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.

The applicant is a citizen of Nepal who was born in 2002. She arrived in Australia in 2023 on a visitor visa and submitted a student visa application in December 2023. The applicant's application indicated she had enrolled in a Diploma of Community Services. In support of her student visa application, the applicant has also provided a range of additional documentation to the Department. This was:

• A four-page written statement outlining her reasons for wanting to study in Australia (the 2023 GTE Statement).
• A Nepalese Citizen Citizenship Certificate issued in the applicant's name and a translation.
• A copy of the biodata page from a 2022 Nepalese Passport issued in the applicant's name.
• A copy of a Nepalese Certificate of Family Relationship, outlining the composition of the applicant's immediate family (Parents & siblings).
• An Overseas Student Confirmation-of-Enrolment Certificate for a Diploma of Community Services Course which commenced in January 2024, and which is scheduled to end in January 2026.
• A copy of an Overseas Student Health Cover (OSHC) Verification Letter indicating the applicant had obtained health cover in Australia.
• A copy of a Pearsons Academic Score Report for an English language test the applicant had taken in October 2023.

1. This applicant's student visa application was refused by the Department in April 2024, and she subsequently submitted her application for review to the Tribunal.
2. In July 2025, the Tribunal wrote to the applicant's representative and notified him that the applicant's case would soon be submitted to a Tribunal Member. That correspondence invited the applicant to give, in writing, all relevant information about the course(s) of study they are undertaking and their entry and stay in Australia as a student. The Tribunal requested the applicant submit this information in a Student Visa Information Form. The applicant subsequently provided a completed Student Visa Information Form to the Tribunal that had been signed by the applicant indicating the information in the form was complete and correct.
3. The completed Student Visa Information Form contained information about the applicant; information about her education and employment before coming to Australia; information about her travel to Australia and other countries; information about her current Visa application; information her current and previous enrolment in educational courses in Australia; information about her employment and expenses in this country, and other circumstances including information about her assets, her future plans, her family, and her community ties to Nepal. The Tribunal has considered the completed and signed Student Visa Information Form.
4. In support of her application, the applicant has also provided a large volume of additional documentation to the Tribunal:
   • A copy of a seven-page submission to the Tribunal (the 2025 Submission).
   • Two letters, written by employees of Hotel Grand in Kathmandu on 14 August 2023 relating to the applicants past employment and wage at the hotel.
   • A copy of a Nepalese Tax Certificate and translation from 2023.
   • Copies of Nepalese bank records relating to the applicant and her family from the Machapuchchhre Bank in and the Prime Commercial Bank in Nepal
   • A Student Visa Financial Support Statement signed by the applicant's father.
   • A Nepalese Birth Certificate issued in the applicant's name and a Nepalese Marriage Certificate for her parents. A Nepalese Certificate of Annual Income.
   • A range of other Nepalese financial and land/property records relating to the applicant and her family.
   • Screenshots taken from the applicant's phone demonstrating her phone contact with her family.
   • Education records from the Southern Cross Education Institute about the applicant's study in Australia including a Notification of Results, a work placement Agreement. Evidence of her work placement with Puddle Jumpers.
   • Evidence the applicant has researched jobs in the community service and development sector in Nepal and has considered employment with Non-Government Organisations (NGO).
5. The Tribunal has considered all the material provided by the applicant. The Tribunal has also obtained a movement record related to this applicant's travel to Australia and his visa status, and a PRISMS record from the Department. PRISMS is a computer system developed by the Department in association with the Department of Home Affairs for the purpose of receiving and storing information about accepted overseas students.

1. The Tribunal has considered the applicant's Nepalese Citizen Citizenship Certificate, the 20222 Nepalese Passport, her Nepalese Birth Certificate, the Nepalese Certificate of Family Relationship and the Nepalese Marriage Certificate for her parents. The Tribunal is satisfied the applicant is a citizen of Nepal.
2. The Tribunal has also considered the material provided by the applicant in relation to her study in Australia including her 2023 student visa application, her 2023 GTE Statement the 2025 submission, and the documents from her education provider. The Tribunal has considered the PRISMS record. The Tribunal accepts that the applicant is currently enrolled in a Diploma of Community Services Course which commenced in January 2024, and which is scheduled to conclude in January 2026.

1. Direction 108 requires the Tribunal to consider the applicants circumstances in her home country. The applicant is a Nepali citizen who was born in 2002. In Nepal, the applicant has the political and social rights associated with citizenship. She speaks the Nepali language and has cultural links to Nepali society. The applicant completed her education up to Year 12 in Nepal and lived there throughout her childhood. The Tribunal accepts the applicant has political, social and cultural ties to Nepal.
2. The applicant's immediate family, including her parents and one of her brothers are in Nepal. brother. The applicant's Student Visa Information Form indicates she is in regular daily contact with her family in Nepal. She has provided screenshots from her phone in support of her regular family contact. The Tribunal accepts the applicant has family ties to Nepal.
3. However, the Tribunal notes that one of the applicant's brothers lives in Australia with his wife. The applicant resides in the same household with her brother in Australia. The applicant indicated that her brother who resides in Australia, and his wife, have been in this country for around for around eight years, having arrived in Australia on a Student visa. She said they have applied for Permanent Residency in Australia. The tribunal considers the presence of her brother and his wife in Australia may represent an incentive to stay in this country.
4. In the Student Visa Information Form, the applicant was asked to provide details of any property or other significant assets she owned in Npeal. She did not indicate she had any assets in Australia or Nepal. During her hearing, she indicated that she personally owned no assets. However, she indicated her mother and father owned assets in Nepal and that she would inherit a share. She has provided a number of documents relating to her parents' wealth and property ownership in Nepal. The Tribunal has considered this material. However, the tribunal is not satisfied that these assets, on their own, represent a significant incentive for her to return to Nepal.
5. In her Student Visa Information Form and during her hearing, the applicant indicated that she did not have any concerns about returning to Nepal. She has indicated he does not have any concerns in relation to political or civil conflict in that country, nor does she have any outstanding military service obligations. At her hearing she indicated that she was enthusiastic to return to Nepal at the completion for study in Australia.
6. Overall, the Tribunal considers that applicant's circumstances in Nepal weigh in her favour.

1. Direction 108 requires the Tribunal to consider the value of the applicant's course of study in Australia to her future. This applicant has completed study up to year 12 in Nepal. In Australia, she has enrolled in a diploma. The Tribunal considers that the applicant is undertaking study at a level that is consistent with her earlier study in Nepal.
2. The applicant's GTE Statement and her Student Visa Information Form indicate the applicant intends to return to Nepal and work in the social work/community development field. She says she is interested in this field, because in Nepal her mother was a social worker influenced her. The applicant says she hopes to find work with an NGO, or similar organisation in Nepal.
3. She has provided documentary evidence of her research about employment in community service roles in Nepal. However, the material she has provided is merely screenshots of role descriptions from employment websites. Some of the screenshots she has provided appear to be roles she does not have suitable qualifications for. The Tribunal considers this research to be superficial. Nevertheless, the Tribunal accepts that there is an established community service and development sector in Nepal, which the applicant's course of study in Australia would prepare her for.
4. The applicant has provided an estimate of her potential earnings in Nepal of between $700 AUD to $2000 AUD per month. The applicant has not provided any evidence in support of her salary estimates and it is unclear where she obtained these figures.
5. At hearing the applicant was able to speak about her intention to work in the community service and development sector in Nepal. She was able to identify existing NGO's that are operating in Nepal, and the types of employment she was interested in. she was able to articulate development challenges in Nepal related to her proposed employment.
6. Overall, the Tribunal is satisfied the applicant could identify the value of her current study to her future plans.

1. Direction 108 requires the Tribunal to consider the applicants immigration history. Before she came to Australia in 2023, this applicant had never been abroad. She has only ever travelled outside of Nepal to come to this country. She has not applied for a visa to travel to any other country. She arrived in Australia on a Visitor visa that was valid between September 2023 and December 2023. At the time she applied for her student visa application, her visitor visa was still valid.
2. Documents provided by the department indicate that the applicant was granted a Bridging Visa A at the time she applied for her student visa application. That visa contains a 'No Work' condition. During her hearing, the applicant indicated she has not worked in Australia.
3. There is no evidence before the Tribunal that the applicant has not complied with the conditions of her visa's or has not complied with Australian migration law. Overall, the tribunal considers the applicant's immigration history to be favourable.

1. Direction 108 requires the Tribunal to consider the applicants potential circumstances in Australia. As noted above, the applicant presently lives in shared rental accommodation with her brother and his wife. during her hearing she disclosed that her brother and his wife had come to Australia eight years ago on a student visa and had been here ever since. When asked about whether this had influenced her, she said it had not and asserted she intended to return to Nepal at the end of her study in Australia. She characterised her brother's current situation as being in Australia temporarily. The Tribunal accepts that her brother is currently in Australia on a Temporary visa, but notes that according to her own evidence her brother has been in Australia for around eight years and that he has applied for Permanent Residency in this country.
2. The applicant is unmarried and does not have a partner. The Tribunal is satisfied the applicant has not entered a relationship of concern for a student visa outcome.
3. During her hearing, the applicant was able to discuss her current course of study, her motivation for study, her desire for continuous learning and her plans for the future coherently. She has provided details about the research she conducted. She has outlined her reasons for studying in Australia in her 2023 GTE Statement and her 2025 Tribunal submission. She has consistently indicated that she intends to return to Nepal at the conclusion of her study.
4. In the Tribunals view, the Applicant's circumstances in Australia are consistent with the explanations she has provided and her stated goals.

1. According to Direction 108, A successful student applicant must be both a genuine temporary entrant and a genuine student. 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.
2. Above, the Tribunal has considered this applicant's circumstances in Australia and in her home country, the value of her course of study to her future, and her immigration history. The applicant is a not a minor, nor has she submitted a Student Guardian application.
3. 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.
3. The applicants 2023 GTE Statement indicates her awareness of the visa conditions imposed on her by her current visa. The statement, and the applicant's 2025 Tribunal submission both acknowledged the conditions of the applicant's visa and indicate her intention to comply with visa conditions in Australia. Her immigration history and past compliance is favourable. There is no evidence before the Tribunal that the applicant does not intend to comply with her visa conditions in Australia.
4. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl 500.212(b).

Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

1. For the applicant to meet cl 500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl 500.212(a) and (b)). The Tribunal has not identified any other relevant matters on the material before it. 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.
2. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

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

Representative for the Applicant: Mr Prakash Thapa (MARN: 1576745)

DIRECTION NUMBER 108 - ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

I, CLARE O'NEIL, Minister for Home Affairs and Minister for Cyber Security give this Direction under section 499 of the Migration Act 1958 (the Act).

Minister for Home Affairs and Minister for Cyber Security

Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

This Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

Direction No. 69, given under section 499 of the Act, is revoked.

Act means the Migration Act 1958.

Finally determined has the same meaning as is set out in subsections 5(9) and (9A) of the Act.

Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

Regulations mean the Migration Regulations 1994.

Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

Spouse has the same meaning as the definition of the term in section 5F of the Act.

Student visa means a Subclass 500 (Student) visa

Student Guardian visa means a Subclass 590 (Student Guardian) visa.

This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant against the genuine temporary entrant criterion for Student visa applications and Student Guardian visa applications (as applicable).

This Direction also applies to members of the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; who review the decisions of primary decision-makers in relation to a Student visa or Student Guardian visa application.

This Direction applies in relation to Student visa applications and Student Guardian visa applications made before 23 March 2024 but not finally determined on that date, including such visa applications that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.

The genuine temporary entrant criterion must be satisfied by all applicants who make an application for a Student visa and seek to satisfy the primary or secondary criteria, or an application for a Student Guardian visa and seek to satisfy the primary criteria.

Note: Direction No. 106 applies in relation to Subclass 500 (Student) visa applications and Student Guardian visa applications made on or after 23 March 2024, including visa applications made on or after that date that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.

The Australian Government operates a student visa program that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa program must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.

An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

a) the applicant's circumstances; and

b) the applicant's immigration history; and

c) if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and

d) any other relevant matter

This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a) to d), to determine whether the applicant genuinely intends to stay in Australia temporarily.

Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily.

Assessing the genuine temporary entrant criterion

1. Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant's circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2. Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

a) considering the applicant against all factors specified in this Direction; and > > b) considering any other relevant information provided by the applicant (or information otherwise available to the decision maker)

3. Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4. Circumstances where further scrutiny may be appropriate include but are not limited to:

a) information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny; > > b) the applicant or a relative of the applicant has an immigration history of reasonable concern; > > c) the applicant intends to study in a field unrelated to their previous studies or employment; and > > d) apparent inconsistencies in information provided by the applicant in their Student visa application or Student Guardian visa application.

5. An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant's circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

1. Decision makers should have regard to the applicant's circumstances in their home country and the applicant's potential circumstances in Australia.
2. For primary applicants of Student visas, decision makers should have regard to the value of the course to the applicant's future.
3. Weight should be placed on an applicant's circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

The applicant's circumstances in their home country

1. When considering the applicant's circumstances in their home country, decision makers should have regard to the following factors:

a) whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant; > > b) the extent of the applicant's personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country; > > c) economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant's circumstances relative to the home country and to Australia; > > d) military service commitments that would present as a significant incentive for the applicant not to return to their home country; and > > e) political and civil unrest in the applicant's home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant's home country and the influence these may have on an applicant's motivations for applying for a Student visa or a Student Guardian visa.

2. Decision makers may have regard to the applicant's circumstances in their home country relative to the circumstances of others in that country.

The applicant's potential circumstances in Australia

1. In considering the applicant's potential circumstances in Australia, decision makers should have regard to the following factors:

a) The applicant's ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties; > > b) evidence that the student visa programme is being used to circumvent the intentions of the migration programme; > > c) whether the Student visa or Student Guardian visa is being used to maintain ongoing residence; > > d) whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and > > e) the applicant's knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

1. Decision makers should have regard to the following factors when considering the value of the course to the applicant's future:

a) whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and > > b) relevance of the course to the student's past or proposed future employment either in their home country or a third country; and > > c) remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

1. An applicant's immigration history refers both to their visa and travel history.
2. When considering the applicant's immigration history, decision makers should have regard to the following factors:

a) Previous visa applications for Australia or other countries, including: > > 1. if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and > 2. if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal. > 3. b. Previous travels to Australia or other countries, including: > 4. if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control; > 5. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances; > 6. the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and > 7. if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance.

If the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant

1. If the primary or secondary applicant for a Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

1. Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant's intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.