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. In November 2022, the applicant was granted a tourist visa. The purpose of the travel was to accompany his brother who was commencing a Masters in Architectural Science. The applicant arrived in Australia in February 2023 and stayed for approximately three weeks before returning to the Philippines.
2. The applicant returned to Australia in May 2023 and during his stay applied for the visa which is the subject of this review. The applicant applied for the visa to study a Certificate IV in Patisserie from 17 July 2023 until 31 December 2024 (tuition fees of AUD25,200) at the William Angliss Institute and a Diploma of Hospitality Management from 17 February 2025 until 30 June 2025 (tuition fees of AUD8,100) also at the William Angliss Institute.
3. Confirmation of enrolment documents submitted by the applicant confirm the same.

1. The delegate expressed a range of concerns including:
   • A lack of evidence of the applicant's prior education and employment history;
   • Evidence demonstrating he had considered study options in his home country;
   • At the time of visa application, the applicant had a sibling who was residing in Australia which may act as a disincentive for the applicant to return after the completion of his studies;
   • The applicant failed to provide satisfactory reasons for his studies in Australia including the value of the course to his future employment and how the proposed course of studies would substantially benefit his remuneration level to warrant the substantial expenses associated with international education; and
   • The delegate had regard to the applicant's immigration history and noted that at the time of application the applicant was on a visitor visa and now proposed to extend his stay until at least June 2025 which raised concerns that the applicant was utilising the student visa program to maintain a residency in Australia.

1. The Tribunal has had regard to written submissions and documents filed prior to hearing, the applicant's oral evidence at hearing and post-hearing submissions. The Tribunal has also considered the applicant's record in the Provider Registration and International Student Management System (PRISMS) and travel movement records.

1. The Tribunal found the applicant to be an honest and credible witness and he gave evidence spontaneously and frankly. His evidence was also corroborated by academic, employment and financial records. For the following reasons, the Tribunal sets aside the decision under review and remits the visa application for reconsideration.

The applicant's circumstances in his home country

1. The applicant is a 26-year-old male national from the Philippines. He is unmarried and has no children.
2. Between September 2016 until July 2020, the applicant studied a Bachelor of Science in Management Engineering (with Honorable Mention) at Ateneo de Manila University. This is a highly prestigious university and often ranked first or second in the Philippines. Despite the course title, the bachelor degree principally involved business studies. These studies also involved the applicant studying abroad in France for five months.
3. After completing his studies, from February 2022 until May 2023, the applicant worked for various hospitality businesses in the Philippines, including as a sales and operations associate, marketing specialist and a barista.
4. In November 2022, the applicant was granted a tourist visa for the purposes of accompanying his brother to Australia, who was undertaking a Masters in Architectural Science. The applicant arrived in Australia in February 2023 and stayed for approximately three weeks before returning to the Philippines. He subsequently returned to Australia in May 2023 and during this stay applied for the student visa which is the subject of this review.
5. All of the applicant's immediate family, including his parents and brother aged 28 years reside in the Philippines. The applicant's brother has since completed his studies in Australia and in November 2024 returned to the Philippines permanently. The Tribunal considers this is indicative that the applicant will do the same.
6. The applicant communicates regularly with his family and has a close relationship with them. This is evidenced by the applicant visiting them twice since his student visa was refused, including in December 2023 and recently between November 2024 and January 2025.
7. The applicant's studies and living expenses are fully funded by his parents. Whilst the applicant does not have significant assets or income, the applicant comes from a wealthy family. Oral evidence by the applicant and financial and business records demonstrate that the applicant's father is a company director and runs a highly successful business in Manila, the Philippines.
8. The applicant gave evidence that he plans to operate his own hospitality business in Manila. The applicant gave persuasive evidence that he could only leverage such business opportunities in the Philippines due to his hospitality contacts being there and his father having strong business links and experience. He stated his father could help him set up his business including securing appropriate commercial premises to conduct his business. The applicant gave evidence that both his parents have worked in real estate. The Tribunal accepts this evidence to be true and considers it to be a strong incentive to return after the completion of his studies.
9. The applicant gave evidence that he has completed his Certificate IV in Patisserie in December 2024 and passed all subjects. In February 2025, he commenced his Diploma in Hospitality Management. The applicant gave evidence that he did not undertake these studies in the Philippines as such courses are more highly regarded if obtained in Australia. He also chose Australia as it is and English speaking country, close to the Philippines and the culinary training is diverse and multi-cultural unlike Europe or Japan which is highly specialised.
10. The Tribunal is satisfied that the applicant has reasonable reasons for not undertaking his studies in the Philippines and his potential economic circumstances in the Philippines provide him with an incentive to return upon the completion of his studies.
11. There is no evidence to support the applicant has military obligations in the Philippines. The Tribunal is not aware of any political and/or civil unrest in the Philippines that would be a relevant consideration for this applicant.
12. Taking the various matters discussed above together, the Tribunal finds that the applicant's circumstances in his home country support his claim to intend genuinely to stay in Australia temporarily as a student.

1. The applicant does not have any family in Australia. He told the Tribunal that he was not currently in an intimate relationship with anyone. There is no evidence before the Tribunal to suggest that the applicant has entered into any relationship of concern in Australia, in the sense of a relationship that would help him to remain in Australia once he finishes his studies.
2. The applicant is not employed and gave evidence that during his stay he has been financially supported by his family in the Philippines. Given the strong financial situation of the applicant's family, the Tribunal is satisfied that the applicant is not motivated by financial or employment opportunities in Australia. The Tribunal is satisfied that the applicant is not using the student visa system primarily to maintain residence in Australia.
3. Overall, the Tribunal finds that the applicant's potential circumstances in Australia do not give him incentive to remain in this country after he finishes his studies.

The value of the applicant's courses for his future

1. Whilst the applicant's current study is at a lower level than the bachelor degree he already holds in the Philippines, the Tribunal is satisfied with the applicant's explanation for this. The applicant gave evidence that his bachelor degree was a general business degree and that he wishes to implement these business skills by operating his own business by transitioning into the hospitality industry. He gave compelling evidence that he did not need higher qualifications and that a Certificate IV and Diploma provide him with the valuable knowledge and skills needed to achieve his gaols. He stated to operate a successful business it requires 'ground level' knowledge of hospitality. He also stated that he enjoyed studying as a patisserie chef.
2. The Tribunal accepts that the applicant's studies align with his past employment history in the Philippines. The Tribunal further accepts that his studies are complementary of his past academic history in the Philippines. The evidence before the Tribunal further indicates that the applicant has been attending and learning from his course and that it will provide him with some level of value in the future.
3. At hearing the Tribunal expressed concerns regarding the remuneration the applicant would expect to receive compared to the high monetary outlay for his Australian course of studies and the time required to undertake them. The applicant claimed that once he had established his business, his net profit would be approximately AUD2,500-AUD3,500 per month and therefore he would recoup the cost of his studies within one to two years, with the potential for further profits. No evidence was provided to support these claims. Whilst the Tribunal has some doubts, the Tribunal is prepared to give the applicant the benefit of the doubt, noting he has relevant business qualifications, some hospitality experience and contacts and has the support of his father who has been successful.
4. Overall, the Tribunal is satisfied that the applicant's courses are of real value to his future in the Philippines. This supports his claim to intend to stay in Australia only temporarily.

1. The Tribunal considers the applicant's immigration history to be favourable. The applicant has not spent extensive time in Australia. This is the applicant's first and only application for a student visa. He has not engaged in 'course hopping' and the Tribunal considers his courses to be consistent and complementary of one another.
2. The Tribunal further notes, he did not apply for a student visa upon his 'first' arrival in February 2023, but rather during his subsequent visit in May 2023. This indicates that at the time of applying for his tourist visa, he did not have any intention to apply for a student visa and that the intention to study in Australia was formed after the applicant arrived in February 2023.
3. The applicant has an extensive record of previous immigration compliance in other developed countries. This includes studying in France for approximately five months in 2018 and various visits to Japan, including recently in February 2024. The applicant has also travelled to Singapore, Hong Kong, the Republic of South Korea, Taiwan and Vietnam.
4. There is no evidence before the Tribunal that the applicant has had a previous visa for Australia, or any other country, refused or cancelled, other than the visa which is the subject of this review.
5. For these reasons, the applicant's immigration history lends some support to his claim to be a genuine temporary entrant.
6. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).

Does the applicant intend to comply with visa conditions?

1. For the applicant to meet cl 500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant's record of compliance with any condition of any visa they previously held, and the applicant's stated intention to comply with any conditions to which the visa may be subject.
2. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl 500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents' education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider).
3. Based on the evidence before the Tribunal, the Tribunal accepts that the applicant intends to continue to comply in the future with any conditions to which his visa may be subject. There is no evidence that she has breached any visa conditions to date.
4. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl 500.212(b).

Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

1. For the applicant to meet cl 500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl 500.212(a) and (b)).
2. There is no evidence of any other matters of relevance before the Tribunal.

1. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
2. 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 of Schedule 2 to the Regulations.

Representative for the Applicant: Mr Derrick Tu Nguyen Pham

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.