Genuine applicant for entry and stay as a student (cl 500.212)

The applicant is a genuine applicant for entry and stay as a student because:

(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.

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. While the Tribunal has considered all of the elements of the Direction together with other elements considered to be relevant, the comments below only reflect aspects where facts are considered to be applicable in this case.

1. The applicant told the Tribunal that her husband works as an engineer in the Philippines, and he is looking after her son. She told the Tribunal that prior to her arrival in Australia she operated a café with four staff. She stated that the café is still operating and is being managed by her staff members. She stated that both her parents are deceased and that she has five sisters living in the Philippines. The applicant also has one sister who is an Australian citizen and has lived in Australia for a number of years.
2. The Tribunal finds on the basis of the evidence before it that the applicant has strong family and economic ties with Philippines which would provide her with a strong incentive to return to her home country upon completion of her studies. The applicant told the Tribunal that she will return to the Philippines to be with her husband and child, once her Diploma course has been completed. The applicant told the Tribunal that her daughter is 12 years of age, and she wants to return the Philippines once her studies are completed as her daughter will soon start high school. The applicant stated that she owns her house in the Philippines as well as her café business.
3. There is nothing before the Tribunal to indicate that there is any civil or political unrest in that country. Accordingly, these are not factors that would motivate the applicant not to return to the Philippines.

The applicant's potential circumstances in Australia

1. The applicant told the Tribunal that she does not work because she has no work rights. She told the Tribunal that she has her own savings from which she pays her education expenses, and her sister helps her financially if necessary.
2. The applicant stated that she came to Australia to visit her sister and to spend some time with her and her young family. She stated that her sister is married with three children and works in a hospital kitchen. She told the Tribunal that she has lived with her sister since arriving in Australia.
3. The applicant stated that her original intention when she came to Australia was to visit her sister and not to study, however, she became aware of numerous vocational courses that specialised in cookery and she was excited about the prospect of undertaking further studies in order to become a qualified chef. She stated that she employs four staff in her café however, she has plans to establish a large restaurant and accommodation villas in a popular beachside tourist area when she returns to the Philippines.
4. The applicant told the Tribunal that she has always had a strong passion for cooking and has always aspired to owning her own restaurant one day. She stated that her café in the Philippines is small and mainly serves breakfast and lunch. The applicant stated that coming from a hospitality background, it was only natural for her to want to expand her skills and knowledge of the hospitality industry and to acquire additional skills to enable her to pursue her business interests in cookery and hospitality.
5. The applicant told the Tribunal that she has already completed her Certificate III in Commercial Cookery as well as her Certificate IV in Kitchen Management. She told the Tribunal that she is now completing her Diploma of Hospitality Management and that his current course is due to be completed at the end of December 2025.
6. The applicant told the Tribunal that she decided to complete her hospitality and cookery studies in Australia and not the Philippines because, whilst there are courses available in the Philippines, they are usually 3-4 years degrees and mainly focus on theory rather than attaining practical skills in cookery. She also stated that the courses in the Philippines predominantly teach local cuisine and that she did not wish to be confined to any particular cuisine and wanted to attain broader cooking skills using new ingredients and innovative cooking skills. She stated that this was important because the restaurant she plans to establish will be located in a popular tourist area and that her restaurant would need to cater for international guests.
7. The applicant also stated that the quality of the courses in Australia is of a much higher standard than the courses available in the Philippines. The applicant told the Tribunal that Australian qualifications are highly regarded overseas, and this would be an advantage to her when promoting and marketing her restaurant particularly via social media.
8. The Tribunal accepts the applicant's evidence that she would be motivated to return to the Philippines at the conclusion of her studies. There is no evidence before the Tribunal to suggest that the applicant is using the student visa system primarily to maintain residence in Australia. The Tribunal notes that the applicant has completed her Certificate III in Commercial Cookery as well as her Certificate IV in Kitchen Management despite the refusal of her student visa application on 17 April 2024. The applicant has enrolled in a package of courses which are aimed at obtaining career skills as a chef and has successfully progressed through her course and will complete her entire course package in the next 4-5 months.
9. The Tribunal accepts that the applicant's decision to study in Australia was not a decision taken with a view to remaining in Australia indefinitely. Having regard to the evidence before the Tribunal, the Tribunal finds that the applicant's circumstances in Australia are such that there exist no particular incentives for her to remain in Australia after he finishes her studies. The Tribunal notes that the Temporary Graduate sub class 485 visa requires applicants to be aged 35 years or younger at time of application and the applicant would be ineligible to apply for this visa at the conclusion of her course. The Tribunal accepts that the overriding incentive for the applicant to return to the Philippines is her desire to open her restaurant and to be with her family.

1. The Tribunal accepts the applicant's evidence that her objective is to establish her own restaurant in the Philippines. The applicant told the Tribunal that she intends to open a large restaurant and six villas in Bolinao which is a popular beachside resort area on the west coast of Luzon Island in the northern Philippines. The Tribunal finds that the applicant's package of hospitality courses will enable the applicant to acquire relevant industry specific skills which are directly relevant to her business interests.
2. In answer to questions from the Tribunal about the subjects the applicant has studied thus far and subjects to be completed as part of her further studies, the applicant was able to demonstrate knowledge and details of her subjects, overall course, and her education provider.

1. Having regard to the applicant's visa history in Australia, the Tribunal accepts that the applicant is intending to stay in Australia temporarily and there is no evidence before the Tribunal to indicate that the applicant has breached any immigration laws of Australia or any other country.

1. There are no other matters before the Tribunal relevant to the applicant's intention to temporarily stay in Australia.
2. In assessing the totality of the circumstance of the applicant and having regard to the relevant factors prescribed in Direction 108, the Tribunal finds that they are on balance favourable to the visa grant.
3. Having considered the applicant's circumstances as a whole, 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. Other conditions may also be imposed in some cases (cl 500.611(2)): 8535 (limited visa entitlement), 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).
3. There is no information before the Tribunal that the applicant has not complied with the conditions of any previous visa granted to her and her evidence before the Tribunal was that she intends to comply with all conditions imposed on her as part of this visa application.
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)).
2. There is no evidence of any other matters of relevance to the Tribunal.
3. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
4. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

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

Representative for the Applicant: Mr Dildeep Singh (MARN: 1281067)

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] Department File: BCC2023/5964386, Tribunal File: 2408968

[2] See clause 500.212 of Schedule 2 to the Migration Regulations 1994 ('the Regulations') which requires that student visa applicants be genuine applicants for entry and stay as a student. A copy of the delegate's decision was provided to the Tribunal with the applicant's review application.

[3] Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (24 February 2020) at [82] and [96].