1. At the time of her application for a student visa on 19 May 2023, the applicant was enrolled in a Certificate III in Commercial Cookery with National Training Centre of Australia Pty Ltd. The applicant said at that time, that after completing the course, she will work as a chef and after that, she will open her own restaurant in her home country.
2. The applicant provided the Tribunal with a partially completed 'Request for Student Visa Information form' signed on 19 February 2025 ('the SVI form'). There was no information in the SVI form as to the applicant's work experience before arrival in Australia.
3. According to the SVI form, the applicant's enrolment in courses was as follows:

1. The applicant also stated in the SVI form that she was not enrolled in a registered course between 2 October 2023 and 10 February 2025 because she became pregnant during that time, making it challenging to balance her studies with her health.

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. 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; 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.

The applicant's circumstances here and in Sri Lanka

1. The applicant is a woman aged 33, from Sri Lanka. She arrived in Australia on 14 February 2020 on a visitor visa.
2. She has family back in Sri Lanka, comprising her parents and 3 brothers. The applicant's sister and her sister's family reside in Australia. The applicant's sister is an Australian citizen.
3. The applicant is married to a Sri Lankan national. She thinks he arrived in Australia around 2010 and is aware that he has not returned to Sri Lanka since arriving in Australia. She understands that he has applied for a 'refugee visa' which is currently at the court stage. He also has a sister that has obtained Australian citizenship and resides in Australia with her family.
4. The applicant and her husband have a baby boy, born on 13 April 2024 in Australia.
5. When I asked the applicant if there was any reason she did not want to return to Sri Lanka, she said that she did not have qualifications to get a job in Sri Lanka as she did not study beyond year 10 and that her husband and baby are here and that her wish is to start a business in Australia in the future. She said her husband also has an interest in cooking so she wants to open a restaurant here and run that restaurant as a family.

The applicant's stated desire to remain in Australia permanently

1. I acknowledge that the applicant does have personal/familial ties to Sri Lanka. Her parents and three brothers live there.
2. However, it is clear from the applicant's own evidence that she does not intend genuinely to stay in Australia temporarily. Throughout the hearing, the applicant herself stated on numerous occasions that she wants to attain Australian citizenship and reside in Australia permanently.
3. The applicant has not returned to Sri Lanka since her arrival in February 2020. When I asked the applicant if there was any reason she has not returned to Sri Lanka since her arrival in Australia, she said that she wanted to complete her course and then get Australian citizenship and 'only then', wanted to return to Sri Lanka.
4. Her husband has also not returned to Sri Lanka since his arrival in Australia more than 10 years ago. The applicant stated that her husband's protection visa application was currently before the court and that they were hoping he can stay in Australia permanently. Both the applicant and her husband have sisters who are Australian citizens and living in Australia with their families. It is clear from the evidence above that the applicant has a genuine desire to stay in Australia permanently.

1. The applicant's knowledge of her enrolled course - a Diploma of Leadership and Management - was poor. At the hearing she was unable to tell me what subjects she was enrolled in yet claimed to be enrolled in four subjects and having assignments due next week. At another point during the hearing she said that she needed to 'finish one subject for now'. She could not tell me how many subjects she needed to complete in total to complete the course. She could not tell me the duration of each subject. She incorrectly stated that each subject lasted six months as it was a two-year course. In fact, the course runs 52 weeks (i.e. one year), broken into four terms of 11 weeks each.
2. The applicant stated that she has never worked in a role where she supervised staff. I asked the applicant if it remained her goal (as stated in her original application before the Department) to open a restaurant. The applicant stated that she still had that wish and that upon gaining permanent residency and Australian citizenship, she wanted to open a restaurant in Sri Lanka for her parents and brothers to operate, to help them. The applicant was unable to tell me how a Diploma of Leadership and Management would help her in the operations of a restaurant but said that upon completion of the course she would re-enrol in the Commercial Cookery course.
3. Despite having numerous enrolments as shown above, there is no evidence before me of the applicant having completed any subjects. She claimed to have earlier completed two units in the Certificate III in Commercial Cookery over four months but could not recall the names of those units and said she did not receive any certificate of completion of those units. I am not satisfied that the applicant did complete two units of the Commercial Cookery course.
4. There was value in undertaking the Commercial Cookery course given the applicant's goal to open a restaurant. Her explanation for changing to a Diploma of Leadership and Management was unpersuasive. She said that she postponed the Commercial Cookery course because she had become pregnant and had a letter from her doctor. When she went to resume the Commercial Cookery course, her immigration agents had changed her course to leadership and management. She then said it was too late to resume the cookery course so she enrolled in the leadership and management course.
5. When I asked the applicant what prompted her interest in the cookery course, she said, 'I had interest in cookery so I thought if I do that course and get the certificate then I can stay here and that is why I applied for student visa in 2023'. As stated earlier, her interest in the cookery course is relevant to her goal of operating a restaurant. But then when I asked what prompted her interest in studying leadership and management, the applicant's answer was:

It may be my fault that I was late and my cookery course got cancelled, but I got the leadership and management course. So I, I wanted to do that course, get a certificate and then I can apply for citizenship. And I can stay here and that's how that's why I got that interest in doing this course. (emphasis added)

1. Considering all the above cumulatively, but particularly the applicant's repeated statements during the hearing that she wants to stay in Australia permanently and to obtain Australian citizenship, 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).
2. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met and it is not necessary to consider the matters specified in clauses 500.212(b) and (c). The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
3. 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.

Representative for the Applicant: Mr Vipul Goyal (MARN: 2418571)

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.

[1] Unless otherwise stated, all references to sections are to the Migration Act 1958 (Cth)

[2] Unless otherwise stated, all references to clauses are to the Migration Regulations 1994 (Cth)

[3] See the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)