The applicant is a 31 year old single mother from the Philippines, who arrived in Australia on 10 June 2023 and has remained in Australia since. She separated from her ex-partner over two years ago, who is currently working in Taiwan and providing child support to their 5 year old daughter. The applicant's daughter lives in the Philippines and is being cared for by her parents, primarily her mother. The applicant has very regular contact with her parents and her daughter by video calls and messaging apps, evidence of which has been provided to the Tribunal.
The applicant has an older brother who is a permanent resident of Australia. He lives here with his wife and two children aged 6 and 2. The applicant is living with her brother.
The applicant claimed her aspiration is to fulfil her mother's unfulfilled dream of establishing a family restaurant business, which her mother put aside to prioritise supporting the family and running the household given her father's irregular work hours as a miner. The applicant claimed this aspiration led her to enrol in and complete a two-year Certificate course in Hotel and Restaurant Services (including on the job training and obtainment of a National Certificate II in Housekeeping) in the Philippines, followed by employment in KFC and Jolibee to gain work experience in food services.
Despite her efforts to gain employment in the hotel and restaurant industry (other than working in fast food chains), the applicant has been unsuccessful due to a lack of hotel and restaurant experience. Believing that she might benefit from international work experience, she went to Taiwan (along with her then partner) and obtained employment in a factory, even though the job was not aligned with her hotel and restaurant career goal. She worked in Taiwan for a couple of years before returning to the Philippines to give birth to her daughter.
While in the Philippines, the applicant started a small food cart business selling street food and snacks, but had limited success due to her lack of adequate skills and experience in cooking techniques and food presentation. She also researched catering and hospitality courses in the Philippines, and although a couple of courses caught her attention, she found them to be lacking overall in depth and industry-based specialisation. Frustrated with the lack of progress in her career aspiration and due to the need for employment and income, the applicant returned to Taiwan in June 2022 and took up another factory job, before she was forced to return to the Philippines four months later due to her mother's ill health
The applicant gave evidence that she initially came to Australia as a visitor visa holder to visit her brother and to help her sister-in-law with her new baby. The trip was meant to include her parents, however they decided not to come due to their age and because her mother had just recovered from her health problems. The applicant claimed she came across advertisements by education providers and became curious about courses on offer, particularly the commercial cookery and hospitality management courses. She spoke to her brother and sister-in-law and her parents to gauge their views, and received encouragement from them to pursue further studies in view of her career aspiration.
The applicant claimed she decided to study catering and hospitality courses in Australia because of the quality of the courses compared to those she had previously found in the Philippines. She is receiving full support from her family in this regard, with her parents looking after her daughter in the Philippines to allow her to focus on her study, while her brother provides her with full board and pays for her tuition in exchange for her helping her sister-in-law with the children and the housework, especially as the applicant is not permitted to work due to condition 8101.
The applicant has completed Certificate IV in Kitchen Management and is near completion of the Diploma of Hospitality Management at Greenwich College, in respect of which she has provided a Certificate of Completion and Record of Results, respectively. The applicant also provided a conditional letter offer for Advanced Diploma of Hospitality Management from the same provider, with course dates from 12 January to 21 August 2026. When queried by the Tribunal, the applicant explained she had spoken to her teacher about her restaurant business aspiration, and her teacher suggested that she undertakes the Advanced Diploma to expand her knowledge and skills. The applicant explained that she did not yet have a Confirmation of Enrolment ('CoE') for the Advanced Diploma, but expected it to be issued imminently as she had just accepted the offer and paid the tuition fee.
The applicant and the Tribunal discussed her current course participation. The applicant was able to spontaneously provide details about her class contact hours and the number of students in her class, her favourite subjects/units to date, and the reasons why they were her favourite subjects/units.
The applicant and the Tribunal also discussed her future restaurant business plan detailing the business model, key milestones and timeline, marketing strategy etc., which the Tribunal noted has been co-signed by her, her brother and her sister-in-law. The applicant explained that they came up with the business plan jointly for the family restaurant, which they would name after their mother who was the inspiration behind it, because although she would be running the restaurant in the Philippines with assistance and involvement from her mother, her brother and sister-in-law would invest in and have a say in the restaurant's establishment and ongoing operation. The applicant claimed that the restaurant would be attached to their family home and that they intend to renovate and convert the family kitchen into a commercial kitchen, although commencement of the renovation has been delayed due to the recent typhoon in the Philippines. They also intend to eventually convert one of the rooms in the house into an office for restaurant administration.
[2]
Following the hearing, the applicant provided the following additional evidence in support of her review:
CoE for the Advancement Diploma of Hospitality Management.
Confirmation of approval to conduct property renovation (kitchen), issued by the municipal office of her home town in the Philippines.
Photographs of the kitchen renovation to date.
[3]
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 a genuine applicant for entry and stay as a student, as required by cl 500.212.
[4]
Genuine applicant for entry and stay as a student (cl 500.212)
[5]
The applicant is a genuine applicant for entry and stay as a student because:
[6]
(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.
[7]
Does the applicant intend genuinely to stay in Australia temporarily?
[8]
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.
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.
The Tribunal has considered the claims and evidenced advanced by the applicant in their entirety. The Tribunal is satisfied that the applicant has been attending classes and achieving satisfactory course progress based on the documentary supporting evidence she has provided, and based on her ability to discuss her classes and subject preferences in a spontaneous and forthright manner during the hearing.
Importantly, the Tribunal is satisfied that the applicant has provided a plausible and coherent narrative for why she has chosen to study catering and hospitality courses in Australia, and why her chosen courses would relevantly and beneficially contribute to and improve her prospects of achieving her longstanding aspiration to establish a small restaurant business, which will be attached to and run from the family home she shares with her parents, so that she can effectively juggle her career aspiration with childcare responsibility for her young daughter.
The Tribunal has considered the applicant's circumstances. The applicant is residing with her Australian permanent resident brother and his family, while her young daughter is residing with her parents in the Philippines. The Tribunal notes the delegate's concern that the applicant's personal and family ties in the Philippines may not be sufficient incentive for her to return, given she also has strong personal and family ties in Australia, and given her daughter may be eligible to join her if the student visa was granted.
The Tribunal acknowledges the delegate's concern. On balance, however, the Tribunal is satisfied the applicant's personal and family ties in the Philippines are sufficiently robust that they would incentivise her to return upon the completion of her studies. Firstly, whilst it is theoretically possible for the applicant to arrange to have her daughter join her in Australia, there is no evidence that she has tried to do so to date, and there is in any event no guarantee that her daughter would be granted a visa for Australia even if it was applied for.
Secondly, the evidence available indicates that the applicant has a close relationship with her parents especially her mother. Not only is she pursuing a career aspiration in running a small family restaurant business based on achieving her mother's own unfulfilled dream, her evidence that she abandoned her second job in Taiwan after four months in order to return to the Philippines to look after her mother and accompany her mother to all her medical appointments etc., suggests that she is very attached to her mother and would be strongly motivated to return so that she could run the restaurant together her mother as proposed.
The Tribunal has also had regard to the evidence provided by the applicant with respect to the renovation and conversion of her family kitchen into a commercial kitchen in anticipation of and in preparation for the establishment of the restaurant business. The Tribunal finds this evidence persuasive in demonstrating the applicant's genuine intention with respect to the restaurant and why it is important for her to undertake and complete her enrolled courses in hospitality management. Her studies are not merely in pursuit of a personal career goal, but they are also tied, albeit indirectly, to the hopes and interests of her mother, brother and sister-in-law.
Therefore, having regard to the material before it and for all the reasons discussed, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).
[9]
Does the applicant intend to comply with visa conditions?
[10]
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.
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. Pursuant to cl 500.611(2), the following conditions may also be imposed in some cases: 8535 (visa entitlement), 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).
The applicant arrived in Australia on a visitor visa subject to condition 8101 (no work), which has also been imposed on the BVA which she was subsequently granted. The applicant has given evidence that she is not working and that she is being supported by her older brother who provides her with full board and pays for her course tuition in exchange for assisting her sister-in-law with the children and housework. In the absence of evidence to the contrary, the Tribunal accepts that the applicant is not working and that she has been compliant with condition 8101.
The applicant has also expressly stated that she would comply with any conditions to which her student visa may be subject, if granted. Noting this, and given there is no reason for the Tribunal to believe otherwise, the Tribunal accepts the applicant would comply with future visa conditions to which she might be subject.
Accordingly, 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).
[11]
Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?
[12]
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)).
In the present case, the Tribunal finds that there are no other matters arising from the material and evidence available which are relevant to the Tribunal's assessment of whether the applicant is a genuine applicant for entry and stay as a student. Therefore, cl 500.212(c) is taken to be satisfied.
In conclusion and for all the reasons discussed, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212 of Schedule 2 to the Regulations. This being the case, 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.
[13]
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.
[14]
Representative for the Applicant: Mr Mahendra Ale (MARN: 1682297)
[15]
DIRECTION NUMBER 108 - ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
[16]
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).
[17]
Minister for Home Affairs and Minister for Cyber Security
[18]
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.
[19]
This Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
[20]
Direction No. 69, given under section 499 of the Act, is revoked.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
[28]
Spouse has the same meaning as the definition of the term in section 5F of the Act.
[29]
Student visa means a Subclass 500 (Student) visa
[30]
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
[31]
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).
[32]
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.
[33]
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.
[34]
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.
[35]
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.
[36]
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.
[37]
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.
[38]
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:
[39]
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
[40]
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.
[41]
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.
[42]
Assessing the genuine temporary entrant criterion
[43]
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.
Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
[44]
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)
[45]
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.
Circumstances where further scrutiny may be appropriate include but are not limited to:
[46]
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.
[47]
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.
[48]
Decision makers should have regard to the applicant's circumstances in their home country and the applicant's potential circumstances in Australia.
For primary applicants of Student visas, decision makers should have regard to the value of the course to the applicant's future.
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.
[49]
The applicant's circumstances in their home country
[50]
When considering the applicant's circumstances in their home country, decision makers should have regard to the following factors:
[51]
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.
[52]
Decision makers may have regard to the applicant's circumstances in their home country relative to the circumstances of others in that country.
[53]
The applicant's potential circumstances in Australia
[54]
In considering the applicant's potential circumstances in Australia, decision makers should have regard to the following factors:
[55]
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.
[56]
Decision makers should have regard to the following factors when considering the value of the course to the applicant's future:
[57]
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.
[58]
An applicant's immigration history refers both to their visa and travel history.
When considering the applicant's immigration history, decision makers should have regard to the following factors:
[59]
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.
[60]
If the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant
[61]
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.
[62]
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.
Legislation Cited (1)
Review Tribunal (Consequential and Transitional Provisions No. [1) Act 2024
Cases Cited (1)
Ferrer (Migration) [2025] ARTA 2816 (9 December 2025)