1. The Tribunal has taken into consideration evidence adduced to the Department and Tribunal and the applicant's oral evidence at hearing. The Tribunal has also considered the applicant's record in the Provider Registration and International Student Management System (PRISMS) and travel movement records.

1. The applicant is a 28-year-old national of Brazil. He first arrived in Australia on 21 April 2023 on a Student (Subclass 500) visa to study a General English (Elementary to Advanced) course. He told the Tribunal that he completed the course between 24 April 2023 and 6 October 2023.
2. He is currently enrolled and studying a Diploma of Community Services at St George & Sutherland Community College (SGSCC) which he commenced on 4 December 2023 and is due to complete on 5 December 2025. Evidence from SGSCC confirms that he is progressing satisfactorily and attends his course in-person. During the hearing, the applicant demonstrated detailed knowledge of his course, including the course structure and unit content.
3. PRISMS is a business record of the Department of Education, Skills and Employment and is used by the Department of Home Affairs as evidence of enrolment for the purposes of assessing the grant of student visas. The applicant's record accessed by the Tribunal on 10 November 2025 confirms the same.
4. When asked what his plans were once he completes his Diploma in December 2025, the applicant replied that he wanted to undertake further studies in Australia, namely a Masters in Social Work of approximately two to three years duration.
5. The applicant has no family in Australia. He is currently residing in Bondi, New South Wales (NSW) with another Brazilian national. He confirmed he was not in an intimate relationship with anyone in Australia and has no children.
6. The applicant is financially supported by his brother. He also derives an income from a family-run business which he remains involved in on a remote basis. In addition, the applicant works approximately 24 hours per week as a furniture removalist. He told the Tribunal he was previously employed as a labourer.
7. Overall, the Tribunal finds that the applicant's potential circumstances in Australia do not give him incentive to remain in this country after he finishes his studies.

The applicant's circumstances in his home country

1. The applicant's family in Brazil comprises of his mother and six siblings, including three brothers and three sisters. His father is now deceased. He maintains daily communication with his family. The applicant has no spouse or dependent children in Brazil. When asked if he had returned to Brazil since his initial arrival, the applicant replied in the negative, stating he had not returned due to the conditions of his current bridging visa.
2. In Brazil, the applicant owns two residential properties. This is confirmed by property titles, income taxation returns, and property tax records submitted to the Tribunal.
3. The applicant completed secondary school and subsequently obtained a Bachelor of Business Administration with Honours. From January 2015 until April 2023, he worked as a business administrator in a family-owned business. He gave evidence that he continues to work for the company remotely from Australia, including overseeing the inventory control and finances.
4. There is no evidence to support the applicant has military obligations in Brazil. The Tribunal is not aware of any political and/or civil unrest in Brazil that would be a relevant consideration for this applicant.
5. Taking the various matters discussed above together, the Tribunal finds that the applicant's circumstances in his home country support his claim to intend genuinely to stay in Australia temporarily as a student.

The value of the applicant's courses for his future

1. When asked about the value of his course to his future and his future employment plans, the applicant told the Tribunal that after he finishes his Masters, he wants to return to Brazil to work as an Administrator for a Non-Government Organisation (NGO) applying his former business administration experience and education. When asked to elaborate, he stated he wanted to work for a NGO that provides community services such as for the elderly, children, people with disabilities and/or mental health and alcohol problems.
2. When asked why he had decided to change his career direction, the applicant explained that this represented a natural development of his career. He stated that he would continue to apply his business administration skills, but in a community sector, reflecting his desire to contribute to and assist people within the community.
3. When asked why he had studied in a field unrelated to his previous studies and employment, he replied that he had wanted to study English his entire life and that acquiring proficiency in the language was important for future employment opportunities. In relation to his Diploma of Community Services, he claimed he wanted to conciliate what he had studied in Brazil and that the course complemented his education and employment history.
4. In response to the Tribunal's concern that he was studying at a lower educational level and that it may not be adding to his skills and knowledge, the applicant claimed that when he arrived in Australia, he did not possess sufficient English to study at a higher level. However, he has now reached a point where he felt more prepared to pursue a Masters.
5. When asked to detail any research he had undertaken regarding courses offered in Brazil, and why he could not undertake his studies there or in the region, the applicant claimed that the courses available in Brazil did not offer the range of subjects he sought and gave limited focus to the community sector.
6. Whilst the applicant's current study is at a lower level than the Bachelor degree he already holds in Brazil, the Tribunal is satisfied with the applicant's explanation for this. The Tribunal accepts that the applicant's studies align and complement his past employment and education history in Brazil. The evidence before the Tribunal indicates that the applicant has been attending and learning from his course and that it is relevant to his career plans. The Tribunal finds his reasons for studying in Australia are sound and the Tribunal is satisfied that his current course of study is of value to the applicant's stated career objectives.

1. At hearing the Tribunal noted to the applicant that he had been onshore continuously for over two and a half years and given his evidence that he wanted to extend his stay for another two to three years to undertake a Masters, that this raised concerns that he was using the student visa to maintain an ongoing residency. The applicant denied this was the case and stated he had no intention of remaining in Australia. He explained that his sole purpose was to complete his studies and then return to Brazil. Whilst the Tribunal initially had some concerns, when considered in conjunction with the applicant's evidence regarding the value of his course to his career, in addition to his ties to Brazil the Tribunal accepts the applicants claims.
2. There is no evidence before the Tribunal that the applicant has had a previous visa for Australia, or any other country, refused or cancelled, other than the visa which is the subject of this review. For these reasons, the applicant's immigration history lends some support to his claim to be a genuine temporary entrant.

1. The Tribunal is satisfied that the applicant has been engaged in his studies and made academic progress. The Tribunal is satisfied that the applicant's courses are of real value to his future in Brazil and that he has comprehensively researched various options before deciding that the courses in Australia were most suitable for him. The Tribunal considers his career plans to be coherent and practical.
2. Based on the totality of the evidence, the Tribunal finds that the applicant's potential circumstances in Australia do not give him an incentive to remain in this country after he complete his studies and that the applicant has various strong incentives to return to his home country which support his claim that he intends to stay in Australia temporarily.
3. Having cumulatively assessed all of the evidence, as well as all of the relevant factors listed in the Direction, the Tribunal is satisfied that the applicant is a genuine temporary entrant and a genuine student.
4. 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. Based on the evidence before the Tribunal, the Tribunal accepts that the applicant intends to continue to comply in the future with any conditions to which his visa may be subject. There is no evidence that she has breached any visa conditions to date.
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)). There is no evidence of any other matters of relevance before the Tribunal.

1. 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. 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.

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.