Sariego (Migration) - [2025] ARTA 1739

Sariego (Migration) [2025] ARTA 1739 (25 August 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Earl Jeag Vasig Sariego
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2407582

Tribunal:General Member J Lock
Place:Adelaide
Date: 25 August 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 25 August 2025 at 4:17pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – applicant changed to vocational courses – future business plans in home country – strong family and community ties in home country – economic security – value of Australian courses – future safety and stability – patriotic citizen of his country – good course progress – course aligned with future aspirations – complying with visa conditions – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 65, 499; Direction No. 108
Migration Regulations 1994 (Cth), Schedule 2, cls 500.212, 500.611
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 March 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 28 September 2023. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant intends to genuinely stay temporarily in Australia.
On 9 April 2024 the applicant applied to the Administrative Appeals Tribunal (AAT) for a review of the delegate’s decision. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The applicant appeared before the Tribunal on 28 July 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages. The applicant conducted the hearing mainly in English and requested the assistance of the interpreter only when required.
The applicant was assisted in relation to the review by a representative, Ms Tanag. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal sets aside the decision under review and remits the visa application for reconsideration.

BACKGROUND

The applicant is a 33-year-old man who was born in Cebu City in the Philippines. He completed high school in Philippines. He undertook Bachelor of Science in Marketing Management at the University of Cebu and graduated in October 2018. He then worked in variety of positions in the Philippines and was employed as a project manager (12 months), data researcher (12 months), in the kitchen of a pizza restaurant (2 years), an admission specialist (5 months) and as a freelance virtual assistant / customer service agent (12 months).
The applicant initially applied for a student visa while in the Philippines for the purposes of studying a Master of Business Administration at the Kaplan Business School. This visa was granted (subclass TU-500) in June 2023 and the applicant arrived in Australia on 1 August 2023. The applicant withdrew from this course and enrolled in a Certificate III of Commercial Cookery. He commenced the course on 25 September 2023. He lodged a further application for a student visa on 29 September 2023. The applicant was granted a Bridging Visa A (subclass WA-010) on 29 September 2023.
The applicant has completed a Certificate III in Commercial Cookery and a Certificate IV in Kitchen Management at the Blue Lotus College in Melbourne, Victoria. He is currently enrolled in a Diploma of Hospitality Management at the same college.
The above information was provided by the applicant at the hearing and is consistent with the applicant’s PRISMS record[1] and movement records obtained from the Department of Immigration and Citizenship[2] (the Department). The Tribunal accepts the above information as true.

EVIDENCE

[1] PRISMS is a computer system developed by the Department of Education, Skills and Employment, which is responsible for the Commonwealth Register of Institutions and Courses for Overseas Students, and is used by the Department of Immigration and Citizenship as evidence of enrolment for the purposes of assessing the grant of student visas.
[2] Formerly the Department of Home Affairs

Evidence before the Department

The Department provided the Tribunal with a copy of the applicant’s file which contained:
·the application for a student visa lodged on 28 September 2023 and supporting documents including a statement of purpose addressing the genuine temporary entry criteria (GTE statement)
·a copy of the applicant’s identity documents, specifically his passport
·the delegate’s decision dated 21 March 2024

Evidence before the Tribunal

The applicant provided the following evidence to the Tribunal:
·a completed Student Visa Information Form signed on 8 April 2024 (SVIF)
·certificates of enrolment filed on 22 April 2024 for:
-Certificate III in Commercial Cookery for 25 September 2023 to 22 September 2024
-Certificate IV in Kitchen Management for 23 September 2024 to 23 March 2025
-Diploma of Hospitality Management for 7 April 2025 to 5 October 2025
(the proposed courses of study)
The Tribunal obtained records of the applicant’s enrolment records from PRISMS and records of the applicant’s entry to and exit from Australia from the Department. The applicant gave oral evidence to the Tribunal, and the applicant’s representative made submissions to the Tribunal at the hearing held on 28 July 2025. Following the hearing, the applicant provided a letter from Blue Lotus College dated 28 July 2025 confirming the applicant’s enrolment in the Diploma of Hospitality and attaching an unofficial academic transcript dated 28 July 2025.

RELEVANT LEGISLATION AND MANDATORY CONSIDERATIONS

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 as a student, specifically whether he intends to stay in Australia temporarily under cl 500.212.

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.
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 108, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

CONSIDERATION OF THE EVIDENCE

The applicant gave evidence at the hearing in an open and straight manner. His evidence at the hearing is consistent with information he has previously provided to the Department in the GTE statement lodged on 28 September 2023 and to the Tribunal in the SVI form signed 8 April 2025. The applicant’s evidence is also consistent with information provided by the Blue Lotus College and with the PRISMS record and movement records obtained from the Department. In the absence of any information to the contrary, the Tribunal accepts the applicant’s evidence set out below, as true.

Does the applicant intend genuinely to stay in Australia temporarily?

Circumstances in the Philippines

The applicant grew up in Cebu City in the Philippines with his parents and siblings. He is one of four children in the family. His older brother, Ernest and sister, Chariz, are currently living and studying in Australia. His younger brother, Carl, is living and studying in the Philippines. His father works as a government doctor in regional areas. His mother does not work in paid employment and works in the home. Prior to leaving the Philippines, the applicant lived with his parents in their house that he valued as being worth over $750,000AUD. The house is in a compound comprising of three to four houses and his other relatives live in the compound. His grandmother also lives in the compound. He stated in the SVI form that while living in the compound he contributed by paying bills, overseeing repairs and maintaining their home. He stated that his grandfather established the property, and the applicant is committed to ensuring it is well-maintained and preserved for future generations. The applicant gave evidence of being involved in charitable work in the Philippines, feeding those less fortunate. He stated in the SVI form he has maintained connections with friends in the real estate industry in the Philippines and intends to invest in land for his future business venture when he returned.
At the hearing, the applicant recounted that his grandfather had a small catering business in the Philippines and the applicant had helped in the business while growing up. He said this lit a fire in him to pursue a career in cooking. His siblings have moved out of the family home and live independently. The applicant intends to return to live with his parents when he returns to the Philippines. The applicant stated in the SVI form he maintains regular contact with his parents, contacting them on special events.
In his GTE statement the applicant stated that his family is the most important reason for him to return home, despite his professional career. The Tribunal is satisfied the applicant’s family and community ties in the Philippines serve as a strong incentive for him to return to the Philippines.
The Tribunal accepts the applicant’s evidence that his family enjoys economic security in the Philippines in that his parents own their house, his father is employed as a government doctor and the applicant is not required to provide any financial assistance to his family in the Philippines. The Tribunal accepts that the applicant intends to return home and live with his parents when he returns to the Philippines and has access to financial support should he require it. The applicant gave evidence that he has a bank account in the Philippines with a balance of approximately $6,000-$10,000AUD. In the absence of any bank statements, the Tribunal puts little weight on this evidence.
Overall, the Tribunal finds that the applicant’s economic circumstances in the Philippines are not a disincentive for him to return to the Philippines.
The applicant gave evidence at the hearing that he always had an intention to continue with his education after graduating from the Bachelor of Science in Marketing Management in 2018. He needed to save money and think about it. He then worked in the corporate sector for over 10 years. He had plans to start a business but was not sure of the type of business. During the COVID-19 pandemic, one his siblings came to Australia and that influenced the applicant’s decision to study in Australia.
In his GTE statement, the applicant referred to his initial plan to come to Australia to study a Master of Business Administration (MBA) to pursue a career as a project manager. He referred to his plans changing and discovering a passion for cooking while working in the kitchen crew of a pizza restaurant in the Philippines. While he had an initial interest in the field, he did not know what culinary course to pursue. It was only after coming to Australia that he realised the importance of starting from the basics and decided to commence study with the Certificate III in Commercial Cookery.
The applicant has not provided evidence of any similar courses in cookery that might be available to him in the Philippines and why he chose not to pursue them. In the SVI form signed 8 April 2025, the applicant stated that he chose to pursue cookery studies in Australia as culinary schools in the Philippines are generally quite expensive, there is prestige in graduating from an international institution and having worked abroad, studying in Australia gives the applicant exposure to diverse kitchen staff and chefs and different cultural and culinary backgrounds, and the applicant is deeply passionate about experiencing authentic cuisines found in Australia. The Tribunal finds the applicant’s stated motivation for studying in Australia is reasonable.
The Tribunal notes that at the time of making this application, the applicant was already in Australia and had an intention to study in Australia. His two siblings were also in Australia as students. The Tribunal accepts the applicant would have committed considerable time and resources to travel to Australia and secure accommodation close to his siblings. Having changed his study intentions, the Tribunal finds it is reasonable for the applicant to undertake the proposed courses in Australia. The Tribunal also accepts that the applicant has the support of two siblings who are also currently studying in Australia. The Tribunal regards having access to immediate family support as a reasonable reason for studying in Australia.
The applicant has consistently given evidence that he does not have any military service commitments in the Philippines. The Tribunal accepts this and finds that military service is not a disincentive for the applicant to return to the Philippines.
The applicant raised some concerns regarding political and civil unrest in the SVI form, stating that economic and social instability can disrupt daily lives and cause uncertainty. He stated these factors highlight the importance of pursuing international education and acquiring skills to provide stability and opportunities in the future, regardless of challenges faced in the Philippines. The applicant provided further detail at the hearing, explaining that there were squatters or informal settlers living near the applicant’s area, some of whom took illegal drugs. He recounted being held up at various times throughout my life. This led to his concerns over safety and stability. The applicant stated that despite this he remains a patriotic citizen of his country and still wants to return. He referred to his voluntary work in the Philippines of feeding homeless people from his own pocket and his desire to open a business to improve the situation. The applicant has continued to engage in charitable work in Australia, providing meals to the homeless at Christmas time in Australia for the past 2 years.
The Tribunal finds that the applicant has a realistic assessment of the current economic situation in the Philippines and accepts his assertion that this is not a disincentive for him to return to the Philippines and start a business, and to some degree it is an incentive for him to return to provide opportunities to those in his area.
Circumstances in Australia
The applicant resides in Ashbury, Victoria. He gave evidence that he is not currently in a relationship and has not been in a relationship since arriving in Australia. The applicant’s older brother and sister live nearby in a shared house. His older brother is studying nursing and his sister is studying support work. The applicant gave evidence that they are both on student visas. There is no evidence before the Tribunal to suggest they have a right to stay permanently in Australia. While the Tribunal accepts that this may change in the future, at this time the Tribunal finds that the applicant’s siblings have only temporary residence in Australia, and this does not represent a strong incentive for the applicant to remain in Australia.
The applicant gave evidence of obtaining employment as a kitchen hand in aged care facility soon after arriving in Australia in 2023. He stated that he enjoyed the work and this was a factor in his decision to change his course of study to cookery. The applicant then worked as a chef in a hotel in Lorne, Victoria for 6 months. This required three to four hours of travel from Melbourne. He is currently employed by one employer in two Japanese restaurants, one in Torquay and one in Geelong, Victoria. The applicant pointed to his continuous employment in kitchens in an aged care facility, a hotel and in restaurants as evidence of his genuine intention to become a chef.
The Tribunal raised with the applicant at the hearing his change from a professional career in which he had invested several years of studying at an undergraduate level and then many years of professional experience. The Tribunal raised a concern that the applicant’s proposed courses and career path were very difference to his jobs in the past. The applicant referred to his experience of spending time with his grandfather in his small food stall inspiring him. He referred to having felt the cultural pressure to pursue a professional job in the Philippines. However, after a decade, when he found himself enjoying the work in the kitchen at the aged care facility, he wanted to follow his passion and get into cooking. The Tribunal accepts the applicant’s explanation and on the basis of this and the applicant’s work experience in cooking since being in Australia, finds that the applicant’s intention to become a chef is genuine.

The applicant completed a Certificate III in Commercial Cookery in 2024 and a Certificate IV in Kitchen Management in 2025. He is currently studying a Diploma of Hospitality Management (the Diploma). He is undertaking his studies with the Blue Lotus College in Melbourne. The applicant provided records from the Blue Lotus College dated 28 July 2025 that confirm that the applicant:
a.is currently enrolled in the Diploma as an on-campus student at the college in Melbourne,
b.is expected to complete the course on 5 October 2025
c.has successfully completed 26 of the 28 units of the course, and
d.is currently enrolled in the remaining 2 units.
This is consistent with the evidence the applicant gave at the hearing. The applicant also gave evidence about a recently completed presentation subject and subjects he is currently undertaking that was consistent with course information available from the Blue Lotus College.[3]
[3] Diploma of Hospitality Management | SIT50422 | Melbourne
The Tribunal is satisfied that the applicant is progressing in the Diploma and is on track to complete the course in October 2025. The Tribunal is satisfied that the applicant is a genuine student.
The Tribunal has some concerns about the change in the applicant’s proposed course of study since arriving in Australia. The applicant’s initial intention to study an MBA was consistent with his field of undergraduate study and represented a progression in the level of his qualifications from a bachelor degree. The applicant’s initial student visa was granted on that basis. The applicant’s current course of study in commercial cookery and hospitality at diploma level represents a significant change in career path and a regression in level of qualification. The applicant’s representative submitted that the applicant wanted to do the right thing by submitting a further student visa application when he changed his course of study.
For the reasons outlined above, the Tribunal is satisfied that the applicant has a genuine intention to become a chef and is a genuine student engaged in his course of study. Given this, the Tribunal is satisfied that the applicant’s intentions regarding his future career have genuinely changed and accepts the reasons given by the applicant for this change. The Tribunal is not satisfied that the applicant is using the student visa to circumvent the intentions of the migration programme.
At the time of this decision, the applicant has been in Australia for over two years and consistently engaged with his course of study and engaged in employment in the kitchens in a variety of settings. The Tribunal accepts that through this, the applicant has gained a good knowledge of living in Australia and of his course of study.
Value of the course to the applicant’s future
In his GTE statement from September 2023, the applicant stated an intention to return to the Philippines with a dream to become a well-known chef and ultimately own his own restaurant in the Philippines. In the SVI form that applicant confirmed the courses he has undertaken are directly aligned with his career aspirations. The applicant pointed to his Bachelor of Science in Marketing Management as also providing a solid grounding in management, entrepreneurship, finance and customer service. He said these skills would enable him to thrive in diverse roles or manage his on culinary ventures. In the SVI form the applicant estimated that a chef or hospitality manager with international qualifications could earn between PHP35,000 – PHP70,000 ($996 - $1912AUD) [4] per month initially, increasing with experience.
[4] Applying an exchange rate of 1 Philippines Peso (PHP) = $0.0273 Australian dollar (AUD) as at 24 August 2025
Having accepted the applicant’s genuine intention to become a chef, the Tribunal accepts the proposed courses of study are directly relevant to the applicant’s proposed career pathway. The Tribunal accepts the applicant’s previous qualifications and experience in business and marketing in the Philippines, together with the qualifications and experience attained in Australia, are relevant to the applicant’s plan to operate his own catering business and ultimately restaurant in the Philippines.
Immigration history
The applicant initially applied for a student visa while in the Philippines for the purposes of studying a Master of Business Administration with an expected completion of June 2025. This visa was granted (subclass TU-500) in June 2023 and the applicant arrived in Australia on 1 August 2023. The applicant had not previously travelled to Australia and there is no evidence before the Tribunal that the applicant has been refused any other visa applications in Australia or any other countries.
The applicant withdrew from the MBA and enrolled in the proposed courses and lodged a further application for a student visa on 29 September 2023. This application was refused. The Tribunal considers that by lodging a further application for a student visa when he changed courses, the applicant demonstrated a willingness to act in good faith and comply with the student migration programme.
The applicant was granted a Bridging Visa A (subclass WA-010) on 29 September 2023, with a work limitation condition (condition 8105) attached. As set out below, the Tribunal is satisfied the applicant has complied with the conditions attached to his Bridging Visa A, specifically the work limitation in condition 8105.
The applicant’s initial student visa would have expired in June 2025. He is due to complete the current diploma course in October 2025, only 4 months after the expected completion date for his initial course. His representative submitted at the hearing that he has paid course fees for both courses. The applicant does not hold any further confirmation of enrolment certificates and is not proposing to engage in any further study. The Tribunal has considered that at the time of completing his proposed courses, the applicant will have been in Australia for a period of 2 years and 2 months.
The applicant has stated in the SVI form a desire to gain hands-on experience in the culinary field by working in reputable establishments in Australia. The Tribunal finds this is still consistent with an intention to remain in Australia on a temporary basis and would be subject to the applicant being granted a further temporary visa.
The Tribunal is not satisfied after a consideration of the applicant’s immigration history, that there is any evidence to suggest that the applicant is using the student visa to maintain ongoing residence in Australia or to circumvent the intentions of the migration programme.
Other relevant information
The applicant has consistently stated a clear intention to return to the Philippines after finishing his studies in his GTE statement and in his evidence given at the hearing. The Tribunal accepts the applicant has a genuine intention to return to the Philippines.
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). 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)): 8535 (limited visa entitlement), 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).
The applicant stated clearly in his GTE statement that he is committed to adhering to all visa regulations and requirements while in Australia and striving to maintain satisfactory academic progress throughout his course.
The Tribunal notes that the applicant’s Bridging Visa A (subclass WA-010) is subject to a work limitation (condition 8105). The applicant gave evidence at the hearing that he is unable to work more than 48 hours a week and has been diligent in complying with this condition. There is no evidence before the Tribunal that this is not the case.
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 are no other matters relevant to an assessment of whether the applicant is a genuine applicant for entry and stay as a student.

CONCLUSION

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(s): 28 July 2025
Representative for the Applicant: Mrs Marimi Tanag (MARN: 1386887)
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.