The applicant's circumstances in their home country

1. At the hearing the applicant told me that in 2014 he graduated with a Bachelor of Engineering in India and then worked in engineering, teaching and in the agricultural sector before coming to Australia. He told me that since about 2015 he has had a desire to work in hospitality as he loves food and loves cooking but as the area in which he lived in India was mainly agricultural, there was not a lot of opportunity to study reputable food related courses locally. He told me it was not until he was in lockdown in Australia during covid that he really started cooking more at home with his sister that he seriously considered a career change to hospitality. The applicant's oral evidence is consistent with the written submissions from the person assisting the applicant and I therefore accept that the applicant had a genuine desire to change his career towards hospitality that occurred during covid.
2. The applicant told me both his parents are still alive but they are now elderly and that he feels a strong cultural and moral responsibility to return to India at the end of his studies to care for his parents, particularly because he is the only male child, having three sisters and no brothers.
3. The applicant told me he married his wife in November 2024 and that she lives with his parents. He told me that because he needed to return to Australia to complete his Diploma, he was only able to spend a couple of weeks with his wife after they were married and that he is keen to return to India, where he will live with his wife in his parents house. He also told me that he and his wife have discussed wanting to have children sooner rather than later which is another reason he wants to return to India after he finishes his course next month. He told me that his wife does not work and that he feels responsibility to return to India as soon as possible to start earning money to support both his wife and his parents as is expected of him as the son of his parents. I have before me a copy of the applicant's marriage certificate. I accept that the applicant is married and that he has personal ties in India in the form of his wife and parents.
4. I have before me certificates of both land and property ownership in the applicant's name which I discussed with the applicant at the hearing as he had declared in his student visa application that he did not have any assets. He told me that his parents transferred their house and land to him. I asked the applicant during the hearing why his parents transferred their assets to him whilst they were still alive and also whether his sisters inherited anything from his parents. He told me that his parents are old and they wanted to ensure he had ownership of their house and land before they die and that as his sisters are all married with their own families, culturally it is important for the male child to inherit and that this is a responsibility he takes seriously. The person assisting the applicant submitted at the hearing that the applicant's parents have great faith in the applicant returning to India as he is their only son and he is now a landowner which does carry great responsibility. I accept on the evidence before me that the applicant owns land and a house that were formerly his parents and I find that the applicant owning assets in his name weigh in his favour.
5. The applicant spoke spontaneously and convincingly about his desire to start his married life with his wife as soon as possible and about his moral and cultural responsibilities towards his parents which, combined with the assets in his name, I find weigh in favour indicating the applicant is in Australia temporarily for the purpose of study and that he does intend on returning to India at the end of that study.

The applicant's potential circumstances in Australia

1. The applicant told me he has two sisters who live in Australia and one who lives in Canada. One of his sister's in Australia is a permanent resident and the other is a citizen. Whilst two of the applicant's sisters live 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 and on more than one occasion (pre-covid).
2. The applicant told me, and as is stated in the written submissions before me, the applicant has not worked since he has been in Australia and he has been financially supported by his sister, which I accept as I also have written evidence before me (including a statement from his sister and her bank statement). I find the fact that the applicant has not worked since being in Australia to weigh in his favour because he has not, as a result of not working, had the opportunity to build professional networks or experience in the hospitality sector that may prove an incentive for him to stay in Australia.

The value of the course to the applicant's future

1. The applicant told me that when he returned to India he wanted to initially get a job as a cook or chef for an established business and then open his own dine in and takeaway restaurant serving multicultural food, in particular Asian and Italian food as well as traditional Indian food. He told me that as his hometown is fairly small there is not a lot of variety in the restaurants that are there and that he thinks a restaurant serving international food would be received well in his town. He told me initially on return to India he would look for a job online via the website seek, also look in the newspaper and speak with some friends he has from his hometown who work in the hospitality industry to help him get a job as a cook or a chef.
2. During the hearing when the applicant told me about his plans to start his own restaurant in India, after returning home and initially working as a cook or chef for someone else so as to gain experience, he spoke with a level of detail that convinced me he had given considered thought as to how he would make his future plans a reality. He told me about his plans for marketing the restaurant and what kind of food he would cook and how many staff he would need to run it and he was able to articulate how many staff he would need for various stages of the business as it grew.
3. When I asked the applicant the cost of specific business expenses (such as rent, restaurant equipment, government fees, and employee wages), he was not only able to tell me with confidence those various individual expenses, he also told me spontaneously how much he thought he could earn as an employee chef or cook with limited experience (upon his initial arrival in India) and then also what his longer term income projections would be once he was running his own restaurant. I found the applicant's oral evidence to be that of an individual who had given thought to the qualifications he was seeking to complete in Australia and how they would help him gain experience in India first as an employee and then how he would use that experience as an employee cook or chef to start, grow and manage his own restaurant. He also told me that he had already discussed using some of the assets inherited from his parents to put towards the start up costs for his restaurant.
4. I have before me a statutory declaration of the applicant in which he not only states that he would return to India upon the completion of his studies to establish his own hospitality business, but that the written submissions of the person assisting him reflect his circumstances accurately. The fact that the applicant swore a statutory declaration as opposed to statement only, and that his statutory declaration refers to the written submissions from the person assisting the applicant, submissions that were detailed and helpful, I find weigh in favour of the applicant indicating he is a person who genuinely intends to remain in Australia temporarily.
5. I have before me certificates of the applicant's completion of a Certificate III in Commercial Cookery and a Certificate IV in Kitchen Management. On the basis of the applicant telling me this at the hearing and the certificates before me, I accept that the applicant has completed those courses. The applicant also told me that he completes his Diploma course in December 2025, which is reflected in both his CoE and his PRISMS records before me, and also in written material from Nova Institute of Technology, the provider of the Diploma course, and I accept this to be the case.
6. On the basis of the applicant's oral evidence before me about his future career plans, and his knowledge of his course content in Australia and how he will apply to that to his future plans, and the study he has completed to date, I accept that the applicant has a clearly defined pathway for his future hospitality career in India that will be greatly enhanced by his Australian qualifications.
7. 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. I have before me the applicant's movement records which I discussed with the applicant during the hearing. They indicate that he initially arrived in Australia in early 2018 as a visitor and then had various trips to Australia in 2018 and 2019, returning to India each time. When I asked the applicant the reason for this travel he told me that it was to visit his sister (who is an Australian citizen), her husband and their daughter. He told me that in July 2019 his brother-in-law died and as he was in Australia at the time, he ended up bringing his sister back to India with him (which was in September 2019) in the first difficult months after her husband's death. He told me that he then accompanied his sister back to Australia in early 2020, to help her get settled again, and that he planned on only staying in Australia for a short time, intending on returning to India, but before he could leave Australia, the border closed and he was stuck here because of the covid pandemic. He also told me that he remained in Australia during the uncertainty of the covid pandemic when it was not safe health wise for him to return to India.
2. He explained to me that initially all he was concerned about was maintaining his lawful visa status in Australia during the covid pandemic, that he was concerned for his safety from a health perspective if he returned to India during that time and so instead he used his time in Australia to help his sister cope after her husband's death. Written submissions from the person assisting the applicant stated: "The applicant initially entered Australia on a Visitor visa in 2020 for a short family visit. However, due to global border closures, airline shutdowns, and health risks associated with the COVID-19 pandemic, returning to India became unsafe and impractical. In response, he lawfully applied for a Visitor visa extension, and later a Subclass 408 (COVID-19 Pandemic Event) visa, both in accordance with Departmental provisions designed to support temporary residents affected by travel restrictions... Throughout this period, the applicant fully complied with all visa conditions, never overstayed, and has no record of any breach or non-compliance. Importantly, despite being eligible to work on the 408 visa, he chose not to undertake any employment, underscoring that his stay in Australia was genuinely for safety and wellbeing, not for work or migration purposes."
3. I accept that after the death of his brother-in-law the applicant was supporting his sister emotionally. I also accept that the applicant did not intend on remaining in Australia when he accompanied his sister back to Australia in early 2020 and that he was stuck in Australia in those extreme and uncertain months of the covid pandemic through no fault of his own. I consider it entirely reasonable that the applicant remained in Australia during the early yet extreme stages of the covid pandemic, and I do not consider the applicant's onshore stay period holding visitor visas, bridging visas and then subclass 408 covid visas to weigh against the applicant in relation to the genuine temporary entrant requirement.
4. I consider the travel that the applicant did to and from Australia in 2018 and 2019 as a visitor weigh in favour of him being a genuine temporary entrant, given his previous trips to Australia as a visitor only, and departing as a visitor not seeking to remain, and doing so on more than one occasion.
5. Written submissions before me, which I accept (because they corroborate the applicant's evidence at hearing) state: "The applicant has maintained continuous lawful status in Australia since his initial entry. He has never overstayed any visa, never worked unlawfully, and has complied with all visa conditions throughout his stay. His immigration history clearly demonstrates responsibility, integrity, and respect for Australian laws, rather than any attempt to misuse the visa system. The applicant's continued residence in Australia since 2020 was purely a consequence of global COVID-19 travel restrictions, not deliberate intent to extend his stay."
6. The applicant's movement records indicate that since he lodged his student visa application in October 2023, he travelled back to India in October 2024 which he told me was for his wedding, as he was married to his wife in November 2024. He also told me that the trip was an opportunity to spend time with his parents and his wider family which he considers important culturally as he is the only male child in his family.
7. Considering the evidence before me, I find there is nothing in the applicant's immigration history that weighs against him remaining in Australia temporarily.

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. Prior to the applicant's student visa application, he held a visitor visa, bridging visas and subclass 408 visas which were granted to him whilst he was in Australia during the covid pandemic when both Australia and other countries borders were closed. In the hearing I discussed the applicant's visa history with him and he told me he had always complied with any conditions attached to his visas. I accept the applicant's evidence in this regard and I give weight in favour of the applicant because of his history of visa compliance.
3. 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.
4. In his student visa application and in his written statement to the Tribunal, the applicant declared that he 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 him.
5. 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. I am satisfied that there are no other matters before me relevant to whether the applicant is 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 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: Mr Gagandeep Singh (MARN: 0964638)

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.