POLU (Migration)

POLU (Migration) [2024] AATA 2443 (21 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Rammohan Reddy Polu
CASE NUMBER:  2208332
HOME AFFAIRS REFERENCE(S):          BCC2020/2779760
MEMBER:Frank Russo
DATE:21 June 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction 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 21 June 2024 at 1:06pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – non-appearance before the Tribunal – reinstatement of application for review – study history – circumstances in home country – potential circumstances in Australia – value of the course – immigration history – intention to comply with visa conditions – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 June 2022 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 8 December 2020. 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.
The applicant is a 28-year-old Indian national, who arrived in Australia in 2018 to undertake a Master of Business Administration (MBA), which he did not complete. The Student visa application under review was made in respect of the applicant’s enrolments in a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management. At the time of the hearing, the applicant had completed the Diploma of Leadership and Management and had approximately two months left to complete the Advanced Diploma of Leadership and Management.
The applicant appeared before the Tribunal by video on 13 June 2024 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary applicant for entry and stay as a student.
In addition to the application form and copy of the delegate’s reasons for decision, the applicant provided the Tribunal with a number of additional documents, including a statement of results and copy of award of the Diploma of Leadership and Management by Australis Institute of Technology and Education (Australia), dated 4 August 2023, a letter from Australis, dated 16 October 2023, confirming the applicant remains enrolled in the Advanced Diploma of Leadership and management, an undated genuine temporary entrant (GTE) statement, evidence of overseas student health cover and evidence regarding the grant of a Bridging visa and medical information regarding the health of the applicant’s father.
The Tribunal has had regard to these documents. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file, which include an earlier undated GTE statement and a transcript for the Master of Business Administration at Southern Cross University (SCU), dated 27 October 2020.
The Tribunal notes that the application for review was initially dismissed under s.362B(1A)(b) of the Act because the applicant did not attend a hearing which had been scheduled for 21 February 2024. Following a request for reinstatement of the application, and the provision of medical evidence regarding the applicant’s father, and evidence that he had been granted a Bridging visa by the Department for the purpose of travelling to India to see his father, on 19 March 2024 the Tribunal reinstated the application for review.
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. The Tribunal notes that Direction No 108 commenced on 23 March 2024. Part 2 of Direction No 108 is expressed in the same terms as Part 2 of Direction No 69, which previously applied and was applied by the applicant, other than the addition of the words ‘or Student Guardian visa application’ at clause 4(d) of the Direction No 108.
Direction No. 108, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
Background information
The applicant is a 28-year-old Indian national, who arrived in Australia on 1 November 2018 to undertake an MBA. He has a Bachelor of Pharmacy from India, following which he worked in the pharmaceutical industry in India for approximately one year. The applicant has provided an academic transcript for the MBA, issued by SCU, which indicates that he enrolled in three units in 2018 and two in 2019, all of which he failed. The applicant’s enrolment record from the Provider Registration and International Student Management System (PRISMS), indicates that the applicant ceased studying the MBA in July 2019. He was then enrolled in the Certificate IV in Information Technology Networking from October 2019, with his enrolment in that course cancelled in June 2020 due to unsatisfactory course progress. He was then enrolled in the Diploma of Leadership and Management in November 2020. His first enrolment was cancelled in February 2021 due to non-payment of fees. A second enrolment in this course was cancelled on 11 March 2022 due to unsatisfactory course progress. The applicant then enrolled in the Diploma of Leadership and Management a third time on 1 August 2022. The Student visa application under review was made in respect of the applicant’s enrolments in a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management. At the time of the hearing, the applicant had completed the Diploma of Leadership and Management in July 2023. He commenced the Advanced Diploma of Leadership and Management in August 2023, which he is scheduled to complete on 11 August 2024.
At the hearing, the applicant gave evidence that he struggled with the MBA, and therefore after receiving advice, decided to transfer to a course at the vocational level, which he might find easier to complete. He gave evidence that he commenced the Certificate IV in Information Technology Networking in October 2019, but struggled with this course after the course mode changed to online learning during the COVID-19 pandemic. He stated that he submitted course assignments online and then enquired about his progress, but then cancelled his enrolment prior to discussing any issues with him. He stated that his first enrolment in the Diploma of Leadership and Management was cancelled because of non-payment of fees because his fees were paid by his father from India and were sent a few days late. He stated that instead of re-enrolling with the same college, he decided to enrol with a different college because he was not satisfied with the way the college had handled the issue. He stated that his course cancellation in March 2022 was also due to the non-payment of fees, with his college refusing to accept his assessments after he was late in paying his fees.
The applicant gave evidence of medical issues experienced by his father in 2024, in respect of which he has provided evidence, but stated that despite this, and despite travelling to India in February 2024 to see his father, he is on track to complete the Advanced Diploma of Leadership and Management by August 2024. The applicant stated repeatedly that he wishes to return to India after he completes the Advanced Diploma of Leadership and Management, with his father’s medical situation being an ongoing issue for him and a strong reason why he wishes to return to his home country. He stated that he is an only child and has responsibilities for looking after his parents.
Findings on factors set out in Direction No.69
Having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account all the relevant information, the Tribunal is satisfied that on this occasion the applicant meets the genuine temporary entrant criterion.
The Tribunal notes that at first glance, there appear to be concerns with the applicant’s circumstances. In particular, since arriving in Australia in 2018 to complete a Masters degree, the applicant has instead completed only a Diploma course. However, after considering the applicant’s circumstances as a whole, including his recent successful completion of the Diploma of Leadership and Management and the progress which he has made towards the Advanced Diploma of Leadership and Management, which he is due to complete in less than two months, the Tribunal is satisfied that the applicant intends to stay in Australia temporarily for the purpose of obtaining qualifications which will be of value to his future upon return to India.
The applicant’s circumstances in his home country
At the hearing, the applicant gave evidence that his parents and all of his relatives are in India. He provided evidence that he returned to India in 2024 due to a medical condition experienced by his father, and gave evidence of this condition and treatment. The applicant claims that his father’s recent health condition is an incentive for him to return to his home country after he completes his current studies. I accept that his father’s health may act as such an incentive. The applicant has no assets in his own name. He gave oral evidence that his father is a dairy farmer and owns land and their family home. I accept this to be the case. The applicant confirmed at the hearing that following the completion of a Bachelor of Pharmacy in India, he worked for a pharmaceuticals company for one year prior to arriving in Australia. I accept that the applicant has strong family ties to India which would serve as a significant incentive to return to his home country.
I make no adverse findings regarding the applicant’s economic circumstances. The applicant gave evidence that since arriving in Australia, he has worked as an Uber driver for approximately two months and has otherwise not worked. He claimed that he is supported financially by his father. There is no evidence to the contrary, and no evidence that the applicant's economic circumstances would act as an incentive for him not to return to his home country.
I make no adverse findings regarding the applicant’s reasons for wishing to undertake the proposed courses of study in Australia rather than India. The applicant gave evidence that he arrived in Australia for the purpose of completing a Masters degree, however, he found the course and the study environment to be difficult. He gave evidence that he wishes to obtain Australian qualifications prior to returning to India. I have also considered the stated reasons the applicant has provided in his GTE statements for why he wishes to undertake the course in Australia. I accept that the applicant was already residing in Australia when he decided to apply for the Student visa, and am satisfied that he has established reasonable motives for wishing to undertake the proposed studies in Australia.
There is no evidence of any military service requirements or of any civil or political issues which would act as an incentive for the applicant to remain in Australia. There is no adverse evidence before the Tribunal regarding the applicant's circumstances in India, relative to others in that country, and the Tribunal makes no adverse findings in relation to these factors.
The applicant’s potential circumstances in Australia
The applicant first arrived in Australia on 1 November 2018, holding a Student visa, which was granted for the purpose of undertaking an MBA. The applicant has been in Australia for approximately five-and-a-half years. Within this time, he has completed a Diploma of Leadership and Management (in July 2023) and now has less than two months to complete the Advanced Diploma of Leadership and Management. I have some concerns with the amount of progress the applicant has made with his studies since arriving in Australia. I also have concerns that since October 2019 the applicant has been studying courses at the vocational level, when his first Student visa was granted for the purpose of study at the Masters level. The applicant provided a copy of his academic transcript for the MBA, which indicates that he enrolled in five units, all of which he failed. I accept that the applicant struggled with his studies upon arrival in Australia, and he then sought alternative courses so he could nonetheless obtain Australian qualifications which may be of value to his future. I note that overall the applicant has maintained enrolment in courses of study, with his gaps in enrolment generally being no more than four months at a time.
I do not find all of the applicant’s excuses for his relatively poor academic record prior to 2022, but I consider that they provide some explanation for why he did not make greater progress in the first few years of his stay in Australia. The applicant has provided evidence of his progress with the Advanced Diploma of Leadership and Management, and he now appears to be on track to complete this course by August 2024. Given the applicant has maintained ongoing enrolment in Australia and has made progress with his enrolments in Leadership and Management, I consider that there is insufficient evidence to indicate that the applicant is at present using the Student visa to maintain ongoing residence or to circumvent the intentions of the migration programme. I am satisfied that, despite the problems the applicant has had with his academic performance in Australia, he has applied for the Student visa primarily to obtain qualifications which will be of value to his future.
There is no evidence that the applicant has ties with Australia which would present as a strong incentive to remain in Australia. He gave evidence that he has no family in Australia and he is not in a relationship. I accept his evidence in this regard. He gave evidence that he has not worked in Australia, other than as an Uber driver for about two months in 2019. There is no evidence to the contrary.
There is no evidence that the applicant has entered a relationship of concern for a successful Student visa outcome. Given the length of time the applicant has remained in Australia and the evidence he has provided of the successful completion of the Diploma of Leadership and Management, and the progress he has made with his current course, I make no adverse findings regarding his knowledge of living in Australia, nor of his knowledge of his current course or education provider.
Value of the course to the applicant’s future
In his GTE statement, the applicant claims that after he completes the Advanced Diploma of Leadership and Management, he will seek management-related roles in companies in India. He lists a number of such companies in his statement. He lists a number of role profiles that he intends to apply for, including roles such as HR manager, team leader, business manager and project manager, and lists the expected salary for each role. I am satisfied the applicant has undertaken some research into potential roles in his home country, using the qualifications he will gain from his current course of study.
I have some concerns that the applicant already has a higher qualification from India, namely the Bachelor of Pharmacy, and that the qualifications from his current course of study may only marginally improve the employment opportunities he will gain over and above those from his existing qualification. In response to this concern, the applicant claimed that the qualifications in Leadership and Management will help set him apart from other job candidates, and that with his existing experience in the pharmaceutical industry, he intends to apply for more senior roles. On this occasion I accept that the proposed course of study may be of some value to the applicant’s future in his home country.
The applicant’s immigration history
As noted above, the applicant arrived in Australia in November 2018, holding a Student visa. He has held only one Student visa and does not have an overly lengthy immigration history. Since 2022 he has made some progress with his studies by completing the Diploma of Leadership and Management (in July 2023) and he is now on track to complete the Advanced Diploma of Leadership and Management within two months.
As noted already, the applicant has a poor academic record from November 2018 to June 2022, during which period he did not complete any courses and two of his enrolments were cancelled because of unsatisfactory course progress. The applicant has provided some explanation for his poor academic progress during this period, which I do not consider provides a complete or entirely satisfactory response, however I accept that he encountered difficulties in studying at the Masters degree level and that he also encountered some difficulties with his studies as a result of the COVID-19 pandemic. Despite this poor academic history, I consider the applicant is now on track with his studies and should be given the opportunity to complete his current course of study before returning to his home country, as he has stated is his intention on multiple occasions throughout the hearing. I give some weight to his recent progress with his studies and to the fact that he has not enrolled in a broad range of courses in unrelated fields, other than a brief enrolment in Information Technology. Despite changing to studies at the vocational level, the applicant appears to have a relatively clear study pathway.

I accept the applicant’s evidence that he wishes to obtain qualifications which will be of value to him on return to his home country, and that he has continued to study and has overall maintained ongoing enrolment since arriving in Australia. I note in passing that, given the applicant’s academic record to date, should he decide to apply for a further Student visa, particularly for further vocational studies in an unrelated field, that this may once again raise concerns that he is using the Student visa to maintain ongoing residency. However, on this occasion, I consider that there is insufficient evidence to indicate that the Student visa is intended primarily to maintain ongoing residence.
There is nothing to indicate that the applicant has an adverse visa or migration history to any other country. There is nothing to suggest that he has previously been refused a visa application or had a visa cancelled or considered for cancellation. There is nothing to indicate that he has any other applications for a different class of visa which are yet to be finally determined. Accordingly, the Tribunal makes no adverse findings regarding the applicant’s immigration history.
Any other relevant matters and conclusion regarding findings
The Tribunal has also given regard to whether there are any other relevant matters and finds there are no other relevant matters to the assessment of the applicant's intentions to stay in Australia temporarily in addition to the matters covered above. The Tribunal has considered all the information provided by the applicant in support of the application.
On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).
Does the applicant intend to comply with visa conditions?
For the applicant to meet cl 500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl 500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed in some cases (cl 500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).
The applicant has provided with his visa application an undertaking to comply with any conditions subject to which the visa is granted. There is insufficient information to indicate that the applicant would not comply with such conditions. The Tribunal notes in particular the applicant’s progress with his current studies despite the visa refusal and that he has less than two months left to complete the Advanced Diploma of Leadership and Management. The Tribunal is satisfied that the applicant intends to comply with the conditions of the Student visa, including condition 8202.
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 evidence before the Tribunal of any other relevant matter that gives rise to a concern that the applicant is not a genuine applicant for entry and stay as a student.
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 remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.
Frank Russo
Member

Attachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton

Minister for Immigration and Border Protection
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 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
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’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme 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 programme 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
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: 21 March 2024
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.

[2024] AATA 2443

21 June 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction