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. For context, the applicant is aged in his early twenties and is a citizen of Nepal who has generally lived in Kathmandu. He completed high school in Nepal and arrived in Australia in February 2020, aged around eighteen, holding a student visa.
2. The applicant provided a range of information in a pre-hearing form to the Tribunal on 4 March 2025, including the following information about his studies in Australia.
3. He initially enrolled in courses at Holmesglen, including: a Diploma of Hospitality Management (from February 2020 to July 2021) which he did not complete; a Bachelor of Hospitality Management which he did not commence, then a Certificate IV in Digital/Interactive Games (from July 2021 to July 2022) which he discontinued/did not complete, and a Diploma of Information Technology from April 2022 to June 2023 which he did not commence. In September 2023, the applicant then enrolled in a package of courses at Melbourne College of Business and Technology (MCBT), including a Certificate III in Commercial Cookery from September 2023 to November 2024, which he did not complete. He states he was not enrolled between November 2024 and February 2025 due to family issues. He re-enrolled in that Certificate III course at MCBT (which runs from March 2025 to January 2026) and is presently studying in that course. He states he has approved enrolments for future study of a Certificate IV in Kitchen Management and a Diploma of Hospital Management.
4. At the hearing, the applicant confirmed he had not completed any of the several courses he had enrolled in between his arrival in Australia in early 2020 and the hearing in May 2025.
5. The applicant said at the hearing that his agent assisted him with his student visa application to the Department and wrote (without instruction by the applicant) the GTE (Genuine Temporary Entrant) statement to the Department ('the 2023 GTE Statement) because of the tight application timeframe and the applicant's limited knowledge of the application process. He said the second GTE statement (submitted to the Tribunal prior to the hearing) explaining his background, circumstances, motivations, and goals, was prepared by his agent based on his instructions.
6. More broadly, the applicant has indicated in written and oral evidence during the review as follows.
7. He has worked part-time as a cleaner from September 2023 up to now, earning around $30,000 AUD per year. He works cleaning offices for four to five hours in the evenings, five days per week. He previously worked at a western-style café in Nepal for over a year before arriving in Australia.
8. He is the only son of his parents, who live in Nepal and are ageing. He has a responsibility in future to care for them in Nepal. He will return after completing his studies and offer them a greater quality of life due to the success he will have in his future career there. He provided pre-hearing material showing his parents' respective jobs, incomes and savings, together with evidence of his own payslips and bank savings in Australia.
9. He has paid fees associated with the various courses in which he has been enrolled, and predicted his overall course fees had been around $30,000 AUD. His parents cover all his course expenses, and his income (from work in Australia) helps cover his living costs. Asked why he thought they had been prepared to persist with paying course fees for so long, despite no courses being completed during his many years in Australia, he said he was their only child, and they love him, and knew he was struggling, so just kept supporting him.
10. By his oral evidence at the hearing, he came to Australia 'purely for education' and with the idea to open a restaurant in Nepal on return, either by himself or with his parents. He did not complete the hospitality management course he initially enrolled in (in 2020), due to pressure from the college, and burnout and fatigue. He found he could not do online classes successfully because he was young, socially awkward, new in Australia, it was his first time living outside Nepal and he felt he could not communicate with teachers. During the Covid pandemic period, he was stuck in a share house and all classes were online - he was stressed and could not understand the classes, and was (he said) not depressed, 'but similar'. He thought about returning to Nepal at this point, but his parents encouraged him to stay and persist.
11. He then tried enrolling in a technology course (that is, the Certificate IV in Digital/Interactive Games). He thought that course would be easier than cookery to do online (because of the nature of the subject) but he was wrong. He could not speak up and did not know anyone, and everyone was new to him. He tried to persist for around six months, then quit that course. He then enrolled in a package of cookery courses at MCBT. Initially, he did the Certificate III Commercial Cookery course for six months or so, but he was holding a bridging visa and was stressed about whether he would get a student visa and thought study without a student visa would be 'meaningless', so he paused. He then commenced the new MCBT course package (starting with the Certificate III Commercial Cookery) in around March 2025.
12. The applicant described some practical aspects of his current course, such as the days, contact hours, and the substance of some units. He said once he finishes the courses, he plans to go back to Nepal to start a restaurant business and give practical support to his parents as they age. He also offered some views about his dissatisfaction with the agent assisting him with his application.

1. I accept the applicant's account of his enrolment history during his years in Australia, and his account that he has not completed any course to date.
2. I accept the applicant's oral evidence (set out above) about the way the 2023 GTE statement to the Department was prepared. Given his agent wrote that statement entirely without input from the applicant, I give no weight to the first GTE statement to the Department as an expression of the applicant's own actual mindset or motivations regarding his study in Australia and future goals and plans in Nepal. I accept the applicant's account that his GTE statement to the Tribunal (cited above) reflects his own instructions and consider that statement further below.
3. I accept the applicant's oral account that he has been unimpressed with his agent. However, the applicant did not suggest this had adversely affected his ability to make his case to the Tribunal. He presented relevant evidence of his studies and purpose to the Tribunal prior to the hearing, indicated he was comfortable to proceed with the hearing, spoke fluently in English at the hearing and was generally unhesitating in his responses and was able to convey his circumstances and arguments effectively.
4. I accept the applicant's parents have work roles in Nepal. I had doubts they would be willing to persist for many years in paying the applicant's various course fees in Australia (in comparatively high Australian dollar amounts) despite the lack of any course completion or qualification in any course over many years. However, ultimately, I give the benefit of the doubt in accepting the applicant's account at the hearing that his parents have always supported the applicant financially with various course fees while in Australia, and that he has self-supported his living costs through work in Australia since 2023 (as he stated).
5. As discussed at the hearing, I acknowledge that conditions during the Covid pandemic (which commenced around the time the applicant arrived in Australia in 2020) affected students in a range of ways. I give the benefit of the doubt in accepting that his personal situation during the pandemic period affected (and adequately explains) his non-progress and non-completion of studies from early 2020 up to around early to mid-2022 (when pandemic conditions eased). However, given that pandemic conditions ended around early 2022, and given the applicant had lived in Australia and attempted various courses by that time, I am not persuaded that the pandemic affected his studies after early to mid-2022.
6. As discussed with the applicant, I generally acknowledge that people, especially young people, can change their mind and goals in regard to study pathways. I give the benefit of the doubt that the applicant's first change of subject pathways (from Cookery to Game design) was in this context.
7. I give the benefit of the doubt the applicant initially experienced some challenges with online learning and studies due - as he stated at the hearing - due to his interpersonal skills and social awkwardness. However, I am not persuaded these matters were ongoing impediments to his study after the post-pandemic period in 2022, and particularly from 2023 onwards. By this time, the applicant had sufficient experience of online study to have relevant skills to engage in a certificate course. I therefore do not accept that the range of personal factors he mentioned adequately explains his non-progress and non-completion of any course from early 2023 to late 2024.
8. Having regard to his overall written and oral account of his studies, I do not accept the applicant's non-progress and/or non-completion of any course in the 3-year or so period between early-to-mid 2022 and the time of hearing is wholly due to his personality, the pandemic, and/or the way his course was delivered. I am also not persuaded (and do not accept) the applicant's account that (from mid-2023 onwards) a sense of uncertainty or anxiety about his visa status (that is, holding a bridging visa and not a student visa during the visa application period from August 2023 to March 2024) led the applicant to discontinue the Certificate III in commercial cookery between 2023 and 2024. I find this illogical and unpersuasive, given his preparedness to re-enrol in that course (and a lengthier package of related courses) in early 2025 without any additional certainty about the outcome of this review application. While I give the benefit of the doubt in accepting the applicant's account that his non-enrolment for some months from late 2024 to early 2025 in the context of family issues, his circumstances in this three-month period or so does not alleviate my strong concerns about his lack of course progress or completion since for the broader period from early-to-mid 2022 to late 2024.
9. I find the applicant's various explanations (above) even when taken together, do not persuasively account for his non-completion of any course between early-to-mid 2022, and particularly between late 2023 and late 2024.
10. As discussed at the hearing, I have strong concerns - given the applicant's lack of substantive course progress or completion in the period after mid-2022 - that his motivations and intentions are the ones he describes (both in written and oral evidence). The applicant said at the hearing that he understood my concerns.
11. I give the benefit of the doubt the applicant worked in a western-style restaurant in Nepal for a period of time before coming to Australia. I acknowledge generally that international, or Australian, qualifications can be beneficial and increase competitiveness of an applicant seeking work in Nepal, and that the skills of trained cooks are valued and relevant for certain cookery work in Nepal. I have accepted (above) the reasons the applicant states did not complete any part of the Diploma of Hospitality course package (in 2020-21). I accept the applicant showed at the hearing some basic awareness of the arrangements and content for/of the current (2025) Certificate III cookery course at the hearing. I give the benefit of the doubt he has attended and progressed in this Certificate from March 2025 onwards (to date).
12. However, these things (taken together) do not overcome my concerns. I am not persuaded the applicant's motivations, plans and employment goals in Nepal are genuinely as stated in his oral and written evidence to the Tribunal (that is, that he intends to return to Nepal after his course, and work in hospitality or open a restaurant himself or with his parents).
13. My strong concerns persist. I have formed the view that the applicant's course enrolments, at least from early 2023 onwards, have been heavily motivated by reasons other than study, and that the applicant is now using the student visa application and review process as a means to maintain residence in Australia, for reasons other than to obtain cookery and hospitality qualifications to help advance his future plans and prospects in Nepal.
14. On the evidence he has offered there is no suggestion by the applicant that he is concerned by his or his family's circumstances in Nepal are matters, and there is no suggestion he has outstanding military service obligations in Nepal. I accept these matters do not form strong disincentives for him to return.
15. I make no adverse finding about the applicant's past immigration or visa history overseas or in Australia, prior to the current visa application under review. It has been unnecessary to make findings about his adherence with visa conditions in Australia given the finding below about cl 500.212(a).
16. I accept the applicant has strong emotional ties to his parents in Nepal, particularly as their only son/child. Given his account that his parents work and give him significant financial support from Nepal, I do not accept that the applicant needs to, or intends to, return to Nepal in the reasonably foreseeable future to provide active, ongoing support to them. I accept more broadly he has cultural, community and personal ties in Nepal. However, I do not accept that his cumulative incentives to return to Nepal outweigh his strong incentives and motivations to remain living in Australia for as long as possible, for reasons other than study.
17. Given the above matters and findings, and for the reasons given, I am not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
18. Accordingly, I am not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
19. 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.

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.