Elia (Migration)

[2025] ARTA 2146

Elia (Migration) [2025] ARTA 2146 (10 July 2025)

Decision and
Reasons for Decision

Applicant:	Elia
Respondent:	Minister for Immigration and Citizenship
Tribunal Number:	2409162
Tribunal:	General Member F Robertson
Date:	10 July 2025
Decision:	The Tribunal sets aside the decision under review and remits the application for reconsideration in accordance with an order that the applicant meets cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth).

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – study plans for career change – courses to benefit future career – family and property in in home country – business opportunities in Indonesia – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 499; Direction No 108

Migration Regulations 1994, Schedule 2 cl 500.212

CASES

Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1 [32]

Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 106

Vidiyala v Minister for Home Affairs [2018] FCA 1973

Statement made on 10 July 2025 at 1:46pm

Statement of reasons

INTRODUCTION

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the 'Act').

2. The applicant applied for the visa in October 2023. The delegate refused to grant the applicant the visa because they were not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the 'Regulations').

3. The applicant has applied for review of that decision. On 17 April 2025, the applicant provided a completed student visa information form to the Tribunal. I have also had the benefit of written submissions from the applicant’s representative together with evidence in relation to the applicant’s course progression.

4. The review application was heard today, 10 July 2025. The applicant was represented at the hearing by their registered migration agent.

5. Following the hearing, I have determined that the applicant is a genuine applicant for entry and stay as a student and meets cl 500.212 of Schedule 2 of the Regulations. Accordingly, the decision under review will be set aside and the application remitted for reconsideration on that basis. These are my reasons.

   CRITERIA FOR THE GRANT OF A STUDENT VISA

6. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. At least one applicant must satisfy the primary criteria in cl 500.211 to cl 500.218. The issue in the present case is whether the applicant satisfies cl 500.212 of the Regulations, in other words, whether I am satisfied that they are a genuine applicant for entry and stay as a student.

7. Clause 500.212 is in the following terms:

   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.

8. 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 (the 'Direction').[1] The Direction requires the Tribunal to have regard to a number of specified factors in relation to:

   (a)the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

   (b)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;

   (c)if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

   (d)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.

   [1] The relevant text of the Direction is reproduced in the attachment to this decision, albeit with an amendment to correct what I consider to be a clear and obvious typographical error that appears in paragraph 14(iii/b).

9. The factors specified in the Direction are not a checklist but intended as a guide to considering whether the applicant satisfies cl 500.212(a), which is commonly referred to as ‘the genuine temporary entrant criterion’.

10. Subclauses 500.212(a), (b) and (c) involve discrete inquiries.[2] To satisfy cl 500.212, all of subcls (a), (b) and (c) must be met and an unfavourable finding in relation to either (a) or (b) forecloses the possibility of a favourable outcome.[3] An applicant is only a genuine applicant for entry and stay as a student pursuant to cl 500.212 if they satisfy subclauses (a) and (b), in light of 'any other relevant matter' pursuant to subcl (c).[4]

    [2]        Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1 [32] (Jagot, Bromwich and Lee JJ); Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 106, [14]–[15] (Allsop CJ); Vidiyala v Minister for Home Affairs [2018] FCA 1973 [28].

    [3]        Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1 [32] (Jagot, Bromwich and Lee JJ).

    [4]        Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1 [35] (Jagot, Bromwich and Lee JJ).

    CONSIDERATION, FINDINGS AND REASONS

11. As already observed, the issue in the present case is whether the applicant satisfies cl 500.212, in other words, whether they are a genuine applicant for entry and stay as a student.

12. In the present case, the delegate concluded that the applicant did not satisfy cl 500.212 on the basis that they were not satisfied that the applicant intended genuinely to stay in Australia temporarily.

13. The delegate noted that eight years had passed since the applicant last undertook formal study and that she had not adequately explained this gap. While noting the applicant had worked as a flight attendant until 2021 the delegate was not satisfied with the explanation for her activities during the following two years.

14. The delegate found that although the applicant had immediate family in Indonesia, these personal ties were not sufficient, on their own, to constitute a strong incentive to return after completing her studies. The presence of the applicant’s sister in Australia was considered a factor reducing her incentive to return home.

15. The delegate was not satisfied that the applicant had sufficiently researched her study options in Australia, Indonesia, or other countries. He also found that she had not demonstrated a realistic understanding of her potential circumstances in Australia, casting doubt on her motivation to study there. While the delegate acknowledged the possibility of a career change, they were not satisfied that the proposed course would result in a clear and substantial improvement in the applicant’s employment or remuneration prospects. The delegate found that the applicant had not shown that the course offered greater benefits than her existing qualifications and experience.

    Does the applicant intend genuinely to stay in Australia temporarily: subcl 500.212(a)

    The applicant's circumstances, immigration history and any other relevant matters

16. In reaching my decision, I have considered all the material before me and, importantly, have had the benefit of hearing the applicant give oral evidence. This included her explanation of her motivations for undertaking study in Australia, her experiences to date, and her detailed plans for the future. I place significant weight on this, which was I note was an advantage not enjoyed by the delegate.

17. Having heard from the applicant directly, I am prepared to accept that her interest in cooking developed progressively through her experiences as a flight attendant and during time spent with her family after the conclusion of her contract with Batik Air. Additionally, I am prepared to accept that the COVID-19 pandemic materially disrupted her employment prospects, contributed to the delay in further study and was part of what lead the applicant to consider a career change. I find her account credible and consistent with broader contextual circumstances in Indonesia during that time.

18. The delegate also considered that the applicant’s family ties in Australia, specifically her sister, reduced her incentive to return to Indonesia. Having heard from the applicant, I am satisfied that while her sister’s presence in Australia provided initial support, I am prepared to give her the benefit of the doubt that she has emotional and economic to Indonesia. I am prepared to accept that she owns significant assets in Indonesia, including an apartment in Jakarta and land in Bali. I accept that she maintains regular contact with her mother and brother, owns property in Indonesia, and plans to return and establish a business using the skills gained from her studies in Australia. At the hearing the applicant discussed the planned future airport that was being constructed in Bali and the impact of that development on her future business plans given the proximity of the land she owns in Bali to that new development. It was clear to me that the applicant has carefully considered, and continues to consider, her future business and employment opportunities.

19. Although the applicant holds a degree in English literature, I accept her explanation that her interest in cooking developed later in life. I am satisfied that the proposed course of study is not inconsistent with her changed career direction, and I am satisfied that it is reasonable in the circumstances.

20. I have also considered and attached significant weight to the applicant course progression. She has completed a Certificate III in Commercial Cookery, a Certificate IV in Kitchen Management and will is presently studying a Diploma of Hospitality Management. This diploma course finishes in October 2025. I am prepared to accept that the applicant’s course is of value to her future and will create employment or business opportunities for the applicant in Indonesia.

21. The applicant has acknowledged the availability of cookery-related courses in Indonesia but has provided plausible reasons for not pursuing them. I am satisfied these are reasonable grounds for choosing to study in Australia. I am prepared to accept the applicant’s estimated income projections Indonesia upon graduation are not unrealistic.

22. I accept that the course is relevant to the applicant’s intended employment as a chef and eventual restaurant owner. Her plan to incorporate family recipes and Indonesian cuisine adds credibility to her business intentions.

23. The applicant has no military obligations and has not claimed any political or civil unrest affecting her ability to return to Indonesia.

24. In all the circumstances, I am prepared to accept that the applicant intends genuinely to stay in Australia temporarily and this satisfies subcl 500.212(a).

    Does the applicant intent to comply with the conditions subject to which the visa is granted: subcl 500.212(b)

25. The applicant’s visa is currently subject to ‘condition 8101 – no work’. There is no evidence before me that the applicant has failed to comply with that condition. I am satisfied that that the applicant intends to comply with the conditions subject to which the visa is granted as required by subcl 500.212(b).

    Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter: subcl 500.212(c)

26. I have already concluded that the applicant meets subcls 500.212(a) and (b). The remaining question is whether the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter: subcl 500.212(c).

27. Based on the evidence and material before me, there are no other matters which, in my opinion, impact upon whether the applicant is a genuine applicant for entry and stay as a student. In my view subcl 500.212(c) is met.

    Conclusion

28. The effect of the above findings is that I am satisfied that the applicant meets cl 500.212 of the Regulations on the basis that they are a genuine applicant for entry and stay as a student as required by cl 500.212. In those circumstances, the decision under review will be set aside and the applicant remitted for reconsideration in accordance with my findings.

    DECISION

29. The Tribunal sets aside the decision under review and remits the application for reconsideration in accordance with an order that the applicant meets cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth).

Date of hearing:	10 July 2025
Representative for the Applicant:	Mrs M Dahiya

Attachment - Direction No 108

Part 1 - Preliminary

…

Interpretation

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.

…

Preamble

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.

Part 2 – Directions

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.

The applicant’s circumstances

6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

7.For primary applicants of Student visas, decision makers should have regard to the value of the course to the applicant’s future.

8.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

9.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.

10.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

11.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.

Value of the course to the applicant’s future

12.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.

The applicant's immigration history

13.An applicant’s immigration history refers both to their visa and travel history.

14.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:

(i) 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

(ii)      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.

(iii)(b)  Previous travels to Australia or other countries, including:

(iv)     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;

(v)      whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

(vi)     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

(vii)    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

15.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.

Any other relevant matters

16.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.