MIGRATION - Student (Temporary) (Class TU) visa - Subclass 500 (Student) - genuine student - genuine temporary entrant - enrolment in a registered course - enrolment cancelled - decision under review affirmed

Administrative Review Tribunal Act 2024 (Cth), ss 55, 106

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)

Education Services for Overseas Students Act 2000 (Cth)

Migration Act 1958 (Cth), ss 65, 359, 499; Direction No 108

Migration Regulations 1994, Schedule 2 cls 500.111, 500.211, 500.212; r 1.03

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Citizenship on 27 March 2024 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s65 of the Migration Act 1958 (Cth) (the Act).
2. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
3. The applicant applied for the visa on 18 July 2023. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because after considering the applicant's evidence provided with the visa application, the delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia.
5. The applicant has declined the Tribunal's invitation to a hearing, and she has requested that the Tribunal make a decision without holding a hearing.
6. The applicant was assisted in relation to the review.

Has the Tribunal fulfilled its obligation under s55 of the Administrative Review Tribunal Act?

1. Before proceeding to make a decision under s106(3) of the Administrative Review Tribunal Act 2024 ("the ART Act"), the Tribunal must be satisfied that the applicant has been given a reasonable opportunity to present her case to the Tribunal.[1]
2. On 12 June 2025 the Tribunal sent a hearing notice to the applicant's authorised recipient inviting the applicant to attend a hearing to given evidence and arguments in support of her review application. The hearing was scheduled for 29 July 2025. The hearing invitation relevantly stated: "Please note that if you request the Tribunal to make a decision without a hearing, and the Tribunal proceeds to make a decision because it considers the issues can be determined in your absence, this does not guarantee you will receive a favourable decision."
3. On 18 June 2025 the Tribunal received a response to the hearing notice in which the applicant declined to attend the hearing and requested that the Tribunal make a decision in the absence of a hearing. As the response contained the applicant's name and signature (which appeared to be the same as the signature in the applicant's passport) and was sent from the applicant's authorised recipient, the Tribunal was satisfied that the applicant had requested that the Tribunal proceed to a decision in the absence of a hearing and so cancelled the hearing.
4. On 24 March 2025 the Tribunal wrote to the applicant and requested her to provide information via a "student information form" in support of her review application. The applicant responded to the Tribunal on 7 April 2025 with the completed form. The hearing invitation asked the applicant for any further material to support her review application. The Tribunal also sent the applicant a s359A letter (as discussed below) inviting the applicant to comment on information held by the Tribunal that may be the reason or part of the reason to affirm the decision under review. On the basis of the Tribunal's request for information from the applicant via the student information form, the hearing notice and the s359A letter, the Tribunal is satisfied that it has afforded the applicant a reasonable opportunity to present her case to the Tribunal and s55 of the ART Act is therefore fulfilled.

1. On 19 June 2025 the Tribunal wrote to the applicant and confirmed cancellation of the hearing. The Tribunal's letter also advised[2] the applicant that the Tribunal had information which the Tribunal considered would, subject to the applicant's comments, be the reason, or a part of the reason, for affirming the decision under review and invited the applicant to comment on that information. The information put to the applicant in the letter was:

"A review of the Provider Registration and International Student Management System (PRISMS) student record indicates that on 9 April 2024 your enrolment in a Diploma of Leadership and Management [104271A] was cancelled for the reason of you notifying a cessation of your studies. PRISMS also indicates that also on 9 April 2024 your enrolment in an Advanced Diploma of Leadership and Management [108281M] was cancelled for non-commencement of your studies. There is no indication on the PRISMS record that you are currently enrolled in any registered course of study.

For your student visa application to be successful, it is a requirement of clause 500.211 of the Migration Regulations 1994, that you are enrolled in a registered course of study.

The information from PRISMS is relevant to your review application at the Tribunal, because if true, you cannot be granted a student visa. This means that if the Tribunal finds the requirements of clause 500.211 are not satisfied it will affirm the decision to refuse your application for a Student (subclass 500) visa."

1. The Tribunal invited the applicant to provide her comment by 3 July 2025 and indicated that it would consider any request for additional time in which to comment.
2. The Tribunal has not received a comment or response from the applicant or the applicant's authorised recipient as of the time of this decision.

Should the Tribunal reach a decision without holding a hearing?

1. The Tribunal may make a decision without a hearing if all three components ((a), (b) and (c)) of s106(3) of the ART Act are satisfied. Section 106(3) states:

(a) the only parties to the proceeding are the applicant and a non-participating party to the proceeding or the hearing of the proceeding; and

(i) the decision is wholly in favour of the applicant; or

(ii) the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding; and

(c) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.

1. The parties in this case are the applicant and the Minister, who is a non-participating party[3] and so s106(3)(a) of the ART Act is met.
2. In this case s106(3)(b)(i) is not relevant. Section 106(3)(b)(ii) requires that "the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding."
3. The applicant's response to the hearing notice, asking for a decision to be made in the absence of a hearing, contains the applicant's name printed and her signature which appears to the Tribunal to match the signature on the applicant's passport identity page. The request was sent to the Tribunal from the applicant's authorised recipient. The Tribunal therefore satisfied that the applicant has requested the Tribunal to make a decision in the absence of a hearing and s106(3)(b)(ii) of the ART Act is therefore met.
4. The third component of s106(3) that must be satisfied before the Tribunal can determine a matter in the absence of a hearing is whether it appears to the Tribunal the issues for determination can be "adequately determined." This first requires identification of what are the issues to be determined, before then considering if it appears to the Tribunal those issues can be adequately determined.
5. The issue in this case, that being whether, at the time of this decision, the applicant is enrolled in a course of study (as required in cl 500.211 of the Regulations) has been identified and described above which was detailed in the Tribunal's s359A letter to the applicant of 19 June 2025. The Tribunal is satisfied it has explained the issue to the applicant, given the applicant an opportunity to respond and that the Tribunal can adequately determine the issue in the absence of the parties to the proceeding. The Tribunal is satisfied that s106(3)(c) of the ART Act is met.
6. For the following reasons, the Tribunal considers the decision under review should be affirmed.

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 is enrolled in a course of study.
2. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl 500.211(a). The applicant does not claim to meet any of the alternative criteria in cl 500.211. 'Course of study' is relevantly defined in cl 500.111 of the Regulations as a 'full-time registered course'. 'Registered course' is defined in reg 1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000 (Cth), to provide the course to overseas students.
3. According to the PRISMS website, the Department of Education, Skills and Employment is responsible for the Commonwealth Register of Institutions and Courses for Overseas Students. It is recorded that PRISMS is a computer system developed by the Department in association with the Department of Home Affairs for the purpose of receiving and storing information about accepted overseas students that is given to the Secretary under the ESOS Act. It is further noted that PRISMS provides a secure system for providers of registered educational institutions to comply with legislative requirements by issuing confirmations of enrolments as 'evidence of enrolment' in a registered full-time course as required by the Department of Home Affairs and reporting changes in course enrolment, particularly where study ceases, or the duration of the study changes.
4. It is therefore apparent that PRISMS is a business record of the Department of Education, Skills and Employment and is used by the Department of Home Affairs as evidence of enrolment for the purposes of assessing the grant of student visas. While it is possible providers may not update PRISMS as required, the Tribunal accepts that PRISMS is a reliable record of enrolments unless there is specific evidence to the contrary in relation to a particular case.
5. A PRISMS search undertaken on 11 June 2025 identifies that the applicant's enrolment in a Diploma of Leadership and Management was cancelled on 9 April 2024 with the reason for the cancellation being that the applicant notified of a cessation of studies. PRISMS also identifies that the applicant's enrolment in an Advanced Diploma of Leadership and Management was also cancelled on 9 April 2024 with the reason for the cancellation being the applicant's non-commencement of studies. The PRISMS records do not indicate that the applicant is currently enrolled in a course of study that would satisfy cl 500.211.
6. In the applicant's completed "student information form" that she provided to the Tribunal on 7 April 2025, she answered "no" to the question "Does the Main Applicant have a current Confirmation of Enrolment (CoE) in a registered course of study?". Underneath that question in the form, it states: "Not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the primary decision maker."
7. On the basis of the applicant's response to the question in the student information form, and the PRISMS records before the Tribunal, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl 500.211 is not met.
8. As the applicant does not meet the criteria in cl 500.211 the Tribunal is not required to assess whether the applicant meets the criteria in cl 500.212.
9. 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.

Representative for the Applicant: Mrs Mingqiu Wu (MARN: 0801383)

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.

[1] s55 of the Administrative Review Tribunal Act 2024.

[2] As per s359A of the Migration Act 1958.

[3] s348A(1) of the Migration Act 1958.