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 Tribunal has taken into consideration evidence adduced to the Department and Tribunal, including pre-hearing and post-hearing submissions and the applicant's oral evidence at hearing. 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 applicant is a national of Indonesia. He completed year 12 equivalent secondary school. He commenced but did not complete a Bachelor of Economics at Atmajaya University, Indonesia.
2. The applicant is not a highly academic student. He told the Tribunal that he struggled to complete his Bachelor degree as he had significant issues with his university supervisor who was consistently unavailable to discuss his thesis and he found learning difficult. For this reason, the applicant now seeks to pursue a vocational pathway in learning. Whilst studying his Bachelor degree, the applicant worked in sales/marketing for Alliance, an insurance company, for two years (three days per week).
3. The applicant first arrived in Australia on 1 August 2023 on a visitor visa (Subclass 600) which was valid until 1 November 2023. At hearing he told the Tribunal the purpose of his travel was to visit a friend and attend a Hillsong concert as he is a Christian. He has not departed Australia since his arrival.
4. On 10 October 2023, the applicant applied for the student visa which is the subject of this review. At the time of application, the applicant applied to study a Certificate IV in Marketing and Communication at the Alpha Institute from 4 December 2023 until 1 December 2024 (tuition fee AUD6,000). Confirmation of enrolment records confirm he has completed this course and it is the first of his packaged study program.
5. The applicant gave evidence that he is currently enrolled and studying a Diploma of Marketing and Communication at the Alpha Institute from 6 January 2025 until 5 July 2026 (tuition fee AUD9,000). He is also approved to study an Advanced Diploma of Marketing and Communication from 3 August 2026 until 30 July 2028. Confirmation of enrolment documents confirm the same.

The circumstances in the applicant's home country

1. The applicant is a 25-year old single male from Jakarta, Indonesia. He has never been married or in a de facto relationship. He has no dependent children. In Indonesia, his family comprises of his parents and sister. Prior to coming to Australia, he resided with his parents and lived a comfortable life in Indonesia which he claims he can return to upon the completion of his Australian studies. The applicant maintains frequent contact with his family and is financially supported by his father who operates two businesses, including a water distribution business and a package delivery business which he has run for 12 and four years respectively. As the eldest child, he is expected to eventually take over the family business.
2. As referred to above, whilst attempting to study a Bachelor of Economics, the applicant worked as a salesperson at Alliance insurance for two years. He claims, it is this previous work experience that piqued his interest in a marketing career. The applicant told the Tribunal that he aspires to work as a marketing professional. He plans to initially work for a multi-national company to learn to sell products successfully and then to work for and take over his father's business.
3. When asked why he could not undertake his marketing courses in Indonesia or in that region, he claimed because they are mostly offered as part of a university degree which does not suit his academic abilities and learning style as evidenced by his previous difficulties at university. He also claimed that university degrees in Indonesia are heavily based on theory and lack practical learning. On a vocational level, in Indonesia, the program curriculum is inconsistent and has a poor alignment with industry needs. In support, the applicant provided various media articles which indicate that vocational education in Indonesia suffers from inadequate industry collaboration and poor market relevance.
4. The applicant also claims that after researching programs abroad, he concluded that Australian marketing management courses offered the best combination in terms of quality, reputation, practical content and with reasonable costs. He told the Tribunal that in Indonesia, Australian studies are considered to be superior to Indonesian qualifications and therefore would be highly regarded and increase his employment prospects. The applicant considered multiple institutions in Australia and chose the Alpha Institute based on a number of factors including student satisfaction rates, recommendations and location. The Tribunal has carefully considered the applicant's evidence and documents filed in support and accepts the applicant's reasons for not studying in his home country. The Tribunal is also satisfied that the applicant has economic and family ties which will provide the applicant an incentive to return home after the conclusion of his studies.
5. Military service is not compulsory in Indonesia. The Tribunal is not aware of any political and/or civil unrest in Indonesia that would be a relevant consideration for this applicant.
6. 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 resides with his brother in Riverwood, Sydney. His brother is currently on a bridging visa, having originally arrived on a visitor visa and has applied for a student visa which is yet to be determined by the Department. His brother is currently studying business. Whilst the applicant's brother is onshore, he is on a temporary visa only and therefore the Tribunal does not consider him to be a strong incentive to remain in Australia.
2. 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.
3. The applicant has no employment history in Australia and is financially supported by his family in Indonesia who operate multiple businesses.

The value of the course to the applicant's future

1. The Tribunal is satisfied that the applicant's Australian courses are of real value to his future in Indonesia. The applicant holds a secondary school qualification in Indonesia only. It is not a case where the applicant is proposing to pursue a lower qualification in studies where he already holds relevant and/or higher qualifications or is seeking to pursue studies in an entirely unrelated field. The Tribunal accepts the applicant has a genuine interest in marketing as evidenced by his employment history and seeks to pursue a professional marketing career with long-term plans to take over his father's business.
2. Whilst entry level roles pay less than in Australia, the cost of living in Indonesia is considerably lower than in Australia and the income he expects to earn upon returning would allow for a comfortable standard of living. Furthermore, his long-term goal is to contribute to and grow the family business where income would not be limited to a fixed salary. The applicant also claims Indonesia's rapidly growing economy presents strong opportunities for the applicant's marketing career.
3. When pressed about the relevancy and value of his courses and why he could not simply 'learn on the job' from his father, he claimed by having outside industry knowledge it would help improve and upgrade the business. The applicant gave convincing evidence that his course would enhance his future employment prospects and improve his father's business, including teaching him to analyse and understand market trends, implementing marketing strategies, developing business plans, dealing with consumers and leading teams. These qualifications will help position him for future leadership roles such as a marketing director and enable him to expand the family business. The Tribunal accepts the applicant's claims.
4. The Tribunal also accepts the applicant's reasons for pursuing a vocational educational pathway and accepts that the applicant is not suited to university studies. The Tribunal also accepts his evidence that vocational training will provide him with more practical skills compared to a higher education degree which his heavily theory based. The Tribunal accepts that Indonesian employers prefer overseas graduates, particularly those who have obtained qualifications in Australia.
5. Overall, his evidence to the Tribunal demonstrated a level of research and planning in relation to his proposed study in Australia and he gave persuasive evidence that the courses were of value to his future.

1. The Tribunal notes the applicant first arrived in Australia on a visitor visa and within two months applied for a student visa. The Tribunal does not consider it likely that he travelled to Australia for the first time for a church concert and then decided to commence a packaged course of studies of four years and seven months duration once here. The Tribunal does not accept that he would have been in a position to change his plans in such a significant way. The Tribunal finds that he more likely travelled to Australia with the intention to commence his studies here and apply for a student visa. This causes the Tribunal some doubt about his stated intentions regarding his student visa.
2. Whilst the applicant has not departed since his initial arrival, in his favour, this is his first and only application for a student visa. He further has not engaged in 'course hopping' and the Tribunal considers his courses to be consistent and complementary of one another. His courses are also consistent with his employment history and his future career plans. His course progression as indicated by a certificate from his educational provider and PRISMs records also supports that he has applied himself to his studies including while as the holder of a bridging visa and awaiting the outcome of this review. The Tribunal considers this to be strong evidence that he is a genuine student.
3. The applicant has undertaken international travel including twice to Singapore in 2023 for a holiday each for three weeks duration, to Turkey in 2022 for one week and Malaysia in 2014 for three days. Other than the student visa, which is the subject of this review, there is no evidence before the Tribunal that the applicant has had a visa in Australia or for any other country refused or cancelled.
4. Whilst the Tribunal initially had some concerns regarding the applicant's immigration history on balance the Tribunal is satisfied the applicant has a genuine intention to remain in Australia temporarily.
5. 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 Andreas Martano (MARN: 0317320)

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.