Villacampa (Migration) - [2025] ARTA 1892

VILLACAMPA (MIGRATION) [2025] ARTA 1892 (12 SEPTEMBER 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Gerald Arranchado Villacampa
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2410254

Tribunal:General Member T H R Baggiano
Place:Brisbane
Date: 12 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 12 September 2025 at 9:02am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – applied after arriving on visitor visa – family, including young child, and family’s property and business in home country – previous study and work in home country and another, including change of study/work area, and partner currently working in other country – recent promotion and motivation to develop skills – certificate completed and diploma in progress – value of courses to applicant’s future – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
CASE
Saini v MIBP [2016] FCA 858
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on 15 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 16 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 because the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) on the basis that he is not a genuine applicant for entry and stay as a student.
The applicant appeared before the Tribunal on 11 September 2025 to give evidence and present arguments.
The applicant was assisted in relation to the review.
For the following reasons, the Tribunal sets aside the decision under review and remits the visa application for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Student visa application
The applicant entered Australia on 18 July 2023 a holder of a Visitor (subclass 600) visa. Whilst in Australia and prior to the expiry of his visitor visa, the applicant lodged a student visa application on 16 October 2023.
Evidence before the Tribunal
The Tribunal has before it a copy of the Department’s file which includes the applicant’s student visa application, genuine temporary entrant letter, identity documents, de facto partner and son’s identity documents, confirmations of enrolment documents, certificates of employment, family photos, education certificate, evidence of family rental business permit, evidence of family’s water refilling business, evidence of financial capacity and assets, evidence of pension fund, UAE work visa and evidence of overseas student health cover.
On 8 August 2025, The Tribunal received a completed Tribunal student visa information form from the applicant as well as legal submissions from his representative addressing the applicant’s background, applicant’s circumstances in the Philippines, applicant’s circumstances in Australia, why the applicant opted to study in Australia and not in any other country, value of the course to the applicant’s future and applicant’s immigration history. The submissions were also accompanied by a genuine temporary entrant statement, delegate’s refusal decision, family photos, Form 54 containing details of family composition, de facto partner’s proof of employment, son’s enrolment in elementary school, evidence of financially capacity and assets, evidence of family’s business; education certificates, employment certificates, applicant’s payslips from UAE, applicant’s resignation letter to UAE employer, certificates of enrolment, class photos and evidence of payment of tuition fees.
Prior to the scheduled hearing, the applicant’s representative provided the following information to the Tribunal:
a.Completed ‘Response to hearing notice’ form dated 27 August 2025;
b.Updated legal submissions dated 2 September 2025;
c.Letter from legal representative dated 4 September 2025 summarising all the submissions and evidence previously submitted to the Tribunal, as mentioned in paragraph 9.
The Tribunal also has before it, information from the Provider Registration and International Student Management System (PRISMS) outlining the applicant’s enrolments, and his movement records evidencing travels in and out of Australia and the Australian visas granted to him.
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.
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.
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.
Evidence at hearing
I acknowledged the written evidence that the applicant had already provided prior to the scheduled hearing date. I explained that while I would be taking into consideration all written and oral evidence, I would be using a targeted approach at hearing to focus on the factors that I thought needed further discussion and assessment.
Family in the Philippines and in Australia
The applicant’s mother, brother, sister and the applicant’s son all reside in the Philippines.
The applicant’s son will remain in the Philippines, and he has just started grade one of primary school.
The applicant’s de facto partner is currently residing and working in the United Arab Emirates.
The applicant has a cousin who resides in Australia.
Immigration and travel history
I discussed with the applicant that according to the Department’s movement records which set out his entries and departures from Australia as well as all Australian visas granted to him, he last entered Australia on 18 July 2023 on a visitor visa. I asked the applicant to explain the reason for his visit to Australia. In response, he stated that he had been working in living in Dubai at the time and took some leave to visit his cousin in Australia.
Asked when he decided to pursue studies in Australia and whether he had made up his mind in Dubai or in Australia, the applicant explained that while he was completing his visitor visa application form, he saw a reference to the limited study conditions that would attach to the visitor visa. At that time, the applicant had worked in Dubai for 10 years in the sales department of his place of employment and thought that if he had the opportunity to pursue high quality education in Australia it might be an advantage for him should he return to the Philippines or the United Arab Emirates. He thought that gaining an education from Australia might benefit him and allow him to apply for a higher position in his line of work. He stated that when he left Dubai, he had been promoted from a sales associate position to a sales senior associate position and was motivated to learn more and develop his skills.
I discussed with the applicant that according to movement records, he had not returned to the Philippines since coming to Australia on 18 July 2023. I explained that I needed to take into consideration any extended periods of stay in Australia when assessing circumstances in Australia against circumstances in his home country. The applicant stated that he was focused on his studies but also the appeal process for his student visa application.
Change in study path
I noted that the applicant had completed a hotel and restaurant management course in March 2008, and that after graduation he held various jobs such as stock clerk and kitchen hand before taking up sales roles in the United Arab Emirates.
Asked why he chose to study hotel and restaurant management, the applicant explained that he had previously had a dream of working as a seafarer and thought that undertaking this course would give him an opportunity to pursue this dream. While he then worked as a kitchen hand in the Philippines for a short period of time, which was relevant to his studies, he then moved into two stock clerk roles in the Philippines before taking up a sales opportunity in the United Arab Emirates.
Asked how his sales role was relevant to his previous studies, the applicant stated that the qualifications had some relevance as there was a focus on management units, and these were skills he applied in his sales roles. He also pointed out that his previous role as a stock clerk involved sales aspects.
Asked why the applicant did not pursue any hospitality-related roles in the United Arab Emirates, he stated that those roles came with much lower salaries. When he saw a sales associate role open up in the United Arab Emirates, he pursued that opportunity. He had an advantage in terms of securing the role as he had had prior experience in sales given his employment as a stock clerk.
I asked the applicant whether his change in career was driven by the desire for financial stability and better earnings, to which the applicant answered in the affirmative.
The applicant stated that he pursued studies in marketing as he had worked for 10 years in sales. His plan is to use his course to pursue higher-level roles and take him to the next stage of his career goals. He believes that with these qualifications in hand, he could secure a better job and higher salary.
Comparison of ties to Australia and ties to the Philippines
The applicant stated that he has a wonderful family, including his son in the Philippines. His family have an apartment rental and a water filling station business in the Philippines. The applicant spoke about always putting his family first. He stated that he wanted to go back to the Philippines after the completion of his studies to apply for a higher position. Once he completes his Australian studies, he will have the advantage of an international qualification which will hopefully increase his chances of applying for higher-level marketing roles.
I noted that the applicant had provided evidence of his family’s assets. I asked the applicant whether any of those assets belonged to him personally.
The applicant explained that the family home is currently in his mother’s name but that he would inherit that home should his mother pass away in future. The eater filing station is under his mother’s name. The apartment rental is under his sister’s name.
The applicant has only his cousin who resides in Australia.
Course progression and knowledge of courses
I discussed with the applicant that according to the Provider Registration and International Student Management System Records (PRISMS), he had finished his Certificate IV in Marketing and Communication. However, these records also show that he had originally enrolled in the Certificate IV course on 30 October 2023 and it was due to be completed on 27 October 2024. I asked the applicant what happened to this enrolment. The applicant explained that while his original confirmation of enrolment was meant to run from October 2023 to October 2024, he unfortunately needed to repeat three of 12 of his units. He had sought his instructor’s advice and they recommended that he extend his studies to allow himself time to rectify the results of those three units. He emphasised that he ultimately completed the Certificate IV.
I noted that the applicant’s original Diploma of Marketing and Communication course was also cancelled due to non-commencement of studies. I asked the applicant whether the cancellation was due to the delayed completion of his Certificate IV course, and he confirmed this to be correct.
The applicant was able to confidently speak about the units he completed as part of his Certificate IV course and noted that he enjoyed working with his classmates, particularly in relation to their group presentation, which was evidenced by photographs within the classroom setting.
The applicant stated that in relation to his in-progress Diploma course, he has completed six units and had a statement of attainment to evidence that.
Value of courses to the applicant’s future
The applicant stated that once he has completed his course, he plans to apply for higher-level positions in the Philippines or any other country should such opportunities arise. After completion of his studies, he will be seen as holding an international qualification which will give him a competitive edge when it comes to applying for jobs. His career goals and desired career trajectory are driven by his family being his number one priority and wanting to provide for them. In addition to his studies in Australia and 10 years of sales experience, he would like to pursue marketing manager or marketing specialist roles.
He spoke about a specific business precinct within the Philippines where he believes he will be able to apply for marketing roles. Based on the market salary research he had completed, he is of the view that he would be able to earn PHP 135,000 per month.
Applicant’s representative’s oral submissions
The applicant’s representative made oral submissions at hearing. The submissions are summarised as follows:
a.In relation to the applicant’s non-return to the Philippines since arriving in Australia, this has been because he has been studying full-time, and due to the minor issue with course progression. He wanted to concentrate on his studies and was also fearful of returning to his home country as he wanted to ensure that his appeal process was not impacted. While it would have been possible for him to travel home and subsequently return to Australia on a Bridging Visa B, his preference was to wait out the appeal process;
b.There is a relationship and link between his prior course in hospitality management and current course in marketing. He originally undertook the hospitality management course in the Philippines as he wanted to work as a seafarer, but such employment opportunities did not present themselves. A career in hospitality would not come with a lucrative income. Therefore, as he wanted to provide well for his family, he pursued marketing to advance his knowledge and skills and his ability to secure relevant work;
c.The applicant has strong family, social and economic ties to the Philippines. His mother and siblings remain there. The applicant comes from a culture where focus on family and family tradition are strong factors. The applicant also has a child who resides and studies in the Philippines and it is the applicant’s intention for his child to remain within the Filipino culture and environment;
d.The applicant’s study and work history directly align with the course he has chosen to undertake in Australia. His reasons for studying in Australia are the quality of education and the value it will bring to his career which, in turn, will allow him to provide for his family and also the lifestyle;
e.The applicant has outlined his future career plans which include the options of pursuing marketing roles in the United Arab Emirates or the specific business in the Philippines which the applicant referenced earlier;
f.In terms of immigration compliance, the applicant has had no visa cancelations. He entered Australia lawfully and has complied with all conditions. He has not engaged in work;
g.The applicant has the financial capacity to continue his studies. He also has adequate health insurance and has adjusted his insurance so that it covers the period left on his confirmation of enrolment;
h.Overall, based on the applicant’s testimony and supporting documents, he meets the requirements as a genuine student for temporary stay in Australia and the requirements in cl 500.212 and Direction 108 are met.
Analysis
In determining the issues before me, I have taken into account guidance from case law which stipulates that cl 500.212(a) is:
a.only concerned with how long a visa applicant intends to stay in Australia; and
b.where, at time of decision, an applicant has a settled intention to later seek a visa that will lead other than to temporary residence, it is unlikely that there is an intention to stay temporarily.[1]
[1] Saini v MIBP [2016] FCA 858.
For reasons set out below, I am satisfied that the applicant genuinely intends to stay in Australia temporarily and will return to the Philippines upon completion of his studies.
In addition to the applicant’s oral evidence at hearing, I have taken into account his original genuine temporary entrant statement provided with his student visa application, as well as the supplementary information he provided to the Tribunal by way of his completed Tribunal student visa information form and representative’s legal submissions.

I accept the applicant’s oral evidence regarding his reasons for changing his study path. While he had originally studied hospitality management in the Philippines in the hopes to pursue a career as a seafarer, this opportunity did not present itself. As discussed above, the applicant then undertook a number of other roles, including a stock clerk roles which were related to sales. When the sales associate opportunity in the United Arab Emirates arose, the applicant used his prior sales experience to secure this role. He remained in sales roles for a significant period of 10 years. Driven by his desire to create a financially stable environment for his family, I accept his explanation that he has pursued marketing studies in Australia to elevate his career and apply for higher-level marketing jobs. I acknowledge and accept that a person can be motivated by goals of creating a financially stable environment for their family and that these motivations can shape the direction of their study and career path. This is certainly the case for the applicant, but I also note that his knowledge and enjoyment of his current marketing course demonstrates that he also has a keen interest and passion for this area.
I am of the view that the applicant’s reasons for changing his study path are genuine. I give significant weight to the applicant’s prior employment experience as a stock clerk, sales associate and sales senior associate, all of which are related to his marketing course. I accept that the areas of sales and marketing are interrelated. I also give significant weight to the applicant’s course progression (despite having to rectify three units) and successful completion of his Certificate IV in Marketing and Communication on 8 December 2024 and satisfactory progression in his current Diploma of Marketing and Communication as evidenced by his statement of attainment. He has maintained good course progress despite his student visa being refused by the delegate on 15 April 2024.
The applicant has provided a solid career plan through his written and oral evidence. He has stated that he intends on applying for marketing manager or marketing specialist roles in a reputable company and anticipates that he would be able to earn a competitive and substantial salary based on his professional experience, expertise and the added advantage of holding qualifications from a respected country with a strong education system. He stated that he is dedicated to ongoing professional development and actively seeks opportunities to enhance his marketing knowledge and skills. The applicant is committed to supporting his ability to secure higher salaries as his career advances. He is of the view that his Australian qualifications will set him apart from graduates of local universities or colleges in the Philippines who usually attract lower earning potential of entry-level marketing officers.
Written submissions provided to the Tribunal prior to hearing also thoughtfully set out the units that applicant believes will provide him with vital knowledge and skills to design and develop marketing communication plans. He also stated that in today’s technologically advanced world, marketing skills are essential for the growth of any business. The applicant wishes to introduce fresh and innovative marketing ideas to his home country and believes he can do this one he acquires the relevant skills and knowledge from his Australian courses.
In addition to the market salary evidence the applicant provided at hearing, he has also provided market salary research for potential earnings for marketing managers and specialists from the Philippines and United Arab Emirates.
I cannot give any weight to the applicant’s claimed likelihood of inheriting his mother’s home as this is speculative. However, I give weight to the applicant’s familial and cultural ties to the Philippines, namely his ties to his mother and siblings. While I cannot give weight to assets that legally belong to the applicant’s various family members, I acknowledge that such assets and the ties to family members’ ties to these assets increase the likelihood of the family members remaining in the Philippines, meaning that there will continue to be an incentive for the applicant to return to the Philippines. While the applicant’s de facto partner is not residing in the Philippines, I note and give weight to the fact that she is residing in another country, being the United Arab Emirates, which provides an additional incentive for the applicant not to remain in Australia. I give significant weight to the applicant’s familial ties to his minor son who is a member of his immediate family. Given his son’s young age and commencement of schooling in the Philippines, I am of the view that this relationship serves as a significant incentive for the applicant to return to his home country.
As the applicant only has a cousin currently residing in Australia, I am of the view that the applicant’s family ties in the Philippines (and also to his de facto partner in the United Arab Emirates) significantly outweigh his ties in Australia.
I have accepted the applicant’s reasonable explanation for his lack of travels back to the Philippines after last arriving in Australia, being that he was studying full-time and wanted to focus on his course progression and that he was also fearful of returning home whilst his appeal process was in progress with the Tribunal.
There is no information before me to suggest that the applicant has military service obligations, or that there is political or civil unrest in the Philippines that would present as an incentive for the applicant to remain in Australia.
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 applicant has confirmed his compliance with all previous and current visa conditions. He is aware of condition 8101 (no work) imposed on his current bridging visa and has confirmed that he has not engaged in any work since arriving in Australia. Based on the evidence before me, I am satisfied that the applicant has complied with the visa conditions of his current and 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)).
There are no other relevant matters that arise for consideration under cl 500.212(c).
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.
T H R Baggiano
General Member
Dates of hearing(s): 11 September 2025
Representative for the Applicant: Mrs Mary Jean Quevenco Zaini (MARN: 2318011)
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.