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 is a citizen of Nepal who was born in 1987. He arrived in Australia in August 2023 on a Subclass 408 Temporary Activity Visa which was valid until November 2023. He submitted a student visa application on 8 November 2023, the day before his Temporary Activity visa expired.
2. In support of his application, the applicant has also provided a range of additional documentation to the Department:
   • A copy of a Nepalese Passport issued in 2018 in his name.

• A copy of two page 'Statement of Purpose' written by the applicant (the 2023 GTE Statement).

• A copy of a 'Salary Certificate' issued by Orak Foods in Kathmandu indicating the applicant had worked for the company between April 2012 and October 2015 as a 'Line Cook'.

• A copy of a 'Junior Diploma cum Marksheet' issued in June 2016 by the Prayag Sangeet Samiti in Nepal indicating the applicant has studied music in Nepal.

• A copy of a Certificate of Insurance indicating the applicant had obtained health cover in Australia.

1. The applicant's student visa application indicated that in Australia he intended to study a Certificate IV in Kitchen Management and a Diploma of Hospitality Management.

1. As noted above, the applicant's submitted the application for review to the Tribunal in May 2024.
2. In July 2025, the Tribunal wrote to the applicant's representative and notified him that the applicant's case would soon be submitted to a Tribunal Member. That correspondence invited the applicant to give, in writing, all relevant information about the course(s) of study they are undertaking and their entry and stay in Australia as a student. The Tribunal requested the applicant submit this information in a Student Visa Information Form. The applicant subsequently provided a completed Student Visa Information Form to the Tribunal. The completed Student Visa Information Form indicated that it had been completed by the applicant and that the information in the form was complete and correct.
3. The completed Student Visa Information Form contained information about the applicant; information about his education and employment before coming to Australia; information about his travel to Australia and other countries; information about his current Visa application and other visa applications; information about his current and previous enrolment in educational courses in Australia; information about his employment and expenses in this country, and his other circumstances including information about his family, his community ties to Nepal and Australia, his assets, and his future plans. The Tribunal has considered the completed and signed Student Visa Information Form.
4. In support of his application, the applicant has also provided a range of additional documentation to the Tribunal:
   • An Overseas Student Confirmation-of-Enrolment Certificate for a Certificate IV in Kitchen Management Course which commenced in January 2024 and ended in July 2025. A copy of a Certificate, Record of Results and another document indicating the applicant had successfully completed the Certificate IV in Kitchen Management in July 2025.
   • An Overseas Student Confirmation-of-Enrolment Certificate for a Diploma of Hospitality Management Course which commenced in July 2025 and is scheduled to end in January 2026. A letter indicating his current enrolment in the Diploma of Hospitality Management.
   • A duplicate copy of his 2023 Certificate of Insurance.
   • A copy of the May 2024 delegates decision and 'Notification of refusal' correspondence from the department.
   • A letter written in August 2025 by the Managing Director of the Himalayan Burger House in Kathmandu indicating the applicant had been offered a job at the restaurant upon completion of his Diploma of Hospitality Management.
   • A duplicate copy of his 2018 Nepalese Passport. Copies of six pages from his Passport with stamps for his prior travel to Qatar and Thailand.
   • A copy of a Nepalese Marriage Certificate issued in the name of the applicant and his wife. A copy of a Nepalese Birth Certificate issued in the name of the applicant's son.
   • Various documents from the Bardibas Municipality in Madhesh Province Nepal about the ownership of property by the applicant and his family.
   • Letters from the Kumari Bank Limited and the Machhapuchchhre Bank Limited in Nepal about bank accounts operated by his wife and Mother in Nepal.
5. The Tribunal has considered all of this material.
6. The Tribunal has obtained a copy of records from the Provider Registration and International Student Management System ('PRISMS') for the applicant and an Australian government movement record relating to his travel to Australia. These records contained information consistent with the applicant's evidence about his study and travel to Australia, and the Tribunal places no adverse weight on these records.

1. The Tribunal has reviewed the PRISMS record and the two Overseas Student Confirmation-of-Enrolment Certificates the applicant has provided. The Tribunal has also considered the other documentary evidence the applicant has provided about his enrolment and study in Australia.
2. The Tribunal accepts that this applicant was enrolled in and completed a Certificate IV in Kitchen Management between January 2024 and July 2025. The Tribunal also accepts that this applicant is presently enrolled in a Diploma of Hospitality Management that commenced in July 2025 and is scheduled to end in January 2026.

1. Direction 108 requires the Tribunal to consider the applicants circumstances in his home country. The applicant is a Nepal citizen who was born in Nepal. In Nepal, the applicant has the political and social rights associated with citizenship. He speaks the Nepalese and has cultural links to Nepal society. The applicant completed his education in Nepal and lived there throughout his childhood in his early adult life. In Nepal he studied up to high school. In 2016 he obtained music qualifications. Between 2016 and his arrival in Australia the applicant was employed in the music industry Nepal. He worked as a songwriter and vocalist. As part of that employment, he travelled to Qatar, Thailand and Australia to provide cultural musical activities for the Nepalese communities in those countries. Taking all these factors into account Tribunal accepts the applicant has political, social and cultural ties to Nepal.
2. This applicant has family in Nepal. He is married and his wife lived in Kathmandu. He and his wife have a son was born in 2023 shortly before his arrival. The applicant's son also lives in Kathmandu. The applicant's parents also remain in Nepal, living in their ancestral village. His brother lives in Nepal. The Tribunal considers the applicant have strong family ties to Nepal.
3. The applicant was asked whether or not he had significant assets or property Nepal. During his hearing applicant indicated that he owns three properties in Nepal valued at around $140,000 AUD. As noted above, the applicant has provided various documents about property ownership in Nepal by him and his family. These documents confirm the applicant owns multiple properties in Nepal valued at $140,000 AUD. The documents also indicate that the applicant mother owns properties in Nepal. At hearing the applicant gave evidence that he stands to inherit a share of these properties. The Tribunal also notes that the applicant's wife owns a beautician's business in Nepal, and this represents another economic tie to that country. The Tribunal considers the applicant has strong economic ties to Nepal.
4. In his Student Visa Information Form and during his hearing, the applicant indicated that he did not have any concerns about returning to Nepal. During the hearing, he clearly asserted that he planned to return to his country at the completion of his Diploma of Hospitality Management in January 2026. He has indicated that he does not have any outstanding military service obligations in Nepal. He said that even though there has been recent civil unrest in Nepal, he considered that these events were a nett positive for the country and as it had led to the overthrow of the "old system" in that country and introduced a new democratic government. He indicated he wanted to return to Nepal and contribute to Nepalese society. He did not express any fears about returning to Nepal.

1. Direction 108 requires the Tribunal to consider the value of the applicant's course of study in Australia to his future. In Nepal this applicant has a high school education. His current level of study in Australia is at the diploma level and is consistent with his prior education in Nepal.
2. Prior to his arrival in Australia, the applicant worked as a musician and vocalist in Nepal. His study in Australia is in the cookery/catering/hospitality field which is different to his prior employment. However, Direction 108 indicates that decision makers should allow for reasonable changes to career or study pathways and during his hearing, the applicant pointed to his past employment in the hospitality sector in Nepal. He also argued that his work as a musician and vocalist was linked to the hospitality sector, since he had usually performed in restaurants, bars and hotels.
3. According to the applicant, he wishes to return to Nepal to work as a chef and restaurateur. In this context the Tribunal also hopes the applicant has provided evidence of his previous employment in the hospitality sector in Nepal, and that he has provided evidence of a future offer of employment in the hospitality sector in Kathmandu. Overall, the Tribunal considers the applicant's study in Australia to be consistent with his past work experience, his stated career goals, and his employment opportunity in Kathmandu.
4. In Australia the applicant has spent almost $20,000 AUD on his education. He says he considers this to be an investment in his future and hopes to recoup this money through his earnings in Nepal. According to the Student Visa Information Form submitted by the applicant, upon return to Nepal he estimates that he would earn around $24,000 AUD per year. However, the applicant argues that over time he hopes to expand is restaurant business in Nepal. He believes that higher wages are possible. In this context he notes that Nepal is experiencing a tourism boom. The applicant has not provided any supporting evidence for his salary estimate in Nepal. It is not clear to the Tribuinal whether the applicant's estimate is realistic or reliable.

1. Direction 108 requires the Tribunal to consider the applicants immigration history. Before he came to Australia in 2023, this applicant had only travelled to other countries, Thailand (2018) and Qatar (2019). His travel to these two countries had been brief and was related to his employment as a singer and vocalist. There is no evidence before the Tribunal of the applicant failed to comply with migration laws or Visa conditions in either of those countries.
2. The applicant has not applied for any other visas in Australia. There is no evidence before the Tribunal the applicant has not complied with his visa conditions or the migration laws of this this country.
3. The Tribunal notes that the applicant only submitted his student visa application one day before his subclass 408 visa expired. On its face, the timing of his student visa application submission may appear concerning. However, at the time he made his application he held a valid visa, and in the Tribunal's view, this issue is not of any further relevance. Overall, the Tribunal considers the applicant's immigration history to be favourable.

1. Direction 108 requires the Tribunal to consider the applicants potential circumstances in Australia.
2. In Australia this applicant lives in Wollongong with a friend. He has been able to discuss his living arrangements. He is currently employed by a restaurant and earns around $33,000 a year. The applicant's present salary in Australia is substantially higher than his expected salary in return in Nepal when asked about this issue the applicant indicated that it while he salary he was higher, living costs were substantially lower in Nepal. Furthermore, he pointed to his significant family connections in Nepal and his financial assets in that country and argued these were more attractive to him than a higher wage in Australia.
3. Throughout his hearing, the applicant gave clear and detailed evidence about his intention to return to Nepal at the conclusion of his diploma in 2026. He indicated that he had not considered further study in this country and was not intending to apply for further visas. He said he was excited to return home and see his family.
4. During his hearing the applicant was able to discuss his past and current course of study in this country. It was able to identify what he was what unit he was currently studying, and to explain the remaining assessments he had in order to complete his course. The Tribunal considers the applicant demonstrated a good knowledge of his course of study in Australia.
5. Conclusion
6. According to Direction 108, a successful student applicant must be both a genuine temporary entrant and a genuine student. 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. This
7. The Tribunal has considered this applicant's circumstances in Australia and in his home country, the value of his course of study to his future, and his immigration history. The applicant is a not a minor, nor has he submitted a Student Guardian application.
8. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).

Does the applicant intend 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. As noted above, the Tribunal considers the applicant's visa history to be favourable. There is no evidence before the Tribunal that the applicant has failed to comply with his visa conditions, or the migration laws of Australia, or any other country.
4. On the basis of the above, 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).

Is the applicant a genuine applicant for entry and stay as a student because of 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)). The Tribunal is not satisfied that there are any other relevant matters for consideration.
2. 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.
3. 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 Bimal Kumar Bhattarai (MARN: 9685736)

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.