The applicant is a 32 year old Sri Lankan national. She is married. Her husband is a State Counsel and Public Prosecutor attached to Sri Lanka's Attorney General's Department, while her widowed father-in-law is one of Sri Lanka's pre-eminent President's Counsel. In addition to her husband and father-in-law, the applicant also has her parents in Sri Lanka. The applicant has two sisters who live in Australia, one of whom is a permanent resident while the other is a student visa holder studying in Australia.
At the hearing, the applicant gave evidence that she has video calls a few times daily with her husband, parents and father-in-law in Sri Lanka, and that her sisters also join in the family video calls. The applicant has also visited her husband and family in Sri Lanka every university holiday break, which the Tribunal notes is corroborated by her movement records.
The applicant holds a Bachelor of Science (Business Management) degree from University of London and a Master of Business Administration (Human Resources) degree from Cardiff Metropolitan University. She is now enrolled in and studying Master of Business Information at Torrens University, which she commenced in February 2024 and which she is anticipated to finish in December 2025.
Before commencing her postgraduate study at Torrens University, the applicant worked in a number of jobs in Sri Lanka in the field of human resources and talent acquisition. Her most recent employer was IFS R&D International Pvt Ltd ('IFS R&D') where she has worked since October 2021, initially in the role of Talent Acquisition Specialist before moving into the role of Senior Product Specialist/Business Analyst in May 2023.
The applicant explained in a Statement of Purpose to the Tribunal that the reason for her decision to study Master of Business Information at Torrens University stemmed from the opportunity she was offered by IFS R&D to move into the role of Senior Product Specialist/ Business Analyst. Although she has considerable experience and expertise in the human resources domain, her lack of technical skills was a gap which affected her ability to optimally perform the technical aspects of her role. When asked by the Tribunal why she was offered such a role despite her lack of technical expertise in business systems and analytics, the applicant responded that she was offered the role as a 'stretch opportunity' because of her strong performance as a Talent Acquisition Specialist and because of her identified growth potential. The applicant stated that following discussions with her manager and mentor about steps she could take to bridge her technical gap, she researched options for further studies in Sri Lanka, UK, Canada and Australia, however after doing some comparisons she eventually decided on studying in Australia for the following reasons:
Courses like Master of Business Analytics at University of Colombo and Master of Big Data Analytics at Informatics Institute of Technology in Sri Lanka are more focused on data analytics than business systems which is what she was after. Further, the core modules have a heavy focus on business subjects which she had already studied in her MBA course and did not want to spend money repeating.
Universities in UK offering courses she was interested in, such as University of Greenwich and University of Westminster, are well-regarded, however she was seeking opportunity to study in a different academic environment, as she already has experiences with the UK system from her previous studies.
Canadian universities like University of Toronto, University of Alberta and University of British Columbia offer strong business information system programs, however the combination of extreme weather conditions in Canada and the long distance from Sri Lanka making visiting family more difficult, made Canada less attractive.
Studying in Australia offered all the things she desired - in addition to first class education, Australia also has milder climate, culture, international student-friendly environment, and relative ease of travel to and from Sri Lanka. She would also have access to family support in Australia through her sisters.
The applicant travelled to Australia in December 2023 on a Class FA Subclass 600 visitor visa. During this trip, she and her husband with whom she was travelling had the opportunity to discuss study options in Australia with her sisters, friends and colleagues who provided valuable insights. They ultimately decided on Master of Business Information at Torrens University because in addition to being accredited by the Australian Computer Society which would provide greater global recognition for the qualification, the Master of Business Information at Torrens University has the right balance of business and technical content which the applicant sought, compared to courses at other universities such as the University of Melbourne or RMIT where the course content is much more technical than what the applicant needed for her future career goals.
Moreover, the applicant was attracted by the dual qualifications available through the Master of Business Information at Torrens University, where she would be awarded a Graduate Diploma upon completing the first eight core modules of the course. She liked the course's industry-oriented teaching and assessments, free access to industry-standard certifications, and teaching staff who are drawn from both academic subject matter experts and industry professionals.
The applicant claimed that her primary goal after completing her study is to return to Sri Lanka and relaunch her career. In addition to being able to compete for roles in leading multinational companies like Oracle and SAP because her new qualifications (when completed) would enable her to combine business analytics and data modelling with her existing human resources expertise to better collaborate with other technical experts to meet organisational human capital requirements, her previous employer IFS R&D which has encouraged and supported her professional development and with whom she has kept in contact since arriving in Australia, has expressed a strong interest in her return in a senior role after she completes her studies. The applicant gave evidence that with this possibility in mind, she has even consulted her mentor at IFS R&D when selecting her elective subjects, and she also visited them when she returned to see family in Sri Lanka on the last two occasions to discuss future opportunities.
The applicant stated that with qualifications in both human resources and business information systems, she can expect to command a 70-80% increase in salary compared to what she received in her last job. When questioned by the Tribunal on this as such an increase seems like an enormous jump, the applicant explained that she has based this estimate on her experience of the job market in Sri Lanka as a HR professional. Further, because professionals with combined qualifications in the human resources domain and business systems and analytics are relatively rare in Sri Lanka, companies - particularly multinational IT and technology-based companies that enjoy government tax concessions (as a means of encouraging foreign investment in Sri Lanka) - are willing to pay higher salaries including in USD or other foreign currencies in order to attract talent into important senior positions.
The applicant also gave evidence that in addition to pursuing salaried roles in Sri Lanka that leverage both her human resources and business analytics expertise at prominent IT and technology-based companies, she plans to establish her own consultancy business in the longer term where she can combine it with her passion for community services by offering vocational training opportunities to young graduates. The applicant stated she has even thought of a name for her consultancy business - AspireDirect - which she said she has already confirmed from company name searches is not already in use in Sri Lanka and which she explained is based on the idea that anyone with aspirations can come to her for help to direct them to the resources or pathway they need.
In support of her case, the applicant has provide a large number of documentary evidence which includes, relevantly, evidence of IFS R&D's ongoing support for her and their interest in her return to a senior role in the company's Human Capital Management team; evidence of her husband's employment in Sri Lanka as a State Counsel and Public Prosecutor; and evidence of other economic ties to Sri Lanka including considerable asset holdings.
[2]
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether or not the applicant is a genuine applicant for entry and stay as a student, as required by cl 500.212 of the Regulations.
[3]
Genuine applicant for entry and stay as a student (cl 500.212)
[4]
The applicant is a genuine applicant for entry and stay as a student because:
[5]
(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant's circumstances; and
(ii) the applicant's immigration history; and
(iii) if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant's stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
[6]
Does the applicant intend genuinely to stay in Australia temporarily?
[7]
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.
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.
On the basis of the evidence provided by the applicant, the Tribunal is satisfied the applicant has sufficiently strong personal/family ties to Sri Lanka that would motivate her to return to Sri Lanka. She is relatively newly married, having only married her husband 3 years ago, and her husband has a very secure, high profile public service legal profession that she has no reason to jeopardise by remaining in Australia which could put her husband in a difficult position of having to choose between her and his career. She is clearly close to not only her husband but also her parents and father-in-law, which is demonstrated by her multiple daily video calls to them and return trips to Sri Lanka every university holiday to visit them. Whilst her sisters' presence in Australia is a counteracting family tie, the Tribunal does not consider it to be stronger than the family ties she has in Sri Lanka.
The Tribunal also finds that the applicant has significant economic incentives to return to Sri Lanka. The evidence she provided shows she has considerable personal and real assets in Sri Lanka in her own right (in addition to other assets of her husband's), with more to come from inheritance she and her husband can collectively expect from her parents and father-in-law. Importantly, the Tribunal finds the applicant has provided a plausible and compelling narrative for why she has chosen to pursue further studies in business information systems and business analytics, and why she has chosen to study in Australia - specifically Master of Business Information at Torrens University - out of the different domestic and international study options she has explored.
Insofar as the applicant's future plans are concerned, unlike the delegate the Tribunal does not find it implausible that her former employer IFS R&D would welcome her back into their workforce after an extended period of absence of two years, having regard to the company's core values as stated on their website[1] and given the applicant would return with more to offer the company. Indeed, the employment reference letter dated 16 February 2025 from IFS R&D's Senior Director Software Engineering makes the company's interest in the applicant's return upon completion of her study abundantly clear. The applicant's evidence that she consulted her IFS R&D mentor in selecting her elective subjects and that she visited the company to discuss possible future opportunities during her two most recent return trips to Sri Lanka also demonstrates her intention to return to Sri Lanka.
The Tribunal also finds the applicant's evidence about the job opportunities that would be open to her outside of IFS R&D on completion of her study and return to Sri Lanka to be persuasive. Whilst the Tribunal does not know whether the applicant would really be able to command a 70-80% increase in her anticipated salary as claimed if she could supplement her existing human resources expertise with business systems and business analytics skills, the Tribunal has no particular reason to disbelieve her given her knowledge of the Sri Lankan job market as an experienced HR professional and her insight into the multinational business landscape in Sri Lanka. Even if the applicant has over-estimated and her realistic future remuneration increase is lower than 70-80%, the Tribunal is still satisfied that her current course of study is reasonable and beneficial to her future career progression having regard to all the circumstances.
The Tribunal notes the applicant's evidence with respect to her aspiration to establish her own consultancy business in the longer term. The Tribunal considers the fact that the applicant has thought seriously about the name of her business and gone as far as conducting preliminary company name search to ensure the proposed name is not already in use in Sri Lanka, is an additional indicator supporting a finding that she intends to return to Sri Lanka.
Finally, the Tribunal has had regard to the applicant's known immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries. There is nothing - for example any instances of overstays in any country - that would cause the Tribunal to believe that the applicant does not intend genuinely to stay in Australia temporarily.
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).
[8]
Does the applicant intend to comply with visa conditions?
[9]
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.
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. Pursuant to cl 500.611(2), the following conditions may also be imposed in some cases: 8535 (visa entitlement), 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).
There is no evidence before the Tribunal that the applicant has not complied with the conditions of the visitor visa on which she first arrived in Australia, nor is there evidence that the applicant has not complied with the conditions of the bridging visa A and bridging visa B that she was subsequently granted.
[10]
The applicant has stated that she intends to comply with any visa conditions that her student visa (if granted) may be subject. In this regard, the Tribunal notes from a copy of the overseas student health cover valid until 26 March 2026 on the applicant's departmental as well as Tribunal file that she is already compliant with the requirement of condition 8501 to maintain adequate health insurance for the duration of her stay, noting her Master degree is anticipated to finish in December 2025, despite the applicant not yet being subject to this condition. Similarly, the Tribunal is satisfied from the applicant's confirmation of enrolment, her evidence in relation to the number of subjects she has already completed, and a copy of her academic transcript to date that she is maintaining course enrolment, progression and attendance as required by condition 8202.
[11]
On the basis of the above demonstrating the applicant's past compliance and her likely future compliance, 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).
[12]
Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?
[13]
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)).
In the present case, the Tribunal finds that there are no other matters arising from the material and evidence available which are relevant to the Tribunal's assessment of whether the applicant is a genuine applicant for entry and stay as a student. Therefore, cl 500.212(c) is taken to be satisfied.
In conclusion and for all the reasons discussed, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212 of the Regulations. This being the case, 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.
[14]
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.
[15]
Representative for the Applicant: Mr Kiran Kumar Ramini (MARN: 1806037)
[16]
DIRECTION NUMBER 108 - ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
[17]
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).
[18]
Minister for Home Affairs and Minister for Cyber Security
[19]
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.
[20]
This Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
[21]
Direction No. 69, given under section 499 of the Act, is revoked.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
[29]
Spouse has the same meaning as the definition of the term in section 5F of the Act.
[30]
Student visa means a Subclass 500 (Student) visa
[31]
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
[32]
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).
[33]
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.
[34]
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.
[35]
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.
[36]
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.
[37]
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.
[38]
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.
[39]
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:
[40]
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
[41]
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.
[42]
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.
[43]
Assessing the genuine temporary entrant criterion
[44]
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.
Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
[45]
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)
[46]
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.
Circumstances where further scrutiny may be appropriate include but are not limited to:
[47]
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.
[48]
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.
[49]
Decision makers should have regard to the applicant's circumstances in their home country and the applicant's potential circumstances in Australia.
For primary applicants of Student visas, decision makers should have regard to the value of the course to the applicant's future.
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.
[50]
The applicant's circumstances in their home country
[51]
When considering the applicant's circumstances in their home country, decision makers should have regard to the following factors:
[52]
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.
[53]
Decision makers may have regard to the applicant's circumstances in their home country relative to the circumstances of others in that country.
[54]
The applicant's potential circumstances in Australia
[55]
In considering the applicant's potential circumstances in Australia, decision makers should have regard to the following factors:
[56]
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.
[57]
Decision makers should have regard to the following factors when considering the value of the course to the applicant's future:
[58]
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.
[59]
An applicant's immigration history refers both to their visa and travel history.
When considering the applicant's immigration history, decision makers should have regard to the following factors:
[60]
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.
[61]
If the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant
[62]
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.
[63]
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.