1. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is s whether the applicant is a genuine applicant for entry and stay as a student.

Genuine applicant for entry and stay as a student (cl 500.212)

The applicant is a genuine applicant for entry and stay as a student because:

(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

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 Tribunal has considered the applicant's circumstances in his home country. In the ART student form and written statements, the applicant has indicated teaching style, practical focus, English language environment and international exposure as the reasons for not undertaking the courses in his home country. At the Tribunal hearing, the applicant confirmed that the courses he is studying in Australia are available in his home country, but he came to Australia because of the English language environment, business scenarios, group discussions with people from different backgrounds and commercial documents. The Tribunal discussed with the applicant its concerns that it may have difficulty accepting that the factors advanced, could not be gained from studying the same courses in his home country. He responded that his main career objective is to work in a business such as marketing or electronic commerce. He believes the experience he has gained in Australia, will enhance his competitiveness on return to Taiwan. The Tribunal has considered the applicant's statements; however, it is not persuaded that the generalised written and verbal responses offered provide a reasonable basis for choosing not to undertake the same study in his home country or region, particularly when the courses are available there.
4. At the Tribunal hearing, the applicant confirmed that his parents, siblings remain residing in Taiwan. In the ART student form, he stated that on two occasions in 2024 and 2025, he has travelled to Taiwan to visit his family. He has provided bank balances for CBA accounts held in Australia. At the Tribunal hearing, the applicant was asked if he owned any assets, properties or bank accounts in Taiwan. He stated he has a unit in an apartment building. He stated he has not provided any documents evidencing his economic circumstances and assets in Taiwan because he wasn't aware that he had to provide such evidence. The Tribunal asked the applicant about his previous employment in Taiwan. He stated between completing his degree in 2013 and his departure to Australia in 2020, he worked in the services industry in different types of businesses such as Uniqlo. In his ART student form, the applicant indicated he has maintained social connections with groups in his country including former classmates. He also stated that he had completed his military service commitments and while there are some political differences and some external pressure in his home country, he personally hopes for peace and stability. Having considered all the evidence, The Tribunal finds that the applicant's circumstances in his home country present as some incentive for the applicant's return to his home country.
5. The Tribunal has considered the applicant's potential circumstances in Australia. In the ART student form and at the Tribunal hearing, the applicant indicated that he does not have any family or a partner in Australia; and apart from a bank account, he does not own any assets in Australia. He resides in shared accommodation and works at a massage shop on the weekends. He indicated that while he does not have any formal massage qualifications, he has previous experience in sports massage. He financially supports himself through his part-time work and money his family provides to him. In the ART student form, he indicated he has a few close friends in Australia and these friends help him feel connected to the local community and improve his sense of belonging in Australia. Having considered all the evidence, while the Tribunal accepts that the applicant does not have any family or community ties that would serve as an incentive to remain, the Tribunal does have concerns about the applicant's employment circumstances in Australia and views these concerns as supporting a conclusion that the applicant is using the student visa is being used to maintain ongoing residence.
6. At the Tribunal hearing, the applicant was asked to provide details of his current course. He stated he was enrolled in a Certificate IV in Business at Ivy Link College, located at Boundary Street, Spring Hill. He attends the institution each Monday to Wednesday between 9am and 5pm. He confirmed that he had attended the course in the days prior to the Tribunal hearing and was enrolled as a full-time student. He was asked what subjects/units he was currently enrolled in. He stated commercial/business communication. He confirmed he is only enrolled in one subjects/units. He was asked when he expected to start other subjects/units. After a long pause, he asked if he could check. The Tribunal discussed with him that given his primary purpose in Australia was to study, it would be reasonable to expect he would know the subjects he was to study, as part of the course. The applicant responded that he was unable to find the information. He indicated that each subject has lots of different parts.
7. In summary, in the written statements, ART student form and at the Tribunal hearing, the applicant indicated after completing the Diploma level course he wants to return to Taiwan and pursue a career in business administration or management-related positions. He wants to secure an office-based role and apply the knowledge gained from his courses in Australia. He provided several types of entry level roles that he plans to apply for on return. He also plans in the longer-term to advance to supervisory or management roles. In his ART student form, he provided general details of the renumeration he expected to receive on return. At the Tribunal hearing, the applicant was asked what research he had undertaken about the type of roles and renumeration he expected to obtain on return. He responded that he plans to work in electronic commerce, e-commerce or digital media. In terms of pay, he wasn't sure but as he accumulates more experience and obtains jobs in bigger companies he will receive better pay. The Tribunal discussed with the applicant that his statements appeared to be very broad and suggested a lack of research about the value of the courses to his future. He responded that he did check some of the companies in Taiwan but does not have any more details. He has not undertaken a detailed investigation about the pay he can expect at this stage. He is aware that larger international businesses do have e-commerce positions.
8. At the Tribunal hearing, the Tribunal discussed with the applicant the information in his PRISMS record and student visa application, which shows that his initial intention was to study courses in workplace relations, with the expected end date for these courses was June 2026. Instead, the changes to his course of study have now extended his time in Australia by a further year until June 2027, and this may raise concerns he has changed his course of study not for the reasons claimed but because he wanted to extend his time in Australia. He responded when he came to Australia, he was still in the stage of exploring his options. After a discussion with the college, he realised that business was the pathway he should take.
9. At the Tribunal hearing, the applicant confirmed that he had in the past completed a Bachelor of Sport Studies in Taiwan. He finished this course in 2013, approximately 10 years prior to his enrolment in his course of study in Australia. The Tribunal discussed with the applicant its concerns that his past level and area of study, is significantly different to the courses he had chosen to study in Australia. The applicant responded that he completed this degree because his family wanted him to study it. He did not have much interest in the area and was thinking of changing. After graduating, he worked in the services industry and realised he did not want to continue in the same area of his degree. He later found the business industry more attractive.
10. The Tribunal has considered the material including the applicant's responses regarding the value of the courses to his future; however, it finds his responses to be vague and unconvincing. The applicant was only able to provide a general description of the types of roles and/or remuneration he would likely obtain on return to his home country. The Tribunal finds that his responses do not demonstrate that he had researched business related roles in Taiwan, including salary expectations and/or the availability of such roles and expected renumeration. The Tribunal finds that the lack of detail and research raises significant concerns that the applicant is using the student visa programme to circumvent the intentions of the migration programme and maintain ongoing residence.
11. The applicant has considered the applicant's immigration history. There is no evidence to suggest that apart from the student visa, the applicant has been refused or had cancelled a visa in Australia or any other country. Nor is there any evidence to suggest he has not complied with the migration laws of Australia or any other country. However, like the delegate, the Tribunal notes that the applicant has been in Australia for a significant period. At the Tribunal hearing, the Tribunal noted that the information before it indicated that he had initially arrived in Australia on a working holiday visa and in the months prior to this visa expiring, he altered his plans and applied for a student visa and raises concerns that he has applied for the student visa to maintain ongoing residence. The applicant responded that it may appear like that, but that is not the case. He had the idea to study while he still had the working holiday visa. The Tribunal has considered the applicant's responses to its concerns about his immigration history, however, like the delegate, it considers that his immigration history weighs in favour of a finding that the applicant does not genuinely intend a temporary stay in Australia.
12. Having regard to the material and the discussion above, the Tribunal has placed weight on the applicant's evidence regarding his personal circumstances in his home country, which would serve as some incentive to return; and while applying for the student visa, he has successfully completed courses. However, in this case, the Tribunal considers that such favourable factors must be balanced against the significant concerns identified above. Including the generalised reasons for the applicant choosing to study in Australia rather than in Taiwan, the applicant's immigration history, the evidence regarding the inconsistent nature of the applicant's current courses with his previous area and level of study, the changes to his course of study; and the Tribunal's findings regarding the vague and unconvincing nature of the applicant's responses regarding the value of the courses to his future.
13. The Tribunal accepts based on the information before it, the applicant is currently enrolled in a Certificate IV in Business and has a future enrolment in Diploma of Leadership and Management; however, the Tribunal does not accept that the applicant is studying for the reasons claimed and/or the courses are of any value to his future. Rather, the Tribunal finds the applicant has enrolled in the courses to obtain a successful visa outcome to maintain ongoing residence.
14. Having regard to the 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).
15. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
16. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

1. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Representative for the Applicant: Mr Mingjie ZHOU (MARN: 1796458)

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.