Dait v MICMSMA

Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

Dait v MICMSMA [2022] FCAFC 25; (2022) 288 FCR 1

Eros v MICMSMA [2020] FCA 106

Vidiyala v Minister for Home Affairs [2018] FCA 1973

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the 'Act').
2. The applicant applied for the visa in October 2023. The delegate refused to grant the applicant the visa because they were not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the 'Regulations').
3. The applicant has applied for review of that decision. The review application was heard with the assistance of a Mandarin interpreter. The applicant was represented at the hearing by their registered migration agent, Ms Wang.
4. Following the hearing, I have determined that the decision under review should be affirmed. These are my reasons.

1. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. At least one applicant must satisfy the primary criteria in cl 500.211 to cl 500.218. The issue in the present case is whether the applicant satisfies cl 500.212 of the Regulations, in other words, whether I am satisfied that they are a genuine applicant for entry and stay as a student.
2. Clause 500.212 is in the following terms:

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.

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 (the 'Direction').[1] The Direction requires the Tribunal to have regard to a number of specified factors in relation to:

(a) the applicant's circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant's future;

(b) 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;

(c) if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

(d) 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.

1. The factors specified in the Direction are not a checklist but intended as a guide to considering whether the applicant satisfies cl 500.212(a), which is commonly referred to as 'the genuine temporary entrant criterion'.
2. Subclauses 500.212(a), (b) and (c) involve discrete inquiries.[2] To satisfy cl 500.212, all of subcls (a), (b) and (c) must be met and an unfavourable finding in relation to either (a) or (b) forecloses the possibility of a favourable outcome.[3] An applicant is only a genuine applicant for entry and stay as a student pursuant to cl 500.212 if they satisfy subclauses (a) and (b), in light of 'any other relevant matter' pursuant to subcl (c).[4]

1. As already observed, the issue in the present case is whether the applicant satisfies cl 500.212, in other words, whether they are a genuine applicant for entry and stay as a student.

Does the applicant intend genuinely to stay in Australia temporarily: subcl 500.212(a)

1. For these reasons, I have concluded that I am not satisfied that the applicant intends genuinely to stay in Australia temporarily.
2. The applicant is a 52-year-old citizen of China. She claims to have strong ties to China, including a daughter and proposed future grandchild, as well as financial assets in the form of real estate, stocks, and savings. The applicant indicates an intention to return to China and open a bilingual early childhood education centre.
3. While I am prepared to accept the applicant maintains family and financial ties in China, I do not accept that these ties alone establish a compelling incentive to return, given her conduct and the nature of her current application. The applicant has been in Australia on multiple temporary visas over a sustained period, including visitor and temporary activity visas, and has recently experienced a visa refusal. Whilst I accept that she has ties to China, I am not persuaded that those ties support a conclusion that she intends genuinely to stay in Australia temporarily.
4. The applicant has twice completed a General English course and has now enrolled in General English which she proposed to complete in January 2026. She claims that English proficiency will assist in her plan to open a bilingual early childhood centre.
5. I do not accept that the applicant has demonstrated that the course provides substantial value to her future. The applicant has prior qualifications in adult education and a professional background in banking. She has not demonstrated how this basic English course, undertaken at this stage in life and for the third time, will credibly lead to the establishment of a viable business in China. She has not provided evidence of prior work or experience in early childhood education, nor evidence of concrete steps taken to register or plan a childcare business.
6. The applicant has not clearly articulated how completion of General English alone will lead to improved employment prospects or enhanced remuneration. I do not accept the proposition that basic English study, in and of itself, represents a justified investment in light of her background and age.
7. The applicant claims that English study in China is overly focused on grammar and not effective for learning spoken English. While differences in teaching style may exist, I note that English language programs, including immersion-based and native-speaker-taught courses, are available in China. I am not satisfied that the applicant has provided reasonable or compelling justification for not pursuing English study in her home country, particularly given the availability of less expensive and more accessible alternatives.
8. The applicant reports strong family ties in China, including her daughter, and outlines financial assets valued in excess of AUD 450,000. While these factors may indicate an ability to return, they do not outweigh concerns raised by her prolonged presence in Australia, lack of specific business plans, and lack of ties within the Australian labour market or education system.
9. At the hearing, I explored in detail the applicant's visa history and overall pattern of stay in Australia. This was consistent with the information provided in the applicant's Student Visa Information response. The applicant first arrived in Australia in April 2019. Since then, she has returned to China only twice: for around 13 or 14 days in July 2019 and for one month in October 2019. On 27 January 2020, the applicant travelled to Fiji and returned to Australia two days later, on 29 January 2020.
10. When asked about this short trip to Fiji, the applicant initially claimed it was 'for travel'. Pressed for more detail than her answer contained, the applicant claimed the trip had been arranged through 'an agency' and the associated tour was brief. I put to the applicant my concern that the trip appeared to have been primarily intended to 'reset' the three-month limit on her tourist visa. The applicant conceded that this was 'a factor' in her decision.
11. I raised with the applicant that since April 2019, she had been absent from Australia for only around one month and 16 days. I expressed concern that her immigration history suggested she was using the visa system to maintain ongoing residence in Australia, rather than for genuine temporary entry for study. I explained that this concern could affect my assessment of whether the applicant was a genuine temporary entrant. Despite the information also being included the applicant's SVI Response, out of an abundance of caution I raised this information with the applicant in accordance with the procedure in s 359A of the Act by explaining to the applicant the details of her immigration history, why it was relevant to the decision under review and could lead to me concluding she was not a genuine temporary entrant. In response to my invitation to comment on the information, the applicant responded only by stating that she was in Australia to study English.
12. I also explored a period between June 2024 and April 2025 where the applicant was not enrolled in any course.[5] She explained that she did not pay tuition fees because she believed the provider was unsatisfactory and that she experienced age discrimination. I asked why she did not enrol elsewhere until 14 April 2025, noting that this coincided closely with correspondence from the Tribunal dated 7 April 2025. I suggested that the applicant's renewed enrolment may appear to have been prompted by the Tribunal's correspondence. The applicant declined to respond to this concern.
13. In her SVI Response the applicant indicated that the English course she was presently studying would end in July 2025 and claimed:

Upon finishing my studies in Australia, I intend to return to China, armed with my English proficiency, to establish a bilingual childcare centre in my hometown. My early childcare center will strive to nurture children comprehensively, promoting critical thinking, and maintaining a balance between academic pursuits and extracurricular activities. I do hope children in my center often have a genuine interest in learning and mot merely book smart but also socially smart. With my savings and my network of connections in my hometown, I anticipate no challenges in securing the necessary capital for my business concept.

14. I asked why she had not returned to China as she foreshadowed in her SVI Response. The applicant responded that she did not believe her studies were complete and that she wanted to continue studying. In that context, I note on 8 July 2025, the applicant provided a further confirmation of enrolment in General English which was proposed to commence on 21 July 2025 until 30 January 2026. The applicant also provided a written submission which stated:

Upon finishing my studies in Australia, I intend to return to China, armed with my English proficiency, to establish a bilingual early childcare centre in my hometown. My early childcare will strive to nurture children comprehensively, promoting critical thinking, and maintaining a balance between academic pursuits and extracurricular activities do hope children in my centre often have a genuine interest in learning and not merely book smart but also socially smart. With my savings and my network of connections in my hometown. Anticipate no challenges in securing the necessary capital for my business concept.

15. I asked the applicant why I should accept that her assurances of returning to China after completing her current course in January 2026 should be accepted. I also raised concern about why, after over six years in Australia and completion of two English courses, a further six-month course would now provide the proficiency needed for her plans and result in her departure as foreshadowed. The applicant responded only by saying she believed six months would be sufficient additional time to become proficient in English before she can return to China. She also said she hoped to keep studying so she could teach better and expressed a personal desire to educate her grandchild in English.
16. In closing submissions, her representative explained that the applicant had intended to enrol with a different provider in October 2023 but that the offer was cancelled. This, it was said, led her to enrol with a provider she found unsatisfactory. No other submissions were made.
17. I place significant weight on the applicant's visa history and the unexplained inconsistencies in her conduct. Taken as a whole, her prolonged and near-continuous presence in Australia, the timing of her enrolment, and her failure to act consistently with her stated intentions, significantly undermine her claim to be a genuine temporary entrant.

1. Taking into account the applicant's claims and evidence as a whole, the matters raised by the Direction and, in particular, the applicant's circumstances in her home country and in Australia, the limited relevance and value of the proposed course to her background and future plans, the absence of reasonable justification for not studying in China, her prolonged temporary stay in Australia, and the overall immigration history, I am not satisfied that the applicant intends genuinely to stay in Australia temporarily.
2. In those circumstances, the applicant does not meet subcl 500.212(a). Having concluded that the applicant does not meet subcl 500.212(a) it is not necessary to further consider subcls 500.212(b) or (c).[6]
3. Moreover, having found that the applicant does not meet subcl 500.212(a), the applicant cannot satisfy cl 500.212 of the Regulations. In those circumstances, the decision to refuse to grant the applicant the visa should be affirmed.

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.

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:

(c) if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and

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)

1. 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.
2. 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.

1. 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.

1. 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:

(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.

(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

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.

[1] The relevant text of the Direction is reproduced in the attachment to this decision, albeit with an amendment to correct what I consider to be a clear and obvious typographical error that appears in paragraph 14(iii/b).

[2] Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25; (2022) 288 FCR 1 [32] (Jagot, Bromwich and Lee JJ); Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 106, [14]-[15] (Allsop CJ); Vidiyala v Minister for Home Affairs [2018] FCA 1973 [28].

[3] Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25; (2022) 288 FCR 1 [32] (Jagot, Bromwich and Lee JJ).

[4] Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25; (2022) 288 FCR 1 [35] (Jagot, Bromwich and Lee JJ).

[6] Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 25; (2022) 288 FCR 1 [32]; [35] (Jagot, Bromwich and Lee JJ).