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.

1. The applicant confirmed that he arrived again in Australia on 20 June 2019, holding an Electronic Travel Authority and remained for just under one month, following which he arrived in Australia again on 14 July 2019. The applicant explained that he had travelled to New Zealand. He confirmed that he departed Australia on 21 July 2019 and returned on 25 September 2019. The applicant then applied for his first Student visa onshore, which was granted on 5 February 2020 until 11 October 2023. He applied for the Student visa under review on 27 September 2023.
2. When asked whether he was currently enrolled in a course of study, the applicant told the Tribunal that he had already submitted his CoEs to the Tribunal. When asked whether he was still enrolled in the courses which are the subject of those CoEs, the applicant stated that he is 'on [his] second CoE'. He then stated that the college which issued the CoEs 'turned out to be a fake school' which operates for the purpose of visa applications. He stated that the school told him that he could just enrol and pay the tuition fees. He stated that he has paid the school a lot of money.
3. When asked what he was studying, the applicant responded, 'Management'. When questioned about the name of the course and the qualification he would obtain, the applicant asked for a moment to respond, following which there was a lengthy pause. The applicant responded that he was enrolled in an 'Advanced Diploma'. When asked what the Advanced Diploma qualification was in, the applicant again asked for a further moment to respond so he could look up the information. He stated that he understood the course to cover overall management and operations, but it would take some time for him to look up the information in his CoE. The Tribunal put to the applicant that it would expect that if he was a genuine applicant for entry and stay as a student, it is reasonable that he would know the name of the course he purported to be enrolled in.
4. When asked whether he had attended any classes in relation to the courses for the CoEs he had provided to the Tribunal, the applicant explained that prior to receiving the visa refusal decision from the Department, he understood that the school he had enrolled with was a 'fake school' and did not require him to attend. He stated that he is planning to re-enrol in a different school.
5. When questioned further about his enrolments, the applicant claimed that he remained enrolled in an Advanced Diploma course at the time of the 10 July 2025 hearing, but stated that he had no evidence of his continued enrolment in this course other than the CoEs he had provided.
6. The Tribunal put information to the applicant from his PRISMS enrolment record pursuant to s 359A of the Act. The Tribunal put to the applicant that his enrolment records indicate that he completed a Certificate III in Business in March 2021, a Certificate IV in Business in July 2022 and a Diploma of Business in September 2023, all of which he completed while holding his first Student visa. The Tribunal put to the applicant that the Student visa application under review was made in respect of his enrolments in a Diploma of Leadership and Management, an Advanced Diploma of Leadership and Management and a Graduate Diploma of Management (Learning), and that his PRISMS records indicate that his enrolment in the Diploma of Leadership and Management commenced on 4 December 2023 and was due to end on 1 December 2024, but was cancelled on 21 June 2024 because of the non-payment of fees. The Tribunal put to him that his enrolments in the Advanced Diploma of Leadership and Management and the Graduate Diploma of Management (Learning) were cancelled on the same day because of non-commencement of studies.
7. The Tribunal also noted for the sake of completeness that the applicant's PRISMS records contain enrolments for the Certificate IV in Marketing and Communication and the Diploma of Marketing and Communication from November 2023, although these enrolments were cancelled in August 2023, prior to the course start dates. The Tribunal makes no adverse findings about these enrolments.
8. The Tribunal put to the applicant that the information from his PRISMS records may be relevant because it may indicate that he is not enrolled in a registered course of study, and therefore may not meet the enrolment requirement for the grant of a Student visa. The Tribunal also put to the applicant that the information may be relevant in assessing whether he is a genuine applicant for entry and stay as a student as it may indicate that he has not been enrolled in a registered course of study for over one year, since 21 June 2024. The applicant confirmed that he understood the information the Tribunal had put to him from his PRISMS records and the relevance of the information to the issues before the Tribunal. The applicant responded that up until the refusal decision which the delegate made, he had paid between $5,000 and $10,000 to the school and attended classes. However, after the delegate's decision, he no longer attended classes because the school was 'fake'.
9. When asked whether he had taken any steps to obtain another enrolment, the applicant stated that he was in the process of applying for courses in Tiling or Horticulture.
10. The Tribunal granted the applicant an extension of time of 14 days to provide evidence of a current enrolment, as well as evidence to support his claims that he had paid fees to the college which issued his CoEs in 2023.
11. Prior to the hearing on 24 July 2025, the applicant provided the Tribunal with a letter of offer from ALS College for the Diploma of Leadership and Management from 8 September 2025 to 23 October 2026 and the Advanced Diploma of Leadership and Management from 14 December 2026 to 28 January 2028. The Tribunal confirmed that on the basis of this letter of offer, it accepted that the applicant was able to meet the enrolment condition, and the determinative issue had once again become whether he is a genuine temporary applicant for entry and stay as a student.
12. When asked why he has chosen to enrol in these courses, the applicant stated that after he finished the courses he will return to South Korea and will run a business. When asked what kind of business he intends to operate, he stated a trading company involving the sale of lamb from Australia to South Korea. When asked how he will establish such a company, he stated that he has family members in Australia who are Australian citizens, and he will register a company in South Korea.
13. When asked how the courses of study will assist him with these proposed plans, the applicant stated that after he completed his courses in Business, he realised that he had gone through quite different study content to that which he obtained in South Korea. He stated that the 'trading system' is different between Australia and South Korea. He stated that has learned a lot from his past courses and would like to continue his study and learn a lot from the Diploma and Advanced Diploma courses.
14. The Tribunal questioned what the proposed courses would teach him that would assist his with his proposed trading business. The applicant gave a somewhat confused response, stating that he currently understands 50 per cent of the conversation in his studies but does not yet speak like a native English speaker. He also referred to the 'formulation of official governments' and the relevance and connection with Australian traders.
15. When asked what units of study he will complete as part of the courses he proposes undertaking, the applicant stated that each course consists of 8 units. The applicant stated that they include the formulation of documents, organisational behaviour, roles within an organisation, taxation matters, the relations between producers and consumers and conflict and dispute resolution. When asked how these units will assist him with his proposed business plans, he stated that company culture in Australia is quite different to that in South Korea, so he needs to understand it. He stated that he will have companies running in both Australia and South Korea, and he will need to know how to run the company in Australia.
16. As to why he wishes to undertake the proposed courses of study in Australia rather than South Korea, the applicant again stated that the company cultures in Australia and South Korea are very different. He stated that even though he has finished his study in South Korea, he feels like he needs to learn a lot of things still in Australia.
17. The Tribunal again used the procedure in s 359A of the Act to put to the applicant concerns about his enrolment history as set out in his PRISMS enrolment record. The Tribunal put to the applicant that according to the information in his PRISMS record, he was not enrolled in a registered course from 21 June 2024, which is a period of over one year. The Tribunal put to the applicant that this may indicate that he does not have a genuine interest in studying in Australia and may have obtained the enrolments in order to maintain ongoing residence in Australia. The Tribunal also out to the applicant a concern that while he has a current letter of offer from ALS College, his enrolment history may suggest that he obtained this only for the purpose of the hearing and to obtain a successful Student visa outcome. The applicant indicate that he understood the information the Tribunal had put to him and understood the relevance of it to the issue before the Tribunal. In response he stated that he will respect any decision the Tribunal makes and did not otherwise seek to explain why he had remained unenrolled from 21 June 2024.
18. The applicant also confirmed with the Tribunal that he had completed the RSVI form himself. The Tribunal put to the applicant that the RSVI form was completed and provided to the Tribunal on 5 April 2025, and that in the form he declared 'Course complete' in relation to the Diploma of Leadership and Management and 'Studying now' in relation to the Advanced Diploma of Leadership and Management, despite the CoEs for these courses having been cancelled in June 2024, over 9 months prior to this. The Tribunal raised concern with the applicant that he may have been attempting to mislead the Tribunal as to his enrolment status. In response, the applicant stated that his responses were the result of his 'careless attention'.
19. The Tribunal took further evidence from the applicant regarding his immigration history, the value of the proposed courses of study to his future and his circumstances in Australia and South Korea, the details of which are set out in the reasons below, where relevant. The Tribunal also raised various additional concerns with the applicant regarding his circumstances, and gave him an opportunity to respond to each as a matter of procedural fairness. The applicant's responses to these concerns are also set out in the reasons below, where relevant.

1. Having considered the applicant's claims against all the factors specified in Direction 108, and taking into account all the relevant information, the Tribunal is not satisfied that the applicant meets the genuine temporary entrant criterion. This finding is based on my findings with respect to a number of factors of concern in Direction No.108.

The applicant's circumstances in his home country

1. The applicant gave evidence that his ties to South Korea include the presence there of his parents, both of whom are elderly, and his older brother. He stated that he also has many extended family members in South Korea. He declares in the completed RSVI form that he contacts his family in South Korea twice a week by telephone and his community ties to South Korea include 'Seoul Dongdeamoon community', which the Tribunal understands to be a reference to a district within Seoul. He confirmed in his evidence that he is not in a relationship with anyone. The applicant told the Tribunal that he has a house in South Korea in his own name. The applicant has not provided evidence to support this, and he did not list it as an asset in the completed RSVI form, in which he listed bank deposits of $1,000 value as his sole assets. The applicant stated that his parents are elderly and may have difficulty sending him evidence of his ownership of this property. The Tribunal accept the applicant's evidence that he owns such a property in South Korea.
2. The applicant gave evidence that he completed a Bachelor of Economic in South Korea in 2013. He stated that he worked as an office worker for a small communications company from 2013 to 2018 and earned somewhere between AUD 30,000 to 50,000 per year. In the RSVI form the applicant declared that he worked for KICA from 2013 to 2018 and earned an annual salary of AUD 75,000 per year. The applicant does not claim to have any current employment ties to South Korea and claims that after he completes his proposed courses of study, he will return to South Korea to start a lamb export or trade company with Australia. The Tribunal does not find the applicant's evidence regarding how he will establish such a trading company to be convincing or well-formulated and considers the applicant's plans for such a business to be at the ideas stage. Despite this concern, overall, the Tribunal accepts that the applicant has family ties to South Korea, including the presence there of elderly parents, and some financial ties, including a house in his own name, and therefore accepts that he has personal ties to South Korea which would serve as an incentive to return there. The Tribunal takes this into account in assessing the applicant's circumstances as a whole.
3. The Tribunal has had regard to the applicant's stated reasons for wishing to undertake the proposed courses of study in Australia, including the reasons set out in the GTE statement provided to the Department and the completed RSVI form, including the advantages of obtaining a degree from a country such as Australia and taking classes instructed in English. The Tribunal has also considered the applicant's response at the hearing that the culture between Australia and South Korea is very different, and he feels he needs to learn a lot of things still in Australia. While the Tribunal found the applicant's stated reasons at the hearing to be somewhat general in nature, on this occasion it accepts that the applicant has provided reasonable reasons for not undertaking the study in his home country.
4. There is insufficient evidence before the Tribunal to indicate that the applicant's economic circumstances would present as a significant incentive for him not to return to his home country. The applicant gave evidence that he has worked as a waiter in a Korean restaurant for the past four years. He stated that he earns under $50,000 a year as he cannot exceed 20 hours of work per week under the conditions of his visa. While I have some concerns that this employment may act as an incentive not to return to South Korea, I note the part-time nature of this work and the applicant's evidence of his ownership of a house in South Korea. Therefore, I make no adverse findings regarding this factor.
5. There is no evidence of any military service requirements or of any civil or political issues which would act as an incentive for the applicant to remain in Australia. There is also no adverse evidence before the Tribunal regarding the applicant's circumstances in South Korea, relative to others in that country, and the Tribunal makes no adverse findings in relation to these factors.

The applicant's potential circumstances in Australia

1. The applicant first arrived in Australia in holding a Visitor visa in September 2014, departing after one week. He next arrived in Australia on 20 June 2019 and departed on 10 July 2018, returning again on 14 July 2019 and departing on 21 July 2019. This is consistent with the applicant's evidence that he arrived in Australia for travel purposes and also travelled to New Zealand. The applicant then arrived in Australia again on 25 September 2019 holding a Visitor visa. While onshore, he applied for a Student visa, which was granted on 5 February 2020 until 11 October 2023. The Student visa application under review is his second application for a Student visa.
2. While holding his first Student visa, the applicant completed a Certificate III in Business, Certificate IV in Business and a Diploma of Business. His successful completion of these qualifications is supported by his enrolment records within the PRISMS database, and the Tribunal makes no adverse findings regarding the applicant's study or visa history in Australia until October 2023.
3. The Student visa application under review was made in respect of the applicant's enrolments in a Diploma of Leadership and Management, Advanced Diploma of Leadership and Management and Graduate Diploma of Management (Learning) from 4 December 2023 until 30 January 2028. All three of these enrolments were cancelled on 21 June 2024 and the applicant has remained unenrolled since that date, although as noted above, he now has a letter of offer from ALS College for the Diploma of Leadership and Management from 8 September 2025 to 23 October 2026 and the Advanced Diploma of Leadership and Management from 14 December 2026 to 28 January 2028. The applicant therefore now proposes remaining in Australia at least until January 2028, which will bring his stay in Australia to over 8 years since first applying for a Student visa in December 2019.
4. The applicant claims the college he was enrolled with from December 2023 was a 'fake school' which operated solely for the purposes of Student visa applications. He claims that the college told him that he could pay his course fees and they would allow him to remain enrolled without attending classes. He claims that he understood the college to be fake even before he received the Department's visa refusal decision on 26 March 2024. The applicant has also provided copies of receipts for payments of $1,250 in September and December 2023 and of $1,500 in February 2024. He claimed at the hearing on 10 July 2025 that he was intending to re-enrol in another course at a legitimate college.
5. I give little weight to the applicant's explanation for why he remained unenrolled from 21 June 2024. Firstly, the applicant gave evidence that he was aware the college did not require him to attend classes prior to the delegate's decision in March 2024. Secondly, the Tribunal also considers that the applicant had over one year from the cancellation of his enrolment in June 2024 to re-enrol in another course, but did not obtain current offers of enrolment until the Tribunal put to him at the hearing on 10 July 2025 that he was not enrolled in a current course of study. Thirdly, the Tribunal finds the applicant's evidence regarding his enrolments at the hearing on 10 July 2025 was vague and potentially misleading. When asked at the hearing whether he was currently enrolled, the applicant told the Tribunal that he had submitted his CoE, referring to the CoEs which were cancelled in June 2024. When asked whether he was still enrolled in these courses, the applicant responded that he is on his 'second CoE'. While he then stated that he believes the college was a 'fake school', he also told the Tribunal that the college told him he could just enrol and pay the tuition fees, and that he had paid them a lot of money. The applicant then had difficulty naming the course he claimed he was enrolled with, saying it was a course in 'Management', then stating that it was an Advanced Diploma, but stated that he needed to find the CoE in order to tell the Tribunal the name of the course. The Tribunal also notes that in the completed RSVI form, which the applicant provided in April 2025, he declared that he had completed the Diploma of Leadership and Management and was studying the Advanced Diploma of Leadership and Management, despite the enrolments for both courses having been cancelled approximately 9 months earlier. The applicant told the Tribunal that he completed the RSVI form himself as he does not have a solicitor or migration agent. At the hearing, the Tribunal put to the applicant a concern that he may have been attempting to mislead the Tribunal as to the status of his enrolments in these courses. The applicant did not offer a convincing explanation for providing this inaccurate information to the Tribunal, other than stating that it was the result of his careless attention.
6. Having considered the above information, I consider there is evidence that the applicant is using the Student visa programme to circumvent the intentions of the migration programme and to maintain ongoing residence.
7. I also find that the applicant has strong family ties to Australia which would present as a strong incentive to remain here after the completion of his proposed courses of study. On his own evidence, his ties to Australia include uncles and aunts from both his mother and father's sides of the family, as well as cousins, including the cousin who was listed in his application for review form. The applicant gave evidence that all of his extended family in Australia are Australian citizens. The Tribunal put this as a potential concern to the applicant at the hearing, to which he responded that he understood the concern and will respect Australia's immigration laws.
8. There is no evidence that the applicant has entered a relationship of concern for a successful Student visa outcome.
9. I make no adverse findings regarding the applicant's knowledge of living in Australia, given he has lived in Australia for almost 6 years since his last arrival. I have some concerns regarding the applicant's knowledge of his intended course of study given he was unable to name the course he claimed he was enrolled in without looking at his CoE, although I note that he was able to tell the Tribunal that it was at the Advanced Diploma level and was in Management. The applicant was able to provide some information regarding the content of his proposed courses of study and has provided a new letter of offer, so on this occasion I make no adverse findings regarding the factors in cl 11(e) of Direction No 108.

1. The applicant has declared that he has a Bachelor of Economics which he completed in South Korea in 2013. He then worked for a communications company from 2013 to 2018. Since arriving in Australia, he has completed a Certificate III in Business, Certificate IV in Business and Diploma of Business, all while holding his previous Student visa. The applicant claims that on return to South Korea he intends to start a lamb export or 'trading' business. He claims he will do this with the assistance of his relatives in Australia and he will commence companies in both Australia and South Korea for this purpose.
2. The Tribunal is not satisfied that the applicant's proposed studies in the Diploma of Leadership and Management and the Advanced Diploma of Leadership and Management will be of value to his future. Firstly, the applicant gave a confused explanation at the hearing as to how the proposed courses of study will assist him with his plans to start a 'trading company'. The applicant stated that he does not yet speak English like a native speaker. He also stated that the trading system is different between Australia and South Korea. While the Tribunal accepts that studying a course taught in English may assist the applicant to improve his English language skills, it notes that the applicant has been residing in Australia for close to 6 years, and the Tribunal does not consider this to be a sufficient explanation regarding the value to be obtained from undertaking two vocational courses over a period of over two years. The Tribunal also has difficulty in accepting the relevance of qualifications in Leadership and Management to the applicant's plans to start a trading business, particularly when the applicant already has vocational qualifications in Business gained in Australia, as well as a Bachelor of Economics. The Tribunal considers the applicant is seeking to undertake additional vocational courses in Australia at a level which is not consistent with his existing qualification at the Bachelor degree level. It also considers the proposed courses of study are of limited relevance to his proposed business plans, particularly given his existing qualifications, and finds that the proposed qualifications are likely to provide only limited value to his future.
3. The applicant has also provided no convincing evidence regarding the remuneration he could expect to receive in his home country or a third country, compared with Australia, using the qualifications to be gained from the proposed courses of study. In the completed RSVI form the applicant states that his employment plans after completing his proposed courses are to 'go back to Korea and do trade with Australia'. As to the remuneration he will receive, he states that he will receive more than $100,000 per year, which he states is more than he used to receive, however, he has provided no information regarding the source of this figure, nor any evidence regarding research into trade between Australia and South Korea or the profitability of a business operating in this field. The Tribunal raised with the applicant at the hearing its concerns regarding the value of the proposed courses of study to his future, to which he indicated he had no comments.
4. Overall, the Tribunal has significant concerns regarding the value of the proposed courses of study to the applicant's future, and given his enrolment history since applying for the Student visa under review, has concerns that he has obtained his current offers of enrolment not for his stated reasons, but primarily to maintain ongoing residence.

1. As noted above, the applicant arrived in Australia on 25 September 2019, holding a Visitor visa and then applied for his first Student visa while onshore. While holding his first Student visa he completed three vocational courses leading to the award of the Diploma of Business. The Tribunal makes no adverse findings regarding the applicant's immigration history prior to November 2023.
2. The Student visa under review was made in respect of the applicant's enrolments in a Diploma of Leadership and Management, an Advanced Diploma of Leadership and Management and a Graduate Diploma of Management (Leadership), all of which were cancelled in June 2024. The applicant then remained unenrolled for a period of over 12 months. At the hearing on 10 July 2025, as well as in his completed RSVI form provided in April 2025, he told the Tribunal that he remained enrolled in the Advanced Diploma of Leadership and Management, despite the cancellation of this course approximately 9 months earlier. While I have considered the applicant's evidence regarding his payment of course fees until February 2024 and his evidence that he understood the college he had enrolled in was not a 'legitimate' college and told him he could remain enrolled without attending classes if he continued to pay his course fees, I do not consider the applicant has provided a sufficient or compelling explanation for why he remained unenrolled for over 12 months. I consider the applicant had sufficient time to enrol in another course of study and also consider that the applicant has provided copies of cancelled CoEs to the Tribunal on multiple occasions in the lead-up to the hearing and initially told the Tribunal that he remained enrolled.
3. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. Given the length of time the applicant has now spent in Australia on a Student visa and associated Bridging visas, and given the evidence regarding his non-enrolment since June 2024 and his attempts to rely on cancelled CoEs at the hearing and in his correspondence in the lead-up to the hearing, the Tribunal is concerned that a further Student visa may be used primarily to maintain ongoing residence. The Tribunal also has concerns that given his enrolment history as a whole, the applicant has obtained offers of enrolment in relatively short and inexpensive vocational courses to maintain ongoing residence. In this regard the Tribunal notes the letter of offer the applicant has provided is for two 12-month vocational courses, each of which have course fees of $4,720. In comparison, the Graduate Diploma course which the applicant was enrolled in from February 2026 to January 2027 had course fees of $13,330.
4. The Tribunal does not make any adverse findings regarding the remaining factors relating to the applicant's immigration history. There is no evidence that the applicant has applied for other visa applications which are yet to finally determined or has previously had a visa application refused or a visa considered for cancellation. There is no evidence to indicate the applicant has not complied with the conditions of his previous visas. There is no evidence of an adverse migration or visa history to other countries, and I note the applicant's declaration of his travel to the United States of America, Japan and China, which I view as a positive history. However, for the reasons stated above, I have concerns regarding the amount of time the applicant has spent in Australia and whether the visa may be used primary for maintaining ongoing residence.

1. The Tribunal has also had regard to whether there are any other relevant matters and finds there are no other relevant matters to the assessment of the applicant's intention to stay in Australia temporarily in addition to the matters covered above. The Tribunal has considered all of the information provided by the applicant in support of the application.

1. The Tribunal has serious concerns regarding multiple factors set out in Direction No 108, including his potential circumstances in Australia, the value of the course of study to his future and concern regarding the amount of time he has spent in Australia and whether the visa may be used primary for maintaining ongoing residence. When the applicant's circumstances as a whole are assessed, they raise serious concerns that the applicant is not a genuine temporary entrant.
2. 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).
3. 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.
4. 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.