Parveen (Migration) - [2025] ARTA 531

PARVEEN (MIGRATION) [2025] ARTA 531 (16 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Miss Azra Parveen
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2314815

Tribunal:Clyde Cosentino
Place:Brisbane
Date: 16 March 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Student (Temporary) (Class TU) visa for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.

Statement made on 16 March 2025 at 10:59am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant and compliance with conditions – study and work history – applied after entering on tourist visa wanting to explore study options – successful completion of graduate diploma and intention to enrol in masters – currently studying at lower level – value of courses to future work plans – parents and siblings in home country and no family in Australia – consistent and credible evidence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
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 7 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 12 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 applicant attached the following documents in support of her student visa application:
·Evidence - Overseas Student Health Cover (OSHC)
·Applicant’s passport
·Confirmation of Enrolment (CoE) - Graduate Diploma of Management (Learning) (commencing 01/09/2023 and finishing 30.08.2024) – Education Provider: Nova Institute of Technology.
·She stated that she held a tourist visa in Australia at the time of application. She has also held a Work visa for Saudi Arabia and Kuwait. She has previously held a Resident Permit under the Danish Patient Safety Authority in Denmark.
·She states that she was born in Toba Tek Singh, Punjab, Pakistan.
·She arrived in Australia on 5 June 2023.
According to her student visa application, the applicant is 38 years of age and is from Pakistan. She has never married.
When asked to provide information in support of their application to demonstrate that they meet the Genuine Temporary Entrant criteria, she provided the following statement:
My name is Azra Parveen …. After completion of my schooling, I undertook Diploma of Midwifery, Diploma of Nursing and Bachelor of Science in Nursing. After completion of studies, I worked as Nurse in Pakistan, Saudi Arabia and Kuwait. In 2022, I moved to Denmark in work visa and started the process of registration as Registered Nurse there. Meanwhile, I decided to come to Australia for vacation. After coming to Australia, I had a chance to experience the culture and people. I was impressed by the quality of Management practices at Australia workplaces. Whether it's a fast-food joint, restaurant or an office, everything was well managed. This created an urge in me to learn more about it and from my research, I concluded that this is because of the education system and training. I develop desire to acquire such skills as this would advance my career to the next level. I started looking for course option and after comparing all available options, I decided to undertake Graduate Diploma of Management (Learning) from Nova Institute of Technology. The course focuses on key areas of management that includes strategy development, performance enhancement, leadership etc and these are the key competencies required for career advancement in health care sector. I am confident that after completion of studies I will have skills and knowledge to lead a team of health care professionals and help a business to grow and make it to next level. I would like to work in compare sector of the healthcare industry. I am grateful to Department of Home Affairs for having given me opportunity to come to this beautiful country and experience its culture and people. Once again, I would like to request DHA to grant me student visa so that I can undertake my proposed course of study before returning to my home country.
On 7 September 2023, 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 they were not satisfied that the applicant intended genuinely to stay temporarily in Australia.
Evidence provided after delegate’s decision
The applicant applied to the Tribunal on 19 September 2023 seeking review of the delegate’s decision to refuse to grant her a student visa.
On 23 December 2024, the Tribunal wrote to the applicant, through her representative at the time, a s 359(2) letter as follows:
I am writing to you as the authorised recipient of the applicant(s) for the above-mentioned application for review to the Administrative Review Tribunal in respect of a decision to refuse to grant a Student (Temporary) (Class TU) visa.
As the authorised recipient, we are required to give you, instead of the applicant, any document that we would otherwise have given to the applicant. By sending you this email, we are taken to have sent the email to the applicant. You should ensure that all applicants included in the review are informed of this email as soon as possible.
As the applicant 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
The applicant is 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.
… … …
Other information
In considering whether an applicant is a genuine applicant for entry and stay as a student, the ART must have regard to Ministerial Direction No.108 ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.’ A copy of this is linked below for your reference.
On 28 January 2025, the applicant provided to the Tribunal a Commonwealth Bank statement (dated 13 January 2025).
On 20 February 2025, the Tribunal sent the applicant a Notice inviting her to attend a hearing by video on 12 March 2025 (at 9:30am (Queensland time); 10:30am NSW/Victoria time).
On 4 March 2025, the applicant provided submissions by email to the Tribunal, stating as follows:
I am also writing to provide further clarification regarding my student visa application and to seek reconsideration of my case. I successfully completed a Graduate Diploma in Management over the past year, demonstrating my commitment to academic growth in the field. However, my previous student visa application was declined on the grounds that I was not considered a genuine student. Despite this, I remained dedicated to my studies and successfully completed my diploma, proving my genuine intentions.
The reason I pursued further education in management was due to my extensive work experience in hospital management, which motivated me to enhance my skills and knowledge in the field. Unfortunately, when I initially applied for my student visa, I did not receive adequate information regarding the requirements and processes, which may have affected my application outcome.
During my stay in Australia, I have come to realize that pursuing a Master of Nursing by Research would be a transformative step in my career. I am deeply passionate about the healthcare sector, and I believe that this advanced study will allow me to make a meaningful contribution in the future. However, due to my previous visa refusal, I was unable to secure admission into the master's program.
The extended waiting period for my AAT decision has been particularly challenging. In the meantime, to continue my academic journey and remain engaged in the healthcare sector, I enrolled in a Certificate III in Individual Support. While this program is providing valuable learning, my ultimate goal remains to gain admission into the Master of Nursing by Research.
I am still hopeful that my student visa will be granted, enabling me to pursue my intended master's degree and contribute meaningfully to the field of healthcare. I sincerely request that my case be reviewed with consideration of my genuine academic intentions and future aspirations. I have attached all my qualifications and past experiences for your reference.
The Tribunal notes the following documents provided by the applicant in her email dated 4 March 2025:
·Diploma in Midwifery, Nursing Examination Board, Punjab, Pakistan (14 May 2009).
·Diploma in General Nursing, Nursing Examination Board, Punjab, Pakistan (2 July 2008)
·Intermediate and Secondary Education Certificate (Pakistan)
·Applicant’s new Pakistan passport expiring in 2029
·Academic Transcript – College of Nursing, Islamabad (Graduated 22 October 2016)
·Confirmation letter from Shifa Tameer-e-Millat University indicating that the applicant completed a Bachelor of Science in Nursing. Confirmation letter is dated 22 February 2019.
·Service certificate from the Medical Superintendent, Allied Hospital, Faisalabad indicating that the applicant worked as charge nurse from 17 February 2009 to 4 March 2011.
·Service certificate from Madina Teaching Hospital indicating that the applicant worked as staff nurse from 9 August 2007 to 22 February 2009.
·Service certificate from Kidney and Liver Institute and Research centre indicating that the applicant worked in the nursing department from 12 March 2018 to 13 March 2021.
·Service Certificate from Madinah Cardiac Centre indicating that the applicant worked from 16 March 2011 to 21 February 2013.
·Service Certificate from Shifa International Hospitals, Islamabad indicating that she worked both as assistant head nurse and head nurse from 18 December 2013 to 8 March 2018.
·Applicant’s current Career Resume indicating her career objective, education, certifications, key skills, expertise, experiences and references.
·Certificate from Nova Institute of Technology dated 21 September 2024 indicating that the applicant has successfully completed a Graduate Diploma of Management (Learning)
·CoE - Graduate Diploma of Management (Learning) – commencing 3 February 2025 to 18 July 2025.
·CoE - Graduate Diploma of Management (Learning) (commencing 01/09/2023 and finishing 30.08.2024) – Education Provider: Nova Institute of Technology (previously provided)
·Bridging visa summary
·Department decision record of refusal of student visa application
·Visitor visa grant (subclass 600) Granted 6 May 2023.
On 4 March 2025, the applicant also sent an email to the Tribunal stating (among other things) the following:
I am writing to inform you that I will no longer have a representative handling my case coordination. Additionally, I would like to request a rescheduling of my hearing date to 27th of March 2025, or any other available date close to it…
The applicant did not provide any further reasons for why she required an adjournment.
On 6 March 2025, the Tribunal, having considered the request for adjournment, sent the applicant an email advising as follows:
The Member has read your request for an adjournment of this matter from 12 March 2025 to 27 March 2025.
After having carefully considered your request, the Member has decided that it is reasonable in the circumstances to not give an adjournment. This hearing will remain as a video hearing for 9:30am (QLD Time) on 12 March 2025.
A copy of the hearing notice is sent to you again for your attention.
If you have any questions or any problems opening the document/s attached to this email, please contact us immediately at [email protected], or call 1800 228 333.
On 12 March 2025, the applicant appeared before the Tribunal by video link to give evidence and present arguments.
The Tribunal noted that the issue before it was whether the applicant meets the genuine temporary entrant criterion as outlined in cl 500.212.
The applicant provided oral evidence to the Tribunal in support of her review. The Tribunal asked her a range of questions relating to the relevant factors for consideration under Direction 108. The applicant provided the following oral evidence in response to the Tribunal’s questions as follows:
·She came to Australia on a subclass 600, Tourist visa. She wanted to explore her study options in Australia. She had always known that Australia had a great education system. She had worked in other countries. She wanted to study further in English countries. She learned English in Pakistan. However, she needed to improve her English at English speaking tertiary institutions overseas. In Pakistan, there are better professional opportunities for her if she can speak English. This was the reason why she has been wanting to undertake a tertiary degree in Australia. She attempted a Master’s degree course in Denmark but it was in Danish. She could not study in Danish. She then looked further afield in the United Kingdom and the US. However, she was advised to come to Australia. Once she came to Australia, she found agents to guide her in enrolling in a Master’s in Nursing in Australia. However, she had to undertake a lesser post-graduate study first which she enrolled in, but which was refused by the delegate.
·She wanted to study more in hospital management. She has had extensive experience in hospital management in Pakistan. She thought post-graduate courses in management in Australia would be good for her future when she goes back to Pakistan. This is her incentive for returning. She states that she did not initially receive proper guidance from her agents about her courses in Australia.
·When asked whether she had reasonable reasons for not studying in Pakistan, she stated that there is a lot of competition in Pakistan in the nursing field and health sector. If she can study her courses in English in Australia, then this will give her every chance to be able to compete with others wanting to be managers in the health sector field. She specifically wants to Director of a medical unit. She stated there a lot of nurses studying Master’s degrees in Pakistan and this makes it very competitive. However, if one can complete their master’s degree in English, this will give her the edge that she needs.
·When asked about her family connections in Pakistan, she stated that her mother, father, sister and brother live in Punjab, Pakistan. She is very close to them. She contacts them frequently on a daily and weekly basis. She has no family in Australia.
·When asked about her economic circumstances, she stated that her family have their own properties and own lands. She has a legal and religious right over one of the properties in Pakistan. After the death of her parents, one part of all the property will go to her and two parts will go to her brother.
·When asked what family ties she has in Australia, she stated that she has no family here.
·She stated that when she arrived in Australia, she researched what she wanted to do and then applied for her student visa which was subsequently refused. She then concentrated on other studies while waiting for the outcome of the student visa refusal. She has not returned to see family while in Australia. She stated that it was very hard for her to travel in and out of Australia with her visa application refused.
·The applicant stated that she is currently studying a Certificate III in Individual Support. This course finishes in July 2025. She has been studying extensively for the last 6 months. She has been finding it hard to get into a Master’s course. She has been refused enrolment in a Master’s degree because she does not have a valid student visa, which is currently under review before the Tribunal.
·She stated that she started her first course three months after arriving on her visitor visa. She has remained enrolled and has been studying during that time. From November 2024 to January 2025, she struggled to find a suitable course during that small period of time, while trying desperately to enrol in Master’s program.
·She stated that her current course gives value to her future because it goes a long way to assisting her with patients with disabilities in hospitals. It is in line with her nursing field. She wants to show that she is a genuine student. She is doing everything possible to get into a Master’s of Nursing. This is her ultimate goal. She wants to go back home and take a master’s degree with her and use it in the hospital system there.
·She stated that she has been advised that she will be able to successfully enrol in a Master’s program when she has secured her student visa first, which she cannot do until the Tribunal makes a new decision on it. She needs a valid visa first.
·She will continue to stay enrolled in her course and to complete her current course while doing everything possible to secure enrolment into a Master’s program, to commence in the middle of 2025.
·She stated that her family has been fully funding her in Australia. They will continue to do so until she finishes her studies.
·She stated that she ultimately wants to go home and work back in the hospital system. She wants to be Director of Nursing. She has already worked as manager in the hospital system there. However, she wants to be Director of a medical unit there. This is her dream and goal, and she has done everything possible to bring her to this point.
·She is very close to her family. She is very close to her father. She wants to be there supporting him. However, she wants to do everything she can to give herself the best opportunity in her career back in Pakistan.
Following the hearing on 12 March 2025, the Tribunal received an email from the applicant providing evidence of an email (dated 8 January 2025) from KIEC Global Sydney, advising the applicant that they had processed her application for an offer letter from some of the providers for a Master of Health Service Management, but that some of the providers had declined the request due to her current visa refusal.
Following the hearing, on 12 March 2025, the Tribunal received another email from the applicant providing evidence of an email (dated 12 March 2025) from Western Sydney University which stated:
Dear [applicant],
Thank you for your application to study at Western Sydney University.
After a thorough review of your application, we regret to inform you that it has been unsuccessful. Unfortunately, your application did not meet the University’s Genuine Student (GS) screening criteria. This assessment considers various factors, including, but not limited to your personal circumstances, immigration history, academic history and future intentions, among others.
Please note that the GS assessment is a crucial aspect of the application process, and is designed not only to ensure alignment with the University's requirements but also to support a successful student visa grant with the Department of Home Affairs.
You may consider exploring other Australian institutions where your application could be given due consideration.
Thank you for considering the University. We wish you all the best in your future academic endeavours.

The Tribunal has considered all the applicant’s written evidence and her oral evidence at the hearing. The Tribunal’s findings relating to her oral evidence, along with her written material and supporting documents, are given below under “Consideration of Claims and Evidence”.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal sets aside the decision under review and remits the visa application for reconsideration.
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant meets cl 500.212(a).
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.
The applicant answered consistently with information dealing with the above relevant factors outlined in Direction 108. The applicant also provided oral evidence consistent with her supporting documents.
The Tribunal found the applicant to be a credible witness at the hearing, answering the many questions asked of her in a methodical and reasoned way. It appeared to the Tribunal that the applicant was answering from lived work experiences. It found her evidence about her future intentions to be genuine and highly consistent with the many work references provided about her work experience in higher managerial levels of nursing in hospitals in Pakistan. She spoke very openly and passionately about her desire to complete a Master’s degree in English in Nursing (or similar field) so that she can take this knowledge back to Pakistan so that she can become Director of a medical unit in any of the hospitals she has already worked at.
The evidence before the Tribunal supports the applicant’s submission that she cannot gain Master’s entry until she first has obtained her student visa, and that this cannot happen until she seeks a positive result on her current student visa refusal. The Tribunal finds that the applicant is presently studying a course that aligns with her field of work back in Pakistan.
Having regard to the applicant’s circumstances in her home country of Pakistan and having regard to the applicant’s oral evidence relating to her assets and family assets, there is no evidence that has been presented which indicate that her economic circumstances would present as a significant incentive for the applicant not to return to Pakistan. The Tribunal accepts as credible the applicant’s evidence of land ownership and her family’s land ownership.
The Tribunal accepts as credible her evidence of her strong family ties back in Pakistan and that this will be a draw factor for her to return after her studies.
There is no evidence before the Tribunal that political and civil unrest would result in the applicant choosing to remain in Australia indefinitely. There is no evidence before the Tribunal of military commitments that would present as a significant motive not to return.
The Tribunal accepts her oral evidence that her reasons for choosing to study in Australia is because she wishes to complete the necessary courses in English, and eventually her Master’s in Nursing (or similar course) so that she can return to become Director of a medical unit in one of the hospitals that she has worked at for many years already. The Tribunal accepts on the evidence her extensive work history and the leadership roles that she has undertaken at those hospital. It accepts her evidence that she will complete her current course in the middle of 2025 and, with the hope of a grant of a valid student visa, be able to successfully enrol in a master’s program in her chosen professional field.
The evidence indicates that the applicant has been continuously enrolled in a registered course. The Tribunal accepts that the applicant has been continuously enrolled in a course/s, successfully completing one course and achieving course progression in her current course, namely Certificate III in Individual Support, which is indicative of a genuine student.
As found above, the Tribunal also accepts the applicant’s evidence as to the value of the courses to her future in the health sector in Pakistan, where she has worked for a long time already. She has provided consistent oral and written evidence as to her future employment plans and the value of studying these courses have to her future.
The applicant has indicated that she will return to Pakistan at the completion of her studies and, on the evidence before it, the Tribunal accepts this to be the case. Of course, were the applicant to enrol in other courses after this current course but was not to enrol in a Master’s program in the future (which was always her main reason for studying in Australia in the first place), then this would be reason for concern.
The Tribunal does not have any information before it to indicate that the applicant has not complied with visa requirements while studying in Australia. There is no evidence before the Tribunal to suggest that the applicant will not comply with visa conditions into the future.
On the basis of the above and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).
Does the applicant intend to comply with visa conditions?
For the applicant to meet cl 500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl 500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). For visa applications made on or after 1 July 2022, condition 8208 (no critical technology related study without approval) must also be imposed.
On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl 500.212(b).
Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?
For the applicant to meet cl 500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl 500.212(a) and (b)). There is no other relevant matter to consider. The Tribunal finds the applicant meets cl 500.212(c)
Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
DECISION
The Tribunal sets aside the decision under review and remits the application for a Student (Temporary) (Class TU) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.
Dates of hearing: 12 March 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.