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. The applicant gave evidence that she first arrived in Australia on 11 September 2007, holding a Student visa which was granted for the purpose of undertaking a Diploma of Hairdressing Salon Management. The applicant explained that when she arrived in Australia, she had an interest in starting her own beauty salon in Mauritius. She stated that while hairdressers were common at the time, there were a limited number of salons which employed beauty treatments provided in Australian salons. When she completed this qualification, she was under parental pressure to work in a different field, particularly from her father, who was unhappy with her plans to work in a salon. She stated that she enrolled in courses in Information Technology at Gurkhas Institute (Gurkhas), despite having little initial interest in the field. She found her teachers were encouraging and motivating, and they showed her options for moving forward with a career in IT. She stated that she initially chose to study Software Development, but found this field to be difficult. One of her teachers suggested she may be more suited to Networking. The applicant stated that she was inspired by her teacher and developed an interest in this field, and following her completion of the Diploma of Information Technology Networking in 2014, she decided to pursue further studies in IT the form of a Bachelor degree with Holmesglen Institute. She approached Holmesglen Institute regarding options to enrol in the degree, but was informed that the Diploma courses earned from Gurkhas would not be sufficient, as Gurkhas was experiencing issues regarding its status as a registered education provider, and she would instead need to enrol in an 'approved institute'.
2. The applicant explained that as a result she transferred to Chisholm Institute in 2015, where she had to repeat the Diploma of Information Technology Networking and also undertake the Advanced Diploma of Network Security at the same time. The applicant experienced difficulty completing both of these courses at the same time, but pushed herself to complete them. She also encountered significant disruptions in 2016 as a result of both of her parents becoming ill. Her father passed away in 2016, following which her mother required significant emotional support. As a result of these events, the applicant spent several months in Mauritius and was unable to complete the Advanced Diploma course. The applicant explained that she attempted to re-enrol in the Advanced Diploma of Network Security at Chisholm Institute in February 2017, but was told by the education provider that insufficient students had enrolled, and they course could no longer offer the course. She therefore re-enrolled in the Advanced Diploma of Network Security with ALTEC College in April 2017. Her Student visa expired in March 2017 and she applied for the Student visa under review, which was refused by the Department in May 2017.
3. The applicant completed the Advanced Diploma of Network Security at ALTEC College in April 2018 and planned to enrol in a Bachelor degree course in IT. She told the Tribunal that she approached a number of universities and agents, who stated that it would not be possible for her to obtain a CoE because she did not hold a Student visa. The applicant explained that this is when she received the letter of offer from Kent Institute for the Bachelor of Information Technology, which was subject to her being granted a Student visa.
4. The applicant explained that after the AAT's affirm decision in October 2018, she was unable to commence the Bachelor of Information Technology, given the pre-condition which Kent Institute had imposed. The applicant then went through a period of approximately five years in which she remained unenrolled. She explained that after the AAT's decision, she continued to attempt to enrol in a Bachelor of Information Technology, as this remained her goal, but she was informed by agents that it was not possible to obtain a CoE because her application was with the Court. Her difficulties in finding a suitable course were exacerbated by the COVID-19 pandemic, which resulted in the pausing of courses and then the change to online learning. During this time, she also became pregnant with her second son, and following his birth, cared for him for approximately 18 months. The applicant also explained

that the lengthy appeal processes that she experienced from May 2018 had a detrimental effect on her confidence and ability to focus on her studies, with these processes finally concluding in January 2025, after over 6 years.

1. The applicant gave evidence that during this 5-year period, her plans and circumstances changed. She stated that she lost heart with her plans to work in the IT industry as she felt that the gap she was experiencing in her studies had become too large, and she felt it would be too difficult for her to catch up with advances in technology such as AI. She had discussions with her family in Mauritius regarding businesses that she could successfully operate on return there, with her family suggesting that building and construction are booming. The applicant acknowledged that there would be challenges for her in this industry, but after undertaking her own independent research, she considered it an industry where she can develop and manage her own business.
2. The applicant told the told the Tribunal that she commenced a Certificate III in Painting and Decorating in August 2023, following which she commenced working as an apprentice painter in September 2024. She stated that after completing this course she decided to further expand her skills and knowledge in this industry by undertaking a Diploma of Building and Construction. She gave evidence of research she undertook regarding similar courses on offer in Mauritius, which she explained do not contain the same breadth of units, nor the same level of practical assessment.
3. The Tribunal also discussed with the applicant her immigration history and her circumstances in Australia and her home country, and her evidence in this regard is set out in the findings below, where relevant. The Tribunal also raised a number of potential concerns regarding the applicant's circumstances and gave her an opportunity to respond to each as a matter of procedural fairness. These potential concerns, and the applicant's responses, are also set out in my finings below.

1. Having considered the applicant's claims against all the factors specified in Direction 108, and taking into account all the relevant information, the Tribunal is satisfied that the applicant meets the genuine temporary entrant criterion. The Tribunal notes at the outset that it considers this to be a somewhat complex and difficult case given the significant time that has elapsed since the applicant made the visa application, which was made over 8 years and 5 months ago, with the applicant going through appeal processes before the AAT, the Court and now this Tribunal for a period of over 8 years and 3 months. The Tribunal also notes the significant changes in the applicant's circumstances during this time, including changes to her family and to her proposed course of study and employment plans. The Tribunal nevertheless considers that, overall, the applicant presented as someone who is highly motivated to study and obtain qualifications which will be of value to her in her home country.

The applicant's circumstances in her home country

1. The applicant gave evidence that her ties to Mauritius include the presence there of her mother, brother, sister, her in-laws, as well as almost all of her extended family. She gave evidence that the presence of her mother in Mauritius is a significant incentive, with her having to provide significant support to her mother following her father's death in 2016. The Tribunal accepts this to be the case.
2. The applicant provided details in the RSVI form and gave evidence at the hearing of her ownership of a house and land in Mauritius, as well as of other properties in her mother's name, which the applicant will inherit. The applicant gave evidence that she and her

husband intend to return to Mauritius, where she will seek employment within the building industry for about one year, following which she intends to commence a building and construction company. She gave evidence that her husband has experience working in this field in Mauritius, and that she will obtain support from her family for the initial commencement of the business, as well as seek a bank loan. She stated that her intention is to offer building and construction packages for new homes.

1. The Tribunal noted that, on her own evidence, the applicant has returned to Mauritius four times since first arriving in Australia but has not returned since 2016. The applicant explained that she has not returned to Mauritius since then because of the lengthy appeal processes which she has undergone in relation to the visa application. She stated that she currently holds a Bridging A visa, which does not allow her to travel. The applicant's Departmental Movement Details confirm that the applicant was granted a Bridging A visa on 22 November 2018, which allows zero entries. The Tribunal also accepts that the applicant has experienced a lengthy period of disruption to her life plans as a result of the appeal processes which have taken up more than 8 years of her life and accepts that she was nervous about the impact of travelling while these processes remained on foot. The Tribunal also notes the impact of the COVID-19 pandemic and the birth of the applicant's second son in 2022 on her ability to travel, as well as the applicant's decision to recommence her studies in August 2023. Accordingly, the Tribunal makes no adverse findings regarding the applicant not returning to her home country since 2016.
2. Overall, I find that the applicant has strong family and community ties to Mauritius, as well as prospective business plans, which would serve as a significant incentive for her to return to her home country at the conclusion of her proposed studies. This weighs in favour of a finding that the applicant is a genuine temporary entrant.
3. There is insufficient evidence before the Tribunal to indicate that the applicant's economic circumstances would present as a significant incentive for her not to return to her home country. I accept the applicant's evidence that she holds property in Mauritius, as well as has plans to establish a building company on her return to Mauritius. The applicant gave evidence that she and her husband do not have a home or other assets in Australia. The applicant gave evidence that she currently works part-time as an apprentice painter. Her husband currently works as a sheet metal worker. The Tribunal put to the applicant that sheet metal workers are currently in demand in Australia, to which she responded that her husband does not intend to work in this field long-term and it is not an incentive for them to remain.
4. I make no adverse findings regarding the applicant's reasons for not undertaking the proposed study in her home country rather than Australia and accept that the applicant has provided a reasonable explanation for why she wishes to undertake the Diploma of Building and Construction in Australia. The applicant gave evidence at the hearing of research which she undertook into similar courses in Mauritius, which do not contain the same depth of units or practical experience. In the RSVI form, the applicant states that similar courses in Mauritius are limited in scope, lack depth and specialisation. She also states that with an Australian qualification she will be in higher demand to prospective employers and be competitive in jobs with large construction firms and for government contracts. I find the applicant's reasons for studying in Australia also weigh in favour of a finding that she is a genuine temporary entrant.
5. There is no evidence of any military service requirements or of any civil or political issues which would act as an incentive for the applicant to remain in Australia. There is no adverse evidence before the Tribunal regarding the applicant's circumstances in Mauritius, relative to others in that country, and the Tribunal makes no adverse findings in relation to these factors and gives them no weight either way.

The applicant's potential circumstances in Australia

1. As noted above, the applicant circumstances in Australia are complex, with the applicant first having arrived in Australia in 2007 for the purpose of completing a Diploma of Hairdressing Salon Management. The applicant has therefore been in Australia for approximately 18 years, which is a significant period of time to remain in Australia on temporary Student visas and related Bridging visas. The applicant was granted five Student visas between 2007 and 2017, which would suggest that she has had ample time to obtain qualifications which will be of value to her future. The applicant's length of stay in Australia may in itself raise significant concerns that the applicant may be using the Student visa programme to maintain ongoing residence and circumvent the intentions of the migration programme.
2. Having noted this potential concern, I note however, that the applicant provided a reasonable and convincing explanation for why she changed her focus and career pathway from hairdressing and salon management to IT around 2010. The applicant also gave a detailed and convincing history of the challenges she faced in studying IT. This included having to essentially 'redo' the qualifications she obtained in the Diploma of Information technology (Software) and the Diploma of Information Technology (Networking) as the qualifications were not accepted for entry to her proposed Bachelor degree course. They also included significant personal setbacks in 2016 with the illnesses of both of her parents and the subsequent death of her father. In addition, she was unable to undertake the Advanced Diploma of Network Security at Chisholm Institute due to the course no longer being offered that year, despite initially being issued with a CoE by that college.
3. The Tribunal considers the applicant has provided a reasonable explanation for why she completed a Diploma of Information Technology Networking in 2012 and then repeated this course in 2016, following which she proceeded to the Advanced Diploma in this field. The Tribunal also notes that in the period from 2007 to 2018 the applicant overall has a positive academic record, having completed a number of courses, including the following:
   1. Diploma of Hairdressing Salon Management (2009);
   2. Diploma of Business (2010);
   3. Diploma of Information Technology (Networking) (2012);
   4. Diploma of Management (2013);
   5. Diploma of Software Development (2014); and

1. The Tribunal notes also that the applicant completed the Advanced Diploma of Network Security in April 2018, despite the Student visa having been refused by the Department on 22 May 2017. This supports the applicant's claim that her reasons for the Student visa application were to undertake studies in her proposed field, rather than to maintain ongoing residency in Australia.
2. I also note that the applicant had an offer of admission from Kent Institute for the Bachelor of Information Technology from November 2018 to November 2021, which was expressed as being conditional on the AAT 'approving' the Student visa. The applicant gave evidence of her intention to develop a career in IT, as well as of her interest in this field at the time, and I accept that this was the case. I note that despite the letter of offer, the AAT did not accept that the applicant met the enrolment condition for the Student visa in October 2018, and that the decision was found by the Court to be affected by jurisdictional error, as the Tribunal had

not exercised its power to adjourn the proceedings reasonably. In its decision, the Court also refers to a letter of a Bursary Award which Kent Institute sent to the applicant, which congratulated her on receipt of an award to be put towards the Bachelor degree studies. The Court also refers to the condition placed by Kent Institute for the issue of a CoE (namely, a successful grant of a Student visa) as being 'wrong headed and confused'. The Court noted that such a condition was one which the applicant could never have met, because the Student visa cannot be issued unless the applicant was enrolled in a course of study and had a CoE issued.

1. I note that the appeal process which the applicant experienced following the AAT's October 2018 decision was lengthy, with the appeal not concluding until January 2025, over 6 years later. I accept that the lengthy appeal process caused considerable disruption to the applicant's study and employment plans, with the applicant unable to enrol in a Bachelor course during this time due to the lack of a Student visa. I accept that this was demotivating for the applicant, and that during this lengthy period she lost confidence in her ability to proceed with a career in the IT industry. I also accept that the applicant went through a period of reflection regarding her employment prospects in her home country and developed a revised plan to establish a business within the building and construction industry. I consider the applicant has provided a reasonable explanation for why she has changed her study and career pathway as a result of research undertaken into career opportunities in her home country, as well as the result of the significant wait which she underwent as a result of the appeal processes for the visa application. I also accept that the applicant has provided a convincing explanation for what at first glance appears to be a significant gap in her studies. I also accept that further reasons for this gap in studies include the impact of the COVID-19 pandemic and the applicant's focus on the birth and care for her second son in 2023.
2. I also note that despite the lengthy appeals processes, the applicant decided to enrol in the Certificate III in Painting and Decorating in August 2023, which she completed in August 2024. This supports the applicant's commitment to obtain qualifications which will be of value to her future, and I note in particular that during this period the applicant held a Bridging visa which did not require her to be enrolled in a course of study.
3. The applicant has now enrolled in a Diploma of Building and Construction and has provided convincing evidence of her reasons for choosing this course of study. The applicant also spoke knowledgeably about the course, despite having attended only one week of the course at the time of the hearing. Having considered the evidence as a whole, I consider that the applicant remains highly motivated towards obtaining qualifications which will be of value to her future, and that the length of her stay in Australia has been prolonged through no fault of her own by lengthy waits as a result of appeal processes, as well as by other factors which were beyond her control, including the administrative requirements imposed by education providers, which the Court has described as 'wrong headed'. I therefore consider that there is insufficient evidence to indicate the applicant is using the Student visa to maintain ongoing residence or to circumvent the intentions of the migration programme.
4. A further potential concern which the Tribunal addressed with the applicant is her family ties to Australia. The Tribunal noted, in particular, that the applicant's first son (the third named applicant) is now an Australian citizen, and that she has a second son who was born in Australia, and that she and her husband appear to have established their lives in Australia. The Tribunal put to the applicant that the presence of her eldest son, who is an Australian citizen, may act as a significant incentive for her to remain in Australia. The applicant responded that she has reinforced with the third named applicant from a young age that her intentions are to return to live in Mauritius. She stated that although her eldest son is unhappy about the prospect, he has always accepted that this will be the case. The applicant stated that when her son turned 10, she decided to apply for Australian citizenship on his behalf, as she considered this was a right that he could obtain, and she did not wish

to deprive him of such a right. She stated that when he is an adult, her son will have the opportunity to choose whether he wishes to live in Australia or Mauritius, but while he is a child, he will have to follow his parents in returning to Mauritius. While the Tribunal maintains some concern regarding the presence of the applicant's son who is an Australian citizen, it nevertheless considers the applicant has provided a convincing and genuine response, and therefore gives this factor only some weight against a finding that the applicant is a genuine temporary entrant.

1. The Tribunal put to the applicant concerns about her employment in Australia and her husband's employment as a sheet metal worker, and whether these could be incentives to remain in Australia. I accept that the applicant's part-time work as an apprentice painter is unlikely to act as a strong incentive for her to remain in Australia. I accept that this employment is relevant to her stated employment plans in her home country and that she is gaining experience which will be of value to her future. The applicant gave evidence that if her husband was interested in remaining in Australia as a sheet metal worker, he would have had other visa options, but these were not her intention as her focus remains on her studies. I accept the applicant's explanation in this regard and find that her husband's employment ties are unlikely to act as an incentive to remain in Australia.
2. There is no evidence before the Tribunal to suggest the applicant has entered a relationship of concern for a successful Student visa outcome.
3. Given the length of time the applicant has lived in Australia, I make no adverse findings in relation to the applicant's knowledge of living in Australia. The applicant spoke knowledgeably at the hearing regarding units of her current course. I accept the applicant has demonstrated a reasonable level of knowledge regarding her intended course of study and education provider.

1. As noted above, the applicant has given a reasonable and convincing explanation for why she has changed her study and career pathway from IT to Building and Construction. I also accept that the applicant has limited experience in working in IT. According to the information provided in the RSVI, she worked as IT support for a sheet metal company from 2008 to 2015, earning approximately $20,000 a year, and then worked without a salary as an IT apprentice between 2018 and 2019. She has no IT work experience after 2019, having worked in food production between 2022 and 2024 and as an apprentice painter since August 2024. I accept therefore that the applicant's qualifications in IT are unlikely to be of significant use to her on return to her home country, and therefore a qualification in Building and Construction may improve her employment and remuneration opportunities. I also accept that for her stated reasons, the applicant has lost the confidence to work in the IT industry, as well as the interest in working in this field.
2. I note that the applicant has not completed qualifications above the Advanced Diploma level, and given her new education pathway in Building and Construction, I consider her current enrolment at the Diploma level is consistent with her existing level of education. I also consider the proposed course of study is relevant to the applicant's stated career plans in her home country and accept that she has undertaken research into the opportunities which will be available to her in the building industry. I give these factors weight in the applicant's favour.

1. The applicant's immigration history refers to both her visa and travel history. As noted above, the applicant has a lengthy visa history to Australia, particularly given the temporary nature

of the visas she has held, which has been complicated by the lengthy wait she endured as part of the appeals processes she underwent from May 2017 to January 2025. While at first glance this lengthy history raises concerns regarding the applicant's intentions, a closer look at her circumstances and the evidence provided, supports her continued intention to remain in Australia temporarily for the purposes of study. I consider the applicant's ability to complete her proposed courses of study was hampered considerably by the pre-conditions that education providers placed on her, as well as by the lengthy wait for the outcome of review proceedings. I consider that during this lengthy wait the applicant has re-evaluated her plans and continues to be focused on obtaining a qualification which will be of value to her future on return to her home country. I note also in this regard the findings of the Court that the pre-condition imposed by Kent Institute for the issue of a CoE was 'wrong headed', as well as the Court's finding regarding jurisdictional error, and consider that these aspects have considerably delayed the applicant's ability to complete her plans and are responsible for greatly inflated the length of her stay. The applicant also stated at the hearing that she felt the need to correct the decisions of the delegate and AAT, as she considered they were unfair in her circumstances, and I accept that it is reasonable that the applicant would seek to correct her immigration record, as well as those of her husband and son.

1. The Tribunal also notes the applicant's decision to take up her studies again in August 2023, despite holding a Bridging visa at that time. The applicant has also completed a number of qualifications since arriving in Australia, and there is no evidence that she has remained in Australia for some time without successfully completing qualifications. Given my findings regarding the value of the proposed course of study to her future, I therefore find there is insufficient evidence to indicate that the Student visa is intended primarily for maintaining ongoing residence.
2. I make no adverse findings regarding the remaining factors relevant to the applicant's immigration history. The applicant gave evidence that she has complied with the conditions of her visas to Australia, and I note that the applicant spoke frankly about working additional hours during the COVID-19 pandemic when her visa conditions allowed her to do so. There is no evidence of an adverse visa or migration history to any other country. There is nothing to suggest the applicant has previously been refused a visa application or had a visa cancelled or considered for cancellation. There is no evidence that she has lodged applications for other classes of visa which are yet to be finally determined. The applicant gave evidence that given her husband's work as a sheet metal worker, it would have been open for her and her family to obtain other visa options as a way out of the issues created by the refusal of the Student visa. The applicant gave evidence that she and her husband have no intention to remain in Australia permanently, which is why they have made no attempts to make such applications. I consider this weighs in favour of the applicant being a genuine temporary entrant.

Any other relevant matters and conclusion regarding findings

1. The Tribunal has also given regard to whether there are any other relevant matters in assessing the applicant's intentions to stay in Australia temporarily in addition to the matters covered above. As noted above, the Tribunal considers the lengthy appeal processes which the applicant has endured between May 2017 and January 2025 to be relevant in assessing her intentions, as well as the difficulties she experienced in obtaining a CoE in her chosen Bachelor degree in 2018 as a result of the visa refusal decision. These resulted in a significant gap in her studies and necessitated the applicant's re-evaluation of her study and career options.
2. Overall, while the length of the applicant's stay in Australia raises concerns, a closer analysis reveals that the applicant's progress in completing her chosen courses was impeded by a number of factors including college administration requirements and a lengthy wait as part of

review processes. The Tribunal considers the applicant has demonstrated that she remains motivated to study and that her primary purpose for remaining in Australia is to obtain qualifications which will be of value to her future. While the Tribunal has concerns that the presence of the applicant's eldest son, who is an Australian citizen, may act as an incentive for the applicant and her family unit to remain in Australia, the Tribunal accepts the applicant's explanation for why she did not wish to deny her son the right to obtain Australian citizenship, as well as of her family's stated intentions to return to Mauritius. Overall, the Tribunal finds that the factors set out in Direction No 108 weigh in favour of an assessment that the applicant remains a genuine temporary entrant.

1. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).

Does the applicant intend to comply with visa conditions?

1. For the applicant to meet cl 500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant's record of compliance with any condition of any visa they previously held, and the applicant's stated intention to comply with any conditions to which the visa may be subject.
2. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl 500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents' education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). For visa applications made on or after 1 July 2022, condition 8208 (no critical technology related study without approval) must also be imposed. The following conditions must also be imposed: 8303 (no dangerous/disruptive/violent activities), 8304 (must use the same name), 8564 (no criminal conduct) and 8602 (no outstanding public health debt). The following conditions may also be imposed in some cases

(cl 500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).

1. The applicant has provided with her visa application an undertaking to comply with any conditions subject to which the visa is granted. The applicant has enrolled in and completed the Certificate III in painting and Decorating, despite not holding a Student visa. The applicant gave evidence of her compliance with all visa conditions and her intention to comply with them in the future.
2. 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 before the Tribunal of any other relevant matter that gives rise to a concern that the applicant is not a genuine applicant for entry and stay as a student.
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.

Application for review by the third named applicant

1. The Tribunal finds that Master Pranav Vaibhav Sookoowareea became an Australian citizen on 19 January 2023, and therefore he has no need for a Student visa to enter or stay in Australia. The Tribunal does not have jurisdiction to deal with his application for review.

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

The Tribunal does not have jurisdiction in relation to the third named applicant.

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)

1. 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.
2. 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.

3. 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.
   1. 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.

1. b. Previous travels to Australia or other countries, including:
   1. 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;
   2. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
   3. 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
   4. 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.