The applicant's circumstances in their home country

1. The applicant told me she is married to her husband, Rahul, and they have two children, their daughters Gunica (who is 16 years old) and Khanica (who is almost 13 years old). I have before me a copy of the applicant's marriage certificate, passports and national identity cards of all four applicants and I accept from the applicant's oral and written evidence, that her husband and daughters are members of her family unit and that they are therefore dependant applicants for the purpose of this review.
2. Early in the hearing I discussed with the applicant her initial intentions when she arrived in Australia as a visitor, in May 2023. She told me that she and her husband and children came here for a holiday to see her brother who lives in Australia, and that the reason they came then was because it was during the summer holiday break for her daughters schooling in India. She told me initially her family had only intended on visiting and then after she arrived she realised that she wanted to update her business skills to expand her clothing business in India and so after much discussion with both her husband and her children, they decided to stay in Australia so that she could study.
3. I asked the applicant if this caused difficulty with her children, who had come to Australia during their summer break for what they thought was a holiday and she said it did because they had to arrange for her children to enrol in school in Australia, and her children were not happy that they would be away from their friends in India, but as they wanted to support their mother in her desire to study, they agreed to stay here temporarily. In her written statement provided to the Tribunal, the applicant also explains how close her daughters are to her husband's parents and the cultural responsibilities her husband has towards his parents.
4. The applicant's written statement before me explains how loving and supportive her husband is towards her, not just since they have been in Australia, but throughout her previous career and non-government organisation (NGO) volunteer work in India.
5. In discussing the applicant's previous work history in India, she told me that for years she had been managing her own trading company (which her husband had also managed) and that she wanted to gain a business qualification in Australia to enable her to expand her company's operations on return to India. She also told me that whilst she enjoyed the business and it provided income for her and her husband and children, her real passion has been the years of volunteer work she had done with NGOs in India, as she really feels a strong desire to help the vulnerable in India. I have before me written references and evidence of the volunteer work done by the applicant in India which I accept. In the hearing, she also described in detail to me that work that she had done in India, such as organising summer camps and education seminars for young women to improve their education and status in society and to assist poorer families with the cost of educating their children. It was evident to me that the applicant not only had a genuine love for that type of work, but that she had contacts still within the NGO community in India that she would use to help her get a job when she returned. It was also evident to me from the applicant's oral evidence that her current study would assist her in her future plans to gain paid employment in India to help the more vulnerable members of society, such as young people and the elderly, which I discuss below.
6. The applicant told me that her business in India, which is still operating, trades in LED lighting and supplies those goods to various organisations including government organisations. She told me her husband had been trying to manage the team from Australia, which he has managed to do but it would be easier for him to manage in person once they return to India. I have before me various documents the indicate ownership of the business (trading name "Mahira Enterprises") in the applicant's name as well as financial records dated October 2025 and November 2025 and I consider the business is an incentive for the applicant and her husband to return to India and whilst the applicant wants to move into a new paid career focussed on the vulnerable in Indian society, I consider the fact that her husband would once again manage the business an indication that the applicant only wishes to remain in Australia temporarily for the purpose of completing her current course.
7. I asked the applicant whether there were social work courses available to her in India and if so, when she decided to change from her business studies to social work, whether she considered returning to India to study social work there. In response she told me that in her research she discovered that sociology courses are common in India but not practical based social work courses that would give her the practical skills she needs as well as the theory that she requires to effect attitudinal change in India, given her future plans (which are discussed below). She also told me that age discrimination is common in India and in general it is difficult for mature age students like her to study at the level she is studying at whereas in Australia age is just a number and discrimination does not exist like it does in India.
8. In her written evidence (her statement and various supporting documents), which I confirmed with the applicant during the hearing, the applicant declared her husband has assets in the form of ancestral property, cars, cash and jewellery, and whilst those assets are in her husband's name and not her name, given how close a relationship the applicant and husband have, which was apparent to me from the applicant's evidence, I consider those assets, and her husband's responsibilities towards his parents, are an incentive for the applicant to return to India after she has completed her study.
9. There is no evidence before me that there is political or civil unrest in India that would result in the applicant choosing to remain in Australia indefinitely. There is no evidence before me of military commitments that would present as a significant motive not to return to India.
10. I have considered the applicant's oral and written evidence about her circumstances in India. In particular, the business that she and her husband own in India that is and has been their main source of income since they arrived in Australia, her parents and her husband's family and her own professional contacts within the NGO sector, the sector that she would like to use her Australian qualifications to work in on her return to India, I consider all indicate that the applicant is a person who only wishes to remain in Australia temporarily and wishes to return to their home country upon completion of her studies.
11. Therefore, based on the applicant's circumstances in India, I am satisfied that the applicant intends on completing a Master of Social Work, and I am also satisfied that the applicant, her husband and children would, after the applicant completes her studies, return to India. It follows that based on the above, I am satisfied that the applicant's circumstances in her home country weigh in favour of the applicant being a genuine temporary entrant.

The applicant's potential circumstances in Australia

1. Early in the hearing the applicant told me that her daughters, as teenagers are not enjoying Australia and they really miss their friends and their school in India and that her children cannot wait to return to India. She explained to me the discussions she and her husband had with their children about how important the applicant's study was for her own personal growth but also to help the family on their return to India. The applicant spoke passionately about wanting to be a good role model for her children, particularly as they are females and in India much of her volunteer work has been spent on improving the standing of women in India and that she wants her daughters to not only be proud of their mother but to be inspired to achieve themselves as adults.
2. Whilst the applicant's brother lives in Australia permanently, I do not consider this an incentive for the applicant to remain in Australia permanently, as the applicant has previously visited Australia departed again. She also told me that her brother lives in Melbourne whilst she and her husband live in Geelong and so whilst she is close to her brother she has not formed such a strong bond with him or his community in Melbourne and this is another reason why I do not consider her brother's status in Australia to weigh against the applicant being a genuine temporary entrant.
3. In the hearing the applicant told me that in compliance with her previous visas she has not been working in Australia and that since she was granted permission to work in July she has not worked (and she does not intend to work) because her focus has been and is on her studies and her husband and children. I consider that the fact she has not been allowed to work for the majority of her stay in Australia to date, and that she has not worked since she has been in Australia, has resulted in little opportunity for the applicant to make any relevant employment contacts in Australia, which I find weighs in the applicant's favour as someone who is not using the student visa program to circumvent the intention of the migration program.
4. The applicant told me that her husband has not been working in Australia until recently (when he was granted permission to work) and since then he has been working casually as a painter, cashier and sometimes for menu log, and that his work is casual and ad hoc which I consider has resulted in him not forming employment networks that would be an incentive for him to remain in Australia.
5. Based on the above, I am satisfied that the applicant's potential circumstances in Australia weigh in favour of the applicant being a genuine temporary entrant.

The value of the course to the applicant's future

1. The applicant came to Australia as a visitor and then lodged a student visa application on the basis of wanting to complete a business degree. When I asked the applicant in the hearing why she changed to social work, she told me that once she started the business degree she realised that a lot of the management skills being taught in the course she already had from her previous work in India managing her business and that she, with the support of her husband, thought with social work qualifications, she could turn her passion for working with vulnerable communities in India through her previous volunteer experience into a paid career which would still utilise her management skills. She told me she had been volunteering for NGOs in India for 15 years but now she had the opportunity of working professionally in a paid capacity within that same sector on return to India once she had completed her Master in Social Work degree.
2. During the hearing the applicant gave expansive and considered evidence about the kind of work she could and would do on return to India once she had completed her social work qualifications. She described wanting to effect attitudinal change in India as a social worker, for example working in aged care to educate elderly people about their rights (of which they are not aware) and working with young people (particularly females) to help them develop positive attitudes and skills to enable them to succeed independently in their future lives as adults. She said that this involves educating older Indians to accept that their children can and should be given the freedom to pursue careers without being tied to their parents as parents age. The applicant's written statement before me corroborated the applicant's oral evidence. In her written evidence the applicant provided estimates of her expected income of social workers in India. The applicant's written evidence in her completed Student visa information form explains with some degree of detail the various roles and sectors in which she would seek to work in India utilising her Australian social work qualifications.
3. During the hearing the applicant told me the two areas in which she would focus her employment search on return to India would be within schools and aged care, and that through her previous volunteer work in the NGO sector, she has some relationships with people who could introduce her to potential employers within schools.
4. I have before me evidence from the applicant in her written statement provided to the Tribunal of the value of the content of her current course to her future plans, which indicates to me that the applicant does understand the content of her course but also how that content will assist her achieve her future plans in India.

I accept on the oral evidence of the applicant at the hearing, and the written evidence before me from ACAP University College that in August 2024 the applicant completed a Graduate Certificate of Human Services (a course that was conducted in English), and that the applicant has completed 7 of 12 units towards the qualification of a Master of Social Work (Qualifying).

1. On the basis of the applicant's oral evidence before me about her future career plans, and her knowledge of her course content in Australia and how she will apply to that to her future plans, and the study she has completed to date, I accept that the applicant has a clearly defined pathway for her future social work career in India that will be greatly enhanced by her Australian qualifications.
2. Based on the above, I am satisfied that the value of the course to the applicant's future weigh in favour of the applicant being a genuine temporary entrant.

1. The applicant came to Australia as a visitor and then lodged a student visa application that was refused, the refusal decision being the subject of this review. This student visa application is the applicant's first student visa application. She told me that she has not been working since she has been in Australia in compliance with her visitor visa and bridging visa conditions.
2. At the hearing the applicant told me that she and her husband and daughters were missing her family and her husband's family and so last year they all went back to India for a holiday to celebrate Diwali with their family and indeed the movement records of the applicant and her husband reflect this travel.
3. Considering the evidence before me, I find there is nothing in the applicant's immigration history that weighs against her remaining in Australia temporarily and I consider that the applicant, her husband and children returning to India to see their family is a factor weighing in favour of the applicant being someone whose only purpose is to remain in Australia temporarily for the purposes of study.

My conclusion regarding whether the applicant genuinely intends on remaining in Australia temporarily

1. On the basis of the above, having considered the applicant's circumstances as a whole, and having weighed the factors set out in Direction 108, I am satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, I am satisfied that 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. The applicant's student visa application was lodged with the Department on 19 July 2023. At that time, the applicant and her husband were both granted Bridging A visas that has condition 8101 (no work) attached to them. Both the applicant and her husband then proceeded to hold Bridging B visas (which allowed them to travel back to India) that also had condition 8101 attached to them. The movement records of both the applicant and her husband, indicate that it was not until 18 July 2025 that both the applicant and her husband were granted Bridging A visas that allowed them to work (that is with no conditions attached to the Bridging A visas). At the hearing I discussed this with the applicant and she told me that neither she nor her husband worked in Australia whilst they held visas without permission to work and that it is only recently that her husband has started working and that he only started working after his Bridging B visa with permission to work was granted to him. She told me she has not worked at all because she is focussed on her study and their children.
3. On the basis of the applicant's evidence at hearing I accept both she and her husband have complied with the conditions attached to all visas they have held in Australia and I give weight in favour to the applicant because of this compliance.
4. 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.
5. In her student visa application and in her written statement to the Tribunal, the applicant declared that she would abide by any conditions imposed on a student visa should it be granted. There is nothing before me to indicate that the applicant would not comply with any condition imposed on a student visa should it be granted to her.
6. On the basis of the above, I am 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), I must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl 500.212(a) and (b)).
2. At the end of the hearing the person assisting the applicant submitted that the applicant's age means she is not eligible for a subclass 485 visa that would traditionally allow recent international student graduates to remain in Australia to gain work experience, and I give this some weight in favour of the applicant being a genuine applicant for entry and stay as a student. Accordingly, I am satisfied that the applicant meets cl 500.212(c).
3. Accordingly, for the above reasons, I am satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212. Given the above findings, the appropriate course is to remit the application for the visa by the applicant to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa. As a result, and as I am satisfied that the second, third and fourth named applicants are members of the same family unit as the applicant, the appropriate course is to also remit the applications for the visa to the Minister for the second, third and fourth named applicants.

1. The Tribunal sets aside the decisions under review and remits the applications for Student (Temporary) (Class TU) visas for reconsideration, in accordance with the order that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
   • cl 500.212 of Schedule 2 to the Regulations.
2. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the second, third and fourth named applicants meet the following criteria for a Subclass 500 (Student) visa:
   • cl 500.311 of Schedule 2 to the Regulations.

Representative for the Applicant: Mr Mandeep Singh (MARN: 2015489)

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.