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.

1. The following background is summarised based on information provided by the applicant to the Department during the visa application process and/or the Tribunal during the review process.
2. The applicant is aged in her late forties and is a citizen of China. She is married and her husband resides in China. Her daughter, who is aged in her early twenties, has been studying a Bachelor of Commerce at University of Melbourne for some years while holding a student visa, and is due to finish that course in December 2025. The applicant holds a Diploma in Foreign Trade and Economics from a vocational university in China, and states she held a Vice President role in a chemicals company in the manufacturing sector in China from 2005 to 2023. She has previously travelled to the UK, Canada, Thailand and Japan for holidays and there is no suggestion of her not having adhered to migration or visa rules in regard to that travel.
3. The applicant travelled to Australia holding a visitor visa, then subsequently applied onshore for a student visa around a month later, in August 2023. The applicant provided a range of information to the Department during the visa application process to demonstrate her identity, living, family, financial and work arrangements in China. In support of the visa application, she submitted a statement of purpose ('GTE statement') to the Department regarding her circumstances, study goals, motivations and plans following study in Australia. In summary, she states she decided to end her work role, reorient her life and 'do something for herself', and wanted to study cooking and hospitality management in Australia to learn skills from the ground up that would assist her successfully open and manage a Western-style café in her home area on return to China.
4. In a GTE statement submitted to the Tribunal prior to the hearing, the applicant reiterated her account of her mindset and motivations about study in Australia. Further, she states she was 'deeply familiar' with the Australian education system through helping her daughter plan her studies in Australia, and therefore satisfied herself that course offerings in Australia were comparatively preferable to China. She states the decision to apply for a student visa after arriving in Australia was not a sudden decision but rather 'a naturally and carefully considered progression at her stage of life, from a mother and former senior executive'.
5. The applicant states she has strong ongoing ties in China and has strong incentives to return: her husband lives there, her parents are there, she states her daughter plans to return there after studying, and she has close social and community ties. She states she wants to return to China, open a Western café to attract Westerners or Australians, and contribute to her local area's 'cultural landscape'. She states financial resources are not an issue for her (as she and her husband have property and assets and loans) and that she has the means to support her study in Australia and has no need or incentive to work here or stay here past her studies. Since arriving on a visitor visa to Australia, the applicant indicates she has returned to China three times (in May and December 2024 and March 2025) during holidays from her course.
6. At the hearing, the applicant responded to a range of questions about her circumstances in China and Australia, her studies here, and her motivations and future plans, including her evolving business plan to establish a café in China following her return after she completes the planned Diploma course (due to end in September 2026). She said her daughter was in China on a holiday for a month but was due to return to finish her Bachelor degree in late 2025, and that she anticipated her daughter would then return to China, and had relevant skills to contribute to a family-run business in China.

1. The primary refusal decision sets out the delegate's reasons for refusing the application. As I discussed with the applicant at the Tribunal hearing, the Tribunal is making a fresh (de novo) decision about the application, and my questions and observations at the hearing focussed on areas of interest and/or concern to me based on the evidence before me (on the Department's and Tribunal's respective electronic files).
2. Based on the material provided prior to the hearing regarding her income, assets and financial position in China, I accept that the applicant and her husband hold assets and income in China and that the applicant has had sufficient means to support her studies and living expenses in Australia. I accept her account of her study, employment history and work role in China.
3. I have no concerns and make no adverse findings regarding the applicant's past immigration and visa history. I accept she has travelled multiple times between China and other countries, and there is no suggestion of past non-compliance with immigration and visa requirements.
4. I am prepared to accept the applicant's account that she has no concerns with her or her family members' circumstances in China (for example, regarding the human rights or political situation there) or with returning there. Given this, I find that general circumstances in China are not an incentive for her to remain in Australia, or a disincentive for her to return to China.
5. Based on supporting evidence before me regarding the applicant's enrolment and studies in Australia, I accept she enrolled in a course package with Choice Business College (CBC) which included an English language component (from August 2023 to May 2024, now completed), a Certificate IV in Kitchen Management (from July 2025 to December 2025, currently progressing) and a Diploma in Hospitality Management (due to run from January to July 2026). At the hearing, the applicant offered some relevant details of her Certificate IV course, and she offered details of business plans for starting up a café, for example, describing the atmosphere she hoped to achieve and saying she planned to hire around five staff.
6. I acknowledge the applicant has (in her GTE statements to the Department and Tribunal) presented a reasonably detailed and internally coherent written and verbal account to the Tribunal of her mindset, motivations and goals regarding study in Australia and the relevance of her studies to her future goals and plans in China.
7. However, for the following reasons, I have substantial doubts that the overall narrative genuinely or reliably reflects her actual motivations regarding study, and I doubt she intends genuinely to carry through her stated plans to open a café in China in future.
8. It is not necessarily entirely implausible that a person might decide to reorient their career, give up a senior work role when their career is relatively advanced, and decide to pursue a new goal.
9. However, I am concerned the written narrative (in the two GTE statements) about her mindset, motivations and plans, while relatively detailed, is contrived, and that her oral account at the hearing - while consistent with the written material - was rigid, learned or coached, and rehearsed and does not reflect her genuine lived experience or mindset. I am concerned that the overall narrative has been constructed and contrived to fit the applicant's personal circumstances, age and profile and to address factors relevant to the visa category, rather than being any organic or genuine reflection of her actual intentions.
10. Particularly, I am not persuaded by her account that she felt drawn to change her work direction, and once in Australia as a visitor, she rapidly confirmed her interest in Western food and cookery and decided to study cookery and hospitality management in Australia, as part of her ambition to open a Western-style restaurant or be otherwise involved in the food sector in China. Rather, given her written account that she had a 'deep familiarity with Australian education systems' from planning her daughter's study here, and given her daughter has experience of the student visa pathway, I formed the view that she strategically came to Australia on a visitor visa with a planned intention to apply for a student visa, with awareness that - once onshore - she could use the student application process, and enrolment and study in Australia, as a basis for staying lawfully in Australia alongside her daughter for a period longer than her visitor visa would permit. Nothing in the overall evidence and arguments by the applicant or the submissions of her representative, or the written statement of her husband, or the oral evidence of her daughter (all of who are motivated to see the application succeed) alleviates my concerns or alters my view.
11. I do accept the applicant has studied in Australia along the pathway she indicated at the time of application. However, I am concerned that the applicant's motivation to continue with enrolment and study in Australia has been solely for the purpose of remaining in Australia alongside her daughter, and that she has strategically used the student visa process to maintain lawful residence in Australia.
12. I am unconvinced that the applicant needed to study practical courses in cookery and management in Australia in order to achieve her stated goal of opening a café in China, given her positive financial position and overall skills and experience, it would be open to her to hire staff and pursue her stated goals without studying cookery and hospitality management in Australia.
13. I accept the applicant's husband lives and works in China, and that he and the applicant hold property and assets there. I accept the applicant has close ties to her husband, and broader family in China, and that she has community and cultural ties to China.
14. The applicant's representative argues that the applicant's daughter's presence in Australia is 'irrelevant' and that any finding that her presence offers a significant incentive for the applicant to remain in Australia is 'impressionistic and based on stereotypical reasoning'. I disagree. Section s. 500.212(a) requires me to consider the applicant's circumstances in Australia, and the Ministerial Direction requires me to weigh the various incentives in Australia and China. I find her daughter's presence in Australia is entirely relevant and has been her key motivation to study and remain in Australia since 2023.
15. I acknowledge the representative's various verbal and written submissions (and associated case law citations). The Tribunal is aware of its responsibility to make a correct and preferable decision. My findings in this decision are made in regard to the evidence before me in this case and for the reasons stated. I acknowledge the representative's argument that it is not open to the applicant to pursue a skilled visa pathway. I make no finding that her motivation or intention is to pursue a skilled visa pathway but find that the lack of an available skilled visa pathway does not preclude her having other motivations and pathways to remain in Australia other than temporarily.
16. I have formed the view that the applicant is strongly incentivised by her daughter's presence here. I accept that the applicant has a husband, family, community, assets and cultural ties to China. However, she is not precluded from return travel to China, and I am not satisfied that her incentives to return outweigh her incentives to remain in Australia as long as possible, motivated particularly by her daughter's presence here. I am concerned that she will seek to use study visa pathways and related legal processes to enable her to do so as long as possible, and as long as her daughter remains here.
17. Based on the Certificate of Enrolment provided to the Tribunal regarding the daughter's study, I accept that she is due to end her current Bachelor course in December 2025. I have doubts that the daughter will return to China following her completion of the degree, and will instead pursue a visa pathway to remain living in Australia as long as possible. I am therefore concerned that the strong incentive of the applicant's daughter's presence in Australia will continue. However, notwithstanding my widespread, strong concerns and factual findings above, my predictions about what will happen next are entirely speculative and not evidence-based, and the Tribunal has responsibilities to make timely and efficient decisions on review applications.
18. Notwithstanding my findings about the applicant's actual mindset and motivations regarding study in Australia, and her strategic efforts to use the student visa application and review processes - and study - as a means to remain in Australia, I have found her primary incentive to remain in Australia is her daughter, and her daughter's ongoing presence in Australia after her degree ends in 2025 to be speculative. There is no reliable evidence before me at the time of this decision to demonstrate that her daughter will be entitled to lawfully remain in Australia after her current course ends and her current student visa ceases. Having found that the applicant's main incentive to remain in Australia is temporary, and given the applicant's next (Diploma) course is due to end in September 2026, there is no fair basis (within the logic of my findings about the applicant's mindset and motivations for being in Australia) for the Tribunal to find that the applicant intends to remain in Australia other than temporarily.
19. Given the above matters and findings, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).
20. 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(a) of Schedule 2 to the Regulations.

Representative for the Applicant: Mr Tao Jiang (MARN: 1577079)

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.