I am writing in relation to your application for review to the Administrative Review Tribunal of a decision to refuse to grant a Student (Temporary) (Class TU) visa.

As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:

• - enrolled in a registered course of study; and

• - a genuine applicant for entry and stay as a student.

Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements.

Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information Form which you can print by clicking this link: Request for Student Visa Information. The information requested may be given by printing, completing and returning the form to us.

If you are unable to access the Request for Student Visa Information form by clicking on the link above, please contact us as soon as possible.

In considering whether an applicant is a genuine applicant for entry and stay as a student, the ART must have regard to Ministerial Direction No.108 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications'. A copy of this is linked below for your reference.

1. On 21 February 2025, the applicant provided a response to the s 359(2) letter. Her response contained the following documents:
   • A letter of offer from INUS English Sydney. The letter of offer indicated that she had been accepted to study in the INUS Customised English Program (ICEP) with the course starting 17 March 2025 and finishing 8 May 2026.
   • CoE - INUS Customised English Program (ICEP) - Certificate of English, Pre-Intermediate, Intermediate, Upper Intermediate and Advanced. Course start date: 17 March 2025 and finish date: 8 May 2026.
2. The applicant provided the following information in her "Request for Student Information" form:
   • She confirmed information about her employment and education history previously provided.
   • She states that she chose her course of study in Australia because of Australia's high quality education system which is globally popular. She is able to access experienced English teachers in Australia as compared to studying in Mongolia. She is able to enhance her English skills through her education in Australia.
   • She states that English studies in Mongolia are a much lower standard than studying English in Australia. The English teachers in Mongolia are not native English speakers.
   • She states that she stopped studying between September 2024 until February 2025 after giving birth to her child and having surgery. She recommenced studies after this time.
   • She states that she has strong community ties to Mongolia and that she has a "deep rooted connection" with "her family and friends" in Mongolia. She is committed to raise her daughter in "Mongolian customs and culture so when she grows up, she can appreciate her heritage". She needs her parents to help her raise her daughter in Mongolia.
   • She states that she wishes to return to work with her previous employer, "United Dream" in Mongolia as a "student advisor" and "manager", where she can assist Mongolian international students prepare their application for study overseas. By completing her English course in Australia, this will significantly enhance her English proficiency to better communicate to different education colleges, while helping students with their applications to universities, and to help them work effectively with international school providers, and to provide accurate information about their study program.
   • She stated that she has no concerns about military service commitments or political or civil unrest in Mongolia.
3. On 24 April 2025, she provided an updated Overseas Student Health Cover (OSHC) Verification Letter and a Statement of Enrolment from INUS College indicating that, to date, the applicant had completed 96 per cent attendance rate of the course. She also provided other documents which the Tribunal has had regard to.
4. On 30 April 2025, the applicant appeared before the Tribunal by video to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages.
5. The Tribunal noted that the issue before it was whether the applicant meets the genuine temporary entrant criterion as outlined in cl 500.212.
6. The applicant provided evidence to the Tribunal in support of her review. The Tribunal asked her a range of questions relating to the relevant factors for consideration under Direction 108.
7. She answered consistently with information dealing with the above relevant factors outlined in Direction 108. The applicant also provided oral evidence consistent with her supporting documents.
8. The Tribunal's findings relating to her oral evidence, along with her written material and supporting documents, are given below under "Consideration of Claims and Evidence".
9. For the following reasons, the Tribunal sets aside the decision under review and remits the visa application for reconsideration.

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 meets cl 500.212(a).

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. Having regard to the applicant's circumstances in her home country and having regard to the supporting documents provided by the applicant and her oral evidence, there is no evidence that has been presented to the Tribunal which indicate that her economic circumstances would present as a significant incentive for the applicant not to return to Mongolia. The Tribunal is satisfied with the evidence before it that she has strong, close connections to her mother, father and sister back in Mongolia. In giving oral evidence at the hearing, the applicant spoke genuinely as to why it is important for her to gain her qualifications as soon as possible in Australia so that she can return to Mongolia to be with her family. The Tribunal also accepts as credible the applicant's oral evidence at the hearing that she is in contact with her parents and close family members regularly while she is studying in Australia.
4. The Tribunal is satisfied from the applicant's oral evidence at the hearing that the applicant is fully reliant financially on her parents while she is studying in Australia but that she needs their financial and emotional support back in Mongolia to help raise her child while she achieves her business goals there.
5. There is no evidence before the Tribunal that political and civil unrest would result in the applicant choosing to remain in Australia indefinitely. There is no evidence before the Tribunal of military commitments that would present as a significant motive not to return.
6. Having regard to the applicant's potential circumstances in Australia and having regard to the supporting documents and oral evidence provided by the applicant, there is no evidence that has been presented to the Tribunal which indicate that any potential circumstances in Australia would present as a significant incentive for the applicant not to return to Mongolia. The Tribunal is satisfied from her written evidence and oral evidence at the hearing that it is important for her to return to Mongolia to have her infant daughter (who was born in Australia) raised in Mongolia with the close support of her parents and close family members. The Tribunal is satisfied from the evidence before it that the father of the applicant's child is a temporary resident only in Australia and a Mongolian citizen. Given that the applicant, the father of her child and the applicant's daughter are all temporary residents only in Australia, and that they are all Mongolian citizens, the Tribunal is satisfied that the applicant and her small family can far more easily return to Mongolia as a family unit than to remain in Australia on a more permanent basis. The Tribunal accepts her oral evidence at the hearing that she is wanting her daughter to grow up, culturally, in Mongolia and that she needs the close support of her parents who are financially supporting her in Australia.
7. Having regard to the value of the course to the applicant's future, the Tribunal has had regard to the applicant's written statements and oral evidence about how the English courses add significant value to her future intention of being a manager and an advisor to Mongolian students wanting to study overseas. The Tribunal is satisfied from the written employment evidence provided from her previous employer in Mongolia that she has been an advisor in this field for some time and that English accreditation in Australia will add value to how she can communicate with English education institutions throughout the world on her student clients' behalf. Having considered her previous employment background in advising and assisting students to travel abroad, the Tribunal accepts as plausible her evidence that improvement in her English proficiency by undertaking specific English courses in Australia will assist her to better communicate, on her student clients' behalf, with different English Education Colleges throughout the world and to help her student clients work effectively with international school providers.
8. It accepts her oral evidence that, upon completion of her INUS Customised English Program (ICEP) Certificate of English - Pre-Intermediate, Intermediate, Upper Intermediate and Advanced, she will return to Mongolia to recommence in her student advisory role. The Tribunal accepts the "Letter of Employment" outlining the applicant's credentials and work ethic in her former workplace in Mongolia.
9. The Tribunal accepts the Statement of Enrolment from INUS English that the applicant has maintained a 96 per cent attendance record to date, and that the course (50 weeks) will finish on or about 24 April 2026.
10. The Tribunal accepts that the applicant has been continuously enrolled, successfully completing courses and achieving course progression, which is indicative of a genuine student, given that there is no other evidence to the contrary before the Tribunal.
11. The applicant has stated in oral evidence at the hearing that she will return to Mongolia on completion of her course, namely INUS Customised English Program (ICEP) Certificate of English - Pre-Intermediate, Intermediate, Upper Intermediate and Advanced (which finishes on or about 24 April 2026). No evidence has been presented that she will need to stay further in Australia to study for a future career aim following completion of this course and should she choose to do so and present a further application for a student visa or enrolment in a further course this would be of concern.
12. The Tribunal does not have any information before it to indicate that the applicant has not complied with visa requirements while studying in Australia. There is no evidence before the Tribunal to suggest that the applicant will not comply with visa conditions into the future.
13. On the basis of the above and having considered the applicant's circumstances, immigration history, and other matters it considers relevant, 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) 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.
3. 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)). There is no other relevant matter to consider. The Tribunal finds the applicant meets cl 500.212(c).
2. 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.
3. 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.

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.

Part 1 - Preliminary

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.

Part 2 - Directions

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.