1. The delegate decided to refuse to grant the visa on 5 October 2023 because the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) on the basis that she is not a genuine applicant for entry and stay as a student.
2. The delegate found that the although the applicant's spouse, children, parents and siblings reside in Thailand, given that she intends to stay in Australia for over 10 years, the delegate did not place much weight on her ties to her family out of Australia acting as an incentive for her to leave Australia. The delegate also noted that the applicant did not provide evidence to support her economic ties to Thailand.
3. The delegate indicated that they had significant concerns that the applicant did not intend to stay in Australia temporarily, given that the applicant's proposed studies require her to remain in Australia for over 10 years and her changes to her study history and trajectory. The delegate found that the applicant did not clearly explain how her studies in Australia align with her previous education, why she changed career paths or how her studies would benefit her future employment, particularly given the expense associated with her studies in Australia. The delegate stated that they had significant concerns that the applicant is trying to use her student visas to maintain ongoing residence in Australia.
4. Considering all the evidence, the delegate was not satisfied that the applicant is a genuine temporary entrant.

1. The applicant applied to the Tribunal for review on 11 October 2023 and attached a copy of her passport and the delegate's decision.
2. On 31 January 2024 the applicant provided a completed the Tribunal's Request for Student Visa Information Form. A summary of the new relevant information contained in the form is as follows. The applicant visited her family in Thailand in 2017, 2018 and 2019 and she visited her ex-partner in Brazil in 2022. She indicated that she had worked in Thailand as an administrative officer between 2006 and 2014, and as a financial debt recovery officer between 2014- 2016. In Australia the applicant worked as a Thai masseur intermittently between 219 and 2024. In October 2024 the applicant commenced her current work as an Aged Care worker. The applicant has held three previous student visas which were granted in 2016, 2019 and 2022. The applicant indicated that he had completed the Certificate III in Individual Support on 13 October 2024 and was now studying the Diploma of Community Services which she started on 14 October 2024. The applicant estimate's her yearly living expenses in Australia to be AUS19,800. The applicant has approximately AUD19500 in savings in Australia and Thailand. The applicant has strong ties in Thailand. Her parents and children remain in Thailand, she has seen them most recently in May 2019 and communicates with them daily. She is also in contact with friends in Thailand via social media. The applicant does not have any family or community ties in Australia which would present an incentive for her to remain in Australia.
3. The applicant also provided additional information about her proposed course of study and future plans setting out the following new relevant information (in summary form).
   • The high quality, comprehensive and practical focus will allow the applicant to secure a care position in Thailand.
   • The applicant intends to pursue a career in age care sector in Thailand. There is a demand for professionals in the care industry in Thailand with strong English language skills, and formal qualifications in community services. Due to the applicant's educational background, enhanced English proficiency, practical knowledge, she will be able to secure a position in the industry with her qualifications from Australia.
   • Upon completing the Diploma in Community Services the applicant expects to receive competitive remuneration in Thailand and due to her Australian qualifications, English proficiency, she expects to be able to obtain mid to high level roles with a salary that aligned with her expertise. Thailand also has a lower cost of living and favourable tax conditions making returning home financially advantageous to her rather than staying in Australia.
   • The applicant did not seek this education in Thailand for the following reasons:
     • She could not be able to improve her English skills which are critical for competitive market in Thailand.
     • Australian courses are highly regarded in Thailand
     • Thai courses are short, of a basic level and lack the practical experience compared to the education the applicant can receive in Australia.
     • Although the courses are cheaper in Thailand, costs increase as the applicant would be required to undertake multiple programmes to get the same level of education and Australian courses are better value.
4. The applicant attached the following documents:
   • COE for General English Course from 2016 and certificate of attainment.
   • COE for Diploma of Business Administration from 2017 and certificate of attainment
   • COE for Advanced Diploma of Business from 2018 and certificate of attainment
   • COE for Certificate IV in Marketing and Communications from 2020 and certificate of attainment
   • COE for Diploma of Social Media Marketing from 2020 and certificate of attainment
   • COE for Advanced Diploma of Marketing and Communications from 2021 and certificate of attainment
   • COE for Diploma of Leadership and Management from 2022 and certificate of attainment
   • Certificate III in Health Services Assistance 2023 and statement of results
   • COE for Certificate III from 2023 in Individual Support (Ageing and Disability) and certificate of attainment
   • COE for Diploma of Community Services from 20024 and record of enrolment and course progression indicating the applicant has 20 units in total, 2 of which she has received credit for, 3 she has completed and the remained are yet to commence.
   • Screenshots of communication with her family
   • Statement from Siam Commercial Bank for the applicant for the period 1/1/2025- 25/01/2025 with a balance of THB of 232,488.46 (with translation)
   • Commonwealth bank statement with balance of AUS10,302.07 as of 25 January 2025.
5. The representative's submission to the Tribunal, provided the following further relevant information (summarised).
6. The applicant meets the GTE criterion because of the applicant's close ties to Thailand as well as her familial and cultural obligations in Thailand. The economic and social benefits of the applicant's proposed course of study. The applicant's intention to comply with visa conditions and return to Thailand after her studies are finished.
7. The submission summarises the applicant' educational and work background in Thailand. The submission provided details on why the course in Australis is preferable to the courses available in Thailand including due to practice nature of the course in Australia, work placement, English skills and cultural sensitive training. The submission contends that the applicants COE demonstrates the applicant's commitment to the courses and her career goals toward leadership in aged-care, empowering and supporting well-being of the aged and gaining practical experience in aged care.
8. The submission notes that the applicant has complied with visa requirements since 2016 and successfully completed all of her courses and has demonstrated a clear educational trajectory.
9. The submission argues that the applicant's changes in direction from accounting to business, marketing, leadership management, and now aged care demonstrates her adaptability and commitment to meeting evolving societal needs. It further contends that the applicant's intention is to combine her leadership skills with aged care qualifications to manage and improve care facilities in Thailand which she will be able to do with with her proposed qualifications. The submission sets out some relevant potential employers and noted that her qualifications and practical experience gained in Australia will increase her earning potential in Thailand.
10. The submission restates the applicant's family ties in Thailand, noting her communication with her family, her responsibility to support her children. It also notes her bank balance of AUD 10,302 to support herself during her studies in Australia.

1. The applicant appeared at the Tribunal hearing on 26 February 2025 via video to give evidence and present arguments. The applicant's representative attended the hearing. The hearing was conducted with the assistance of an interpreter in the English and Thai languages. At hearing the Tribunal provided the applicant with a further seven days to provide further evidence and advised that the applicant could seek further time if required. The applicant's evidence at hearing is discussed below as relevant.

1. On 3 March 2025 the applicant's representative provided additional submissions in response to concerns raised by the Tribunal at hearing which are summarised as follows.
   • In response to the concerns from the Tribunal about the value of progressing from a Certificate III in Individual Support to a Diploma of Community Service the representative noted the high-level knowledge provide by the Diploma in terms of community-based services, case-management and social work interventions which qualify graduates for leadership and case manager roles where as the Certificate III restricts people to support worker roles. The aged care and community services industry values professionals who can provide direct care and manage such programmes which will equip the applicant for higher level positions in community care in Thailand.
   • In response to concerns about the lack of documentary evidence about her course progress, a letter from KCA dated 27 February 2025 was provided confirming her enrolment and her completion of 4 subjects, credit for 2 and a further 14 to be completed. The letter confirmed that the applicant is required to undertake a full-time load which comprises of 20 hours per week. Attendance records were also provided indicating that the applicant had been absent on two occasions when attendance was marked. The applicant's representative submitted that the applicant's good attendance record and participation in work placements indicates her commitment to the course.
   • The applicant holds a permanent part -time position as a carer for Uniting Care, which provides her with direct industry experience, demonstrates her genuine intent in relation to pursing this career in Thailand and complies with her visa conditions. The applicant's offer of employment with Uniting dated 29 January 2025 was attached to the submissions.
   • The applicant's bank records which show regular transactions towards her family obligations in Thailand should not be seen as an indication of an intention to remain in Australia indefinitely but demonstrate her strong ties to her children, and demonstrate her financial capacity. Copies of the applicant's bank statements were attached.
   • The applicant is a genuine student who has demonstrated clear academic progression, strong industry engagement, and a commitment to complying with visa conditions. She has genuine reasons for undertaking the Diploma of Community Services and has demonstrated an intention to return to Thailand upon completion of her studies.

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.
2. Clause 500.212 requires as follows:

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.
   • 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 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.
4. For the following reasons, the Tribunal sets aside the decision under review and remits the visa application for reconsideration.
5. The applicant applied for the visa to complete a Certificate III in Individual Support and a Diploma of Community Services. Based on the applicant's evidence which is corroborated by her Provider Registration and International Student Management System register (PRISMS) record the Tribunal accepts the applicant has completed the Certificate III in Individual Support on 13 October 2024. Considering the evidence from her education provider the Tribunal also accepts that she has maintained enrolment and satisfactory course progress in the Diploma of Community Services since 14 October 2024 and this course will conclude on 11 October 2026. The applicant was able to demonstrate satisfactory knowledge of her participation in her course in her oral evidence to the Tribunal. The Tribunal finds that her course completion, progress and knowledge of her course is conduct is favourable to the visa grant.
6. As to the applicant's ties to her home country, the Tribunal accepts that she has strong ties through her three children, her parents and siblings. The Tribunal also accepts that she has connections to Thailand through her extended family and community. As noted by the delegate, the Tribunal also has concerns that despite her close relationships with her children and parents, that at the end of her proposed course, she will have remined outside of Thailand for approximately 10 years. The applicant gave evidence that she will return to Thailand as she has responsibilities to look after her children and her elderly parents. The Tribunal has concerns with the applicant's evidence that she will return to Thailand for her responsibilities to look after her children as arguably her children will require less care than over the past decade, as they will be 19, 17 and 16 years of age by the time her studies are complete. The Tribunal also notes that the applicant provides financial support to her children and family from Australia, thereby providing an incentive for her to stay in Australia to provide this level of support. In response to these concerns the noted that in addition to caring for her children, she must return to Thailand as she has familial and cultural responsibilities to care for her elderly parents who have retired. She also noted that she is close to her children, and they are still young and need care which her parents have been doing but after her studies are complete, she will return to Thailand to care for her children and her parents. She also noted that her earnings in Thailand, will be sufficient to provide for her family.
7. The Tribunal explained that although she provides some financial support for her children, her parents also support them, and she works legally in Australia and provides financial support to her family if she has extra funds after paying for her studies and related costs. She stressed that her only purpose in Australia is to study so she can return to Thailand to work in aged care, provide financial and physical care for her family.
8. The Tribunal accepts that the applicant has close personal ties in Thailand, including that two of her children will still be under 18 when her studies are finished. The Tribunal also accepts that she has been working pursuant to her visa conditions in Australia. However, given the applicant's long period outside of Thailand and financial support for her children from Australia the Tribunal puts limited weight on her ties to her family in Thailand as an incentive for her to return to Thailand.
9. The Tribunal has concerns that the applicant has not returned to Thailand since 2019. The Tribunal discussed with the applicant that although she returned to Thailand in 2017, 2018 and 2019 she has not returned since this 2019. The applicant provided a reasonable explanation for her lack of travel to Thailand since 2019 stating that her ability to travel was impacted by COVID-19 restrictions in 2020 and 2021. In 2022, she travelled to Brazil with her ex-husband and was not able to make additional travel to Thailand for financial reasons. Further, after her visa application was refused on 5 October 2023, she was worried to travel outside of Australia as she thought it may be a problem for her visa. The Tribunal accepts that the applicant has a reasonable explanation as to why she has not travelled to Thailand since 2019 and does not put any weight on this consideration.
10. The Tribunal accepts the applicant's evidence that she does not have any concerns related to military service, civil or political issues in Thailand which may present as a disincentive for the applicant to return to Thailand.
11. In considering the applicant's circumstances in Australia, the Tribunal also accepts that she does not have any familial or other relationship ties in Australia that would act as a significant incentive for her to remain in Australia. The Tribunal also finds that there is no evidence that she has engaged in a relationship of concern for a successful student visa outcome.
12. At hearing the Tribunal put to the applicant that it has difficulty accepting her evidence that she is working in the care industry in Australia as she has not provided any corroborating documentation about this work, something the Tribunal would expect to be readily available. Post hearing the applicant provided a copy of her offer of employment with Uniting dated 29 January 2025 on a part-time permanent basis, working 16.5 hours per fortnight. On the basis of the applicant's written and oral evidence the Tribunal accepts that the applicant is working for Uniting as a carer in Australia and that this experience is relevant to her studies and valuable for her future career aspirations.
13. The Tribunal has concerns that the applicant has undertaken a range of different courses over an 8 year period, in different areas, and at a lower level than her degree in Thailand. In response to these concerns the applicant accepted that she had been studying in different areas as she previously had a focus on business and communication and marketing however her grandmother's passing in 2019 significantly affected her and she had a strong motivation to undertake studies so she could work in the care area including for the elderly. She researched opportunities in Thailand and understood that there were considerable opportunities as it is a growing area where she could fulfil this aspiration. The Tribunal put to the applicant that if she knew that she wanted to do this in 2019 why did she wait until 2022 to start this work. The applicant indicated that she needed to complete the studies she was already enrolled in before she could change her direction. The Tribunal has considered the applicants response however its concerns remain and the Tribunal has placed some weight on these factors that indicated that her presence in Australia, over a long period, and her changes in the areas of studies at a lower level to her degree in Thailand, suggests that she is using the student visa process to maintain her residence in Australia.
14. The Tribunal accepts the claims by the applicant and her representative that aged care is a growing industry in Thailand including providing services to people from other countries who come to Thailand for aged and disability care. The Tribunal accepts that the practical focused, English based and good quality education the applicant will obtain in Australia provides a strong foundation for the applicant to obtain work in the aged care sector in Thailand as claimed.
15. At hearing the Tribunal put to the applicant that given she has already competed her Certificate III in Individual Support, it is difficult for the Tribunal to understand what further benefit additional studies, through the Diploma of Community Services, will provide. The applicant explained that the Diploma level course provided a greater level of depth and complementary skills to the Certificate which would allow her to undertake case-management and broad support services. The Tribunal has also had regard to her evidence that with the Diploma she will be able to obtain higher level positions including in management, especially considering her English language skills and the international environment of care in Thailand. The Tribunal accepts that the applicant's studies including the Diploma of Community services, and her English skills and work experience obtained in Australia, will benefit her in obtaining work in the care industry in Thailand, and gives weight to these circumstances.
16. The Tribunal has also given regard to whether there are any other relevant matters and finds there are no other relevant matters to the assessment of the applicant's intentions to stay in Australia temporarily in addition to the matters covered above.
17. In assessing the totality of the applicant's circumstances there are significant areas of concern for the Tribunal. The Tribunal is of the view that the applicant intends to spend an extended period in Australia and that her ability to provide financial support to her family in Thailand acts as a disincentive for her to return to Thailand. However, the Tribunal has also given weight to the applicant's evidence of her intention to return at the end of her current course, her desire to care for her children and her parents now that her parents are older and given that they have cared for her children for a number of years. In considering these factors the Tribunal is satisfied that they indicate the applicant intends to stay in Australia temporarily. However, the Tribunal notes that if the applicant seeks to once again extend her student visa further, the Tribunal would have serious concerns as to whether she does genuinely intend to stay in Australia temporarily. The Tribunal has given weight to the fact that the applicant has completed one of the courses she applied for the visa for and is part way through the final course. The Tribunal also gives weight to the fact that she is working in a related area in Australia. The Tribunal accepts that her studies are valuable to her future career aspirations in Thailand. Overall, the Tribunal is satisfied that the above factors weigh in favour of the applicant returning to Thailand at the end of her studies. Having regard to the relevant factors in Direction 108, the Tribunal finds that they are on balance favourable to the visa grant.
18. Having considered the applicant's claims against all the factors specified in Direction 108, and taking into account all the relevant information, the Tribunal is satisfied that the applicant meets the genuine temporary entrant criterion.
19. On the basis of the above, 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. In her visa application the applicant undertook to comply with any conditions imposed on her visa. She reiterated this commitment in her written submission to the Tribunal. As noted above, based on the applicant's oral evidence and letter from her employer, Uniting, the Tribunal accepts that the applicant has complied with condition 8105, which imposes work limitations on her visa. The applicant has been meeting the enrolment condition, attendance and fee requirements for the Student visa. The Tribunal is satisfied that the applicant intends to comply with the conditions of the student visa.
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)).
2. There is no evidence before the Tribunal of any other relevant matter that gives rise to a concern that the applicant is not a genuine applicant for entry and stay as a student.
3. 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.
4. 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.

Representative for the Applicant: Mrs Mayurachat Gifford (MARN: 1790249)