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 is a genuine applicant for entry and stay as a student because he intends genuinely to stay in Australia temporarily.

Genuine applicant for entry and stay as a student (cl 500.212)

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 arrived in Australia on 28 May 2023 as the holder of a Subclass 600 visitor visa. He commenced a Certificate III in Painting and Decorating at Nortwest College in July 2023 and expects to complete the course in July 2025. The applicant has provided to the Tribunal a copy of his academic record for the course dated 13 February 2025 which shows that he has been recorded as competent in 16 out of 29 units, which shows that he is making satisfactory progress in his course.
4. Prior to visiting Australia, the applicant completed his high school education in India in October 2017. He moved to Greece with his family after completing high school and worked as a flower grower and as a process worker. He has provided evidence of his employment of Greece to the Tribunal in the form of bank statements and a letter from his former employer. During his time in Greece, he has declared that he returned to India on three occasions for short periods to visit his extended family.
5. The applicant's parents and sister continue to live in Greece. His father works in farming, his mother works in a warehouse and his sister works in a restaurant. The applicant has submitted that upon the completion of his course, he will return to Greece, resume his work permit and work as a painter. He has provided information to the Tribunal in respect of the Greek construction sector, in which he states that there is a strong demand for painters due to the opportunities in the Greek tourism sector.
6. In respect of his travel to Australia, he said that his plan was to visit his aunt who lives in Australia with her husband and two children. His uncle works in the construction sector in Australia, and after discussing his career goals with his uncle and his uncle's friends, he decided to enrol in the Certificate III course with the intention of broadening his opportunities in Greece.
7. The applicant married recently, in January 2025. He said that he met his wife in January last year and so they have known each other for over a year. His wife currently holds a Subclass 485 Temporary Graduate visa and is working as a registered nurse. Her Subclass 485 visa ceases on 4 April 2025. She has applied for a Subclass 482 Skills in demand visa and is awaiting an outcome on this visa application. The applicant's wife has declared that she is married in her Subclass 482 visa application (a copy of which was provided to the Tribunal). However, the applicant has not been included as a dependent in her application. His representative said that he could not be included as a dependent in her visa application because of his student visa refusal (which is the subject of this decision).[1] The Subclass 482 visa is a temporary visa, which can be granted for a period at the discretion of the Department, generally four years.[2]
8. I asked the applicant and his wife about their intentions for the future. The applicant said that he intends to go to Greece to work in the construction sector and use his painting skills. His wife's visa application indicates that she has an intention to remain in Australia, at least for a temporary period, and work as a nurse. She said that she has completed her studies in Australia and has been working as a nurse, and would like to continue contributing to the Australian community because she completed her degree in Australia. In the future, she said that she may travel to Greece with her husband, and would travel to Greece with him if he cannot remain in Australia to complete his course.
9. The applicant's work permit card for Greece, which was provided to the Tribunal, ceased in June 2022. He also provided to the Tribunal a translated certificate of submission of electronic application for renewing residence permit for Greece which was issued in May 2022 which states that he could continue to reside and work in Greece until a decision was made on his application to renew his permit.
10. I asked him to explain how he intended to apply for another work permit for Greece, or how he could re-enliven his previous permit. He also provided copies of Greek work permits for his family members. The permit for his father expires in 2027, his mother in 2025 and his sister in 2024. The applicant said that it was his understanding that he could return to Greece because of his previous work permit, and this is what he intends to do. After the hearing, the applicant provided a statutory declaration in which he states that he confirmed with his lawyer in Greece that he can continue to work and live in Greece on the basis of the submission of electronic application for renewing resident permit (referred to above), and that his biometrics would need to be captured on arrival and a permit issued.
11. Based on the information before me, I accept that the applicant would be able to obtain a work permit in Greece. He has provided a statutory declaration in respect of this matter, and has consulted a lawyer in Greece. He has previously held a Greek work permit and his immediate family members continue to hold Greek work permits.
12. The applicant was able to briefly describe his studies and the content of his current units. He also described how he spends his time in Australia. He said that he spends two days studying, and that he spends the remainder of his time with his wife, with his aunt and uncle and completing his assignments.

1. I have considered whether the applicant has reasonable reasons for not undertaking the course in India or in Greece. In respect of Greece, he states that the courses are in the Greek language, which would present a problem for him. He said that he wanted to study in English so that if he travels to another country, his qualification will be recognised. The applicant has not addressed in detail whether he could undertake the course in India, which reflects that he has not lived in India since 2017. He has said that by studying in Australia, he can study in an environment with 'cutting-edge tools and practices' and 'studying in Australia can expose him to a diverse cultural environment'. While I accept that there are some benefits to the applicant by studying in Australia, such as studying in English and meeting a diverse student population, as he wishes to be a painter it is not apparent why he could not undertake a painting course or qualification in India or Greece (if he intends to be a painter in Greece, given it is a trade qualification and may not require a strong grasp of the Greek language).
2. I have considered the applicant's ties to India, which include his extended family, and also his ties to Greece which include his parents and his sister. The applicant remains in contact with his family. I do not consider the presence of family in India and Greece are personal ties which serve as a significant incentive for him to return to either of these countries. He has been able to maintain a relationship with them from Australia.
3. I have considered the applicant's economic circumstances and whether they would present as a significant incentive for him not to return to Greece or Inda. The applicant appears to be from a family with assets, such as farmland, and he has previously worked abroad in Greece (and has the right to do so again). He has provided evidence of assets overseas to support his stay in Australia. He said that his parents support him, and his wife also supports him financially. He does not currently have work rights in Australia, although I note this could change in the future. While I acknowledge that he may be able to earn an income in Australia as a painter, when considered with his assets abroad I do not consider his economic circumstances present as a significant incentive for him not to return to Greece or India. Rather, his family appears to be economically stable and relatively well-off compared to others in India.
4. I have considered the applicant's ties to Australia and whether they would present as a strong incentive to remain in Australia. His aunt and uncle live in Australia as permanent residents. He is married, and as noted above his wife is an applicant for a Subclass 482 visa. He may be able to apply for a Subclass 482 visa. It is speculative as to whether his wife would remain in Australia permanently and she does not currently have the right to do so. I do not consider his aunt and uncle as a strong incentive to remain in Australia. He previously lived with them, but is now living with his wife. Provided that his wife is a temporary resident in Australia, I do not consider that this connection would be a strong incentive to remain. I do not consider that he has ties to Australia which would present as a strong incentive to remain.
5. I have considered whether the applicant is using the student visa program to circumvent the intentions of the migration program and maintain ongoing residence. As noted above, the applicant entered Australia in May 2023 and so has lived in Australia for 20 months. Since applying for the student visa, he has continued studying his Certificate III course. Based on the period of time he has been in Australia and his lack of ties to Australia, there is no indication that he is currently using the student visa program to circumvent the intentions of the migration program and maintain ongoing residence.
6. I have considered whether the applicant is seeking to undertake a course that is consistent with his current level of education and whether it will assist him to obtain employment or improve his employment prospects. The applicant completed high school in India, and is now undertaking a Certificate III course. I find that this is consistent with his current level of education.
7. I have considered whether the course would enable him to find employment in Greece (or India), and the value of the course to his future. I accept, based on the applicant's submissions, that there are opportunities for painters in the Greek economy, particularly in the construction sector which is strong because of a demand for tourism in Greece. While it is not apparent whether the applicant could be a painter in Greece without such a course (he stated he had not worked as a painter in Greece previously, but had assisted some Albanian workers in Greece who painted), I do place some weight in the applicant's favour in respect of his evidence (given at the hearing and in submissions made prior to the hearing) that a painting qualification and skills in painting would assist him to obtain work in Greece in the construction sector. The applicant said that working in India is not a priority for him, and he envisages more opportunities in the Greek economy.
8. I have considered the applicant's immigration history and am concerned by the way in which he arrived onshore (arriving on a Subclass 600 visa and then once onshore, applying for a student visa). I accept it is possible that an applicant may seek a change in plans or to further their skills for employment reasons and career opportunities but given the applicant has stated that he came to visit his aunt, it is difficult to accept that he would make such a significant change from his initial intentions of a visit, and then enrol in a course until July 2025 which would see him remain in Australia for two years. Such a significant change would typically require a greater level of planning and preparation before arriving in Australia, considering the length of time that the applicant proposes to spend in Australia in total. While I acknowledge the applicant has stated he was motivated and guided by his uncle and his uncle's friends once he arrived in Australia, it is not apparent why he subsequently extended his stay in Australia for such a period. I find that it indicates that he may have had an intention to study in Australia prior to his arrival on a Subclass 600 visa.
9. I have some concerns about the applicant's travel history for the reasons outlined above. I am also concerned that he appears to have not undertaken research into available courses in Greece or India and instead decided to study in Australia because the course is available in English. He could have elected to study in India if he was not conversant in Greek, and did not consider that he could complete the trade qualification with limited Greek language skills. The applicant's wife's situation (as an applicant for a Subclass 482 visa, after completing her studies in Australia) also indicates that the applicant may intend to stay in Australia with her.
10. This is a finely balanced case. The applicant has made progress in his course, and states that he will return to Greece at the completion of his course. I have accepted that the course offers some value to the applicant's future. If the applicant's wife is not successful in her visa application, I accept that the applicant intends to return to Greece to join his family and that his wife would join him. I also note that the applicant has stated he has no concerns or fears about returning to India or Greece. However, I do not accept that he would return to Greece if his wife were granted a Subclass 482 visa. She has recently applied for the visa which indicates that she has a present intention to remain in Australia after the expiry of her Subclass 485 visa. I find that if she is granted the Subclass 482 visa, he would apply for a Subclass 482 visa as a dependent (which he would be able to do if he is not subject to section 48 of the Migration Act, which is dependent on the outcome of this application or may not apply if the applicant were to travel offshore and make an application while offshore). However, as the applicant's wife has not applied for a permanent visa and states that her intention is to only work in Australia because she wants to contribute to the community and give back to the country, and that ultimately she will travel to wherever her husband determines is appropriate, I am prepared to accept the applicant's evidence that he does not presently intend to stay in Australia on a permanent basis.
11. It appears that the applicant in the short-term may have the option to develop his trade as a painter in Greece or India. The applicant may also be able to develop his trade in Australia if his Subclass 482 wife's visa is granted and he is successful in obtaining a dependent visa which would allow him to work. The couple appear to be weighing up their options for the future. At this stage, it is speculative as to whether these temporary Subclass 482 visas will be granted (at present there is no visa application for the applicant). In any event, the visas would also be of a temporary nature and, having regard to my considerations and findings above, there is nothing before me to indicate that the applicant and his wife intend to stay in Australia on a more permanent basis (although I note that this may be an option for the applicant's wife in the future).
12. If the applicant makes a further visa application for a student visa, including one on the basis of an intention to undertake further study after July 2025, his submissions and evidence to the contrary in connection with this matter will clearly be relevant to any assessment of his intention to stay in Australia temporarily as well as his evidence in any future visa applications.
13. On the basis of the above, I am satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).
14. 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.

Representative for the Applicant: Mr Chetan Khanna (MARN: 0964967)

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

(Section 499)

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] See section 48 of the Migration Act 1958 (Cth)

[2] See cl 482.511 of Schedule 2 to the Migration Regulations 1994 (Cth).