1. 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 the applicant is a genuine applicant for entry and stay as a student.
2. Clause 500.212 requires as follows:

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. The applicant said she had her parents, sister, nephew and husband in Thailand and she remains in regular contact with them all. It is accepted that these family ties may act as a significant incentive for her to return, particularly the presence of her husband who has visited her in Australia several times and her mother who has health issues. Further, the applicant provided documentary evidence of a number of properties which she and her husband own in Thailand, as well as oral evidence about being the joint loan holder with her sister for her sister's property and the joint owner with her husband of a car. The applicant also gave evidence that she intends to assist in renovating the temple in the Phichit province on return and I therefore infer that she has some connection to the religious community in that village.
2. The applicant gave evidence that she remains working for Emulsiflex Company Limited and does so remotely. She explained that she intends to continue working there throughout her studies and on return to Thailand in addition to setting up a bakery. It appears on the applicant's evidence that she could continue to work in that position from Australia. In this regard I am not satisfied that the applicant's current employment in her home country would act as an incentive for her to return.
3. The applicant confirmed that she does not have any potential military service obligations or political or civil unrest concerns in her home country or that there are any other reasons why she would not return to Thailand.
4. With respect to her reasons for studying English in Australia and not in Thailand, based on the applicant's evidence I find she did no research before coming to Australia about what courses were available but relied on the research an agent did for her after arriving. She also gave evidence that she did no research about undertaking English courses in Thailand as 'Back when [she] was living in Thailand, [she] did not use any English and [she] thought like it was unnecessary.' That is incompatible with her claim to wish to learn English to advance in her current company. If the applicant truly thought learning English would advance her career in Thailand then one would expect she would not have thought learning it was unnecessary and/or would have done research as to where might be the most cost effective and valuable course for her either in her home country or in other countries. While I accept her claim she would learn English better by living in an English-speaking country to immerse herself in the language, her lack of research and planning is of concern.
5. The applicant also gave evidence that she has completed two English language courses since arriving and is currently studying a further English for academic purposes which will enable her to undertake a Certificate III and Certificate IV in Patisserie as well as a Diploma of Hospitality Management. I accept that in order to undertake that further study it is necessary for her to have a particular level of English which she will obtain through the English for academic purposes course. I also accept that she has been attending that course and obtaining good results. However, the applicant was unable to provide any evidence of research that she has done into the Certificate III/IV and Diploma courses and again I find that she has relied on advice from her agent about those courses. It is concerning that she has not done any of her own research, but it is even more concerning that she has not researched whether similar courses are available in her home country.

1. I accept that she has limited connections in Australia, having only friends she has met since arriving and through marathon activities, and that carries some weight in the applicant's favour in assessing whether she meets the genuine temporary entrant criteria. I also accept she has not entered into a relationship of concern for a successful Student visa outcome.
2. Further, the applicant demonstrated a reasonable level of knowledge of living in Australia commensurate with someone who has lived here since 2023.
3. When questioned about why the applicant stayed in Australia to do a second English course and why her plans have changed so much that she now wishes to study a Certificate III and Certificate IV in Patisserie as well as a Diploma of Hospitality Management, the applicant said she had to stay here longer while she was waiting for her appeal so had to have cause to continue with study. These responses to me indicate that the applicant has only enrolled in further courses to ensure she can extend her stay and maintain a valid CoE. She was also unable to tell me about how many units the future proposed courses contained and also had limited knowledge of the course dates. This suggests to me that she did not have a level of knowledge of the proposed courses that one would expect her to have given the cost and time involved in obtaining these further qualifications.

The value of the course to the applicant's future

1. In relation to the English courses the applicant has undertaken, as mentioned above, she claimed that she thought it would advance her career Emulsiflex Company Limited. During the hearing, she also gave evidence that there are departments within that company who contact suppliers and if those people are good at English language that will help increase their income. While the applicant provided evidence of her ongoing employment at Emulsiflex Company Limited, she did not provide any evidence from her employer that learning English would assist her in obtaining a higher paying role in that department or otherwise. In the absence of that evidence I do not accept that the English courses are of value to her future career at Emulsiflex Company Limited.
2. In relation to the proposed Certificate III/IV and Diploma courses, the applicant explained that she liked the café culture in Melbourne, liked baking, wanted to learn international patisserie skills not local Thai food and wished to open a bakery on return to add to her income stream (that is in addition to her current job working for Emulsiflex Company Limited). She also gave some vague responses to my questioning about how much income she would earn from her bakery business and did not provide any independent evidence or evidence of any actual research or business planning she has undertaken about the profitability of such a business. I accept that I can consider any reasonable changes to career or study pathways. However, I do not consider the change, in the circumstances, to be reasonable. The proposed Certificate III/IV and Diploma courses are not at a level, or, in a subject, which is consistent with the applicant's current level of education nor her work experience. Given that and coupled with the lack of research and planning in relation to the proposed courses and/or the profit she would make from opening a bakery business in Thailand, I am not satisfied that the courses are of value to the applicant's future nor that she would increase her remuneration in Thailand with those qualifications compared to her remaining in Australia and continuing to work for Emulsiflex Company Limited online or to do other work in Australia. The change in study pathways also suggests to me that the applicant may have been motivated to remain in Australia for reasons other than study.

1. The applicant travelled to Australia with her husband for a holiday from February to May 2023 and returned in August 2023. She confirmed at the hearing that she came back in August 2023 to learn more about Australian culture and she had planned to stay to be a student. I am concerned that this may indicate that the applicant was seeking to use the student visa program to maintain residence and/or bypass the intentions of the visa program by arriving on a visitor visa, with the intention of staying to study and later applying for the student visa.
2. The applicant initially told the Department that when she arrived in 2023 she would only stay to study a 6-month English course. She now plans to remain in Australia until the beginning of 2028. The length of time that the applicant now intends to remain in Australia when she initially intended to stay for a short period is troubling. It further indicates that she may be using the student visa program to maintain ongoing residence.
3. The applicant claimed, and there is no evidence to dispute, that she had not previously been refused a visa in Australia or elsewhere, and that she had not had a visa cancelled or considered for cancellation. I also accept that she has complied with her visa conditions when she came to Australia between February and May 2023 and since she has been in Australia from August 2023. Finally, I accept she complied with the conditions of the visas she held when she travelled to the United Kingdom and France.

1. I also have before me a copy of the Provider Registration and International Student Management System (PRISMS) records for the applicant. These records contained information consistent with the evidence of the applicant, as to her past and future study.

1. In conclusion, in weighing the relevant factors, the Tribunal accepts that the applicant has reasonably strong family and economic ties in Thailand (in terms of property and assets) which are circumstances favourable to the granting of the visa. On balance, the Tribunal is not satisfied that these factors including her personal circumstances in her home country offer a significant incentive for her to return. I place greater weight on her circumstances in Australia and that, notwithstanding she has limited connections here, I have real concerns about her lack of research in relation to the future courses she has enrolled in and her plans to remain in Australia for a lengthy period. It is not accepted that the applicant has genuinely changed her career path and wishes to study patisserie courses so she can start a bakery in Thailand. Given the costs and time involved in obtaining further qualifications which are not consistent with her current level of education nor her employment history, I am not satisfied that there is demonstrated value of the proposed courses to the applicant's future.
2. Having considered the evidence provided of the applicant's circumstances overall, and other matters I consider relevant, including those in respect of Direction 108, as detailed above, I am not satisfied that the applicant is a genuine applicant for entry and stay as a student. This is because the Tribunal is not satisfied that she intends to genuinely stay in Australia temporarily.
3. Accordingly, the applicant does not meet cl 500.212(a).
4. 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.

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.