(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:

(iii) if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; 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

1. For the following reasons, the Tribunal sets aside the decision under review and remits the visa application for reconsideration.

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; 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.
3. The Direction also indicates that decision makers should take a reasonable and balanced approach in deciding whether or not the applicant genuinely intends on remaining in Australia temporarily.
4. Throughout the hearing the applicant gave her evidence in English. She spoke without hesitation, and she spoke with energy particularly when explaining to me her future career plans in the Philippines. Her oral evidence was spontaneous and she spoke in a manner that I consider, for the reasons below, that was reflective of her genuine desire to return to the Philippines to establish her own full-service café that satisfied me she wants to remain in Australia temporarily so as to complete the Diploma of Hospitality Management in which she is currently enrolled.

The applicant's circumstances in her home country

1. The applicant told me that her mother and one of her sisters live in the Philippines, as does her brother, who has recently completed his studies. She has two sisters living and working in Canada. Her father passed away in 2016.
2. She was bought up in a close-knit and supportive family who were (and still are) an integral part of their local church community. Her father was the senior Reverend within their church and her mother is now a newly ordained senior Reverend and she also teaches bible studies in the church. The applicant told me she is very close with her family and that she misses them and speaks with them nearly every day. Later in the hearing, when discussing the applicant's former business, she told me when she came to Australia, she entrusted the running of her business to her mother and she also had employed her sister to work in the business part-time.
3. She told me she had fairly recently sold her Filipino milk tea business and the proceeds of the sale she left with her mother. She also told me the funds from the sale have helped pay for her living and study expenses in Australia. She told me she does therefore have assets in the Philippines in the form of the financial proceeds of the sale of her business. When I questioned the applicant about her financial position, she spoke with enthusiasm about having the financial means to start work on her new business as soon as she returns to the Philippines.
4. The applicant told me that even though her mother has retired and her duties within the church keep her mother busy, her mother does own a few market stalls that she leases to business owners. Her mother has told the applicant that on her return to the Philippines, the applicant can lease one of those market stalls for her new business. She also told me that she has maintained contacts within the hospitality industry in the Philippines that she will use as a resource for her new business venture on her return.
5. In her written statement the applicant refers to the overall cheaper cost of living in the Philippines as one of the reasons she wants to return:

"I will get to live in a country which has significantly cheaper cost of living. Even thought [sic] it is likely that I may not be making as good money as I can potentially make here in Australia by working, earning is not everything. What I see as the most important factor is the cost of living. I will be better off back home even if I make less money because of the marginal cost of living. To top it up, as academic qualifications from developed nations are highly regarded back home, I should be able to have a life with proper recognition."

1. There is no evidence before me that there is political or civil unrest in the Philippines that would result in the applicant choosing to remain in Australia indefinitely. There is no evidence before me of military commitments that would present as a significant motive not to return and the applicant confirmed this in her written statement sent to the Tribunal prior to the hearing and also orally at the hearing.
2. I have considered the applicant's oral and written evidence about her circumstances in the Philippines. In particular, her close ties with her mother and siblings, that she has a physical business premises accessible to her upon her return, the applicant's own hospitality industry contacts and experience in the Philippines, and her contemplation of business expenses and cost of living in the Philippines I consider all indicate that the applicant is a person who only wishes to remain in Australia temporarily and wishes to return to their home country upon completion of her studies.
3. Therefore, based on the applicant's circumstances in the Philippines, I am satisfied that the applicant intends on completing a Diploma of Hospitality Management, and I am also satisfied that the applicant would, after completing her studies, return to the Philippines. It follows that based on the above, I am satisfied that the applicant's circumstances in his home country weigh in favour of the applicant being a genuine temporary entrant.

The applicant's potential circumstances in Australia

1. At the hearing the applicant told me she is single and that she does not have any family in Australia.
2. I referred the applicant to her written evidence in her SVI form that states she does not have to pay for accommodation in Australia and asked why that is. She told me that her best friend of over 20 years now lives in Australia permanently and when the applicant decided to study here, her friend said she would support the applicant by giving her free accommodation and so the applicant has been living with her friend whilst she undertakes her study in Australia. She also told me that when she came to Australia previously, she came here for a holiday purely for the purpose of visiting her friend.
3. She told me she has no community ties in Australia and that whilst she will miss her best friend on return to the Philippines, she is excited for her future business plans in her home country.
4. Whilst the applicant's best friend lives in Australia permanently, I do not consider this an incentive for the applicant to remain in Australia permanently, as the applicant has previously visited her friend and departed again, and as the applicant has no other ties in Australia.
5. In the hearing the applicant told me that in compliance with her current bridging visa, she has not been working in Australia. I consider that the fact she has not been allowed to work, and that she has not worked since she has been in Australia, has resulted in little opportunity for the applicant to make any relevant employment contacts in Australia, which I find weighs in the applicant's favour as someone who is not using the student visa program to circumvent the intention of the migration program.
6. Based on the above, I am satisfied that the applicant's potential circumstances in Australia weigh in favour of the applicant being a genuine temporary entrant.

The value of the course to the applicant's future

1. During the hearing the applicant spontaneously told me, in detail of her plans to own a full-service café in the Philippines. In questioning the applicant about her future career plans, the applicant's evidence was so expansive that once she started speaking my questions to her were then reasonably limited. This was because she spoke with a level of detail that satisfied me she intends on returning to the Philippines to make her plans a reality.
2. She told me that not only can she rent a location from her mother to set up her café, but the location is also ideally suited to the particular type of café she wants to establish (one that combines traditional Filipino food with international elements), because it is very close to a large college and shopping centre where there is a lot of foot traffic but also the kind of customer profile she seeks to service. She told me she really likes the various packed bread products that she has seen in cafes in Australia, where people who are busy, can come into a venue and pay for their food immediately without having to wait for it to be prepared and she thinks this would be one product she will market in her own café to the students walking past the location near her mother's home in the Philippines where her business will be located. She described to me the kind of menu items she would like to offer in her café with a level of detail that satisfied me that she has considered not only how to make her business in the Philippines competitive but how she will use the knowledge she is gaining from the studies she has done in Australia to assist her in establishing and running her café.
3. The applicant told me that whilst her culinary study in the Philippines gave her knowledge in relation to food, her studies in Australia are filling a gap which is not offered by similar courses in the Philippines, that is, learning the management skills required to operate a hospitality business. We discussed some particular subjects in the Diploma course such as managing conflict, staff rostering, safe food handling, and work health and safety and the applicant explained to me the importance of those in the management of her future café in the Philippines.
4. At the hearing I discussed the applicant's previous hospitality related experience in the Philippines, being her catering business and then her milk tea business which is the business she has recently sold. She told me that in time, as she builds her business she will use industry contacts that she already has in the Philippines to help staff the business.
5. The applicant explained to me how much she has enjoyed the study she has undertaken so far in Australia and how much she wants to complete the Diploma course given how important the management related content is to the value of her future business plans in the Philippines. In discussing the study she has already undertaken, I referred her to the reference from one of her lecturers, Greg Currie and she told me that he has been like a mentor for her throughout her studies. The reference from him describes the applicant as a "very focused student" and that she is "passing exceptionally well."
6. I have considered the applicant's course progress since she commenced her study in Australia. I have before me a certificate of completion of a Certificate IV in Kitchen Management, and evidence of the subjects completed so far in relation to her Diploma course.
7. On the basis of the applicant's oral evidence before me about her future career plans, and her knowledge of her course content in Australia and how she will apply to that to her future business, and the study she has completed to date, I accept that the applicant has a clearly defined pathway for her future hospitality business venture in the Philippines that will be greatly enhanced by her Australian qualifications.
8. Based on the above, I am satisfied that the value of the course to the applicant's future weigh in favour of the applicant being a genuine temporary entrant.

1. The applicant came to Australia as a visitor and then lodged a student visa application that was refused, the refusal decision being the subject of this review. This student visa application is the applicant's first student visa application. Prior to the applicant arriving in Australia in 2023 as a visitor, she had visited Australia previously in 2022 as a visitor and departed within her permitted visa stay period. This was the trip she told me was to visit her best friend whom she has been living with whilst she studies. She told me complied with the conditions on her visitor visa in 2022 and that she departed before her visa expired. Indeed the applicant's movement records indicate that she arrived in Australia on 24 September 2022 and departed nine days later on 3 October 2022.
2. The applicant stated in her written evidence that she has held visitor visas for Japan, Singapore, Indonesia, Turkey and the UAE.
3. She told me that since lodging her student visa application in Australia she has not been working in compliance with her visitor visa and bridging visa conditions.
4. Considering the evidence before me, I find there is nothing in the applicant's immigration history that weighs against her remaining in Australia temporarily.

My conclusion regarding whether the applicant genuinely intends on remaining in Australia temporarily

1. On the basis of the above, having considered the applicant's circumstances as a whole, and having weighed the factors set out in Direction 108, I am satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, I am satisfied that 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. The applicant's student visa application was lodged with the Department on 20 September 2023. She was granted a Bridging A visa that has condition 8101 (no work) attached to it, which is the visa that the applicant holds currently. At the hearing the applicant told me she has not worked since she arrived in Australia because she is not allowed to due to her visa condition. On the basis of the applicant's evidence at hearing I accept she has not worked since she has been in Australia and I give weight in favour to the applicant because of her compliance with her current visa condition.
3. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl 500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents' education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). For visa applications made on or after 1 July 2022, condition 8208 (no critical technology related study without approval) must also be imposed.
4. In her student visa application and in her written statement to the Tribunal, the applicant declared that she would abide by any conditions imposed on a student visa should it be granted. There is nothing before me to indicate that the applicant would not comply with any condition imposed on a student visa should it be granted to her.
5. On the basis of the above, I am 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), I 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. I am satisfied that there are no other matters before me relevant to whether the applicant is a genuine applicant for entry and stay as a student. Accordingly, I am satisfied that the applicant meets cl 500.212(c).
3. Accordingly, for the above reasons, I am satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212. 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: Mr Sushesh Khanal (MARN: 1678926)

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.