Gao (Migration) - [2025] ARTA 350

GAO (MIGRATION) [2025] ARTA 350 (10 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Ru Gao
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2316615

Tribunal:General Member L. Mojsin
Place:Sydney
Date: 10 March 2025
Decision:The decision under review is affirmed.

Statement made on 10 March 2025 at 10:20am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – courses the applicant is currently studying are not courses that she intended to study when she applied for the visa – change in study courses – not satisfied that the applicant genuinely intends a temporary stay in Australia – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, ss 9, 106
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 500.212
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 October 2023 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 18 July 2023. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The applicant was assisted in relation to the review.
At time of application, the applicant advised that her proposed course of study was Certificate IV in Marketing and Communication at Newton College.
The delegate in this review refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant was not a genuine applicant for entry and stay as a student.
The applicant lodged an application for review of the Department decision with the former Administrative Appeals Tribunal.
On 16 October 2023 the applicant provided Confirmation of Enrolments [CoE] to study Certificate IV in Marketing and Communication from 15/1//2023 to 14/10/2024, a Diploma of Marketing and Communication from 15/11/2024 to 14/1/2025, and an Advanced Diploma of Marketing and Communication commencing 15/12/2025 to 14/6/2027 at Melbourne Advanced Commerce Institute.
On 31 October 2023 the applicant provided CoEs to study a Certificate IV in Accounting and Bookkeeping from 15/11/2023 to 13/11/2024. The applicant also advised that she intended to study Diploma of Accounting commencing on 15/12/2024 and ending on 10/5/2026 and an Advanced Diploma of Accounting commencing on 15/6/2026 and ending on 13/12/2027 at Stanford College.
On 23 December 2024 the applicant was requested, by the Tribunal, to provide, in writing, all relevant information about the course(s) of study she was undertaking and her entry and stay in Australia as a student. Details of the information requested was set out in the Student Visa Information Form.
On 30 December 2024 the applicant provided a CoE to study a Diploma of Accounting commencing on 15/12/2024 to 10/5/2026 at Stanford College.
On 10 February 2025, the applicant was invited to attend the Tribunal hearing to be held on 28 February 2025 at 1.00 pm. The applicant was advised that she should provide a written submission setting out all claims made and maintained by 21 February 2025.
On 12 February 2025, the applicant responded to the Tribunal invitation and indicated that she would not take part in the scheduled hearing on 28 February 2025 and requested the Tribunal to make a decision on the papers, without holding a hearing.
Section 106(3) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) provides that a decision can be made without holding a hearing if
(a) the only parties to the proceeding are the applicant and a non - participating party to the proceeding or the hearing of the proceeding; and
(b) either:
(i) the decision is wholly in favour of the applicant; or
(ii) the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding; and
(c) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.
The term ‘adequately determined’ as per s 106(3)(c) is not defined in the ART Act.
The Tribunal’s statutory objective are set out in s 9 of the ART Act that states:
The Tribunal must pursue the objective of providing an independent mechanism of review that:
(a) is fair and just; and
(b) ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and
(c) is accessible and responsive to the diverse needs of parties to proceedings; and
(d) improves the transparency and quality of government decision‑making; and
(e) promotes public trust and confidence in the Tribunal.
The Tribunal has reviewed the Department file and the Tribunal file to ascertain if this review can be adequately determined in this instance and pursuing the objective of providing an independent mechanism of review as detailed in s 9 of the ART Act. The Tribunal does not consider that ‘adequately determined’ means a decision favourable to the applicant.
The Tribunal considers that in the context of s 106 and the ART Act more broadly, ‘adequately determined’ means that the Tribunal may make its decision without holding a hearing of the proceeding, thereby resolving the proceeding quickly, if it appears to the Tribunal that this can be done, where it would be reasonable to do so in all the circumstances and be consistent with the objectives of the ART.
On 18 February 2025 the Tribunal wrote to the applicant advising that the Tribunal, when making a decision on the papers, may either affirm the decision or set aside the decision under review and asked the applicant if there was any further evidence that she would like to submit to the Tribunal and to do so by 21 February 2025. The applicant was advised the Tribunal will cancel the scheduled hearing after that date and make its decision on the papers.
No further information was sent to the Tribunal.
Based on the evidence before it, the Tribunal has decided to give effect to the applicant’s request to make its decision without holding a hearing. The Tribunal is satisfied that it is able to proceed in a manner that is just and fair, noting that the applicant has been given additional time to provide any further information for its consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
The applicant submitted to the Department, in addition to her application, a statement regarding the Genuine Temporary Entrant Requirements.
The applicant provided to the Tribunal her Confirmation of Enrolments and response to the Tribunal’s Student Visa Information Form.
REASONS AND FINDINGS
The issue before the Tribunal is whether the applicant satisfied cl 500.212.
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.
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.
In Kumar v Minister for Immigration and Border Protection[1] the Full Court of the Federal Court held that the Direction requires that, in reaching the state of satisfaction required by cl 500.212(a), the decision maker should turn his or her attention to each factor during the decision-making process and consider whether and how that factor should be brought to bear in reaching that decision. The Court went on to note that [the Direction] does not impose a jurisdictional obligation to make a finding in respect of each factor irrespective of its materiality to the particular case. Less still is there an obligation, after forming the view that a factor was not material to the particular case, to express that conclusion in the statement of reasons.
[1] [2020] FCAFC 16 (24 February 2020)
In making its decision, the Tribunal has taken into account all the written and documentary material before it.
The applicant is a citizen of China. The Tribunal does not have any information before it that citizens of China, in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department, that indicate there is need for further scrutiny. Nor does the Tribunal have any information that the applicant or a relative of the applicant has an immigration history of reasonable concern.
The applicant does not have military service commitments that would present as a significant incentive for the applicant not to return to her home country and there is no political and civil unrest in China.
In regard to the applicant’s circumstances in her home country, the applicant graduated from Wei Hai Senior Technical School, obtaining a vocational qualification in Chinese Pastry Making. The applicant’s previous employment in her home country was stated to be Hemingway but she did not indicate her job title. She ceased that employment in January 2017. The applicant’s parents and her sister remain in China. The applicant has not provided evidence of any significant assets or financial ties in her home country. The Tribunal places weight on this factor as it is of the view that the applicant has not demonstrated any incentives to return to her home country.
In regard to the applicant’s circumstances in Australia, the applicant stated in her student visa application she is single. There is no information before the Tribunal regarding her circumstances in Australia, whether she has family in Australia or any other personal ties. The Tribunal cannot place any weight on this factor.
Movement records indicate that the applicant initially arrived in Australia on 21 August 2018. The applicant departed Australia on 27 January 2025 and returned on 31 January 2025. She has stated that she has not travelled back to her home country.
The applicant initially intended to study Certificate IV in Marketing and Communication. The applicant submitted to the Department it was her intention to complete her studies and return to China to find a sales job in a big company. The applicant claimed at the time of application that mastering English, knowing how to communicate with potential consumers and being able to acknowledge and predict the market are her advantages which will enable her to achieve success in sales.
The applicant responded the Tribunal’s request for information on 30 December 2024 and stated that that she did not complete a Certificate IV in Marketing and Communication, either at Newton College or the Melbourne Advanced Commerce Institute but she had completed a Certificate IV in Accounting and Bookkeeping in November 2023. The applicant also advised that she intended to study Diploma of Accounting and an Advanced Diploma of Accounting at Stanford College. A PRISMS record confirms the information provided by the applicant.
As for her reasons to study in Australia and not in her home country, the applicant states that she does not want to study accounting courses in China because its education system often emphasizes theoretical knowledge over practical application, which may limit her ability to gain hands-on experience. The accounting curriculum in China is more tailored to local standards, which may not fully prepare her for the global job market. Additionally, the limited use of English in coursework could hinder her ability to develop the international communication skills needed in today’s business world. By studying abroad, she can gain exposure to diverse perspectives, cutting-edge practices, and internationally recognized qualifications that better align with her career aspirations.
Whilst the Tribunal accepts that there are advantages to studying in Australia, including a diverse and multicultural environment and the ability for hands on experience, the applicant has claimed that the Australian curriculum provides internationally recognised qualification that align with her career aspirations to secure a position in China to work as an accountant or financial analyst in a reputable company. She does not explain how the Australian curriculum is able to assist her securing a job in China. She has not provided any information of enquiries she has made in that regard. The Tribunal places weight on this factor.
The Tribunal accepts that the applicant has maintained enrolment since being in Australia but the only course she stated that she has completed in the past 7 years since arrival in Australia in 2018, as the holder of a student visa, is a Certificate IV Bookkeeping and Accounting in November 2023. The Tribunal notes that the courses the applicant is currently studying are not courses that she intended to study when she applied for the visa. The Tribunal views with caution the applicant’s change in study courses.
But the Tribunal places great weight on her submission that Australia’s strong economy and demand for skilled accountants present excellent career opportunities for her. This indicates an intention to remain in Australia.
As to the immigration history of the applicant, there is no evidence before the Tribunal to suggest that the applicant has ever been refused a visa or had a visa considered for refusal or cancellation in Australia or any other country. The applicant maintains that she intends to return to China at the conclusion of her studies.
Having regard to the relevant factors in Direction 108, and after weighing up the applicant’s circumstances, immigration history and any other relevant matters, the Tribunal is not satisfied, on balance, that the applicant genuinely intends a temporary stay in Australia.
Accordingly, the applicant does not meet cl.500.212(a).
The Tribunal finds that the applicant is not a genuine applicant for entry and stay as a student as required by cl.500.212.
Given the above findings, the appropriate course is to affirm the decision.
DECISION
The decision under review is affirmed.
Dates of hearing(s): nil
Representative for the Applicant: Ms Ye Fan (MARN: 1793364)
Attachment – Direction No 108
DIRECTION NUMBER 108 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
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).
Dated:
Clare O’Neil

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.
Part 1 - Preliminary
Name of Direction
This Direction is Direction No. 108 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 108.
Commencement
This Direction commences on 23 March 2024.
Revocation
Direction No. 69, given under section 499 of the Act, is revoked.
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.
Application
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.
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.