August 2017-August 2019 * Diploma of Nursing - Southern Cross Education Institute, Adelaide,

July 2021-April 2023 * Currently enrolled - Diploma of Community Services - Signet Institute, Adelaide. 2. The applicant also wrote that combining the skills set from these diverse fields, she aimed to pursue a fulfilling career in India's growing community services sector. In her Statement of Purpose the applicant added that the Master of Business Administration equipped her with strategic and corporate strategy skills that sharpened her leadership and analytical thinking - skills that were highly transferable to roles in non-profit organizations and healthcare management. She added that she decided to move into the health sector considering her inclination towards helping those in need. After her Community Services studies she would return to India and contribute to public health and social development initiatives.

1. The applicant came to Australia in 2013. The Tribunal asked the applicant what she had been doing in Australia for ten or more years now. She stated she came as a student to do a Master of Business Administration, but she did not complete the course at that time because she faced challenges. It was a new environment, and it was overwhelming.
2. Then she enrolled in a Diploma of Business and Management in September 2016. The Tribunal observed that was some time ago now and the course would have finished within a few years. The applicant stated that during 2016 she had surgery in Australia, and it affected her mobility, so she returned to India to recover. She was not able to continue her studies at that school, so she had to drop the course.
3. In 2017 the applicant enrolled in another Master of Business Administration. The Tribunal noted that the applicant had experienced how challenging that course was so why would she pursue such a course again. The applicant responded that this time she was studying at a college and not a university. She finished that Master's in 2019.
4. The applicant then stated she enrolled in a cookery course. The Tribunal observed that undertaking cooking was incongruent with someone who had studies at a Master's level. The applicant responded she had the administrative skills and just wanted to explore her options for a career pathway. However, she dropped that course after several months in 2020 because she realised it was not an appropriate pathway.
5. The applicant explained that she started her Diploma of Nursing, and she finished it in 2023. The Tribunal noted that there was a two-year break in her study (after the finalisation of her Master of Business Administration) and asked why that was. The applicant responded she was on a subclass 485 visa while studying the Diploma of Nursing but now that visa had expired. She wanted to explore the health sector more and she started a Diploma of Community Services. The Tribunal noted that it appeared that the applicant was intending a migration outcome having pursued the subclass 485 visa for two years.
6. The Tribunal asked the applicant what skills the Diploma of Community Services would give the applicant that the Diploma of Nursing did not. She responded she would get to explore mental health issues and society as well. As an enrolled nurse she was limited to working in facilities whereas in the Community Services sector she would be able to work with individuals. The Tribunal asked whether the applicant could have applied to work full-time in Australia as a nurse and she stated she did work part-time as a nurse on her subclass 485 visa. She was working through agencies.
7. The applicant explained she had been married but the relationship did not work out. She stated after the divorce her former husband returned to India. He had not been working in Australia and was dependent on the applicant. The applicant stated she had no family in Australia. Her parents and her sister lived in India.
8. Asked what she intended to do in India on return in terms of work, the applicant stated she would work in the nursing and community services sectors. She had researched her options, and she could work with an NGO as a case manager in her home area, the Punjab.
9. The applicant stated there were NGOs in the city she came from that worked with vulnerable people. She named one such NGO. When asked about her family's financial circumstances she stated her father was a real estate agent and worked privately. Her mother used to be partnered with her father in the real estate business but she was now no longer working.
10. The Tribunal noted that the applicant had invested considerably in staying and studying in Australia. She responded that her family had supported her throughout. The Tribunal stated that it did not appear, however, that she had come to Australia to do a particular course and then depart. Instead, she had continued to lengthen her stay in Australia over ten years or so. The Tribunal stated that such a significant investment in studying in Australia might lead the Tribunal to find that she was using the study to maintain ongoing residence and that now she intended to extend her stay. The applicant replied that was not correct. She could have studied nursing in India, but they did not provide placements as part of the study - it was all theoretical. In Australia she worked face to face with real clients, but not in India.
11. The applicant stated that nursing had a narrow scope, and she agreed that if she wanted to be a registered nurse she would have to do more study in India.
12. The Tribunal asked the applicant what course of study she might have undertaken before coming to Australia and the applicant stated she had undertaken a Bachelor's Degree in Business Administration.

Does the applicant intend genuinely to stay in Australia temporarily?

1. In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 108, 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications', made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
   • the applicant's circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant's future;
   • the applicant's immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
   • if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
   • any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
2. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant's circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

1. The applicant came to Australia to study a Master's Business of Administration which was a natural progression from her Bachelor's degree attained in India. However, the applicant did not complete this after arriving in Australia because she was overwhelmed and had to find her feet in the country. Nonetheless, the Tribunal notes that the applicant was in Australia for four years prior to starting her second Master of Business Administration at a different education provider in August 2017. This means that the applicant's stay in Australia after her arrival, entailed a four-year sojourn without completing any form of study.
2. The Tribunal sympathises with overseas students as they are away from their families and familiar environments and may flounder initially, but four years is a significant period in which the applicant could have sought some assistance through her education providers to postpone her studies or to seek a course that was more suitable to her.
3. The Tribunal notes that the applicant's Statement of Purpose does not account for these four years when the applicant was in Australia without having completed any study. Nor does the Statement of Purpose reflect that in fact during those four years the applicant had attempted for several months to undertake cooking which was totally unrelated to any previous tertiary study she had undertaken and attempted. Furthermore, the Statement of Purpose does not refer to the year in 2016 when she attempted a Diploma of Business and Management, even though the Tribunal understands that she was not able to complete this course due to illness and nothing turns on these omission and the Tribunal places no adverse weight on the applicant's lack of submission of a fulsome record of her study history in Australia.
4. The Tribunal does not place adverse weight of itself on the fact the applicant might not have been enthused by the cooking classes. However, the Tribunal does consider it does show that the applicant has not had any clear plan for her future in India and what she was interested in studying in Australia. Rather, it is reflective of someone who is searching for various courses to be able to continue to be in Australia.
5. Even accounting for the fact that the applicant had surgery and needed a year or so to recover in 2016, and could not complete her Diploma of Business Administration, the Tribunal is concerned that there were at least three years in which the applicant had not achieved in any form of study. The Tribunal recognises that the surgery and the recovery was a matter beyond the control of the applicant, but the Tribunal is not convinced that even taking a year out of the equation for settling in the country and recovery from surgery, that the applicant's initial stay in Australia for four years indicates that the applicant had a genuine intention to stay in Australia temporarily for the purpose of study.
6. The Tribunal cannot overlook the length of stay in this country in which the applicant receded from starting a course of study at the level of Master of Business Administration, to then revert to a lower level of study such as a Diploma of Business Management, and a completely different type of study such as cooking during that four-year period without achieving any outcome. She also had an additional two years from August 2019 after completing her Master of Business Administration which remain largely unaccounted for. Concerningly, the applicant is now asking to remain in Australia an additional two years which would take her from 12 years to 14 years in this country, having only attained two qualifications.
7. Moreover, the applicant's pattern of study after completing her Master of Business Administration at another provider in August 2019, to then recede to a Diploma of Nursing, reflects a pattern of the applicant having pursued courses at a lower level, in subjects where an interest appears to have arisen without any real explanation. The applicant stated that the studies in administration are related to nursing and community services because these skills are relevant if she wants to work for a non-government organisation in India.
8. The Tribunal accepts that the Master of Business Administration would not be totally wasted with a Diploma of Nursing if the applicant wanted to get into a managerial role as a nurse or in the community services sector. However, when the applicant's study pattern is viewed holistically, it does not accept that the applicant has always had a long-term vision to contribute to the health sector in India as she wrote in her Statement of Purpose, as it is unclear what cooking might have had to do with this long-term vision, for example.
9. The representative stated that it was not unusual that a student might need time to settle in a new country and might need time to find out what their real passion in terms of study is. The applicant had now found that purpose, and she should be permitted to pursue her studies to their completion. The Tribunal can make some allowance for such initial floundering, but the applicant's continued desire to remain in the country, even on having completed her nursing diploma, indicates to the Tribunal that the applicant's articulated intention to stay temporarily in Australia for entry and stay as a student is not genuine and that the applicant keeps wanting to extend her stay in Australia because she is motivated to remain here indefinitely.
10. The Tribunal has taken into account the applicant's arguments that the Diploma of Nursing was restrictive as she could only work in institutions, even though there is nothing to indicate she could not, after registering in India as a nurse, work in a hospital or some such facility. If the applicant found the nursing diploma restrictive then the Tribunal has to query how well she had researched her study in Australia and whether she had ever considered returning to her home country with a nursing diploma, because ultimately, she stated that she wanted to work for an NGO as a case manager which belies any claim the applicant was ever passionately interested in nursing.
11. The Tribunal has serious reservations that the applicant's request to stay in Australia for a further two years after having attained two qualifications over 14 years, is an attempt to continue to remain in Australia rather that reflective of having a genuine intention to stay in Australia temporarily.
12. The Tribunal can only guesstimate the amount of money the applicant has expended in pursuing studies in Australia already, and will expend after 14 years in the country, comprising her study fees, basic living needs such as shelter, clothing and food, for example, including medical costs. The cost would be significant and certainly not comparable to the wage she would earn in India working for an NGO. If the applicant had only studied a Diploma in Community Services, she could argue that it would have been cost effective to attain an overseas degree, but the Tribunal does not accept that her income in India will generate the kind of remuneration that would justify such an extensive absence from her home country to live and study abroad, unless there was some outcome the applicant was trying to achieve such as being able to maintain an ongoing presence in Australia.
13. The Tribunal has also had regard to the fact the applicant stated she was close to her family and that she wanted to return to India because her parents were no longer young. Her preparedness to remain in Australia for such a lengthy period does not, however, point to someone who wanted to come to Australia to study, achieve in that course of study, and return home. The Tribunal is not satisfied that the applicant's family in her home country represent a motivation for her to complete her studies and return home in 2027, as her family has not incentivised her to return to her home country on completion of the Master of Business Administration but stayed here to continue pursuing lower level and unrelated courses.
14. 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). Having concluded that the applicant does not meet cl.500.212(a) it is not necessary to further consider cls.500.212(b) and (c).[1]
15. 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.
16. 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.

Representative for the Applicant: Mr Pankaj Dumra (MARN: 0959608)

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] Diat v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022]