Watanabe (Migration) - [2025] ARTA 1454

WATANABE (MIGRATION) [2025] ARTA 1454 (29 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Miho WATANABE
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2407774

Tribunal: General MemberL Hill
Place:Brisbane
Date: 29 July 2025
Decision:The decision under review is affirmed.
Statement made on 29 July 2025 at 1:40pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – applied after arriving on working holiday visa – mother in Australia with similar visa history – volunteering at temple now ceased but accommodation and food provided – other family and temple activities in home country – English language and vocational courses – enrolment at lower level than previous highest – non-commencement of previous courses in different subjects area – vague descriptions of college and course, and no evidence of course progress provided – father/sponsor’s expectations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 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 4 November 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).
The applicant appeared before the Tribunal by video on 17 July 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Japanese and English languages.
The applicant was assisted in relation to the review. The representative did not attend the Tribunal hearing.
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.
For the following reasons, the Tribunal considers the decision under review should be affirmed.
CLAIMS AND EVIDENCE
Evidence before the Department
The applicant is a 31-year-old female. She last arrived in Australia on 6 December 2022 on a Working Holiday (subclass 417) visa. This visa was to cease on 6 December 2023. On 4 November 2023, the applicant applied for a student visa.
The applicant has also spent previous periods of time in Australia on a Visitor visa (subclass 600) visa or a Subclass 601 Electronic Travel Authority between 6 March 2020 and 10 September 2020; 25 October 2019 and 3 December 2019; 24 March 2019 and 21 May 2019; 1 December 2018 and 24 February 2019; 18 August 2018 and 3 November 2018; 21 April 2018 and 8 July 2018.
In support of her application for a student visa, the applicant provided the following:
·Certificate of Graduation and Academic Record – Bachelor of Arts and Sciences – Tokyo Women’s Christian University – 5 April 2012 to 18 March 2016.
·Applicant’s Personal Statement on Genuine Temporary Entrant dated 1 November 2023 explaining her study of General English course at Union Institute of Language and a Diploma of Remedial massage and Advanced Diploma of Myotherapy at Mastery Institute Australia (2023 Statement).
·Applicant’s Resume.
·Copy of original and NAATI-accredited English translation of the Applicant’s Birth Certificate.
·BUPA Overseas Student health Cover Verification Letter for period 20 November 223 to 30 April 2027.
·Biographical/Biodata and pages showing various visas of applicant’s Japanese passport.
On 7 March 2024, the Department wrote to the applicant and requested her to provide more information to help them assess her application. In summary, she was asked to complete a Form 80 and provide further details of her English language proficiency, responses in relation to the genuine temporary entrant criterion and evidence of her finances.
In response to the Department’s letter dated 7 March 2024, the applicant provided the following:
·Certification of the Balance of Deposit dated 21 March 2021.
·Completed Form 80 dated 28 March 2024 (Form 80).
·Payment Summary for IELTS Test – Test Date 8 June 2024.
Evidence before the Tribunal
At the time of the hearing, the applicant was studying her Certificate IV in Kitchen Management at Mastery Institute Australia and was enrolled in the Diploma and Advanced Diploma of Hospitality Management. Based on the information available from the Provider Registration and International Student Management System (PRISM) database, the Tribunal is satisfied the applicant is currently enrolled in a registered course of study.
Further, the Tribunal has considered the documentary evidence on the Tribunal’s file provided by the applicant, including:
·ART ‘Request for Student Visa Information’ dated 28 March 2025 (ART form).
·ART Submission from the applicant’s representative – uploaded 4 July 2025.
·Mastery Institute of Australia – Letter of Enrolment for Certificate IV in Kitchen Management dated 23 June 2025.
·CoE for Certificate IV in Kitchen Management, Diploma of Hospitality Management and Advanced Diploma of Hospitality Management.
·University of Southern Queensland – Confirmation of Enrolment – General English end date 13 September 2024 and IELTS Preparation Program end date 14 February 2025.
·Certificate of the Balance of Deposit dated 2 July 2025.
On 17 July 2025, the applicant appeared before the Tribunal by video to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Japanese and English languages. The applicant’s representative did not attend the Tribunal hearing.
The Tribunal has considered the material before it, including the applicant’s evidence at the Tribunal hearing and the documents provided by the applicant to the Department and Tribunal. A summary of the claims and evidence are set out below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay 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 Tribunal accepts that the applicant has family in her home country, that being her grandmother, father and younger sister and her cat. The Tribunal accepts that the applicant resided with her family prior to her arrival in Australia. The Tribunal accepts the applicant has two bank accounts in Japan. The applicant has provided a bank statement for one of these accounts. The Tribunal also accepts the applicant continues to maintain community ties with the Temple of Ultimate Bliss located in Japan and that she has in the past volunteered at this temple.
The Tribunal asked the applicant whether she had previously undertaken any paid employment in Japan. She stated that as a university student, she held a causal job at a cake store at the railway station for approximately one month. Given her limited employment history, the applicant was asked how she financially supported herself in Japan. She stated that she was financially supported by her parents. Her father works in a hotel restaurant as a chef. Her sister works as a carer in an aged care facility.
The Tribunal accepts that the applicant’s personal ties, that being her family, community and limited financial ties provide some incentive for her to return to her home country. The Tribunal accepts these factors favour a finding that the applicant genuinely intends to stay in Australia temporarily.
In the ART form, the applicant has stated that Japan does not have mandatory military conscription, and she does not have any concerns about political or civil unrest on her return. The Tribunal accepts these factors favour a finding that the applicant genuinely intends a temporary stay in Australia.
At the Tribunal hearing, the applicant was asked why she had not returned to her home country and undertaken a similar course there. The applicant confirmed that it was possible for her to undertake a similar course in Japan. However, in addition to the skills and qualifications she will gain from these courses, she would also like to learn English. She would like to challenge herself and resit the IELTS and PTE Academic tests in the future. She also acknowledged that while she could study English in Japan, staying in Australia provided her with more opportunities to learn and use English daily.
The Tribunal accepts the applicant’s evidence regarding her desire to increase her English language skills as a reasonable motive to stay and undertake the courses in Australia. The Tribunal accepts this factor favours a finding that the applicant genuinely intends to stay in Australia temporarily.
In the ART form, the applicant has stated that her mother is in Australia. The Tribunal asked the applicant about her mother, ‘Ai Watanabe’. She confirmed that her mother is in Australia. Her mother travelled to Australia with her in December 2022. She was asked why they had travelled to Australia. She stated her and her mother serve as believers to the Buddhist temple in Japan. This Buddhist temple is also in Australia, and they came to Australia to work/serve this temple. She was asked what visa her mother had arrived in Australia on. She stated she wasn’t sure but believes it was a tourist visa. She was asked whether her mother had returned to Japan since their arrival in 2022. She stated no. She was asked when she thought her mother would return to their home in Japan. She stated her mother will return after she completes her studies in 2028. Her mother is currently studying the same courses that she is.
The applicant was asked about her statements in her Form 80 that she has a ‘friend’ in Australia, ‘Min-Chieh Wang’. She confirmed this was correct. This friend is also a part of the same religious group, the Buddhist temple. This friend has been very helpful including helping her with her visa application. She was asked how long her friend had been in Australia. She stated her friend has been in Australia for a long time.
The Tribunal asked the applicant about the community ties information in her ART form, that being her ties with the ‘Hsiang Kuang Pure Land Buddhism Centre’. She was asked to detail her involvement with this centre. She responded that she came to give her service to this Buddhist temple. However, since she has started to study, she is no longer able to give service. She was asked when she stopped providing service to this temple. She stated in November 2023, when she started her English language course. At that point, she stopped her volunteer work for the temple.
The Tribunal asked the applicant to describe her current living situation. The applicant stated that she shares a house with other people. Her and her mother share a room. She was asked whether her accommodation was provided by the Buddhist temple. She stated that it was. Her accommodation is inside the temple premises. She was asked how much she paid for her accommodation and food. She stated she makes no payment. Everything including food is supplied by the temple. She was asked if she was required to do anything in return. She responded that prior to starting her English course, she provided service to the temple. When she completes her course, she will start providing service to the temple again. She was asked if she intends to provide this service to the temple in Australia or Japan. She stated she plans to go back to Japan and give service to the temple through the skills she has learnt from the courses she has undertaken in Australia.
The applicant was asked if she had ever undertaken any employment since her arrival in Australia. She stated no, never.
The Tribunal accepts that the applicant’s mother is in Australia. However, as set out above, the applicant has stated, and the Tribunal accepts that the applicant’s mother’s stay in Australia is only temporarily; and as such, the Tribunal considers that given her mother’s current circumstances, this would not present as a strong incentive for the applicant to remain. The Tribunal accepts this factor favours a finding that the applicant genuinely intends to stay in Australia temporarily.
Notwithstanding this, the Tribunal does consider that based on the evidence before it the applicant’s community ties with Australia do present as a strong incentive to remain. As set out above, her evidence is that her board and lodgings are provided by the Buddhist temple. She does not pay for these services. Furthermore, she has provided evidence that prior to commencing her studies she provided service to the Buddhist temple. Her evidence indicates that she did this for approximately one year prior to commencing her English course.
At the Tribunal hearing, the applicant confirmed that she had successfully completed a General English course between November 2023 and September 2024 and a IELTS course between September 2024 and February 2025. Information available from the PRISM database confirms that she completed an IELTS Preparation Program between 27 November 2023 and 13 September 2024 and 16 September 2024 and 14 February 2025.
The applicant was asked about the document she had provided which indicated that she had been booked to sit the IELTS test on 8 June 2024. She was asked if she had sat that test and obtained the relevant score. She indicated that she did not. She stated that her English was not up to the required level. She instead sat for the PTE Academic test. She was asked if she received her results for the test. She responded that her results were not good. She was asked if she was going to sit the test again. She responded that she was studying for it.
The Tribunal asked the applicant about her intended courses. She was asked what course she was currently studying. She confirmed that she was studying Certificate IV in Kitchen Management. She was asked to provide the details of the subjects she was currently enrolled in. She responded that there was a range including in the areas of food safety and hygiene and stock and customer management.
The applicant was asked how often she was required to attend her course. After a long pause, she responded Monday to Friday, five days per week. She was asked where she attended the course. She stated Brisbane. She was asked where in Brisbane. She stated Brisbane city. She was asked what suburb she was living in. She stated in Goombungee. The applicant was asked how she travelled from Goombungee to her course in Brisbane city (google suggests travel time by car is at least two hours). She stated by car. She was asked where she parked her car. She stated in a parking lot. She was asked the name/location of the parking lot. She stated she doesn’t drive. They have a driver who drives them. She thinks there is a carpark at the school. She was asked how long she attended the course for each day. She stated they usually arrive at 8am and leave around 6pm. She was asked if she attended her course yesterday. She stated she didn’t. The teacher sent them a text message telling them there would be no class, so she didn’t go. She was asked when she last attended her course. She stated the day before yesterday.
The applicant was asked if her current course was delivered in English. She stated yes. Given her need to be assisted by a Japanese interpreter at the Tribunal hearing, the applicant was asked whether she could understand what was being taught. She indicated that her teacher also spoke Chinese and if there was a part she didn’t understand then the teacher would assist her in Chinese.
The applicant was asked if she had any evidence or documents to show the progress or completion of any of her course subjects. She stated no. They complete an assignment and task each week to graduate from the course. Her subjects remain ongoing, she hasn’t completed any subjects. She was asked to explain the details of the last assignment or task she completed. She responded that it related to budget management. Her teacher gave them a budget and they had to ensure that the business operated within that budget. She also had to complete a presentation in accordance with the task. This was some homework she had recently completed.
The Tribunal confirmed with the applicant that her evidence was that her course ran Monday to Friday from 8am to 6pm. She confirmed this was correct. They try to be at the school by 8am. Her classes start at 9:30am and finish at 3:00pm. She was asked if they had a lunch break during this period. She stated they had a short lunch break of 30 minutes.

The Tribunal discussed with the applicant that it had information before it that may be the reason or part of the reason for affirming the decision. Firstly, the Tribunal advised the applicant that the online information relating to her course states that there are 20 hours of face to face contact each week.[1] This information appears inconsistent with her evidence, that she attended each Monday to Friday for at least five hours per day or 25 hours per week.
[1] Mastery institute Australia, SIT 40521 Certificate IV in Kitchen Management - Course Structure (Webpage accessed 17 July 2025) <>
Secondly, the Tribunal also discussed with the applicant its concerns that her evidence regarding where the school was located and her description of how she travelled to the school including where they parked the car and how long the course ran for each day was vague and at times her responses appeared evasive. It was also suggested that given that she had been attending this course since March, it would be expected that she would have been able to provide more detailed evidence about the course structure and delivery method.
The applicant was advised that this information was important as it may lead the Tribunal to find that she is not enrolled for the reasons she has claimed and is not a genuine temporary entrant.
The applicant responded that the school is flexible in its delivery of its courses. She stated before she had studied this course online and now it is face-to face. They are very flexible and accommodate their situation as much as possible. Once the practical phase started, they could not provide the course online anymore. Now she attends every day from 9:00am. She further stated that if the teacher has something else on, the classes aren’t on. It is a very flexible arrangement. The next course is about emergency. They don’t have to attend the school, and this course will be provided online. She stated she doesn’t know anything about the parking because the driver stops at the school and drops them off. The driver then takes the car and parks it. She does not have a driver licence.
The Tribunal has considered the applicant’s responses but finds the applicant’s knowledge of the course to be extremely basis and lacking in detail. As set out above, apart from a general reference to several subjects, the applicant was unable to provide detailed information about any of the subjects she is enrolled in. Nor was she able to provide any specific details of the location of the school, which she claims to have been attending. Furthermore, the Tribunal finds it difficult to accept that as claimed, the applicant is travelling two hours each way, each weekday to attend the course. The Tribunal has considered the applicant’s explanation that the course is delivered flexibly, however, this is not consistent with the information regarding the mode of delivery, which states 20 hours face to face per week.
The Tribunal finds that the applicant’s knowledge of her course of study and the associated education provider is difficult to reconcile with the applicant’s and representative’s claim that the purpose of the applicant’s stay in Australia is to undertake studies in hospitality and kitchen management and are factors which weigh against a finding that the applicant genuinely intends to stay in Australia temporarily.
The Tribunal asked the applicant about the information in her ART form which indicates that she had enrolled in but never started a Diploma of Remedial Massage and an Advanced Diploma of Myotherapy. She responded that she changed courses as her father didn’t like what she had intended to study. She stated that she wanted to study remedial massage, but her father did not like her studying something like that. Her father is a cook and wants her to study kitchen management. As her father is the sponsor and paying for her tuition fees she must listen to him. She further indicated that her father was opposed to her choice because work in this area in Japan (massage) is low paid work.
The Tribunal observes that her verbal explanation at the Tribunal hearing regarding her reasons for the change in her area of study is different to that explanation advanced by her representative. In the 2025 submission, it was contended that the change from health to hospitality was because the applicant believes it offers more practical skills to support her contributions to the temple and local community. There is no mention of the applicant’s father or his preferences. Notwithstanding this, the Tribunal is prepared to accept the applicant’s oral evidence, that her father may not have wanted to financially support the applicant’s first choice of courses and places no weight on the change in courses in its assessment.
The applicant was asked how these courses would assist her future employment opportunities. She indicated that as her father is a chef at a hotel restaurant, he knows lots of people and can provide her with a reference so she can obtain work in a similar environment.
The Tribunal discussed with the applicant that her oral evidence regarding what she plans to do after completing the course and returning to Japan appeared to be different to the information provided in the ART form and the 2025 submission. In these documents, she had indicated that she was completing these courses so she could work for the temple on return. She responded that she thinks she is willing to provide service to the temple during holidays and weekends but that she should have a job just the same as everybody else and earn an income. Her intention is to get a job on return.
The applicant was asked why she hadn’t in the past followed through with her intention to get a job particularly given that she has already obtained a degree. She indicated that she was unable to obtain a job with this qualification. She had completed this study because her father considers this to be a minimum level of education. She was asked what renumeration she expected to be paid in Japan if she completed the courses in Australia. She responded that the salary may be 40-60k but if she can take advantage of her English skills and work for a foreign hotel such as the Hilton the salary would be much higher.
The Tribunal accepts that there is value in the proposed courses, in that they would assist the applicant in obtaining future employment opportunities as a chef and/or the hospitality industry on return to Japan, and that these factors weigh in favour of a finding that the applicant genuinely intends to stay in Australia temporarily.
However, like the delegate, the Tribunal finds that the courses proposed are not consistent with the applicant’s current level of education. Furthermore, the Tribunal finds the discrepancies between the written evidence and the applicant’s oral evidence regarding her plans after completing the courses, casts doubt on her intentions relating to her stay in Australia and are factors that weigh against a finding that the applicant genuinely intends to stay in Australia temporarily.
In the ART form, the applicant confirmed that she has not applied for any other Australian visa where a decision has not been made, has never been refused a visa to another country (including Australia) and has never held a visa to any country (including Australia) that was cancelled or considered for cancellation.
The Tribunal discussed with the applicant her immigration history which was set out in Department’s movement record. It was noted that she had previously travelled to Australia on several occasions in 2018, 2019 and 2020. She was asked the reason for her travel. She stated that during those years, she came to Australia as a tourist. She became more and more interested about Australia and thought she would like to come to Australia as a student.
The applicant was asked if she stayed at the Buddhist temple when in Australia previously. She stated yes. She would stay at the Buddhist temple and go sightseeing to places like the Gold Coast. She was asked if she travelled alone or with her mother during these previous visits. She stated she always travelled with her mother.
The Tribunal accepts that on the evidence before it, in the past, the applicant has complied with the conditions of her visitor visas and left the country. Notwithstanding this, the applicant did not depart as required by the visa associated wither her most recent arrival, and instead, applied for a student visa. The Tribunal accepts that these factors weigh in favour of a finding that the applicant genuinely intends to stay in Australia temporarily.
Having regard for the above, the Tribunal accepts that the applicant has family, community and limited financial ties in Japan and acknowledge that her connections may provide some incentive for her to return to her home country and that there is some value in proposed course. However, this must be balanced with the applicant’s circumstances in Australia, including her long-term engagement and service to the Buddhist temple, and her potential circumstances in Australia including her board and lodging arrangements at the Buddhist temple, knowledge of her current course, the inconsistency of her current course with her current level of education and the discrepancies in her evidence regarding her plans after she has completed the courses. While the information before the Tribunal indicates that the applicant is currently enrolled in a Certificate IV in Kitchen Management, the Tribunal is not convinced that the applicant is studying this course for the reasons claimed but rather that she has enrolled in the course to obtain a successful student visa outcome.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Dates of hearing: 17 July 2025
Representative for the Applicant: Ms Fengfeng Zhang (MARN: 1277056)
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.