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.
3. At the hearing, the applicant gave evidence that she is unmarried and has no children but that her parents and brother live in India. She gave evidence that she attended the Sikh temple near her home in India when there was occasion to do so but otherwise has no strong community connections. She gave evidence that her family owns property in India and believes that it will be divided between her and her brother at some time after she returns to India. The applicant gave evidence that her family has sufficient wealth to support her studies in Australia and submitted bank documents to support that evidence.
4. The applicant gave evidence that she lives in Newcastle and commutes to her college in Granville. The applicant gave evidence that her sister lives near Newcastle and that she is married with two children. The applicant gave evidence that she lives in Newcastle because it is cheaper than Sydney and that she sees her sister "when [she] can".
5. The applicant has significant personal ties to India but also to her sister in Australia. When I put this to the applicant, she replied that she and her sister are "not close" and that her sister has her "own life". However, I find it significant that the applicant has chosen to live close to her sister, although doing so is far from convenient for her to attend college in Granville.
6. I put to the applicant that the fact that she had arrived on a visitor visa and her evidence that she only then decided to study might cause me to be concerned that she was using the student visa program in order to maintain residence in Australia and that she might have done so, for example, in order to remain close to her sister. She replied that she wants to complete her studies and return to India to see her parents and brother and get married.
7. Notwithstanding the applicant's insistence that she does not want to live in Australia, I find that her choice to live near to her sister, hours from where she studies in person, indicates that she has significant personal ties to Australia. I find that those ties constitute a strong incentive to remain in Australia.
8. The applicant gave evidence that she lived and worked in Singapore for about one year and four months before coming to Australia. She worked as a nursing aid, which is an assistant to a registered nurse, at a nursing home in Singapore. The applicant gave evidence that she had resigned her job in India before leaving and has no job to return to in India.
9. The applicant has studied in India, completing a Diploma in General Nursing and Midwifery in 2012 and a Bachelor of Science in Nursing in 2020. The applicant's career to this point has been exclusively in nursing. In India, she held a succession of jobs in hospitals, most recently as a senior staff nurse. The applicant characterised nursing as a stressful job with many responsibilities. She gave evidence that she had to work many night shifts but never earned a large salary. I find that the applicant has chosen to study in a field unrelated to her previous studies and employment.
10. The applicant gave evidence that her family will arrange for her to be married when she returns to India, although she does not know to whom she will be married at this point. She gave evidence that a central attraction of her current course of study is that a corporate job will better allow her to manage her work and family lives than doing shift work as a nurse. A further attraction is that the applicant expects to earn considerably more money in corporate life. In her written submissions to the Tribunal, she stated that she expects her qualifications to "open doors to diverse roles like project management, program management, learning and development, corporate training, and organisational development". She stated that her qualifications will mean she is "in high demand" and mentioned companies with which she might be employed, including Infosys and Microsoft. The applicant stated that she might work in roles including Learning and Development Manager, Project Manager, Program Manager, Corporate Trainer, Operations Manager or HR Manager and that these jobs would pay between INR 7 and INR 40 lakhs per annum.
11. The applicant gave evidence at the hearing that she has searched for information about the roles above but has not taken any steps towards applying for any of those jobs. She gave evidence that she was motivated by their higher pay. I put to the applicant that it might be difficult to obtain the types of job that she has in mind in industries in which she has no experience. The applicant replied that she is getting "practical experience" as part of her studies in Australia. She did not respond substantively to my subsequent suggestion that that might be seen to differ from experience gained working in an industry. I suggested to the applicant that she might, for example, seek an HR job in a hospital where her experience would assist her but she replied only that she was seeking work with companies like Microsoft. I put to the applicant that her course is advertised as being for people with significant experience in "a senior management or leadership position", which might indicate that the experience she gains will be insufficient to get her the job that she wants. She replied only that she is seeking work in India, not in Australia.
12. The applicant spoke about the types of job that she wants and hopes to get. She was unable to tell me what steps she plans to take to obtain such a job. She has not started to apply for jobs in India, although she is scheduled to finish the second of her Australian qualifications this year. The applicant did not engage with my questions about how those qualifications will get her a corporate job notwithstanding her exclusive work experience as a nurse. I do not accept that the experience that the applicant will get as part of completing her course will be sufficient for her to obtain one of the roles to which she aspires in one of the companies for which she aims to work.
13. The applicant's evidence about why she chose to study the courses she has enrolled in and what value they will have to her future was limited. I put to her that the career plans she had spoken about were vague and that she had mentioned only generic job titles with large companies. I asked whether she wanted to comment on my concern that she had shown little understanding of how her qualifications would assist her to obtain the type of job she seeks. The applicant replied that her "situation is very complex" and that she wants to complete her course and go home.
14. The applicant gave evidence, and I accept, that she came to Australia seeking a change in her circumstances. Part of the change that she described to me was that she will return to India with management qualifications, obtain a highly paid job, get married, start a family, inherit property and have a career that fits that new life better than her previous career in nursing. While I accept the applicant's evidence that she will one day inherit property from her parents, the other elements of the future that she described after she returns to India are entirely speculative in as much as she gave evidence that no steps have yet been taken towards them. For that reason, I do not accept that the applicant has demonstrated that the course of study she has undertaken has significant value to her future.
15. I find that the applicant's course of study is not relevant to her previous employment and that she has only vaguely formed intentions of how it will be relevant to her future employment. The applicant does not have a job to return to in India and has never worked outside the field of nursing. Although the applicant has mentioned wanting jobs that will pay a substantially higher salary than she has previously earned, I find that she gave little evidence that she will obtain such a job on the strength of her Australian qualifications. The speculative nature of the applicant's future employment is emphasised by the facts that she has not yet sought a specific job in India and that she has been searching for information about well-paid roles while having given almost no thought to her qualifications to perform such a role. For that reason, I do not accept that the course of study that the applicant has undertaken in Australia will assist her to obtain employment or improve her employment prospects in India.
16. On the basis of the above, I am not satisfied that the applicant intends genuinely to stay in Australia temporarily. Therefore, the applicant does not meet cl 500.212(a). Accordingly, I am not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
17. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

1. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Representative for the Applicant: Mr Harsh Yadav (MARN: 2117646)

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.

Part 1 - Preliminary

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.

Part 2 - Directions

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.