Rai (Migration) - [2025] ARTA 1893

RAI (MIGRATION) [2025] ARTA 1893 (11 SEPTEMBER 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Sanjay Ashika Rai
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2411636

Tribunal:General Member C Stokes
Place:Adelaide
Date: 11 September 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 11 September 2025 at 4:49pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – age and studying to change work sector – research into available courses and reasonable knowledge of provider and courses – family in home country and return visits, and limited ties to Australia – new Australian citizen partner originally from same country plans to return with applicant – plans for employment and then own business – compliance with conditions of previous visas – decision under review remitted
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 then Minister for Home Affairs on 23 April 2024 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 20 October 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 they were not satisfied the applicant intends genuinely to stay in Australia temporarily.
The applicant applied for review of the delegate’s decision on 13 May 2024. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is a review of the delegate’s decision by the Tribunal.
The applicant appeared at a hearing before the Tribunal by video conference on 11 September 2025. The applicant was assisted in relation to the review and the representative attended the hearing.
Student visa application
In the applicant’s student visa application, he stated that he was born in Fiji and his daughter remains there. He explained that after travelling to Australia as a visitor he decided to stay to study automotive courses, having reached a point in retail where he was unfulfilled and earning low wages. He had second thoughts to do further study at his age, but his daughter encouraged him to follow his passion and change careers. He explained that on return to Fiji he planned to eventually start his own business in his hometown, but at first work in the automotive industry and he set out the detailed research he had undertaken into the courses and the Fijian automotive industry as well as the potential salary ranges he could earn.
The applicant also provided the following documents in support of his application:
a.a statement addressing the genuine temporary entrant requirement;
b.a copy of his birth certificate and passport;
c.a certificate of Overseas Student Health Cover
d.a Fiji National Provident Fund Member Interim Statement of Account; and
e.his Fiji school leaving certificate.
Evidence to the Tribunal
The applicant completed a Student Visa Information form twice in which he provided information about his personal and family background; educational background and work experience; why he decided to pursue international studies including why he chose to study in Australia and not in Fiji or any other country; details regarding the courses he intends to complete and why he had chosen the course and Aboard Training Australia; his future career plans; ties to Fiji; and his financial situation.
The applicant also provided the following documents in support of his review application:
a.Confirmation of Enrolment (CoE)’s for Certificate III in Light Vehicle Mechanical Technology, Certificate IV in Automotive Mechanical Diagnosis and a Diploma of Automotive Technology;
b.Study continuation letter/Course progress letter from the CEO of Abroad Training Australia dated 8 August 2025; and
c.Submission by the applicant explaining why a previous course he was enrolled in was cancelled.
I also have before me a copy of the applicant’s record from the Department’s Provider Registration and International Student Management System (PRISMS) which includes information consistent with the applicant’s evidence about his studies.
For the following reasons, I set aside the decision under review and remit the visa application 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 applicant for entry and stay in Australia as a student.
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.
Circumstances in applicant’s home country
I accept that the applicant has his parents, brothers and daughter all living in Fiji and that he is in regular contact with them via phone and video calls. I accept he speaks to his daughter almost daily. He has also returned to Fiji twice to visit his family and community. I accept the applicant’s evidence that after he completes his study he intends to return to his family in Fiji, and he has a strong desire to do so, particularly to be with his daughter. I also accept that the applicant has assets in Fiji, including savings and a housing entitlement. I consider these family and economic ties to be a significant incentive for the applicant to return to Fiji.
I accept the applicant’s detailed reasons in his statements for undertaking his study in Australia, and not in Fiji or other countries and consider those reasons to be reasonable. In particular, the applicant explained that although similar courses are available in Fiji, they lack modern facilities, practical training, and industry-relevant content. Further, given the qualifications are internationally recognised the courses will better support the applicant’s goal of launching a high-end automotive business in Fiji.
There is no evidence before me about the applicant having employment in Australia or Fiji. Accordingly, there is nothing to suggest the applicant’s economic circumstances would present as an incentive for the applicant not to return to Fiji.
The applicant confirmed in the Student Visa Information form and at the hearing that he does not have any potential military service obligations or political or civil unrest concerns in his home country or that there are any other reasons why he would not return to Fiji.
Potential circumstances in Australia
I accept the applicant has limited connections in Australia, having only friends he has met since arriving through studying at Abroad Training Australia, and that carries weight in the applicant’s favour in assessing whether he meets the genuine temporary entrant criteria. However, the applicant gave evidence that around 1 year ago he met his now de facto partner and they are now living together. That partner is an Australian citizen although she is originally from Fiji and I accept the applicant’s evidence that she plans to return to Fiji with him after he completes he study and returns there. I therefore do not consider this to be a relationship of concern nor that it is an incentive for him to remain in Australia.
The applicant demonstrated a reasonable level of knowledge of living in Australia commensurate with someone who has lived here since 2023.
The applicant has also demonstrated a reasonable level of knowledge of his courses of study and the associated education provider and provided evidence of the research the applicant undertook into the courses of study and the education providers.
Further, the applicant has provided evidence that he is meeting the course requirements to date and that has completed the Certificate III course, is close to completing the Certificate IV course and will be undertaking the Diploma course which will finish in December 2026. While I note that it took him sometime to complete the Certificate III course and his initial enrolment was cancelled, I accept his evidence that was due to his inability to afford the tuition fees and not because of his lack of application to his studies. I accept that his successful completion of the Certificate III course is compelling evidence that he is a genuine student.
Value of course to the applicant’s future
While it is true that the applicant had a large gap between completing year 12 and commencing further education, and that he has no relevant work experience in the automotive industry, I can take into account reasonable changes to career or study pathways. I accept that he was unhappy working in retail and unhappy with the low wages. I also accept that he is passionate about cars and decided, at the age of 48, to retrain so that he could earn better wages and work in an industry he is passionate about. I therefore accept that it is reasonable that he has changed his career pathway and decided to retrain.
I accept the applicant’s career goal in the long term is to open an automotive business in his hometown. In the shorter term he plans to work for a private company in the automotive industry in Fiji after completing his Diploma. I accept the applicant’s studies in Australia are relevant to these career goals and have value in providing him with an opportunity to commence a career in the automotive industry in Fiji.
While it is somewhat difficult to assess, based on the applicant’s research I accept the remuneration he could expect to receive in Fiji, compared with Australia, using the qualifications to be gained from the proposed courses of study, is similar and likely higher than he would be able to earn without the qualifications.
Applicant’s immigration history
There is no evidence before me to suggest that the applicant has had any travel, visa or immigration issues in the past (in Australia or elsewhere) and he confirmed that he complied with his previous visa conditions and has not applied for any other visas, had any other visas cancelled or refused.
Conclusion
Considering all of the above, in particular the applicant’s academic progress during his time in Australia, his family and economic ties to Fiji, the value of the courses to his future (notwithstanding the gap in study and change in his career) and the evidence he has provided indicating that he would return to Fiji at the completion of his studies, I am 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. 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).
There is nothing before me to suggest the applicant has breached any condition on any visa granted to him to date. I also accept the applicant’s evidence at the hearing that he intends to comply with all conditions imposed on the student visa that he has applied for.
On the basis of the above, I am 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)).
I find that there is no other relevant matter to consider that may raise concerns that the applicant is not a genuine applicant for entry and stay as a student.
Accordingly, I am 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(s): 11 September 2025
Representative for the Applicant: Mr Prabhjot Singh SAHNI (MARN: 1805607)
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.