1. In considering the requirements of cl 500.212, the delegate was concerned about incentives for the applicant to return to Thailand, that she was not showing progression in her field of study, in which she was already qualified and regression to Certificate and Diploma level courses. The delegate was also concerned that the applicant had not sufficiently demonstrated the value of the proposed courses to her future.

1. The applicant submitted a CoE for a General English course at Max English (15 April 2024 - 15/09/2024) and the CoE's for courses previously enrolled in but with later dates: Certificate III in Commercial Cookery (23/09/2024 - 23/03/2025), Certificate IV in Kitchen Management (24/03/2025 - 21/09/2025) and a Diploma of Hospitality Management (22/09/2025 - 22/03/2026), all at ALTEC College**.**
2. The PRISMS record confirms enrolment in the courses set out above.
3. The applicant also submitted evidence that she works part time at 3 different restaurants. The applicant stated that she wants to be a chef or operate her own restaurant or café in Thailand.
4. Amongst other documents, the representative submitted:
   • Updated GTE statements, which included the applicant stating that a commercial cooking certification from Australian educational institution is regarded favourably in Thailand and would help her gain employment there or to be able to eventually own her own restaurant in Phetchabun. She is committed to completing her courses in Australia and returning to Thailand. She will remain here on a temporary basis to complete her education. She wants to return to Thailand on completion of her courses here. It is her birthplace, and she wants to return to her family and community. She is committed to caring for her father in his old age.
   • Evidence of land ownership in Phetchabun.
   • Evidence of completion of Max General English course, Level 5 (GE Advanced) (15 April 2024-13 September 2024).
   • Evidence of completion for Certificate III in Commercial Cookery at ALTEC (23/09/2024 - 23/03/2025) dated 23 March 2025.
   • A letter from ALTEC dated 24 April 2025 confirming the applicant's enrolment in the Certificate IV in Kitchen Management.

1. The applicant appeared before the Tribunal by video on 8 May 2025 to give evidence and present arguments. Her representative attended the hearing.
2. The Tribunal noted that the issue before it is whether she meets the genuine temporary entrant criterion as per cl 500.212. It outlined these requirements and Direction No.108. It noted the change from Direction 69 but that the new Direction 108 was essentially the same as Direction 69.
3. The applicant's father and older sister are in Thailand she has regular phone contact with them. She has no family living in Australia. She will return to her hometown to be with her father on completion of her studies in Australia. Although she would like to be employed as a chef, the option of owning her own café or restaurant in Phetchabun is ideal as she would then be able to care for her father.
4. She had been enrolled in the Certificate III in Commercial Cooking course at ALTEC that commenced in August 2023 and completed 7 or so subjects towards it.[5] However, she was advised by her education agent to undertake another English course so she could demonstrate English language proficiency for the student visa application, as had been requested by the Department. [6]
5. There are no civil and/or political issues which will act as a disincentive for her to return.
6. The applicant confirmed that despite payslips indicating that she was resident in Western Australia in July to October 2024, this was not the case. She said she was resident in Victoria throughout this period, and it was an error in the employer's records.
7. The applicant's representative submitted a number of documents after the hearing further addressing concerns raised by the delegate in the decision to refuse the visa and clarifying various issues raised during the hearing.
8. For the following reasons, the Tribunal sets aside the decision under review and remits the visa application for reconsideration.

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 meets cl 500.212.
2. Clause 500.212 requires as follows:

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

(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

(i) the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and

(ii) the applicant's stated intention to comply with any conditions to which the visa may be subject; and

(c) of any other relevant matter.

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. As to the applicant's circumstances in her home country, Thailand, no evidence has been presented that her economic circumstances would present as a significant incentive her not to return to Thailand. There is no evidence that political and civil unrest would result in her choosing to remain in Australia indefinitely. There is no evidence of military commitments that would present as a significant motive not to return to Thailand.
4. I accept her evidence as to her reasons for choosing to study in Australia. I also accept that her evolving reasoning for changing her career path from teaching chemistry to commercial cooking, came about through wanting to improve her English skills. Specifically in regard to the regression in hierarchy of study, I accept the applicant's written and oral evidence that she needed to study English to improve her suitability for teaching in Thailand and in doing this decided that she wanted a career change. I accept that studying at Certificate and Diploma level are practical ways to achieve this career change.
5. I note that she has strong family ties in Thailand, including her widowed father to whom she is close and feels responsibility. I accept that she wants to return to Thailand and look after her father. I consider these factors are indicative of a person who is only a temporary entrant and wishes to return to their country.
6. As to her circumstances in Australia, I accept that she has no family in Australia or is in a relationship or has other ties which would act as a disincentive to return. I accept the evidenced presented that her wages earnt in waitressing here have been modest, and do not present as a strong incentive to remain here.
7. It was of significant concern that the applicant's initial enrolments indicated that she would complete her studies in September 2025. However, current CoEs indicate that she will complete her studies in March 2026. Based on the applicant's evidence during the hearing supported by documents held on the Department file, I accept she paused her Commercial Cookery course to complete a 20-week English course, so she could achieve higher English language proficiency. In this particular case, I accept that the applicant did not deliberately delay her studies to prolong her stay in Australia.
8. The evidence indicates that the applicant has been continuously enrolled successfully completing subjects while applying for a student visa. Since applying for the visa, she has completed the Max English course and Certificate III in Commercial Cookery and will complete the Certificate IV in Hospitality Management in September 2025. I accept that she has been continuously enrolled, successfully completing subjects and achieving course progression which is indicative of a genuine student.
9. I accept her evidence as to the value of the courses to her future. She has provided detailed and consistent oral and written evidence as to her future employment plans and the value of studying these courses to her future.
10. The applicant stressed that she would return to Thailand on completion of the Diploma of Hospitality Management. I note no evidence has been presented that she will need to stay further in Australia to study for her future career aim following completion of this course on 22 March 2026 and should she choose to do so and present a further application for a student visa or enrolment in a further course, this would be of concern.
11. As to the applicant's immigration history, applicant arrived in Australia on a Student visa and applied for a further Student visa onshore. She had not previously visited Australia.
12. Based on the above and having considered the applicant's circumstances, immigration history, and other matters it considers relevant, I am 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). For visa applications made on or after 1 July 2022, condition 8208 (no critical technology related study without approval) must also be imposed.
3. The evidence before me is that the applicant has abided by conditions of the visas she has held to date.
4. Based on the above, I am 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)). There is no other relevant matter to consider. The Tribunal finds the applicant meets cl 500.212(c)
2. Accordingly, I am 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 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 John Theeradech Paopeng (MARN: 0851174)

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.

[1] Evidence of qualification (1st Class Honours) and her data collection employment was submitted to the Department. The teaching degree included a year of practical training.

[2] Evidence of completion submitted to the Tribunal.

[3] Death Certificate submitted to the Department.

[4] Evidence of that appointment submitted to the Department

[5] A Record of Results from ALTEC dated 23 April 2025 confirms this successful study.

[6] Letters on the Department file indicate that the applicant was requested to provide documents in regard to her English language proficiency in February 2024 and that she requested extensions of time in which to do.