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 is a 45-year-old citizen of Colombia who first travelled to Australia on 25 January 2019 as the holder of a subclass 500 student visa. The visa application which is the subject of this review is the applicant's third student visa application for which he is seeking to meet the requirements as the primary applicant.
2. The applicant is separated from his former wife with whom he has two children, a 12 year old daughter and a 16 year old son. The applicant was married in June 2012 and separated sometime in 2022/2023. The couple are yet to be officially divorced as they are unable to do so whilst the applicant is in Australia. Prior to his marriage, the applicant had been in a de facto relationship for approximately 6 - 7 years. This relationship with his high school sweetheart began sometime in 2006/2007 and together the couple had one child, the applicant's eldest daughter who is currently 25 years of age, married and living in Spain together with her husband and child. The Tribunal finds that the applicant has not entered into a relationship of concern for a successful student visa outcome.
3. By way of educational background in Colombia, the applicant completed his secondary school studies in 1996. He then commenced a Bachelor of Civil Engineering at the Catholic University in Colombia. After several years of study, the applicant was unable to complete to his studies due to financial constraints. Using the knowledge gained so far from his tertiary studies, the applicant was then employed as a project site director and later general project director during the period of 2006 - 2018 before travelling to Australia to undertake English language studies. The applicant completed English language studies during the period of January 2019 - September 2020 before commencing a package course of studies in project management. Of this package of courses, the applicant completed his Certificate IV in Project Management Practice before changing courses to undertake studies in building and construction. Since his arrival in Australia, the applicant has been employed in various roles including as a labourer, driver, duct and shed installer. He has also undertaken volunteer peer support and leadership roles at his current college for which, together with his academic performance, consistent attendance and professional conduct, he has been recognised as Student of the Year 2024 and awarded a partial tuition scholarship.
4. The applicant's student visa application, which is the subject of this review application, concerns his request to remain in Australia for a specified period of time to undertake a package course of studies consisting of:
   • Certificate III in Carpentry (6 November 2023 - 2 May 2025);
   • Certificate IV in Building and Construction (5 May 2025 - 4 May 2026); and
   • Diploma of Building and Construction (17 July 2026 - 5 May 2028).
5. For the following reasons and having considered all the material before it, together with the relevant factors set out in Direction 108, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily as a student.
6. Firstly, in the time that it has taken for this matter to come before the Tribunal, the applicant has successfully completed his Certificate III in Carpentry during the period 6 November 2023 - 2 May 2025. He has also completed a considerable number of units of competency towards his Certificate IV in Building and Construction qualification and is on track to complete this qualification in accordance with his current confirmation of enrolment (CoE) by 4 May 2026[1]. The applicant has provided evidence of this to the Tribunal from his education provider and such evidence is consistent with the applicant's PRISM's[2] records. This indicates that whilst awaiting the outcome of his review application, the applicant has applied himself to his studies, made good course progress and is on schedule to complete his studies as per the current confirmation of enrolments issued. The Tribunal considers this compelling evidence indicative of the applicant being a genuine applicant for entry and stay as a student and the Tribunal places weight in favour of the applicant in this regard.
7. Secondly, the applicant has provided detailed, forthcoming and consistent oral and written as to the value of the courses he has undertaken and is undertaking to his future plans for employment, his plans to open a commercial and residential building company in Colombia as well as his aspiration to teach such skills to aspiring builders in Colombia.
8. In his evidence to the Tribunal, the applicant was able to articulate in a clear, detailed and compelling manner the relevance of his current package courses to his prior tertiary studies in civil engineering and his previous professional experience in Colombia managing construction projects. He explained that, upon completion of these studies, he would be able to return to Colombia as an internationally trained and qualified builder, with a skill set not commonly taught there. The applicant articulated in a clear and concise manner how in Colombia, the construction industry is typically comprised of qualified engineers and architects who supervise and manage projects in direct coordination with tradespersons, but who do not necessarily possess the practical skill set of a qualified builder. He further explained that it is his intention, upon completing his studies, to establish a specialised business as a qualified professional builder. Through this enterprise, he plans to manage both commercial and residential construction projects, working in collaboration with qualified engineers, architects, and tradespersons. He anticipates that once the business is established, he will then be able to earn a monthly income in the range of AUD$3,000 - $5,000, with the expectation that this income will increase as the company develops and expands.
9. When asked about his current studies, the applicant demonstrated detailed knowledge and understanding of the content and structure of his Certificate IV and Diploma level courses. When asked if such courses were available in his home country, the applicant stated that they were either uncommon or delivered to an extremely low standard. He further explained that internationally recognised trades qualifications are regarded more highly than a university qualification obtained in Colombia. The applicant also stated that, through his studies, he has acquired extensive construction skills and knowledge of building standards that are not taught or offered in Colombia. The Tribunal accepts the applicant's evidence as to the value of the courses for his future, his reasons for choosing to study such courses in Australia and his reasoning for not undertaking such studies in his home country or region. The Tribunal places weight in favour of the applicant in this regard.
10. Thirdly, as to the applicants' circumstances in his home country, the Tribunal is satisfied that the applicant has significant personal and family ties to Colombia. These ties include his two younger children, as well as his parents and siblings. The applicant gave evidence that he is very close to his parents and siblings, but most significantly, he described a strong relationship and bond with his children. He stated that everything he is doing is for their benefit. The Tribunal notes that the applicant was visibly emotional when speaking of his love and aspirations for his children, how much he misses them and how he aspires to utilise the qualifications and education he has obtained in Australia to return to Colombia and build a better life for his family. Accordingly, the Tribunal finds that, on the evidence before it, the applicant's overall circumstances, including his significant personal and family ties in Colombia, provide a strong incentive for him to return to his home country upon completion of his studies.
11. Furthermore, there is no evidence before the Tribunal that the applicant's economic circumstances would present as a significant incentive for the applicant not to return to Colombia. There is also no evidence before the Tribunal that the applicant has any military service commitments that would present as a significant incentive for him not to return to Colombia nor is there any evidence before the Tribunal that there is any political or civil unrest in Colombia that would result in the applicant choosing to remain in Australia indefinitely.
12. Finally, in regard to the applicant's immigration history, the Tribunal put to the applicant its concerns regarding the significant amount of time the applicant has spent in Australia as the holder of a student visa and/or bridging visa associated with his application for a student visa. The Tribunal accepts the applicant's evidence as to the circumstances that led to his remaining in Australia for this extended period of time. These circumstances included a serious workplace injury to his back, which rendered him unable to attended classes for a considerable period, required lengthy physical rehabilitation and deferral of his prior studies. The applicant also explained that prior to his current package of courses, he had received advice and guidance from various education agents to enrol in courses that were not aligned with his future aspirations or the qualifications and skills he sought to obtain, and that it was not until he was able to gain a better understanding of the Australian Qualification Framework that he was able to enrol in the appropriate package of courses for the skills he sought to obtain.
13. The Tribunal finds that the applicant gave his evidence in a detailed, forthcoming, and sincere manner with respect to these circumstances, and accepts his evidence in this regard. The Tribunal further finds that there is no evidence to suggest that the student visa program is being used by the applicant as a means to circumvent the intentions of the migration program, nor is there evidence that the visa is being used to maintain ongoing residence in Australia. However, this factor may need to be reconsidered should the applicant seek to apply for a further student visa/s upon completion of his intended studies, having given direct and explicit evidence to the contrary in this application.
14. The Tribunal also finds that, on balance, the applicant's course completion of his English language, Certificate III and Certificate IV qualifications, his evidence as to his course progression and his detailed level of knowledge of his Certificate IV and Diploma in Building and Construction qualifications, as well as his compliance with his bridging visa conditions are all indications that the applicant is seeking to undertake his studies for genuine reasons.
15. The Tribunal has had regard as to whether there are any other relevant matters in assessing the applicant's intention to temporarily stay in Australia and finds that there are no other relevant matters in addition to those addressed above.
16. On the basis of the above, and having considered all of the applicant's circumstances, his immigration history and all other relevant matters, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student in Australia temporarily as required by cl500.212(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 applicant has provided with his visa application, an undertaking to comply with any conditions subject to which his visa is granted and there is no evidence before the Tribunal to indicate that this would not be the case. Furthermore, the evidence before the Tribunal is that the applicant has abided by the condition/s of his visas held to date and consequently 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)). There is no other relevant matter to consider. The Tribunal finds the applicant meets cl500.212(c).
2. 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.
3. 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.

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.

[1] The Tribunal notes the change of CoE in reference to the applicant's Certificate IV in Building and Construction from a 6 month to 12 month course duration which the applicant stated was a change in course structure and duration applied by his education provider in compliance with their regulatory obligations.

[2] Provider Registration and International Student Management System (PRISMS) - https://prisms.education.gov.au