Assessment: cl 500.212(a) intention to genuinely stay in Australia temporarily

1. The applicant is a 23-year-old female from the Philippines. Her parents and one brother remain in the Philippines. She arrived in Australia as the holder of a visitor visa on 15 October 2023. In her application for the student visa, she stated that she was not married.
2. This matter was first set down for hearing in the Tribunal on 2 April 2025. On 31 March 2025, the applicant, through her representative, advised the Tribunal that she is pregnant and experiencing medical issues and requested an adjournment. She provided medical evidence in support of this request and the Tribunal adjourned the hearing to 16 July 2025.
3. In her SVI the applicant states that she commenced but did not complete a Bachelor of Psychology in 2020, and a Bachelor of Science in Tourism Management in 2023. Both courses were commenced in the Philippines. She states that she worked as a Customer Service Representative for Sutherland Global Services between September 2022 and September 2023.
4. The applicant states:

I have chosen to study in Australia instead of the Philippines because of the higher quality of education, internationally recognized qualifications, and access to advanced facilities and research opportunities. While similar courses may be available in my home country, Australian institutions offer a more specialized curriculum, industry-linked programs, and cutting-edge technology that will give me a competitive edge in the global job market. Additionally, studying in a diverse and multicultural environment will allow me to build a broader professional network and gain valuable international exposure. The hands-on learning approach, access to world-class faculty, and opportunities for internships and industry experience in Australia further reinforce my decision to pursue my studies there rather than in the Philippines. > > I selected Angad Australian Institute of Technology in Melbourne after conducting thorough research. The institution is renowned for providing high-quality education that matches my academic goals. Their Diploma of Leadership and Management program, which progresses to an Advanced Diploma of Leadership and Management, perfectly aligns with my career objectives, enabling me to leverage my strengths and acquire essential skills that will lead to many opportunities after graduation. Additionally, the institute's location in Melbourne offers easy access to transportation, and its tuition fees are competitive compared to other schools in the city offering business and management programs.

5. In relation to her ties to the Philippines and intention to return she states:

I maintain regular contact with my family in my home country, speaking with them almost every day. We communicate through phone calls, video chats, and messages, allowing us to stay connected and updated on each other's lives. This frequent interaction helps us provide emotional support and maintain a strong bond despite the physical distance. > > I had strong community ties in my home country through my involvement in a university organization during my college years, where I served as a Psychological Officer Representative. In this role, I actively participated in mental health initiatives, provided peer support, and helped raise awareness about psychological well-being among students. My involvement in this organization allowed me to contribute to my university community by promoting mental health advocacy and supporting fellow students in need. > > I am eager to continue my professional journey in the Philippines, where I can apply my skills, experience, and knowledge to contribute positively to the industry. Returning to my home country will not only allow me to be closer to my family but also provide an opportunity to advance my career in a familiar and culturally enriching environment. To further develop my expertise, I have enrolled in a Diploma of Leadership Management and an Advanced Diploma of Leadership, both of which I am confident will enhance my leadership capabilities and strategic thinking skills.

6. At the hearing, the Tribunal asked the applicant about her travel to Australia and her current circumstances. The Tribunal raised a concern that the applicant arrived on a visitor visa in October 2023 and then, once onshore, applied for the student visa in November 2023. The Tribunal asked the applicant how, in such a short space of time after their arrival onshore as a tourist, could they have researched study and living options and decided to remain onshore.
7. The applicant confirmed that she had commenced studying at university in the Philippines and living with her father. She travelled to Australia with her sister-in-law and some friends in 2023. She said that while they were here, they met other friends who were studying, and the applicant spoke with these friends and then with an agent. She and her sister-in-law both decided to apply for study courses here. The Tribunal asked her why she did not choose a course at the same level or in the same field as one of her university courses in the Philippines. The applicant was forthright in explaining that she could not afford to do a higher-level course. She said that she was (at that time) being supported by her father and she liked the Diploma and Advanced Diploma courses because she could do these in two years. She said the same courses would take longer in the Philippines. The Tribunal has considered the short time frame between her arrival in Australia and her changed plans. Given that she is young and was still living at home with her father, together with her father's agreement to support her, the Tribunal does not draw any adverse inferences from the timeframe.
8. The Tribunal asked if she had commenced the course in Australia. She said that she had but she became pregnant and had to defer it. The Tribunal has information before it that confirms that the Diploma course that she is enrolled in had been deferred due to "compassionate or compelling circumstances".[1]
9. The Tribunal asked her about her pregnancy. She said that she has a partner here who is a citizen of the Philippines and is finishing his studies here (due to finish next year). This partner is supporting her and her newborn daughter. The Tribunal asked how she expects to be able to juggle study commitments with caring for a newborn. She explained that they are living with her partner's extended family here and that she will be able to attend her course and progress with it. The Tribunal put to her that if the visa is granted, attendance and progress will be a condition attached to it. She said that she understood this. The Tribunal has given this some weight.
10. The Tribunal asked her what her intentions will be when she finishes the course next year. She said that her partner is completing his studies in cooking, and they wish to return to the Philippines together and start their own business. The Tribunal asked what sort of business she wishes to establish, and she said that with her partner's cooking qualifications, and her management qualifications, they intend to start a restaurant business. The Tribunal asked if there were other reasons drawing her back to the Philippines and she said that her family there has not seen the baby yet and are anxious to do so. She said that she and her husband will be able to provide a good family life in the Philippines and she is not interested in remaining in Australia. The Tribunal put to her that if she does apply for further visas when her study has finished, the Department may consider her evidence to the Tribunal today when assessing her credibility. She said that she understood this and maintains that she and her husband wish to return to the Philippines next year when their studies are complete. The Tribunal has given this some weight.
11. The Tribunal invited the applicant's representative to speak on her behalf. The representative acknowledged that it is not his role to give evidence, but told the Tribunal that he had suggested to the applicant that she could obtain a visa as a dependant of her partner. The applicant told him that she did not want to do this as her priority is to finish her study and return to the Philippines with qualifications. The Tribunal has given this some weight.
12. The Tribunal accepts that the applicant has chosen a course of study based on affordability and future practicality. The Tribunal is not satisfied that she has clearly demonstrated any advantages she will receive from the course and the qualifications. However, the Tribunal does not doubt the applicant's current intentions to complete her studies and return to the Philippines. The Tribunal has given this some weight.
13. The Tribunal considers that this is a finely balanced matter and there are considerations both in the applicant's favour, and which weigh against a finding that she intends to stay temporarily. Ultimately, the Tribunal considers that the evidence before it tends to point more to the applicant's present intention to remain in Australia temporarily, for the purposes of studying. The Tribunal notes that the applicant has complied with her immigration requirements and has been forthright and open in her engagement with the process. The Tribunal considers it appropriate to give the applicant the benefit of any doubt and having regard to all the above, the Tribunal is satisfied that the applicant satisfies the genuine temporary entrant criterion. Accordingly, the applicant meets cl 500.212(a).

Assessment: cl 500.212(b) intention to comply with visa conditions

1. For the applicant to meet cl 500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant's record of compliance with any condition of any visa they previously held, and the applicant's stated intention to comply with any conditions to which the visa may be subject.
2. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl 500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents' education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). For visa applications made on or after 1 July 2022, condition 8208 (no critical technology related study without approval) must also be imposed.
3. There is nothing before the Tribunal indicating that the applicant has failed to comply with any conditions attached to her previous visas, or with any other aspect of Australian immigration law. The applicant acknowledged that her health insurance lapses in April 2026 and understands that she must extend it if the visa is granted. The Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl 500.212(b).

Assessment: cl 500.212(c) any other relevant matter

1. For the applicant to meet cl 500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl 500.212(a) and (b)).
2. The Tribunal is satisfied that there is nothing in the information and evidence, or in its totality, indicating that the applicant is anything other than a genuine applicant for entry and stay in Australia temporarily as a student.
3. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
4. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

1. The Tribunal sets aside the decision under review and remits the application for a Student (Temporary) (Class TU) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 500 (Student) visa:
   • cl 500.212 of Schedule 2 to the Regulations.

Representative for the Applicant: Mr Zack Zhao (MARN: 1577120)

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.

[1] Australian government Provider Registration and International Student Management System (PRISMS) information, as of 9 July 2025.