Ministerial Direction 106 – Assessing the Genuine Entry and Stay requirements for Student visa and Student Guardian visa applications

 

This Direction complements changes to criteria for the grant of a Subclass 500 (Student) visa made by the Migration Amendment (Subclass 500 Visas) Regulations 2024 and provides guidance to decision makers on what factors should be considered when assessing whether an applicant satisfies the genuine student criterion or the genuine student dependent criterion for Subclass 500 (Student) visa applications, or the genuine temporary entrant criterion for Student Guardian visa applications.

This Direction provides guidance to case officers in assessing the genuine student criterion applicable to primary applicants for a Student (Subclass 500) visa, genuine student dependent criterion applicable to secondary applicants for a Student (Subclass 500) visa and genuine temporary entrant criterion applicable to Student Guardian (Subclass 590) visa applications.

 

Student (Subclass 500) visas

The Direction provides guidance to decision makers on what to assess under the genuine student criterion and genuine student dependent criterion by specifying the following factors:

  • the applicant’s circumstances  in their home country;
  • the applicant’s potential circumstances in Australia;
  • value of the course to the primary applicant’s future;
  • the applicant’s immigration history;
  • if the applicant is a minor- the intentions of a parent, legal guardian or spouse of the applicant;
  • any other relevant matter.

 

Student Guardian 

The genuine temporary entrant criterion still applies to Student Guardian (Sc 590) visa applications. The Direction maintains the same guidance for decision makers in assessing the genuine temporary entrant criterion applicable to Student Guardian (Sc 590) visa applications that was contained within Ministerial Direction 69.

This Direction provides guidance to decision makers on what to assess under the genuine temporary entrant by specifying the following factors:

  • the primary applicant’s circumstances;
  • the primary applicant’s immigration history;
  • any other relevant matter.

 

This Direction commenced on 23 March 2024 and applies: 

(1)  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.

(2)  to delegates of the Minister performing functions or exercising powers under section 65 of the Act in relation to assessing the genuine student criterion and the genuine student dependent criterion for Subclass 500 (Student) visa applications, and the genuine temporary entrant criterion for Student Guardian visa applications.

(3)  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 an application for a Subclass 500 (Student) visa or Student Guardian visa.

Members can find the full Ministerial Direction 108 and 106 in Legendcom under Migration – Instrument, Notices and Directions – s 499 Directions. 

 

Strengthening Removal Powers 

The Migration Amendment (Removal and Other Measures) Bill 2024 seeks to amend the Migration Act 1958 in relation to the removal from Australia of unlawful non-citizens and non-citizens who hold certain bridging visas, including the Subclass 070 (Bridging (Removal Pending)) visa who are on a removal pathway.  The Bill requires non-citizens who are on a removal pathway and have exhausted all avenues to remain in Australia, to cooperate in efforts to ensure their prompt and lawful removal.

The Bill provides the Minister with a power to direct certain non-citizens who are on a removal pathway to cooperate with removal efforts and enables the Minister to direct these non-citizen to do specified things necessary to facilitate their removal or are reasonably necessary to determine whether there is a real prospect of their removal becoming practicable in the reasonably foreseeable future. The appropriate safeguards also included in the Bill relate to the exercise of this power.

A failure to comply with a direction, without a reasonable excuse, will be a criminal offence carrying a mandatory minimum sentence of 12 months’ imprisonment and a maximum available sentence of five years’ imprisonment or 300 penalty units or both.

The amendments in the Bill also confer a discretionary personal power on the Minister to designate a country as a removal concern country, by legislative instrument, if the Minister thinks it is in the national interest to do so.

The Bill also includes other minor and technical amendments to the Migration Act.

The Bill was introduced and passed the Lower House on 26 March 2024. It was rejected in the bill in the Upper House and has been referred to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 7 May 2024.

Members can view the Bill and track its progress on the Australian Parliament House website.

 

Increased English Language test scores for Student visas 

Migration (English Language Tests and Evidence Exemptions for Subclass 500 (Student) Visa) Instrument (LIN 24/022) 2024 increases the required English language test scores applicable to a student (sc 500) visa.

The amendments to the test scores can be found in the table below. Please note that the old scores are in black and the new scores are in bold red.

Test name  Minimum test score    

Principal course accompanied by 10 weeks ELICOS/

standard foundation program/extended foundation program/

eligible pathway program

  Principal course accompanied by at least 20 weeks ELICOS  
 International English Language Testing System (IELTS)  Overall band score 5.5 /Overall band score 6.0     Overall band score 5.0 /Overall band score 5.5   Overall band score 4.5 /Overall band score 5.0
 Cambridge English: Advanced test (CAE)**  162   /  169   154  /  162   147  /  154
 Occupational English Test (OET)   A score of at least B for each component   a score of at least B for each test component   a score of at least B for each test component
 Pearson Test of English Academic (PTE)   42  /  50   36  /  42   30  / 36
 Test of English as a Foreign Language internet-based test (TOEFL iBT)*    46  /  64   35  /  46   32  /  35

 

*On 26 July 2023 the TOEFL internet-based test (TOEFL iBT) stopped offering English language tests for Australian visa purposes. A score for a TOEFL iBT test taken on or after 26 July 2023 will no longer satisfy the English language requirement for Student visa purposes. Only TOEFL iBT scores from a test taken on or before 25 July 2023 are accepted for Student visa purposes.

**From 12 February 2024, only results from the paper-based Cambridge C1 Advanced test (previously known as Cambridge English: Advanced CAE) will be accepted for Australian visa and migration purposes. Test scores for both C1 Advanced paper-based and computer-based tests, taken before 12 February 2024, within the specified validity period are still accepted.

The instrument commences on 23 March 2024 and applies to an application for a Student (SC 500) visa lodged on or after 23 March 2024. 

The instrument repeals Migration (IMMI 18/015: English Language Tests and Evidence Exemptions for Subclass 500 (Student) Visa) Instrument 2018. However, IMMI 18/015 continues to apply in relation to an application for a student (sc 500) visa made but not yet finally determined before 23 March 2024.

 

 

Increased English language test scores for Temporary Graduate visas 

Migration (English Language Requirements for Subclass 476 (Skilled – Recognised Graduate) and Subclass 485 (Temporary Graduate) Visas) Instrument (LIN 24/021) 2024 increases the English language test scores applicable to a Temporary Graduate (sc 485) visa and reduces the period in which the scores must have been achieved from three years to one year before the day on which the visa application was made.. 

The amendments to the test scores can be found in the table below. Please note that the new required test scores are in the final column in bold.

Test name Old required test score   New required test score  
International English Language Testing System (IELTS)  

(a) an overall band score of 6; and

(b) a score of at least 5 for each test component

 

 (a) an overall band score of at least 6.5;and 

 (b) a score of at least 5.5 for each test component 

 Cambridge English: Advanced test (CAE)  

(a) an overall band score of at least 169; and

(b) a score of at least 154 for each test component

 

 (a) an overall band score of at least 176; and 

 (b) a score of at least 162 for each test component 

 Occupational English Test (OET)  

a score of at least B for each test component

 

 a score of at least B for each test component 
 Pearson Test of English Academic (PTE)  

(a) an overall band score of at least 50

(b) for listening a score of at least 36; and

(c) for reading a score of at least 36;

(d) for speaking a score of at least 36

(e) for writing a score of at least 36

 

 (a) an overall band score of at least 57; and 

 (b) for listening a score of at least 43; and 

 (c) for reading a score of at least 48; 

 (d) for speaking a score of at least 42 

 (e) for writing a score of at least 51 

Test of English as a Foreign Language internet-based test (TOEFL iBT)*   

(a) a total overall score of at least 64; and

(b) for listening a score of at least 4

(c) for reading a score of at least 4

(d) for speaking a score of at least 14

(e) for writing a score of at least 14

 (a) a total overall score of at least 83; and 

 (b) for listening a score of at least 7 

 (c) for reading a score of at least 8 

 (d) for speaking a score of at least 16 

 (e) for writing a score of at least 18

 

The test scores have not increased for Hong Kong or British National (Overseas) passport holders. The required test scores for this cohort remain at an overall band score of 6.0 for IELTS (or equivalent), and a score of at least 5.0 for each component of the IELTS (or equivalent) test.

The instrument commences on 23 March 2024 and applies to a Temporary Graduate (SC 485) visa lodged on or after 23 March 2024.

The instrument repeals IMMI 15/062- Migration Regulations 1994 – Specification of English Language Tests, Scores and Passports 2015. However, IMMI 15/062 continues to apply in relation to an application for a Temporary Graduate( sc 485) visa made but not yet finally determined before 23 March 2024.

The Department have also updated their website to highlight the changes to English language requirements applicable to student (sc 500) visas and temporary graduate (sc 485) visas.


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