* CS = cessation of studies; NC = non-commencement; NP = non-payment of fees; CE = change to enrolment

1. At the hearing, the applicant gave evidence that since arriving in Australia and being granted student visas as a member of his ex-wife's family unit, he has been working in all sorts of odd jobs such as painter, carpenter, and gyprocker. Despite claiming that he began to develop an interest in aged and disability support and community services in early 2019, the applicant was unable to provide the Tribunal with a reasonable explanation about why he did not commence vocational education in this area until much more recently, or why he studied a Diploma of Hospitality Management and an Advanced Diploma of Translating which have little apparent relevance or benefit to his self-professed area of interest. When pressed by the Tribunal, the applicant simply stated he was 'slowly trying to learn about the (community services) area'.
2. In response to the Tribunal's question about his future plans if he was able to complete his current and future enrolled courses of study, the applicant stated he wants to help other people. When the Tribunal asked him where he planned to do this, he said "Australia". The Tribunal sought clarification whether this meant he intended to find community services jobs in Australia after completing his studies, the applicant responded in the affirmative and stated he could, for example, work as a painter for aged care facilities.
3. The Tribunal invited the applicant to comment on information from PRISMS with respect to his string of cancelled enrolments since 2021 (when he began to seek student visa grants in his own right), as it raises questions and concerns about his genuine intention for entry and stay as a student and could lead the Tribunal to decide to affirm the delegate's student visa refusal decision. The applicant did not respond directly to the Tribunal's concerns and simply reiterated that he genuinely intends to stay in Australia as a student.

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.
2. The issue in the present case is whether the applicant is a genuine applicant for entry and stay in Australia as a student because the applicant genuinely intends 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 Tribunal has considered all of the claims and evidence before it. The Tribunal notes the applicant's evidence that he has formally divorced his ex-wife. Therefore, even if his ex-wife is still in Australia, that in itself does not, in the Tribunal's opinion, operate as incentive for him to remain in Australia. On the other hand, his immediate family members are all in Malaysia or, in his sister's case, Singapore, and he has frequent contacts with them which suggests he has close ties to his family members, and the Tribunal places some weight on this.
4. However, the Tribunal does not consider the applicant's close ties to his family members in Malaysia and Singapore are sufficient to base a finding that he intends genuinely to stay in Australia temporarily (as a student). On the contrary, for the reasons explained below, the Tribunal finds that the applicant does not have a genuine intention to only stay in Australia temporarily and that he is using the student visa program to maintain residence in Australia.
5. As the Tribunal observed, the first two student visas the applicant held were granted to him on the basis of him being a member of his ex-wife's family unit. Following their divorce, the applicant has remained in Australia and has applied for his own student visa so that he could continue to remain in Australia. The Tribunal acknowledges that people can change their priorities and life goals because of changes in their personal circumstances. Therefore, the mere fact that the applicant has applied for and been granted a student visa in his own right in 2021 is not in and of itself a reason for concern. What causes concern is the fact that, despite professing to have developed an interest since 2019 in aged and disability support and community services, the applicant has inexplicably enrolled successively in leadership and management, business, and interpreting courses, none of which are related to his self-professed area of interest and most of which were not completed due to enrolment cancellations for non-commencement or cessation of studies.
6. Similarly, from August 2023 when the applicant began to enrol in individual and ageing support and community services courses - which the Tribunal notes was over 4 years after his claimed interest in this area allegedly began - he also made inexplicable multiple course enrolments with different and sometimes overlapping course dates that span all the way to August 2027. Like his course enrolments before August 2023, many of these course enrolments were subsequently cancelled, with past courses cancelled due to cessation of studies or non-commencement, while many of the future courses have been pre-emptively and consequentially cancelled on the same dates because of the cancellation of their antecedent courses.
7. Insofar as the applicant has asserted in his SVI form that he has completed a Certificate III in Individual Support (course date 21/08/2023 - 18/08/2024), is currently studying a Certificate IV in Ageing Support (course date 19/08/2024 - 17/08/2025), and is approved to study Diploma of Community Services (course date 18/08/2025 - 16/08/2026), the Tribunal notes that the applicant has not provided any evidence of completion for the Certificate III in Individual Support, nor has he provided evidence of course attendance and course progression for the Certificate IV in Ageing Support.
8. In any event, and to the extent that the applicant has provided Confirmation of Enrolment ('COE') for these three courses as supporting evidence, the Tribunal notes that the COEs are quite dated because they were generated in August 2023, and the Tribunal prefers the information obtained on 12 March 2025 from PRISMS which the Tribunal considers has greater probative value because it is more up to date. Indeed, a close examination of the PRISMS record shows that the applicant's enrolment in the Certificate III in Individual Support was cancelled 3 months after the COEs were generated, on 24 November 2023, on the basis of 'Student notifies cessation of studies', while the Certificate IV in Ageing Support and the Diploma of Community Services were both consequentially cancelled on the same date on the basis of 'non-commencement of studies'. This suggests to the Tribunal that the applicant was either untruthful in his SVI form, or he has made mistakes because he has enrolled repeatedly in the same courses so many times that he has lost track of which of his course enrolments are current and operative. Either way, the Tribunal finds this strongly indicates that the applicant is using the student visa program to maintain his Australian residence, and the Tribunal's concerns are not alleviated by the information in PRISMS that he is currently studying Certificate III in Individual Support which has the course date of 19/08/2024 - 17/08/2025.
9. In forming its view that the applicant is not a genuine student, the Tribunal has also taken into account the applicant's response to its invitation at the hearing to comment on or explain the information from PRISMS as to why he has had a string of cancelled COEs. The Tribunal acknowledges the applicant's evidence insisting that his intention to remain temporarily in Australia as a student is genuine. However, the Tribunal does not accept this response to be sufficient or adequate in explaining his history of cycle of course enrolments and cancellations. Importantly, when this is considered in tandem with his evidence at hearing that he wants to help other people after completion of his enrolled courses of study by finding jobs in the community services sector in Australia, for example by working as a painter for aged care facilities, the Tribunal finds all the evidence before it points inevitably to the conclusion that the applicant does not intend genuinely to stay in Australia temporarily, that his motivation is to try to remain in Australia for work, and that he is using the student visa program to maintain his residence in Australia.
10. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a). It follows, therefore, that the applicant is not a genuine applicant for entry and stay as a student as required by cl 500.212 of the Regulations.
11. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

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

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

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

Minister for Home Affairs and Minister for Cyber Security

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

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

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

Act means the Migration Act 1958.

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

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

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

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

Regulations mean the Migration Regulations 1994.

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

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

Student visa means a Subclass 500 (Student) visa

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

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

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

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

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

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

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

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

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

a) the applicant's circumstances; and

b) the applicant's immigration history; and

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

d) any other relevant matter

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

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

Assessing the genuine temporary entrant criterion

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

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

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

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

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

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

The applicant's circumstances in their home country

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

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

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

The applicant's potential circumstances in Australia

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

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

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

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

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

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

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

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

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