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. The applicant gave evidence she has her parents, extended family and friends in Korea and she remains in regular contact with them. She has also regularly returned to Korea to visit her family since she has been living in Australia (from 2014). It is accepted that these family ties may act as an incentive for her to return, particularly the presence of her parents who are retired and she feels as if she should be spending more time with them.
2. I also accept she remains connected to the community, in particular her school friends, baseball fan groups and doll-collecting groups. However, I note that she remains connected to these communities through online chat groups and therefore they do not necessarily serve as an incentive for her to return as she can remain connected to them from Australia.
3. The applicant has no significant assets such as property or cars in Korea, and only has provided evidence of a small amount of savings and insurance entitlements.
4. Further, the applicant has not lived and worked in Korea since August 2014 and there is no evidence of her having employment on her return. I not satisfied that the applicant has employment in her home country, but she has had ongoing employment in Australia since 2014 and I consider that acts as an economic incentive for her not to return to Korea.
5. The applicant confirmed that she does not have any potential military service obligations or political or civil unrest concerns in her home country or that there are any other reasons why she would not return to Korea.
6. Finally, with respect to the applicant's reasons for studying in Australia and not in her home country, I accept that she could more freely choose to study different courses in Australia given the college entrance exam requirements in Korea. I also accept that she wanted to improve her English and studying in Australia for an extended period has enabled her to do that.
7. On balance, although I accept the applicant has a strong connection to her parents, extended family and friends in Korea and has reasonable reasons for wanting to study in Australia rather than Korea, I nevertheless have concerns as to the whether the applicant genuinely intends to return to Korea given her lack of employment and economic ties.

1. The applicant has significant connections in Australia, including her brother and his family, as well as her cousin and her family whom is like a sister to her. The applicant lives with her cousin, and that arrangement is beneficial to the applicant. Given the time she has been in Australia I also consider that she would have connections with people she has worked and studied with over the past 11 years.
2. Further, the applicant demonstrated a reasonable level of knowledge of living in Australia commensurate with someone who has lived here since 2014.
3. When questioned about why the applicant stayed in Australia for so long to do so many different business courses, she explained that her English was improving, and she was enjoying the new experiences. Further, she explained that when the Covid-19 pandemic happened she didn't enjoy the online teaching and when face to face classes began again she wanted to keep studying as she was enjoying it again. I accept that Covid-19 may have caused her to stay a little bit longer than she had initially planned, however, I remain concerned about the length of her stay and the number of similar business courses she has already completed. This indicates to me that she has been studying these courses to maintain ongoing residence.
4. When questioned about what research she had done into the courses and college she chose, the applicant indicated that she was given a list from an agency and she went through the list and researched the location, courses and costs involved. She ultimately selected Choice Academy as its student care was exceptional, it was in a location she had never been before which sparked her curiosity, and it offered special hobby classes and one-day workshops that could help with employment. I accept this was a reasonable amount of research to undertake and her reasons for choosing the college and its courses are rational.

The value of the course to the applicant's future

1. I accept that the applicant plans to first get a job on return and in the long term to open her own business in which she offers cooking classes.
2. In relation to the value of the Diploma in Information Technology course to the applicant's future, I have concerns in relation to its relevance to her past study as well as her future career goals. The applicant explained in the hearing it was a basic course and she considered it was important to learn the basics so that she understands enough to be an owner of a business who hires someone to build and manage a website for her. I do not accept that someone who has been studying business, leadership and management courses in Australia since 2015 does not have basic IT and management skills that she could use to manage a staff member to undertake the more technical IT work.
3. In relation to the value of the Graduate Diploma of Management (learning course), the applicant was unable to give many details in relation to the units of the course she will be required to complete, what she was currently studying and why it would be of value to her career goals in light of the multiple business and management courses she has already completed. I am concerned about her lack of knowledge of the course and how it will help her future, notwithstanding that it has only just commenced. One would expect someone who has just commenced a course to have fresh in their might what the course will cover and what topics the current units relate to. Her responses to my questions were however vague. The current units the applicant described related to dealing with customer management and keeping customers happy. However, my understanding of what the course involves is organisational learning and capability development, which is suitable for someone who wishes to become a manager, director or HR advisor rather than a small business owner. Further, the main reasons she was able to give in relation to why the course was of value to her was that she wasn't satisfied with her 'last course' because of Covid-19 and she considered this was the final course in the suite of courses she has already completed to finish her education. However, the last course she completed was an Advanced Diploma in Business Management which started in January 2023 and finished in October 2023, being a number of years following the Covid-19 lock downs. Also, given her lack of awareness of what the course involves I do not consider it is in fact important to complete her education.
4. Further, given the applicant's qualifications already obtained in Korea and Australia, as well as her work experience in Korea and Australia, it is not clear to me why she would need the further two courses to obtain work and later set up her own cooking studio. The applicant already completed a Diploma of Hotel Culinary and Baking in Korea as well as 9 business related courses in Australia. She also had experience working in education in Korea and in restaurants in Australia. One would expect she would be able to obtain a job and later open her own cooking studio given her level of experience and qualifications obtained to date. For the same reasons, I do not consider the additional two qualifications will in fact assist the applicant to obtain work in Korea nor will they increase her earning capacity in the long term.

1. The applicant travelled to Australia in September 2014 on a working holiday visa and stayed for 1 year. She then returned after 1 month, in October 2015, on a student visa and has held a number of student visas since. If she were to remain to complete her final course, she will have been living in Australia for 13 years. The length of time that the applicant now intends to remain in Australia is troubling. It indicates that she may be using the student visa program to maintain ongoing residence.
2. The applicant claimed, and there is no evidence to dispute, that she had not previously been refused a visa in Australia or elsewhere, and that she had not had a visa cancelled or considered for cancellation. I also accept that she has complied with her visa conditions since she has been in Australia from September 2014. Finally, I accept she complied with the conditions of the visas she held when she travelled to Indonesia, Thailand and Japan for holidays.

1. I also have before me a copy of the Provider Registration and International Student Management System (PRISMS) records for the applicant. These records contained information consistent with the evidence of the applicant, as to her past and future study.

1. In conclusion, in weighing the relevant factors, the Tribunal accepts the applicant has reasonably strong ties to Korea, particularly her parents, extended family and friends. However, I place greater weight on her circumstances in Australia, in particular the fact that her ties to Australia are significant - namely, her brother and cousin and their families as well as her employment here in Australia. I am also concerned about her plans to remain in Australia for a lengthy period and I am not satisfied that there is demonstrated value of the proposed courses to the applicant's future in light of her existing qualifications and work experience.
2. Having considered the evidence provided of the applicant's circumstances overall, and other matters I consider relevant, including those in respect of Direction 108, as detailed above, I am not satisfied that the applicant is a genuine applicant for entry and stay as a student. This is because the Tribunal is not satisfied that she intends to genuinely stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
3. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

1. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

DIRECTION NUMBER 108 - ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

I, CLARE O'NEIL, Minister for Home Affairs and Minister for Cyber Security give this Direction under section 499 of the Migration Act 1958 (the Act).

Minister for Home Affairs and Minister for Cyber Security

Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

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

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

Act means the Migration Act 1958.

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

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

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

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

Regulations mean the Migration Regulations 1994.

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

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

Student visa means a Subclass 500 (Student) visa

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

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

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

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

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

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

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

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

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

a) the applicant's circumstances; and

b) the applicant's immigration history; and

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

d) any other relevant matter

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

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

Assessing the genuine temporary entrant criterion

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

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

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

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

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

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

The applicant's circumstances in their home country

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

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

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

The applicant's potential circumstances in Australia

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

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

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

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

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

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

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

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

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