Ahmed (Migration) [2025] ARTA 666 (8 May 2025)

1. 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 meets cl 500.212.
2. 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?

1. 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.
2. 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.
3. As to the applicant's circumstances in his home country, no evidence has been presented that the applicant's economic circumstances would present as a significant incentive for the applicant not to return to Bangladesh, rather he indicated that since the death of his parents there is land he has inherited, although he needs it to be transferred into his name. There is no evidence before the Tribunal that political and civil unrest would result in the applicant choosing to remain in Australia indefinitely. At hearing the applicant said he has no protection issues or other concerns returning to Bangladesh. There is no evidence before the Tribunal of military commitments that would present as a significant motive for him not to return. It accepts his evidence as to why he chose and chooses to study in Australia and not Bangladesh, and the benefits of an Australian education on return to Bangladesh. The Tribunal accepts that these circumstances in Bangladesh are indicative of a person who is a temporary entrant who has an incentive to return to Bangladesh.
4. He has no close family, other than cousins, in Bangladesh as his parents have recently died. He is divorced from his former spouse in Bangladesh and has no children. His family connections are therefore limited. As he has not returned to Bangladesh since 2013, the Tribunal does not accept his cousins or extended family act as an incentive to return.
5. The above information indicates the applicant has been in Australia since 14 August 2004, a period of over 20 years and that he wishes to continue to study to February 2027, staying for over 22 years. The Tribunal views his extended length of stay in Australia and remaining in Australia for over 20 years, wishing to remain for 22 years, as indicative of a person who does not intend to genuinely stay in Australia temporarily. In making this finding the Tribunal notes he has returned to Bangladesh on three occasions. The Tribunal, however, does not accept that these short trips, over the extended period he has been in Australia as undermining its concern that his extended length of stay in Australia may lead it to find he does not genuinely intend to stay in Australia temporarily. This is particularly so as the last time he returned to Bangladesh was in 2013 more than ten years ago. In response he said he has had bad luck as on three occasions either the college or course has closed. While the Tribunal accepts this has happened to him, it does not accept this explains the lengthy time he has been in Australia or overcome its concern as to his extended time in Australia. In making this finding it has considered his length of time in Australia may have been extended by the application to and remittal by the Federal Circuit Court and the difficulty returning because of Covid but is of the view notwithstanding these matters, that his extended length of stay in Australia is a factor indicating he does not genuinely intend to stay in Australia temporarily.
6. The Tribunal accepts that the applicant is currently enrolled and studying a Certificate III in Individual Support from 23 April 2025 to 3 April 2026 followed by a Certificate IV in Ageing Support from 8 April 2026 to 12 February 2027. It accepts he previously successfully completed an English course in 2007, a Diploma of Tourism from July 2007 to July 2009, a Certificate III in Information Technology in 2012, and a Diploma of Management in 2013. It accepts he partially completed the Certificate III and IV in Business and 42% of a Bachelor of Business. It accepts he had to change education providers while studying the Bachelor of Business due to the closure of the College. It accepts he started studying the Certificate IV in Business Administration in 2016 but changed to study the Certificate III in Individual Support from 13 March 2017 to 11 March 2018 followed by a Certificate IV in Ageing Support from 23 April 2018 to 21 April 2019. It accepts on 12 October 2017 he changed to study the Certificate IV in Ageing Support from 2 October 2017 to 10 March 2019 after the education provider ceased to offer the Certificate III in Individual Support. It accepts he ceased studying the Certificate IV in Ageing Support after the AAT hearing in or around December 2018. It accepts his current enrolment in these courses is consistent with his level of education, as he only completed high school in Bangladesh and did not complete the bachelor's course. The Tribunal also accepts that the successful completion of the above courses, enrolment in courses and his current enrolment is indicative of a genuine student using the Student visa program for its intended purpose. However, the successful completion of courses and enrolment, are two of many considerations relevant to the assessment of whether the applicant, in regard to the current visa application, intends genuinely to stay in Australia temporarily.
7. For the reasons below the Tribunal is of the view the applicant is using the Student visa process to maintain residence rather than as a genuine student and not for any value to his future.
8. Firstly, it views his lack of detailed knowledge of the Certificate III in Individual Support to be studied from 23 April 2025 to 3 April 2026 followed by a Certificate IV in Ageing Support from 8 April 2026 to 12 February 2027 as of concern and adding to its finding he is using the Student visa program to maintain residence. When asked about the course he was unable to name any of the units he was going to study as part of this course or the number of units he is required to complete the course, until prompted by the Tribunal. The Tribunal is of the view if the applicant is a genuine student studying the course for value to his future; he would be able to provide more detailed knowledge of the course he is studying including being able to name the current units he is enrolled in, especially as it was to commence on the day of the hearing. When raised he said the course was only starting on the day of the hearing and he was just receiving the information. The Tribunal does not accept this response as the information of the course outline is online[2]. Considering the time the applicant has spent in Australia claiming he wants to study and it is crucial for his future career aim; it is of the view he would be able to provide more knowledge than he did of the course he is enrolled in, commenced on 23 April 2025, which he claims is crucial to complete for his future career aim. This adds to the finding he is using the Student visa pathway to maintain residence.
9. Further, his evidence was inconsistent as to why he did not finish the previous Certificate IV in Aging Support. The applicant advised the AAT at the hearing in December 2018 that he would complete the Certificate IV in Aging Support by March 2019 as he wished to return home to commence his aged care business. He also provided a post hearing submission confirming this. He said and confirmed at the AAT hearing he had rented space in Dhaka for his aged care business. However, in contrast, at the recent hearing he said he stopped studying the Certificate IV in Aging Support around the time of the previous AAT hearing in December 2018 as he was confused as he thought he needed a positive decision. He said this was a mistake. He also referred to the mental difficulties he faced from his divorce as to why he stopped studying, although he said he did not seek medical help. When the Tribunal raised as of concern the inconsistency; he said he did not say he rented a place and that was a long time ago. The Tribunal does not accept this as he did provide this evidence repeatedly at the AAT hearing.
10. When the Tribunal raised as of concern why he did not finish the course he was enrolled in and return as he said he would at the AAT and that it undermines his claim he is now genuinely enrolled in the same course to set up his future business; he said it was a mistake and he thought he could not study and referred to his mental health issues due to his divorce. The Tribunal does not accept this response as he never referred to any confusion at the AAT hearing or in the post -hearing submissions. It is also of the view if he were so mentally affected by the divorce that he could not study and finish the remaining months of the course he would have sought medical help if he were in Australia to study, which he did not. The Tribunal is of the view that if the applicant is in Australia to study to obtain knowledge to run his aged care business, he would have finished the previous course as he said he was going to do repeatedly at the AAT hearing. If he were confused as he claimed it is of the view he would have raised this at the AAT hearing.
11. The Tribunal also views his future plans as to his aged care business to be vague and lacking in detail for a person who had been considering returning to set up an aged care business in Bangladesh since 2017. At the recent hearing, while he consistently said he is studying the aged care courses to open an aged care business in Bangladesh, he said he would finish the course and go back to open the business and gain government support. He spoke of setting up the company and talking to people in Bangladesh. He did not refer to having rented a place as he did at the AAT hearing in 2018. The Tribunal raised with him its concern that he has not yet set up the aged care business company in Bangladesh. The Tribunal is of the view that if he had been considering opening an aged care business since 2017 and studying for that reason, he would be able to provide far more detailed evidence as to his plans than he did at hearing. This adds to the finding the applicant is not genuine in his claim that he is in Australia to study with the purpose of gaining knowledge to open an aged care business on return.
12. The Tribunal also views as of concern that if he is in Australia to study to successfully open an aged care business why he has not worked in that industry in Australia, other than in a placement as part of his course. Rather, the evidence indicates he has worked as a tourism guide and in the food industry since 2017, when he decided to change to studying aged care. This adds to the finding the applicant is not genuine in his claim that he is in Australia to study with the purpose of gaining knowledge to open an aged care business on return.
13. While not solely determinative, the Tribunal also views as of concern his lack of enrolment in any course from 5 February 2019 until he submitted the COEs dated 21 April 2025 to study the Certificate III in Individual Support from 23 April 2025 to 3 April 2026 followed by a Certificate IV in Ageing Support from 8 April 2026 to 12 February 2027. At hearing he gave evidence as to his lack of enrolment in this period. He said he was confused and thought he needed a positive decision. The Tribunal does not accept this response and is of the view if he were studying as he wishes to set up a business, he would have done so not waited 6 years. It views as of concern why he then only enrolled just prior to the Tribunal hearing. It has considered the medical report from April 2025 and his claim that he was too weak to study but does not view this as explaining the extended period of not studying when he has submitted since 2017 and particularly at the hearing in 2018 that completion of these courses are crucial to setting up his aged care business on return The Tribunal is of the view if he is in Australia to study to obtain knowledge for his future; he would have studied not remained without enrolment in this six year period. This adds to the finding he is enrolled in the current courses to maintain migration not as a genuine student or for any value to his future.
14. In making this finding the Tribunal accepts that completion of the courses he is enrolled in, will assist him to obtain employment or improve his employment prospects generally in the aged care area; however for the reasons above it does not accept he has enrolled in these courses for this reason or for any of the reasons he claims.
15. In making this finding the Tribunal has considered his knowledge of living in Australia but makes no adverse finding on this basis in considering whether he is a genuine temporary entrant.
16. As to the applicant's immigration history, there is no evidence before the Tribunal he has previously travelled to Australia before 2004 or applied for a permanent visa or other visa to Australia. It has considered his length of time in Australia above.
17. In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness, and the manner in which responses can differ depending on the nature of and manner in which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant's responses to questioning. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness as to these claims.
18. In making the decision the Tribunal has considered all the evidence before it, including that he is currently enrolled and says he will complete these courses, his evidence he will return home and is a temporary entrant, any claimed mental difficulties he faced which rendered him unable to study, his past study record prior to the application for the current visa, that on three occasions either the course or College closed, he is behind his friends due to his lengthy stay in Australia and all the other evidence he has submitted; however, for the reasons outlined above does not accept he is undertaking the current study for the reasons he claims, but rather using it as a pathway to maintain residence in Australia.
19. On the basis of the above, the Tribunal is therefore not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
20. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
21. 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.

1. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

DIRECTION NUMBER 108 - ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

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).

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.

This Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

Direction No. 69, given under section 499 of the Act, is revoked.

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.

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.

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.

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.

1. Decision makers should have regard to the applicant's circumstances in their home country and the applicant's potential circumstances in Australia.
2. For primary applicants of Student visas, decision makers should have regard to the value of the course to the applicant's future.
3. 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

1. 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.

2. 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

1. 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.

1. 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.

1. An applicant's immigration history refers both to their visa and travel history.
2. 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: > > 1. 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 > 2. 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. > 3. b. Previous travels to Australia or other countries, including: > 4. 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; > 5. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances; > 6. 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 > 7. 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

1. 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.

1. 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.

[2] Certificate III in Individual Support (Ageing and Disability) - Australian Educare College

https://educarecollege.edu.au/certificate-iii-in-individual-support-ageing-and-disability/