1. The applicant applied for a Student visa to study a Diploma of Building and Construction (Building) and a Graduate Diploma of Management (Learning)
2. In his visa application he provided the following information:
   1. That his highest level of education was secondary school (year 12 equivalent) and in support provided a general certificate of education as evidence;
   2. The applicant's family reside in Pakistan, including his mother, sister and brother. The applicant also has family in the United States of America (USA) including his sister, whereas the applicant has no family in Australia; and
   3. The applicant has held visas in Thailand and Malaysia. He travelled to Thailand on a visitor visa between 17 and 24 August 2013 and complied with his visa conditions. The applicant did not ultimately travel to Malaysia;

1. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant satisfied cl 500.212(a).

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. There are some factors in this case which weigh against the applicant and may indicate that he does not intend genuinely to stay in Australia temporarily. This includes the fact that he met his wife in July 2023, when his student visa was about to expire and subsequently married his wife in November 2023. She is an Australian dual citizen. Whilst she has family in Pakistan, she equally has family in Perth, Australia, and due to undertaking studies in Australia in dentistry and currently working as a dental assistant, the applicant may be highly incentivised to remain in Australia.
2. The Tribunal further notes that the applicant has been onshore in Australia since December 2021 with one brief departure, with plans to continue studying until February 2028.
3. However, having considered the written and oral evidence and weighing the various matters in the Direction, the Tribunal is satisfied on balance that the applicant has a genuine intention to remain in Australia temporarily. For the following reasons, the Tribunal sets aside the decision under review and remits the visa application for reconsideration.
4. The applicant presented as a credible witness who gave detailed and spontaneous evidence about his past, current and future studies and personal circumstances in both Pakistan and Australia.
5. There is no evidence to suggest that the relationship was contrived. The applicant gave compelling evidence that he was in a genuine spousal relationship, that he and his wife come from the same Islamic faith and cultural Pakistani background as do their respective families. The fact that he was able to provide various personal records, including a copy of his wife's passport, their marriage certificate and marriage extract supports these claims. Their relationship has continued and they plan on returning to Pakistan where they both have extensive family networks and strong cultural connections. Whilst the applicant's wife has family in Australia, they reside in Perth, whereas the applicant and his wife reside in Victoria. The Tribunal is satisfied that the applicant is not utilising the student visa program to maintain a residence in Australia and if the applicant sought to remain in Australia permanently, he could do so via the partner visa stream.
6. Since the applicant's arrival in Australia, the applicant has been enrolled in a range of courses and actively engaged in his studies. The Tribunal accepts that the applicant did not complete his original course of a Bachelor of Business (Management) due to ill health. PRISM records indicate that the applicant notified his educational provider and was granted a deferral/suspension on compassionate or compelling circumstance grounds. Medical records and the applicant's oral evidence also support that he did not complete the course due to a genuine illness. The Tribunal therefore does not place adverse weight in this regard.
7. PRISM records further indicate that he completed a Certificate III in Painting and Decorating and a Diploma of Building and Construction (Building). At hearing the applicant stated he did not physically receive the certificates; however the Tribunal finds that he has completed these courses as reflected in PRISM records which the Tribunal regards as reliable and credible evidence.
8. The applicant gave evidence that he has been approved to study a Diploma of Project Management from 3 March 2025 until 27 February 2026, an Advanced Diploma of Program Management from 2 March 2026 until 26 February 2027 and a Graduate Diploma of Management from 1 March 2027 until 25 February 2028. His evidence to the Tribunal demonstrated a level of research and planning in relation to his proposed study in Australia and he provided convincing reasons for choosing his educational provider. He was able to explain why he wanted to study in Australia, and the advantages of doing so compared to Pakistan and other neighbouring countries. The Tribunal is prepared to accept that the qualifications from Australia would be well regarded and may improve his employment and renumeration prospects in Pakistan. Various job research undertaken by the applicant supports the same. The applicant demonstrated in depth knowledge of various available employment and major building and infrastructure projects in Pakistan at hearing.
9. The applicant gave evidence that in Pakistan he worked with his brother doing interior design. Whilst no corroborative evidence was provided in support, the Tribunal Member questioned the applicant extensively and he was able to provide spontaneous and detailed responses and the Tribunal is satisfied that he was employed as claimed.
10. The applicant gave evidence that from his course, he hoped to obtain employment in project management in the construction industry or infrastructure field and assist his brother operate his interior design business. He stated due to his asthma and respiratory condition, he cannot continue in frontline work as a painter but wished to continue in a project management role in the construction field. He was able to answer questions in a considered and thoughtful manner that demonstrated a deep level of understanding and purpose in relation to his proposed study and future life plans. The Tribunal accepts the applicant's evidence which is supported by medical evidence. The Tribunal further accepts that a person is entitled to make changes to their career or study plans over time, this is particularly relevant to the applicant given his health condition. The Tribunal accepts that the applicant's studies have been broadly consistent and are complimentary of one another.
11. The applicant's personal ties are in Pakistan. This is where his mother and two siblings reside and where the applicant had lived before travelling to Australia. The Tribunal accepts that the applicant is connected and engaged with his immediate family and maintains regular contact with them. This is further supported by his recent return visit to Pakistan between 17 and 21 January 2025 when he visited his family. The Tribunal notes this was before the applicant was invited to appear at a Tribunal hearing and the Tribunal is satisfied that it demonstrates his connection to Pakistan and was not undertaken to facilitate a migration outcome and support his student visa.
12. Whereas in Australia, the applicant has his wife only. There are no children from the relationship. They do not have any significant assets and the applicant has limited friends. The applicant stated that prior to their marriage they discussed returning to Pakistan where there is an extensive family network.
13. There is no evidence before the Tribunal that the applicant has had a previous visa for Australia, or any other country, refused or cancelled, other than the visa which is the subject of this review.
14. There is no evidence to support the applicant has military obligations in Pakistan. The Tribunal is not aware of any political and/or civil unrest in Pakistan that would be a relevant consideration for this applicant.
15. 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).
16. 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(a) 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.

Part 1 - Preliminary

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

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

Act means the Migration Act 1958.

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

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

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

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

Regulations mean the Migration Regulations 1994.

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

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

Student visa means a Subclass 500 (Student) visa

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

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

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

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

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

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

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

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

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

a) the applicant's circumstances; and

b) the applicant's immigration history; and

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

d) any other relevant matter

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

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

Part 2 - Directions

Assessing the genuine temporary entrant criterion

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

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

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

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

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

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

The applicant's circumstances in their home country

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

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

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

The applicant's potential circumstances in Australia

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

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

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

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

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

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

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

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

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

[2] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (No. 38, 2024), Schedule 16, Part 5, Item 24; Schedule 16, Part 6, Item 26.