The applicant is a 29 year old male from Malaysia. Before coming to Australia, he studied a Diploma of Mechatronics in Malaysia, completing this in June 2014. He then worked in an operations role for six months between June and December 2014.
He arrived in Australia as a 19 year old and has been studying here since October 2015. During this time, he has held three student visas. This review concerns his application for a fourth student visa.
Between October 2015 and November 2023, the applicant completed a Certificate IV, three Diplomas and two Advanced Diplomas including: Diploma of Management, Diploma of Business, Advanced Diploma of Business, Certificate IV in Accounting and Bookkeeping, Diploma of Accounting and an Advanced Diploma of Translating.
During this same period there were also eight cancelled course enrolments in various topics of study including: Certificate III in Individual Support, Certificate IV in Ageing Support, Diploma of Community Services, Certificate IV in Business, Diploma of Business, Diploma of Accounting, Advanced Diploma of Management, Advanced Diploma of Accounting. It is noted that the applicant did go on to re-enrol in and complete the Diploma of Business and the Diploma of Accounting. However, he ceased his enrolment in the Individual Support, Ageing Support, and Community Services courses a few months into commencing the first of these. When asked why he had enrolled in those courses, the applicant said he did it because in the past, his visa had been refused but he wanted to stay here, so he thought he should do it to extend his studies.
When the applicant for his fourth student visa (this visa) in September 2023, he proposed to study a Diploma in Hospitality Management and an Advanced Diploma in the same. He has active Confirmations of Enrolment (CoEs) in these courses. He has already been studying the Diploma level course since September 2023 and is due to complete this by August 2025. His enrolment in the Advanced Diploma has also been approved, to be undertaken between September 2025 and August 2026.
In his written Genuine Temporary Entrant (GTE) statement for the Department and in his 'Request for Student Visa Information' form submitted to the Tribunal the applicant said his intentions were to return to Malaysia and open a small restaurant. His responses were tailored to this purpose, and he gave details about the renumeration he expected he could earn in Malaysian Ringgit. However, when asked in the hearing why he has decided to now study hospitality courses, the applicant answered that he is just doing it so he can stay in Sydney, so he doesn't get deported to his country. The Tribunal queried why it is important for him to remain in Sydney. He responded that he likes it here and wants to stay here. When asked why he doesn't want to return to Malaysia, he said the economy is quite sluggish there, so he wants to stay in Australia. When asked if he has any fears or concerns about returning to Malaysia, he said "no". The Tribunal has considered the applicant's immigration history, and it discussed with the applicant his multiple trips out of Australia since he arrived. He said he had visited his parents in Malaysia on those trips, but when asked if he has any plans to live in Malaysia ever again, he said "not at the moment". The Tribunal queried where he would live if he couldn't live in Australia and the applicant said he doesn't know.
Notwithstanding the above, the applicant said he has genuinely studied the other (completed) courses and is genuinely studying and attending his hospitality course. He has provided evidence of these completions and evidence from the Hospitality course provider that he is attending and progressing in the course. But when asked if he has any intention of getting employment or building a career in the hospitality industry, he said "not at the moment". The Tribunal queried why he is studying hospitality courses, rather than something else he is more interested in pursuing, and he said his English is 'not that good', so he can only choose hospitality type courses. The Tribunal notes the applicant's responses at hearing do not align with his written statement about planning to return to Malaysia and open a small restaurant.
The Tribunal raised with the applicant that it had difficulty understanding his explanation about his English ability limiting him to hospitality, noting he had completed other courses - including a Diploma of Management, Diploma of Business and Advanced Diploma of Business, and even an Advanced Diploma of Translating - that would require a certain level of English proficiency. The applicant responded that he has social anxiety, so he cannot participate in job recruitment for the hospitality industry. The Tribunal asked if he has a diagnosed mental health condition. The applicant responded that he hasn't visited a doctor, but he thinks he is generally healthy.
The Tribunal put to the applicant information that would be the reason or part of the reason for affirming the delegate's decision to refuse the visa. The Tribunal put to him that he has now been in Australia almost 10 years and it is difficult to conceive that he intends for his stay to be temporary. It noted he had disclosed in the hearing that he is only studying the hospitality courses so he could stay and live in Australia. The Tribunal put to the applicant that the student visa he had applied for is only a temporary visa and it appeared he was trying to student visa program as a way to keep living in Australia. The Tribunal explained that it may not accept that he intends to only stay temporarily while he is studying these courses, and it may therefore affirm the decision not to grant him the visa. The applicant indicated that he understood, but he just wants to stay in Sydney now.
The Tribunal put to the applicant that in addition to the length of stay in Australia and his evidence about just wanting to stay in Sydney, the Tribunal held some concerns about his multiple cancellations of enrolments and multiple changes of study disciplines, which included the recent changed direction to hospitality, despite having no intention of using it for employment purposes. The Tribunal put to the applicant that it seemed as though his jumping between disciplines and enrolments was undertaken just to maintain his visa status and that his primary purposes hasn't been his studies. The applicant disagreed. The Tribunal asked the applicant to explain, to help it understand. He responded that he just wants to continue to live here and also to be allowed to exit the country.
The applicant was allowed additional time after the hearing to submit further information, evidence or responses. On 28 May 2025 he submitted a written statement and a Units of Completion and attendance report from his Hospitality course provider showing he has just two units to complete in his Diploma of Hospitality Management and has a 91% attendance rate.
In his written statement, the applicant proffered a further explanation as to why he is not working or seeking employment in hospitality now. He said he wants to complete his studies and gain the qualifications before applying in the industry. He also referred to Hospitality Management offering many paths and that he wants to research different roles and see what aligns with his interests.
[2]
The Tribunal has considered the totality of the evidence. The Tribunal accepts the applicant is attending and progressing through his Hospitality Management studies. But significantly, the applicant has admitted that he is only studying the hospitality courses for the purpose of having the student visa so he can keep living in Sydney. While he appears to retain some ties in Malaysia and continues to visit there and doesn't have fears about returning, he has no plans or desire to return to his country, and nor is he contemplating living anywhere else except in Sydney, Australia.
The Tribunal notes the applicant's claims about social anxiety, but he has not provided any evidence indicating that he has a diagnosed mental health condition, or any evidence to support his statements about social limitations. And while he claims his English language ability limits his choices this is hard to believe given the nature of the other courses he has completed including Diplomas and advanced Diplomas in various fields including Translating. The Tribunal has considered the applicant's post-hearing statement about why he has not been seeking opportunities in the hospitality industry but given his other evidence, and that he has not otherwise demonstrated any proactive consideration of his pathways in the industry (he admitted in the post-hearing statement he is yet to research this), the Tribunal considers that his evidence given at hearing, that he has not been considering a career in the industry to be the truth. The Tribunal notes he has a part time job in gyprock/construction and that he has stated he likes Sydney and wants to keep living there.
The Tribunal considers the applicant has other non-study related incentives to remain in Australia, and that his hospitality courses are not being undertaken to assist him to obtain employment or improve his employment prospects in Malaysia. The Tribunal is not satisfied the hospitality courses have value to the applicant's future. The Tribunal is satisfied that in this case, the applicant is seeking the student visa to maintain ongoing residence. These factors outweigh the factors in the applicant's favour.
[3]
Having regard to the applicants' circumstances, his immigration history and other relevant matters discussed above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
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.
[4]
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
[5]
DIRECTION NUMBER 108 - ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
[6]
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).
[7]
Minister for Home Affairs and Minister for Cyber Security
[8]
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.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
[19]
Spouse has the same meaning as the definition of the term in section 5F of the Act.
[20]
Student visa means a Subclass 500 (Student) visa
[21]
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
[22]
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).
[23]
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.
[24]
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.
[25]
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.
[26]
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.
[27]
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.
[28]
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.
[29]
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:
[30]
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
[31]
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.
[32]
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.
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:
[36]
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)
[37]
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:
[38]
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.
[39]
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.
[40]
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.
[41]
The applicant's circumstances in their home country
[42]
When considering the applicant's circumstances in their home country, decision makers should have regard to the following factors:
[43]
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.
[44]
Decision makers may have regard to the applicant's circumstances in their home country relative to the circumstances of others in that country.
[45]
The applicant's potential circumstances in Australia
[46]
In considering the applicant's potential circumstances in Australia, decision makers should have regard to the following factors:
[47]
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.
[48]
Decision makers should have regard to the following factors when considering the value of the course to the applicant's future:
[49]
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.
[50]
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:
[51]
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.
[52]
If the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant
[53]
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.
[54]
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.
[55]
[1] 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), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Legislation Cited (1)
Review Tribunal (Consequential and Transitional Provisions No. [1) Act 2024