Tanada (Migration) - [2025] ARTA 1023

Tanada (Migration) [2025] ARTA 1023 (25 June 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Crystel Joy Tanada
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2504264

Tribunal:General Member D. Barker
Place:Sydney
Date: 25 June 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 June 2025 at 4:16pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Circuit and Family Court remittal – genuine temporary entrant – applied after arriving on visitor visa – consistent enrolment and academic progress – coherent and credible explanation for study choices – work history and future intentions in home country – sister’s intention to live in Australia, and applicant’s responsibility to care for mother with disability – intention to leave after completing current degree course – application under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 375A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
CASES
Baker v MIAC [2012] FCAFC 145
Chen v MIBP [2017] FCA 46
Cockrell v MIAC (2008) 171 FCR 345
FKP18 v MIBP [2018] FCA 1555
Jagroop v MIBP (2014) 225 FCR 482
Kaur v MHA [2019] FCCA 1372
Khan v Minister for Immigration [2019] FCCA 565
MIAC v Obele (2010) 119 ALD 358
Tshering v MHA [2019] FCCA 2667
Williams v MIBP (2014) 226 FCR 112
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 June 2019 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 April 2019. 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 the applicant intends genuinely to stay in Australia temporarily.
The applicant requested a review of this decision and the Administrative Appeals Tribunal (the AAT), on 16 September 2020, affirmed the visa refusal decision. The applicant subsequently appealed to the Federal Circuit and Family Court of Australia (the FCFCA) and on 3 December 2024 the FCFCA remitted the matter to the Tribunal for determination according to law.
The applicant appeared before the Tribunal on 18 June 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Filipino and English languages.
The applicant was assisted in relation to the review. 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 national of the Philippines and is 31 years old. She first travelled to Australia on 25 January 2019 on a Subclass 600 Visitor visa, which was valid until 25 April 2019. The applicant then applied for the Subclass 500 Student visa (Student visa) on 8 April 2019. It is this latter Student visa application which is the focus of the current review.
The delegate’s decision record, a copy of which was provided with the review application, in explaining why they were not satisfied that the applicant met required genuine temporary entrant criteria expressed concern, amongst other things, that the applicant did not provide evidence of having business ties or the ownership of assets in her home country. The delegate also found that whilst the applicant had personal ties in the Philippines, these did not in themselves constitute a strong incentive for her to return to the Philippines. The delegate was also concerned that the applicant had not produced evidence of the study she claimed that she had undertaken in the Philippines in the hospitality and restaurant vocational arena, nor of why she wished to study further in this vocational field in Australia.
In association with the visa application the applicant provided the Department of Home Affairs (the Department) with documents, including but not limited to the following:
·Application for a Student visa – Record of Responses, generated 8 April 2019.
·Confirmation of Enrolment (CoE) for:
i.General English, commencing 18 March 2019 and finishing 8 December 2019.
ii.Certificate III in Commercial Cookery, commencing 20 January 2020 and finishing 11 April 2021.
iii.Certificate IV in Commercial Cookery, commencing 12 April 2021 and finishing 16 January 2021.
iv.Diploma of Hospitality Management, commencing 17 January 2022 and finishing 3 April 2022.
In association with the review application the applicant provided the AAT with documents, including but not limited to the following:
·Department delegate decision record dated 7 June 2019.
·Duplicate copies of CoE’s for:
i.General English, commencing 18 March 2019 and finishing 8 December 2019.
ii.Certificate III in Commercial Cookery, commencing 20 January 2020 and finishing 11 April 2021.
iii.Certificate IV in Commercial Cookery, commencing 12 April 2021 and finishing 16 January 2021.
iv.Diploma of Hospitality Management, commencing 17 January 2022 and finishing 3 April 2022.
·Documentation regarding applicant’s sister’s proceedings in Family Court of Australia.
·Written document titled ‘Statement of Purpose.’
·Financial support letter from the applicant’s sister.
·On 7 May 2020, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act[1], inviting them to complete a questionnaire providing information about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student The Tribunal received a response to the s 359(2) letter on 11 May 2020.
·Support letter from Nonika de Jorgensen, ELICOS trainer.
·Certificate of Attainment – General English course, issued 11 December 2019.
·Certificate of Attendance - Certificate III in Commercial Cookery, issued 11 May 2020.
- Academic Interim Progress report - Certificate III in Commercial Cookery, issued 11 May 2020.
[1] Now repealed.
Subsequent of the remittal of the review application the applicant has filed with the Tribunal:
·Completed Administrative Review Tribunal – Request for Student visa information form.
·Representative written submission dated 8 June 2025.
·Certificate IV in Commercial Cookery – issued 16 July 2021
·CoE for Bachelor of Business, commencing 21 July 2025 and finishing 21 June 2027.
·Google search results sourced 8 June 2025 titled ‘benefit of Australian degree in Philippines in hospitality’.
·Document sourced on 9 June 2025 from ‘China.org.cn’ titled Philippine tourism revenue records 13.1 bln USD in 2024.
·Information sourced on 8 June 2025 from Economic Research Institute titled ‘Hotel General Manager Salary in Philippines.
·Certification of Shareholding issued 26 May 2025 by Ultratek Engineering and General Services.
Certificate issued under s 375A of the Act
In the Departmental file, there are documents covered by a certificate issued under Section 375A of the Act on 23 May 2025. This Certificate was discussed when the applicant appeared before the Tribunal, at which time the Tribunal informed the applicant that it did not consider the Certificate to be valid as it was not satisfied adequate reasons were provided as to why it was in the public interest the documents are not disclosed. The reasons put forward in the certificate being:
these documents contain the details of a Department’s officer and the disclosure of this information for purposes other than to the Administrative Review Tribunal would be contrary to the public interest, therefore it should remain confidential. The disclosure of this information may also lead the applicant to find out how the department conducts their internal processes and may affect future capacity to obtain information using these methods.
Whilst the Tribunal accepts there are valid reasons as to why details of a Department officer should not be disclosed, the Tribunal can see no reason such details could not be redacted in any document release in a manner consistent with usual privacy principles. As to whether information may also lead the applicant to find out how the Department conducts their internal processes, which may affect future capacity to obtain information using these methods, the documents in question pertain to correspondence between the Department and the applicant in response to enquiries made by the applicant about her application for a Bridging visa. There is nothing in the documents regarding the methodology by which the Bridging visa application has been assessed, or as to investigations undertaken by the Department about the Bridging visa application The Tribunal is not persuaded why the release of the documents would have the possible adverse consequences highlighted by the Department.
Whilst there was no request from the applicant, or their representative for access to the certificated documents, the Tribunal nonetheless provided them with the gist of the information covered by the documents, as referred to above. Further to this, the Tribunal informed the applicant that it considered information pertaining to enquiries about her Bridging visa application to be irrelevant to the issues under consideration by the Tribunal in this review and that no weight would be placed on this material.
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 a genuine applicant for entry and stay as a student.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 108, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Direction is a lawful direction of the Minister.[2] The Tribunal is therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[3] Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before the Tribunal. However, it is recognised that the Tribunal is an independent statutory body and must therefore reach its own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate. In this regard, the Tribunal notes well established case authority as to the proper approach by decision makers to guidelines such as the Direction[4] and McNab J’s view that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.[5]
[2] In accordance with section 499 of the Act.
[3]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].
[4]Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]), Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) and Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]).
[5]Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47] per McNab J).
Prior to the hearing, the Tribunal on 13 May 2025 obtained a copy of the applicant’s record from the Provider Registration and International Student Management System (PRISMS). The applicant has provided information to the Tribunal consistent with that in the PRISMS record in responses provided in the s 359(2) questionnaire provided previously to the AAT and the more recent Request for Student visa information form filed with the Tribunal. The applicant’s PRISMS record as obtained by the Tribunal obtains a small amount of additional information, none of which is a reason or part of a reason why the Tribunal might affirm the delegate’s decision. This more recent information shows that the applicant was studying a Graduate Diploma of Management (Learning), due to finish on 18 May 2025 and had successfully completed the following courses:
·     General English – between 18 March 2019 and 8 December 2019.
·     Certificate III in Commercial Cookery – between 20 January 2020 and 11 April 2021.
·     Certificate IV in Commercial Cookery – between 12 April 2021 and 16 January 2022.
·     Diploma of Hospitality Management – 17 January 2022 and 3 April 2022.
·     Advanced Diploma of Hospitality Management – between 11 April 2022 and 9 April 2023.
·     Certificate IV in Patisserie – between 22 May 2023 and 19 May 2024.
The Tribunal considered the applicant’s circumstances in their home country. According to the evidence the applicant’s mother, a maternal aunt and cousins reside in the Philippines. The applicant explained that she and her elder sister were brought up by their mother in a single parent household. The applicant’s mother is deaf and as the applicant’s sister intends to reside permanently in Australia, the applicant perceives it is her responsibility to take care of their mother as she grows older. The Tribunal was satisfied the applicant’s evidence with respect to this factor was heartfelt and has given positive weight to this factor.
The applicant has returned to the Philippines on one occasion, for two weeks in October 2019. However, in considering the relevance of this factor the Tribunal is mindful of travel restrictions associated with the COVID-19 pandemic during 2020 and that the applicant has not had re-entry rights on the Bridging visa she was granted on 15 October 2020. Relevant to another factor the Tribunal has considered, the applicant has also lacked work rights since her arrival in Australia in 2019 and there is no evidence before the Tribunal which would demonstrate she has earned income from employment in contravention of this visa condition.[6]
[6]Visa Condition 8101.
As to assets held in her home country, the applicant drew the attention of the Tribunal to shares she holds in a Philippines business, ‘Ultratek Engineering and General Services.’ She holds shares which in May 2025 had a share value of PHP 300,000[7], which is equivalent to around $8,133.[8] In considering the relative value of this financial asset the Tribunal is mindful of the applicant’s evidence regarding her annual salary in her most recent employment in her home country, which was equivalent to an annual amount of $5,500.[9]
[7] Certification of Shareholding issued 26 May 2025 by Ultratek Engineering and General Services.
[8] Administrative Review Tribunal – Request for Student visa information form.
There is no evidence before the Tribunal which would indicate that the applicant’s economic circumstances, relative to those that she would have in Thailand, are better in Australia. It is the applicant’s contention that the knowledge and skills that she is acquiring through her study in Australia will assist her improve her prospects in the Philippines, through providing the opportunity for her to either open her own restaurant business, or transition from working in restaurants to employment in the hotel sector.
When the evidence regarding the applicant’s circumstances in her home country is considered cumulatively, the Tribunal is satisfied the applicant’s personal and economic ties to the Philippines provide her with an incentive to return there and considers positive weight should be given to this factor.
As to the applicant’s circumstances in Australia, potential or otherwise. The Tribunal is mindful of the concern held by the AAT regarding the applicant’s commitment to supporting her sister who was at that time in 2020 involved in proceedings in the Family court. At hearing the applicant gave evidence that these proceedings are now completed and that her sister has primary care of her child, with her sister’s ex-partner having access with the child every second weekend. The applicant indicated that she resides with her sister and assists with picking up her sister’s child from school. She indicated she does this as her sister is in fulltime employment and as she herself does not work and her study commitments allow it, she is happy to be of assistance in this way. The applicant gave evidence that her assistance is not however essential, as her sister has re-partnered and in the event the applicant was not available to pick the child up from school, her sister’s partner could take up this role.

There is no evidence that the applicant has military service commitments in the Philippines, or concerns about civil or political unrest which may act as an incentive for her not to return there. The applicant has made consistent academic progress since commencing her study in Australia. When this evidence is considered cumulatively, the Tribunal is satisfied the applicant’s circumstances in Australia do not present as circumstances providing her with a strong incentive to remain in Australia and considers positive weight should be given to this factor.
Regarding the value of the course to the applicant’s future, the applicant gave evidence at hearing that she has recently completed a Graduate Diploma of Management (Learning) course and is due to shortly commence a Bachelor of Business course which has a focus on hospitality management. The applicant, when asked by the tribunal, was able to provide a coherent explanation for her study choices since she commenced study in Australia. She detailed her past employment in restaurants in the Philippines and her progression to team leading roles in this vocational sector in her home country. The applicant described her aspiration for more satisfying and better paid work in the hotel sector and that the qualifications, skills and knowledge she is acquiring through study in Australia will significantly improve her chances of securing this sort of work on her return to her home country.
At hearing the applicant was able to discuss the application of concepts from her most recent study in the Graduate Diploma of Management (Learning) to workplace situations in hospitality settings. She also provided a reasonable explanation as to why she ‘filled a gap in her skills’ through undertaking the Certificate IV in Patisserie after completing the earlier commercial cookery and hospitality management courses. In relation to this factor, the Tribunal is satisfied the applicant has provided a credible explanation as to the relevance of her study pathway whilst in Australia.
The applicant gave evidence that her intention is to return to The Philippines upon completion of a Bachelor of Business degree in June 2027 and the Tribunal is not persuaded there is probative evidence before it to establish the applicant’s contentions with respect to this factor are disingenuous.
The assessment of the Tribunal is that there is no evidence which would indicate that the student visa programme is being used to circumvent the intentions of the migration programme, or that the application for a Student visa is being used to maintain ongoing residence. The Tribunal is satisfied that the applicant has a realistic level of knowledge regarding the course she has undertaken and of living arrangements for her remaining time in Australia.
The Tribunal does not consider there to be anything adverse in the applicant’s migration history.
Considering the application against all factors specified in Direction 108 and other information raised by the applicant, the Tribunal is, on balance satisfied that the genuine temporary entrant criterion is satisfied. The Tribunal considers the applicant should be given the opportunity to complete the courses she is enrolled in before her return to her home country.
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.
There is no indication that the applicant has failed to comply with conditions imposed on her current or previous visas.
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)).
The evidence which is now before the Tribunal does not raise concern that the applicant’s bonds with her elder sister provide her with a reason or motivation to remain in Australia indefinitely. Indeed, the assessment of the Tribunal is that the applicant, whilst having a familial connection to her sister and her sister’s child, has a strong connection to her mother in the Philippines and a commitment to supporting her mother which provides her with an incentive to return to her home country upon completing her studies in Australia. In conjunction with her consistent academic progression on a coherent study pathway which is relevant to her past employment and future aspirations, 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): 18 June 2025
Representative for the Applicant: Ms Navneet Singh (MARN: 0963866)
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.