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 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 Visa Information form, written statements, and at the Tribunal hearing, the applicant has confirmed that similar courses are offered in his home country. However, he claims that such courses, are basic and are not structured in the same way as the courses he is undertaking in Australia. The courses in Australia offer a structured professional vocational pathway, combining practical training with professional knowledge, and such elements are important to his long-term career development. The Tribunal has considered the applicant's responses; however, it is not persuaded that the generalised written and verbal responses provide a reasonable reason for establishing why he did not undertake the study in his home country or region, particularly when he has confirmed that similar hospitality courses are available there.
4. At the Tribunal hearing, the applicant confirmed that his parents, wife and two sisters (he has five sisters in total) are currently in China. In the ART Student Visa Information form, he indicated he keeps in contact with friends in China. At the Tribunal hearing, the applicant confirmed that he had not sought to return to China while his application remained under consideration. Nor has his wife sought to visit him while he has been in Australia. He indicated that she has no desire to live overseas and her long-term plan is to remain in China. He was asked about his economic circumstances in his home country. He confirmed that as per the representative's submissions, he does not have any assets in China. In the ART Student Visa Information form, he indicated that he maintains health insurance in China. At the Tribunal hearing, he was asked about his wife's circumstances and where she was living. He indicated she lives independently in her own accommodation and has recently obtained a higher position. In his ART Student Visa Information form and at the Tribunal hearing, he confirmed that he remains in contact with his family and wife in Chian via messaging and location apps. The Tribunal asked the applicant about his previous employment in China. He confirmed he has not previously undertaken any type of employment in China. He previously worked part-time in a restaurant and as a delivery driver in New Zealand. In the ART Student Information form, he has indicated that he does not have any concerns about military service commitments or political or civil unrest in his home country.
5. Having regard to the material before it, the Tribunal accepts that the applicant has personal ties to his home country through contact with his wife, family and friends and does not have any military, political or civil unrest concerns. However, when such factors are weighed against the fact that the applicant, as a 31-year-old male, who has no economic ties, apart from health insurance coverage, in his home country, along with the Tribunal's findings that his reasons for not undertaking the study in his home country or region are not reasonable, on balance, the Tribunal finds the applicant's circumstances in his home country weighs against a finding that the applicant genuinely intends a temporary stay in Australia.
6. The Tribunal has considered the applicant's potential circumstances in Australia. In the ART Student Visa Information form, the applicant has stated that two of his sisters are residing in Australia. He confirmed that he resides with one sister in Sydney and his other sister resides in Perth. At the Tribunal hearing, the applicant was asked about his sisters and their visa status in Australia, whether they are permanent or temporary residents. He stated that his sister in Perth is an Australian citizen. He believes the sister he resides with in Sydney is a temporary resident. This sister is in Australia with her husband and baby. The applicant further added that his third eldest sister has recently arrived in Australia. He indicated she was in Australia for business purposes. At the Tribunal hearing, the applicant was asked whether he was working in Australia. He stated no, he does not work because of his visa conditions. He is focused on his studies. He was asked how he was financially supporting himself in Australia. He stated that his sisters in Australia pay for his tuition fees. He also does not need any money to pay for his accommodation because he lives with his sister and her family in Sydney. In the ART Student Visa Information form, the applicant indicated he has limited community ties in Australia as he has been primarily focused on his studies.
7. The information before the Tribunal indicates that since applying for the student visa, the applicant has completed a Certificate III in Commercial Cookery, Certificate IV in Kitchen Management and a Diploma of Hospitality Management. He claims that he is currently enrolled and studying an Advanced Diploma of Hospitality Management.
8. At the Tribunal hearing, the applicant was asked about his current course. The Tribunal observed that he had not previously indicated to the Department that he would be studying an Advanced Diploma course, and his enrolment in another course, may raise concerns about whether he was using the student programme to extend his stay in Australia. The applicant responded that he had two reasons for his new enrolment. He stated that firstly, he was waiting for the Tribunal hearing, so he needed to enrol in another course. Secondly, after completing his courses, he spoke to his education provider who suggested that the Advanced Diploma would assist him with gaining role at the senior management level. The Tribunal asked the applicant to provide the details of his current course including the subjects he is enrolled in. He confirmed he was enrolled in the Advanced Diploma of Hospitality Management. He was asked to provide the names of the subjects he was studying/enrolled in. He stated that they had just started the course. For the assessment, they are analysing a company and what they can do to increase the company's profit/revenue and decrease expenses to achieve the company's goals. The applicant was again asked the names of the subjects/modules he was currently enrolled in. He stated that he thinks it is "SSI is the course code". He indicated his focus is the detail of the course. He then indicated he thinks it is "601". He later claimed that the course name is "Management Organisational Finance". The Tribunal asked the applicant if he was required to attend the institution or was the course delivered online. He stated this course is delivered as an online session on Mondays and Tuesday between 9:00am to noon. Even considering the any communication/interpretation issues and applicant's explanation that he was nervous, the Tribunal finds the evidence he gave regarding his subjects does not align with the knowledge that would be reasonably expected of a genuine student.
9. The Tribunal discussed with the applicant, unfavourable information in accordance with s 359A. It was noted that the applicant has several sisters in Australia, and that since his arrival, he has not sought to return to China to visit his wife. The Tribunal may find that the presence of several family members in Australia, may present as a strong incentive for him remaining in Australia, and suggest that he is not a genuine temporary entrant. He was asked if he had any comments in response. The applicant responded that he continues to maintain contact with his wife through WeChat. They also send to each other video and voice messages. They can also see each other in real time via location technology, and this has had a positive effect on their relationship. He claimed his wife does not want him returning to China and wants him to focus on his studies.
10. The Tribunal has considered the applicant's responses; however, it is unpersuaded by them, and finds that his strong family presence in Australia, combined with his failure to visit his wife, indicates a stronger connection to Australia than China. Furthermore, when this is considered along with the Tribunal's findings regarding the applicant's knowledge of his subjects, and the bank statements, which show that his two sisters in Australia, financially support him, the Tribunal finds, on balance, the applicant's ties to Australia present as a strong incentive to remain and weighs against a finding that the applicant genuinely intends a temporary stay in Australia.
11. The Tribunal has considered the value of the courses to the applicant's future. In summary, in the ART Student Visa Information form, written statements and submissions, the applicant has claimed that upon completion of his studies, his immediate plan is to return to China and work in the hospitality industry in order to develop his practical experience in western cuisines and hospitality operations. In the long-term he would like to have his own business. He further claimed that on successful completion of the courses, he expects to earn a salary that is consistent with a junior supervisor or skilled hospitality roles of approximately "RMB 6,000 to 9,000" ($1,226 - $1,635 AU) per month. As he gains more experience, he expects to progress to more senior supervisory or management roles. He further claimed his primary focus is to gain professional experience and long-term career rather than immediate financial return.
12. At the Tribunal hearing, the applicant was asked about his future plans. He indicated on completion of his current course in July, he will go back to China and look for a job in his hometown, Harbin. This is a good time to return, as there is an increase in the demand for hospitality workers during the winter season. His hometown, Harbin has many famous international hotel chains. He plans to take what he has learnt in Australia and apply this knowledge to his employment. He has a clear plan to apply for entry level positions before moving into supervisory roles.
13. The Tribunal discussed with the applicant, that it may have concerns about his plans and competitiveness to obtain the roles he has spoken about on return, given his employment history. It was observed that the applicant was a 31-year-old male who has no previous employment experience in China. On the information before the Tribunal, he has previously only worked as an Uber delivery driver for 3 years in New Zealand. The applicant confirmed this was correct. He claimed that while studying his degree in New Zealand, he worked part-time as a kitchenhand in a restaurant. He claimed this employment led to his interest in the hospitality industry.
14. The Tribunal discussed with the applicant, unfavourable information in accordance with s 359A. The Tribunal observed that on the information before it, the applicant has previously completed a Bachelor of Commence in Accounting in New Zealand. His previous course was at higher level and in a different industry to the courses he has proposed to study in Australia. These differences may lead the Tribunal to have concerns that he has enrolled in the courses in order to circumvent the intentions of the migration programme and maintain ongoing residence in Australia. He was asked if he had any comments in response to these concerns. The applicant responded that he does not care for the level of the course. He only cares about his long-term career plan. His sister has a hotel in China and observing her has led to his interest in working in hospitality. After completing his accounting degree, he reassessed his long-term career plan.
15. The Tribunal has considered the applicant's explanations; however, it remains unpersuaded that they address the concerns raised. The applicant's claims that he does not care about the level of the courses, casts doubt on the genuineness of his academic intentions in Australia, as it would be reasonable to presume that a genuine student would seek to build on their existing qualifications. Even allowing for reasonable changes to career and study pathways, the applicant's explanations for his interest in the hospitality, the Tribunal finds to be vague and does not persuasively justify why he would abandon years of study at a tertiary level in the area of commerce for an unrelated and generally lower-paid industry.
16. 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 obtain on return to his home country. The Tribunal finds that his responses do not demonstrate that he has researched hospitality related roles in any great detail in China and/or the availability of such roles or expected renumeration. The Tribunal finds the lack of detail and research and the Tribunal's concerns above, regarding the different level and type of study, raises significant concerns that the applicant is using the student visa programme to circumvent the intentions of the migration programme and maintain ongoing residence; and weighs against a finding that the applicant genuinely intends a temporary stay in Australia.
17. The Tribunal has considered the applicant's immigration history. At the Tribunal hearing, the Tribunal discussed with the applicant, unfavourable information in accordance with s 359A. The Tribunal observed that in relation to his immigration history, in his ART Student Information form, the applicant had stated that on two occasions in 2015 and 2016, he had been refused a student visa for Australia. The information in the International Student Management System (PRISMS) database, indicates that at the time of the refusals, he had enrolled in courses related to Information Technology, English preparation, and Computing. He has then later arrived in Australia, on a visitor visa, and applied for a student visa to study courses in hospitality. This information, that being his previous student visa refusals, and his arrival in Australia on a visitor visa, raises concerns that he has applied for this student visa and enrolled in courses, in order to circumvent the intentions of the migration programme and maintain ongoing residence in Australia. He was asked if he had any comments in response to these concerns.
18. The applicant responded that he understands what the Tribunal is thinking. He stated that the last two times he applied for a student visa, he was young and his future plans were not clear. He was influenced by his friends and the agency to make his decision. At that time, he wanted a student visa to apply for "PR" (permanent residency), but it is a different situation now. He is 31 years old and has a clear long-term plan. His parents are old, and he has a wife. He does not want to stay in Australia. He is a genuine student, and he will return back to China so he can share a life with his wife. They would like to have a baby.
19. The Tribunal observed that if the applicant wished to be with his wife, his evidence had been that he could have stayed with his wife and studied these same courses in China. The applicant agreed this was correct. However, the courses in China are not structured or professional and the education in China is not good. He wants to gain knowledge in Australia and use it on his return to China.
20. The Tribunal has considered the applicant's responses; however, the Tribunal is unconvinced that they resolve the concerns raised. The Tribunal finds, the applicant's decision to enter Australia on a visitor visa and then apply for a student visa challenges the credibility of his intentions, particularly given his history of two previous student visa refusals. Furthermore, while he now claims he intends to return to China to be with his wife and start a family, this assertion is inconsistent with his choice to study overseas rather than remain in China and undertake similar courses there. It is also inconsistent with his more recent actions in enrolling in the Advanced Diploma course and choosing to stay for a further 18 months, after his original courses of study had been completed. The Tribunal has considered the applicant's responses to its concerns; however, it considers that his immigration history weighs in against a finding that the applicant genuinely intends a temporary stay in Australia.

1. Having regard to the material and the discussion above, while the Tribunal accepts the applicant has personal ties to China and he does not have any military, political or civil unrest concerns and such factors may present as some incentive for his return to his home country, this must be balanced against the Tribunal's findings above regarding his circumstances in Australia, his vague and unconvincing responses regarding the value of the courses to his future, and the Tribunal's concerns, regarding the different level and type of study, and his immigration history. While the Tribunal accepts the applicant is currently enrolled in an Advanced Diploma course, the Tribunal does not accept the applicant is studying for the reasons claimed or that it is of any particular value to his future. Rather, the Tribunal finds the applicant has enrolled in courses to obtain a successful visa outcome to circumvent the intentions of the migration programme and maintain ongoing residence.
2. On the basis of 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).
3. 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.
4. 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: Ms Guihua ZHAO

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.