approximately 1.5 months sometime in July/August 2023 in order to visit his family and file for divorce from his wife. Since his return in August 2023 the applicant has not travelled outside of Australia.
The Tribunal then discussed with the applicant his current course of study and when asked why he had chosen to study this package of courses, the applicant gave evidence that he had done so as he wasn’t satisfied with his previous courses of study because during that time his mother had passed away and his wife had left him. He also stated that this package of courses was good for his career and that in the last 5 years India was doing great and there were lots of job opportunities for example in the construction, infrastructure and information technology sectors.
When asked about the composition of his current qualifications and what units he had completed the applicant gave unclear and varying responses initially stating that he had almost 6 units to complete, he then stated that he had completed 12 units to date and when asked how many more units he was required to complete he stated 8 more units. When asked how many units he needed to complete for this qualification the applicant stated 20 units in total. 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[2] his current qualification consisted only of 12 units of study however the Tribunal is willing to accept that the applicant may have been referring to the total number of units of study for both his Diploma of Project Management qualification already completed and the current Advanced Diploma of Program Management he is currently completing. When asked to name some of the units of study he had completed in the current qualification, the applicant responded: “managing and leadership and program manager”. It was evident to the Tribunal that the applicant then appeared to be reading from a resource not visible to the Tribunal, the names of units of study in his current course. He listed completed units of study including Leadership and management, Develop and emotional integrity (Develop and use emotional intelligence[3]), Land and manage organisational change (Lead and manage organisational change[4]) and Develop and use emotional integrations[5]. The Tribunal advised the applicant that it did not wish for him to read the names of his course units from any resources, rather the Tribunal was seeking to understand if the applicant knew and/or was able to name any of his current or completed units of study. However when asked again if he could name any of the units of study he had completed, it was evident to the Tribunal that the applicant continued to attempt reading the names of units of study from a resource not visible to the Tribunal. When the Tribunal then asked the applicant to explain what concepts or skills he had learnt so far from his completed units, the applicant responded “how to manage things and how to lead things.” When asked what units of study he proposed to study in the Graduate Diploma of Strategic Leadership, the applicant once again appeared to be reading the names of units of study for the course.
[2] Advanced diploma of program Management – Nomi College
[3] Ibid – Unit code BSBPEF502
[4] Ibid – Unit code BSBLDR601
[5] Ibid - Unit code BSBPEF502
The Tribunal went on to discuss with the applicant his employment history in Australia and the fact that he had now been in Australia studying for a significant period of time, almost 6 years in total. The applicant confirmed his employment history as referenced above at paragraph 19 and when asked whether following the completion of his banking services management qualifications he had sought employment in the banking and/or services management sector, the applicant responded that he had not. When asked why not, he stated that he was planning to study and go back to India to work there.
The Tribunal then went on to discuss with the applicant why he sought to undertake this particular package of courses noting that many of the units of study in his current Advanced Diploma of Program Management where very similar if not identical to those that he had successfully completed in his Advanced Diploma of Banking and Services Management therefore causing the Tribunal to question the value of this course to the applicant’s future. In response the applicant gave evidence that during the time of study of his Advanced Diploma of Banking and Services Management qualification the death of his mother and separation from his wife had meant that he had not concentrated properly on his studies and therefore he wants to do this course and then return back to India. He also gave evidence that his current course of study was more focused on program management and strategic leadership, and this had not been units of study offered as part of his banking services qualifications. He also went on to state that he had changed his initial career plan from working in the banking sector to now seeking roles in human resources and construction, procurement and management and/or chief strategic officer and planner as such roles attacked good salaries.

Finally when asked why he had chosen to undertake this package of courses with this particular education provider, the applicant stated that this college is doing good and teaching well.
Findings as to the genuine temporary entrant criterion
The Tribunal finds that the applicant has personal ties to his home country India in the form of his father and two sisters. It also finds that the applicant’s father owns property in the form of a plot of land. The Tribunal also finds that there is currently no political or civil unrest in India 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.
The Tribunal also accepts that on the evidence before it, the applicant is currently enrolled in an Advanced Diploma of Program Management from 12 August 2024 – 10 August 2025 and that he intended to undertake a Graduate Diploma of Strategic Leadership from 6 October 2025 – 3 October 2027.
However, the extent of the applicant’s personal ties to his home country and his continuous enrolment in his current course of study 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 India in the form of his father and his two sisters, the Tribunal finds that the applicant has no other significant ties in the form of any community, business, employment and/or other personal ties to India that would serve as a significant incentive for the applicant to return to his home country. The applicant is a single divorced 34-year-old man who does not own any assets himself in India having sold his interests in his two businesses sometime in 2020 and having now lived outside of India for over 6 years.
Secondly, whilst the Tribunal finds that the economic circumstances of the applicant do not present as a significant incentive for him not to return to his home country of India, the Tribunal has significant concerns regarding the value of the applicant’s proposed courses of study to his future given his previous educational qualifications already attained, the significant cost of his international education to date as well as the additional costs of his proposed studies as relative to the employment prospects and/or renumeration the applicant could expect to receive in his home country of India or a third country using the qualifications yet to be gained from the proposed course of study. The applicant has to date completed three Diploma level qualifications in very similar areas of business, banking services management and project management as well as an advanced diploma level qualification in banking services management throughout out which the applicant has studied and attained skills, concepts and learning that are very similar, if not identical to those in his proposed course of study. As put to the applicant at hearing, the Tribunal has serious concerns as to the value of his current qualification of an Advanced Diploma of Program Management in which he is undertaking and/or has already undertaken units of study that are very similar, and in some units, identical to those he has already completed in the Advanced Diploma of Banking Services Management. Given the above circumstances and having taken into consideration the applicant’s evidence as to prospective future employment options and varying renumeration offerings the applicant could expect to receive upon return to India or a third country as compared with Australia upon completion of these courses, on balance, the Tribunal finds that the applicant’s proposed courses of study do not add significant value to his future career goals. Rather, the Tribunal finds that the applicant is seeking to use the student visa program to circumvent the intentions of the migration program and in order to maintain ongoing residence in Australia for purposes other than study.
The Tribunal also notes that its above finding that the applicant is seeking to use the student visa program to maintain ongoing residence in Australia for purposes other than study is further supported by his lack of any substantive explanation as to why he has yet to use the educational qualifications and skills he has already gained to commence his career and/or work towards his future aspirations. The Tribunal finds the applicant’s responses in this regard to be vague and unconvincing.
Finally as to his immigration history, the Tribunal finds that there is no evidence that the applicant has previously applied for a permanent visa however the Tribunal has significant concerns as to the amount of time that the applicant has now spent in Australia as the holder of student visas, both as a primary and secondary visa holder. The Tribunal notes that the applicant has now been in Australia for over 6 years as the holder of several student visas studying multiple courses at comparable levels of educational value and that he is now seeking to remain in Australia for a further 2+ years meaning that the applicant would have spent a total of over 8+ years in Australia as the holder of a student visa. The Tribunal finds that given the applicant’s overall circumstances, such a period of time is reflective of the applicant using the student visa program as a means of maintaining ongoing residence in Australia and not for the purposes of genuine study.
Therefore, having cumulatively assessed all of the available evidence and material before it, including the relevant factors set out in Direction 108, the Tribunal finds that the applicant is not seeking to undertake 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): 27 February 2025
Representative for the Applicant: Mr Harsh Yadav (MARN: 2117646)
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.