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 satisfies cl 500.212 of Schedule 2 to the Regulations.
2. Clause 500.212 requires as follows:

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.
3. The applicant said that the management studies he was currently undertaking in Australia would assist him to get a high level well-paying job in India. He confirmed that there were management studies available in India, however he said that they were not at the higher level he was currently studying and he did not believe that they would assist his career to the same level or provide the same opportunity to improve his remuneration. The Tribunal accepts that the applicant has reasonable reasons for wanting to undertake well-regarded qualifications at the graduate diploma level in Australia.
4. In his home country the applicant has his immediate family which includes his parents and two brothers. They all live together in the family home. His current wife also has all her family in India. It is accepted that these personal ties may serve as an incentive to return. The applicant visited his family most recently in 2023. His parents also owned a large plot of agricultural land. The applicant claimed to personally own some agricultural land which he purchased himself prior to arriving in Australia. His family produce wheat and sugarcane. The Tribunal accepts that the applicant has provided evidence of relevant land holdings in his home country post hearing. There is no evidence of economic circumstances of the applicant which would present as a significant incentive for the applicant not to return to his home country.
5. The Tribunal accepts that the applicant does not have any outstanding military service obligations. The applicant claimed that he had no fears of returning to India. The Tribunal accepts that there are no incidents of civil or political unrest which may otherwise induce him to apply for the student visa for the purpose of remaining onshore indefinitely.
6. Overall it is accepted that the circumstances of the applicant in his home country are favourable to the visa grant.
7. As to the applicant's circumstances in Australia, he arrived in Australia as a dependent on his first wife's student visa. The applicant told the Tribunal that they had divorced in 2018 around the time he applied for the visa. While awaiting review he has remarried in 2023. His current wife also from India, from the same area. She has been present in Australia since 2022 and previously held a student visa. Recently she lodged an application for a Subclass 485 visa as she has completed her studies in hospitality. This visa was under review. Together with his wife, the applicant lived in rented accommodation which they share with another couple. He claimed and there is no evidence to dispute that he did not have any assets in Australia. He had been working for a number of years in a grocery store, Radhi Wholesale. This is the department store that he has referenced in his submissions which had induced him to obtain further skills in management. At this business held the role of manager, it was a small business which employed a further six people. The presence of the applicant's wife onshore may act as an incentive for him to remain, however it is noted that she is also seeking a visa that is temporary.
8. The Tribunal did have some concerns that the applicant having arrived in Australia as a dependent on his former wife's visa, was now seeking to use the student visa as means to maintain residence. It has had regard to submissions that he observed first hand the benefit of education in Australia while his first wife was studying and further that he wished to obtain some education and skills personally given the changes to his life consequent on the end of his marriage. This is a reasonable explanation for his decision to apply for a student visa.
9. Yet, it remains that the applicant did not complete his studies in Leadership and Management. He told the Tribunal that he started the Certificate IV but he was still affected by the break down of his first relationship and then his ongoing studies were affected by the pandemic. When the applicant appeared before the AAT he was studying the Diploma of Leadership and Management, he told the Tribunal that he did not complete the studies because he became frustrated with the refusal of his visa and concerned whether he would be able to complete the qualification. The Tribunal has had regard the reasons of Judge Goodchild upon review of this matter, and particularly the views expressed at paragraph 66, that the assumption that a genuine student would have commenced their studies notwithstanding the refusal of a student visa has at its foundation a false premise, and is not an assumption that could reasonably be made. [1] The Tribunal is bound by the determination of the court, and on a similar vein it is submitted that a negative inference should not be drawn from the times that the applicant has not undertaken study, particularly between the determination of the AAT and the delivery of Judge Goodchild's judgement on 9 May 2024. The claim before the Tribunal is that there was uncertainty in the applicant's mind as how his judicial review would ultimately be decided as the decision was outside his control. In these circumstances the applicant may lose his money and obtain no qualification. Following the authority provided in this case, the Tribunal in this instance accepts the submission that it was not until the remittal
10. It is accepted that after being present in Australia since 2016, the applicant has a reasonable level of knowledge about living in Australia. As to his proposed study, the applicant said that he was attending his course three days per week, he was able to discuss with the Tribunal the subjects he was currently enrolled in as part of his course. In addition to this the applicant said that he had already completed three of the eight subjects which were required for the completion of the course. He told the Tribunal that he had passed all of his subjects to date and he was on schedule to complete his course within the time provided in his CoE. The applicant chose his current education provider because it was recommended by a friend who was already studying there, when he went to check it out he found his current course that met his needs. It is also accepted that he had a realistic knowledge of his course.
11. In 2013 in his home country the applicant completed a Bachelor of Arts qualification. He wanted to complete his studies in the Graduate Diploma of Management Learning to obtain better management experience to assist him to run a business in the future. When asked how his course would assist him in the future the applicant said that it was important in business to be educated and that he was learning skills to effectively manage his future staff. It was submitted that this qualification would build on his work experience to date and that the qualifications would stand him in good stead should the applicant pursue his own business or a higher management position in an existing business. It is accepted that the qualification and the skills obtained through the course will assist in the future remuneration of the applicant. The Tribunal has also considered that it has been some time since the applicant completed his qualifications in India, that his Bachelor of Arts degree is a general qualification and that his current graduate diploma is specifically directed towards management, training staff and critical thinking. The evidence is that the applicant has made progress in the Graduate Diploma since the remittal of his review application which further demonstrate that he genuinely desires the qualifications he has enrolled in at not an insignificant expense.
12. As to the migration record of the applicant, it is noted that he has been onshore for a considerable time since 2016. However the last seven years has been in pursuit of the visa to obtain management qualifications, the Tribunal places no adverse reliance on the length of his stay to date. Another issue for the Tribunal is the information provided by the applicant at hearing that he has in he past been refused a visa in addition to the visa under review. The Tribunal is not privy to the substance of that decision, which according to the applicant occurred around November 2023. This was prior to the applicant being successful in his appeal to the Federal Circuit and Family Court in relation to this visa application. The applicant advised the Tribunal that while awaiting review he applied to join his wife's Subclass 485 visa which was under consideration at the time of the Tribunal hearing. It was submitted to the Tribunal that after years of awaiting review on a temporary visa, the applicant applied to join his wife's visa in order to regularise his migration status so he could proceed to complete his studies with confidence. This submission is not without merit. Other than these matters, there is no further evidence before the Tribunal that the applicant has not complied with his visas in the past or has had any other visas refused, cancelled or considered for cancellation.

1. In assessing the totality of the circumstances of the applicant there are some matters of concern for the Tribunal particularly length of time he has spent and intends to spend in Australia. It also holds concern that he continued to have a spouse in Australia who is seeking to remain for a further period, albeit temporarily. However, on balance the circumstances of the applicant in his home country are favourable to the visa grant, he has reasonable reasons for undertaking his course, he appears to be engaged with his course and the Tribunal accepts it is of value. The Tribunal notes the extensive periods since he applied for the visa that the applicant was not studying, however it also has had regard to the judgement of the Judge Goodchild upon review of this matter, and the authority relevant to the applicant as to reasonable reasons why an applicant without a valid student visa may not continue to progress with studies while awaiting review. Having regard to the relevant factors in Direction 108, the Tribunal finds that they are on balance favourable to the visa grant.
2. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).

Does the applicant intend to comply with visa conditions?

1. For the applicant to meet cl 500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant's record of compliance with any condition of any visa they previously held, and the applicant's stated intention to comply with any conditions to which the visa may be subject.
2. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl 500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents' education), 8532 (arrangements for under 18s), 8533 (notify address/education provider) and condition 8208 (no critical technology related study without approval).
3. The applicant told the Tribunal that he had complied with his visa conditions in the past and would continue to do so if granted the visa. There is no evidence that he has breached any visa conditions to date.
4. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl 500.212(b).

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

1. For the applicant to meet cl 500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl 500.212(a) and (b)).
2. There is no evidence of any other matters of relevance before the Tribunal.
3. 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.
4. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

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

Representative for the Applicant: Dr Etienne de Villiers Hugo

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] Sandhu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFaC2G 319