Ministerial Direction No. 108, issued under Section 499 of the Migration Act 1958, provides guidance to decision-makers on assessing the Genuine Temporary Entrant (GTE) criterion for applicants of the Subclass 500 (Student) Visa and the Subclass 590 (Student Guardian) Visa. This direction, which took effect on March 23, 2024, replaces Direction No. 69 and applies to visa applications made before this date but has not yet been finally determined.
The GTE criterion ensures that applicants genuinely intend to stay in Australia temporarily for study purposes, rather than using the student visa as a pathway for extended or permanent residency.
Key Provisions and Implications
1. Scope and Application
Applies to decision-makers assessing GTE for student and guardian visa applications under Section 65 of the Migration Act.
It also applies to tribunal members reviewing appeals on visa refusals.
Covers both new applications and cases remitted by the Administrative Appeals Tribunal (AAT) or a court.
To meet the GTE criterion, applicants must demonstrate a genuine intention to stay in Australia temporarily. This is assessed by considering:
Personal circumstances in the home country
Potential Circumstances in Australia
The value of the course to the applicant’s future
Intentions of a parent or guardian (for minors)
Any other relevant factors
Applicants must not use the student visa program to maintain ongoing residence in Australia or as a pathway to permanent migration.
3. Factors for Assessing GTE
A. Applicant’s Circumstances in the Home Country
Decision-makers assess whether:
A. A similar course is available in the home country.
The applicant has strong personal ties (family, community, employment) that encourage their return.
Economic conditions or military service obligations provide incentives to remain in Australia.
Political or civil unrest in the home country affects the applicant’s motivations.
This ensures that applicants are not using the student visa to escape adverse conditions but rather for genuine study purposes.
B. Applicant’s Potential Circumstances in Australia
Decision-makers consider:
Family or community ties in Australia may increase the likelihood of staying.
Whether the student visa is being used to bypass migration policies.
Whether the applicant’s course of study aligns with their background.
Whether applicants and dependents have contrived relationships for visa approval.
The applicant’s knowledge of the course, provider, and life in Australia.
This helps prevent visa misuse where individuals enroll in low-cost courses primarily to stay in Australia rather than pursue genuine education.
C. Value of the Course to the Applicant’s Future
Whether the course matches the applicant’s prior education and enhances employment prospects.
Whether the course is relevant to future employment in the home country.
The salary prospects in Australia vs. the home country with the new qualification.
This ensures that education aligns with career goals and is not just a pretext for extended residency.
D. Immigration History
Previous visa applications (approved or refused) for Australia or other countries.
Compliance with past visa conditions (overstays, cancellations, breaches).
Time spent in Australia (e.g., serial enrollments in short courses).
Travel patterns (e.g., frequent visa refusals or violations in other countries).
A history of visa refusals, overstays, or repeated temporary visas may indicate an intention to stay permanently rather than temporarily.
E. Intentions of a Parent or Guardian (For Minors)
For minor applicants, decision-makers must assess the intentions of parents, guardians, or spouses regarding the temporary nature of the stay.
F. Any Other Relevant Factors
Decision-makers can consider additional information that supports or contradicts an applicant’s claim of being a genuine temporary entrant.
4. Decision-Making Process
No single factor is determinative; the applicant’s situation is assessed holistically.
Factors are not a checklist but a guide for overall assessment.
If the applicant fails to demonstrate a genuine intention to stay temporarily, the visa must be refused.
Implications of Direction No. 108
1. Stronger Scrutiny of Student Visa Applicants
The GTE criterion is now more stringent, requiring stronger proof of temporary intent.
Applicants must provide clear evidence that they intend to return home after their studies.
2. Impact on Migration Agents and Legal Representatives
Agents must prepare more detailed statements and supporting documents for student visa applicants.
Applicants with weak ties to their home country or prior visa refusals will require stronger justifications.
3. Challenges for Onshore Student Visa Holders
Applicants who have repeatedly changed courses or stayed in Australia on student visas for extended periods may face higher refusal risks.
4. Increased Focus on Course Relevance
Those applying for a course unrelated to prior education or experience must provide strong justifications.
5. Effect on Appeals and Tribunals
The AAT will apply the same criteria, making it harder for refused applicants to win appeals.
Conclusion
Ministerial Direction No. 108 reinforces Australia’s commitment to ensuring that student visas are granted only to those with a genuine intent to study temporarily. Applicants must demonstrate strong home ties, course relevance, and compliance with visa rules to satisfy the GTE criterion. The new stricter approach may lead to more refusals, particularly for those using the student visa system to maintain ongoing residency.
For migration agents, legal representatives, and visa applicants, it is crucial to prepare strong documentation and justify the temporary nature of the stay to meet the revised GTE standard. ⚖ Migration Lawyer Ceren Guney +61 448 412 210
📚 Registered Migration Agent Feriha Guney MARN 0960690 +61 477 524 039
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Disclaimer:
This information is for general understanding only and does not constitute legal advice. For specific advice tailored to your situation, consult a registered migration agent or legal professional.
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