1. In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 108, 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications', made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
   • the applicant's circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant's future;
   • the applicant's immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
   • if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
   • any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
2. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant's circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

1. The applicant filed written materials which the Tribunal has reviewed and considered including the following documents:
   1. The Department file in the matter.
   2. Student Visa Information Questionnaire.
   3. Applicant's statutory declaration of 22 July 2024 addressing the delegate's concerns.
   4. Materials sent on 22 July 2025 including applicant statement of 22 July 2025, COE for Diploma of Mental Health, Copy of Certificate III in Individual Support, Statement of Activity for course payments.

1. The applicant also filed post-hearing submissions based on issues and concerns raised during the hearing as follows.
2. Materials filed on 27 November 2025 including submissions, legal documents showing land inherited by the applicant's father, statutory declaration from the sponsor of the applicant, 2018 Philippines National Migration Survey, bank balances of sponsors, property rates for properties of the sponsors, profile of overseas Filipino Workers 2022-2023, Cebu Province Profile.

1. The following matters of relevance were given during the evidence of the applicant at the hearing.
2. The Tribunal began by discussing the concerns arising from the Delegate's decision refusing the applicant's student visa application and thereon taking the applicant's evidence as follows.
3. The applicant stated she was presently 32 years old.
4. She has two children aged 13 and 7.
5. The applicant went back to the Philippines in November 2024. She went during the school break to visit her children.
6. The applicant also stated that her husband is also back in the Philippines and living with her parents and two children.
7. The applicant stated she has a sister in Australia. That her sister is an Australian citizen. She confirmed she is living with her sister.
8. The applicant's sister is 39 years old. Her sister has a child, a 2-year-old girl.
9. The Tribunal raised its concern with the applicant that it seemed her sister has brought her over to be a babysitter for the 2-year-old child. The applicant replied that she is not a babysitter for her sister. That her sister wanted to invest in her and providing support for her education here in Australia so she can improve herself and her family for the future.
10. The applicant confirmed she was not working as she did not have work rights on her current visa.
11. That after finishing her caregiving course, she proceeded to the mental health course as both are connected and she wanted to expand her knowledge.
12. The applicant stated that the mental health course is not available in the Philippines.
13. That the Individual Support course is a caregiving course.
14. That her parents own their home. The applicant also has her own house back in the Philippines. She did not have formal or legal ownership papers to her house.
15. The applicant came to Australia in May 2023 on a visitor visa.
16. The applicant stated that she worked from September 2017 till August 2023, with her company allowing her to take a 3-month vacation leave. She worked in the retail industry back in the Philippines.
17. The applicant completed the Philippines caregiving course in Feb 2017.
18. Then she started working in the retail industry in September 2017.
19. She did not work in the caregiving industry as there were not many jobs and there were more jobs in the retail industry in the Philippines.
20. She needed a job quickly in the Philippines to provide for her kids. It was easy to get a job.
21. The Tribunal raised its concern that the applicant had stated that there were not many jobs in the caregiving industry so why study caregiving now. The applicant replied that she and her sister have a plan to set up an aged care facility. That Filipinos who work overseas and come back to retire, they want to service them.
22. The Tribunal raised its concern that there was no business plan and no evidence from her sister concerning the plan to set up an aged care facility back in the Philippines. The applicant replied that her sister wants to invest in her, after she finishes her study, she will go home and do a business, they will be partners, her sister will put in the capital, and the applicant will be the industry partner, their joint plan is to build a small caregiving facility, that her father owns land there, so they can build, and with the help of family members run the business.
23. The Tribunal also raised its concerns that the written submissions did not reflect this plan to set-up an aged care facility back in the Philippines. The applicant and her representative discussed the written submissions. The written submissions were examined and the differences in claims identified as a concern.
24. The Tribunal raised its concern about the lack of her sister giving evidence. The applicant replied that she had discussed her business plans with her sister.
25. The applicant confirmed she has no military or police issues back in the Philippines.
26. The applicant discussed the end date of her course. She asked for a chance to stay and study and that she will go home. That her sister is in Australia but that is not her reason to stay in Australia. That she has her own family back home.
27. The applicant's representative summarised the applicant's case including that the applicant's studies did not lead to permanent residency, the applicant has family back home, and her study and career plans are reasonable.
28. Time was granted for post-hearing submissions to address matters and concerns raised during the hearing.
29. The hearing concluded.

1. The applicant stated she has no military service commitments back home.
2. The applicant stated she has no legal concerns back home.
3. The applicant has complied with her visa conditions. There is no adverse visa matters noted on her file.
4. The applicant has successfully completed her Certificate III in Individual Support.
5. The applicant is pursuing studies in the healthcare field, a field in which she already has qualifications from the Philippines. The course is not available back home.
6. The applicant has her children and husband back in the Philippines, and these family ties provides an incentive to return. However, the applicant would also be able to sponsor her family if she does obtains a visa to remain and study in Australia.
7. The applicant has a house in the Philippines also. So does her family. There are assets that provide an incentive to return.
8. The applicant's Australian sponsor has financial standing and ability. However, there are concerns with these funds which are discussed below.
9. The statistical data does show that the City of Cebu has a viable large population base. That there are a large number of overseas Filipino workers and the importance of remittances.
10. These are all matters that positively assist and are a credit to the applicant's case.

Analysis of applicant's claims and evidence against relevant criteria

1. The Tribunal has reviewed and considered all the material filed by the applicant and her evidence given during the hearing.
2. The Tribunal is concerned by the evidence given by the applicant during the hearing concerning the business plan with her sister where she would complete her studies, return to the Philippines and her sister would provide the capital to invest and start up an aged care facility. That her sister wanted to invest in her.
3. However, if this was the case with respect to her sister wanting to invest in her, and her plan was to study in Australia, and return to the Philippines and with her sister's capital investment to open an aged care facility, this was not mentioned in her initial student visa application, and neither was it mentioned in her initial statement filed with the Tribunal on 22 July 2024.
4. The Tribunal refers to the initial student visa application submitted by the applicant to the Department. In there, the applicant only states that she will return to the Philippines and look for a job. Her words as written are:

"I WILL LOOK FOR JOB ABOUT HEALTH CARE AND MENTAL HEALTH WHICH I WILL STUDY."

1. There is nothing in the initial student visa application about her sister investing in her education, her father's land, and plans to open an aged care facility back in the Philippines.
2. However, in fairness, it is open to the applicant to update her intentions or provide further evidence of her intentions at the Tribunal stage of the review.
3. The applicant filed a statement with the Tribunal on 22 July 2024. It is submitted as a statutory declaration.
4. In her statutory declaration of 22 July 2024, which seeks to address the concerns of the delegate, there is nothing in there about her sister investing in her education and plans to open an aged care facility back in the Philippines. Even in this sworn statement, the applicant only states she will return to work in the Philippines. Nothing is mentioned about opening an aged care facility, her sister's investment, the capital source or her father's land.
5. It is only at the hearing that the applicant now says she has a plan with her sister of investing in her education and for providing the capital to open an aged care facility in the Philippines.
6. Furthermore, no draft business plans, or feasibility material has been provided to the Tribunal. This is concerning as the applicant has no prior experience in working in aged care, her past work being in retail.
7. The Tribunal has also considered the statutory declaration of the applicant's sister sworn and filed after the hearing. The sister in her sworn statement gives little information that may amount to a feasible business plan or proper details of an investment plan for an aged care facility.
8. Even whilst accepting the general nature of the statistics provided, including accepting that many Filipino work overseas, the large population in Cebu, and remittances, there was no proper verifiable evidence that there is a need for aged care facilities in the Philippines.
9. The applicant also submits that Filipinos have a deep culture of respect for the elderly. The Tribunal accepts this as a reasonable statement. However, the further claim that there is a demand for formal care services is not proven. As stated, no business plans or feasibility studies were provided to the Tribunal which might suggest that such a business is viable.
10. Whilst the applicant provided a bank balance of credit of over AUD $360,000 belonging to her sister's husband, there was no evidence from the sister's husband of any legal commitment to put those funds or part thereof to use in a business in the Philippines. No sworn statement from the sister's husband or a written legal undertaking to send and commit those funds or part thereof to an aged care facility in the Philippines is provided.
11. Furthermore, of concern are the bank statements themselves.
12. Both bank statements of the sister and her husband are not full detailed bank statements.
13. The bank statement of the sister's husband only shows a credit balance of $364,200.00 as at 27 November 2025. It does not show when those monies came in, their source or holding period or transaction history.
14. The bank statement of the sister shows an incoming transfer of $25,000.00 on 27 November 2025 and a debit of $15,000.00 on the same day, equalling a balance of $5340.86. It does not show their holding period and transaction history.
15. Little weight can be given to such opaque and bank statements.
16. There was little objective logical evidence of a plan to open an aged care facility, and to invest such large Australian monies of her sister's husband as claimed.
17. Neither does the Tribunal accept that such future business plans that require regulatory, financial, property, and significant planning can arise at the hearing but not be mentioned in the initial student visa applicant and the initial statement filed with the Tribunal.
18. On the basis of the above concerns, the Tribunal does not accept that the applicant's sister wants to invest in her education and there is a plan to invest capital and open an aged care facility in the Philippines.
19. The Tribunal is also concerned about the applicant's sister in Australia having a 2-year-old child and whether the applicant has been brought over or is here to assist with babysitting.
20. The timing and birth of the 2-year child of her sister in Australia is very close to the applicant arriving in Australia. The applicant arrived in Australia in May 2023. The applicant's evidence is that her sister has a child in Australia that is 2 years old.
21. Whilst the applicant denied being a babysitter to her sister's 2-year-old child, her timing of arrival and the age of the child concern the Tribunal.
22. No material was provided post-hearing to show that the child is in regular daycare such as a letter from a registered day-care provider or other carer. Whilst appreciating that her husband is retired and her sister only only works part-time, there is little to explain why the applicant arrived near to the arrival of her sister's child.
23. Even considering and giving credit the above listed positive aspects of the applicant's case, the Tribunal finds that the applicant has little incentive to return to the Philippines. Her past work experience has been in retail, her recent claims at the hearing about a business plan with her sister to open an aged care facility were unsupported by logical evidence and contradicted her initial claims in her student visa application and initial sworn statement filed in the Tribunal, and her arrival into Australia coincided with the birth of her sister's two-year-old child. These concerns show that there is little incentive to return to the Philippines and the student visa is being used to primarily maintain residence here in Australia.
24. The Tribunal is not satisfied the applicant intends genuinely to stay in Australia temporarily as a student.

1. Based on the above analysis and consideration, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily.
2. 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.
3. 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.
4. 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: Mrs Marimi Tanag (MARN: 1386887)

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.