Kandel (Migration) - [2025] ARTA 1040

KANDEL (MIGRATION) [2025] ARTA 1040 (3 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Dipak Kandel
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2317109

Tribunal:General Member M Simmons
Place:Sydney
Date: 3 July 2025
Decision: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(a) of Schedule 2 to the Regulations.

Statement made on 03 July 2025 at 4:16pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant – study difficulties supported by practitioner’s report – change of subject area – previous relevant work and future plans – wife and children in home country and financial support from family – supporting evidence and documentation provided very late – applicants and representatives must conduct proceedings responsibly – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Administrative Review Tribunal Act 2024 (Cth), ss 9, 56(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
CASE
Bunnings Group Ltd and Privacy Commissioner (Guidance and Appeals Panel) [2024] ARTA 42
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 4 August 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. The delegate in this case 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).
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), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The applicant appeared before the Tribunal on 5 June 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother, Dinesh.
The applicant was assisted in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal sets aside the decision under review and remits the visa application for reconsideration.
REQUIREMENT TO ASSIST TRIBUNAL
Any person representing a party must use their best endeavours to assist the Tribunal to achieve its statutory objective.[1] 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.[2]
[1] s 56(2), Administrative Review Tribunal Act 2024.
[2] s 9, Administrative Review Tribunal Act 2024.
Justice Kyrou, President of the Administrative Review Tribunal, has stated that:
Consistent with s 9 of the ART Act, the Tribunal has a responsibility to manage its cases, from lodgement until final resolution, expeditiously. It must retain control of the progress of its cases rather than allowing the parties to determine the pace at which a case proceeds…
Consistent with s 56 of the ART Act, parties and their representatives must conduct proceedings before the Tribunal responsibly and in a manner that supports the Tribunal to achieve its objective in s 9.[3]
[3] Bunnings Group Limited and Privacy Commissioner (Guidance and Appeals Panel) [2024] ARTA 42 (17 December 2024), 7-9.
In this matter, the Tribunal was not assisted by the very late provision of material in circumstances were the applicant and his representative, who is a legal practitioner, were requested to provide all material well in advance of the hearing.
On 20 January 2025, the Tribunal wrote to the representative asking that they submit all relevant material within 14 days. An extension was requested and granted by a Tribunal Officer, requiring all material to be submitted by 17 February 2025. Upon request a further extension was granted to 24 February 2025. On 24 February 2025 the legal practitioner emailed the Tribunal stating he will provide all documents by 25 February 2025. Supporting evidence was provided on 26 and 27 February 2025 and 21 March 2025.
A video hearing was set down for 2 April 2025. At the applicant’s request this was changed to an in person hearing, scheduled for 21 May 2025. The hearing invitation for the May hearing stated: “Please provide all documents you intend to rely on to support your case by 14 May 2025 if you have not already done so”. Further evidence was submitted on 15 May 2025.
Due to issues with the Sydney trains network, the 21 May 2025 hearing was postponed on the day of that hearing until 5 June 2025. A new hearing invitation was sent on 21 May 2025, which asked the applicant and his representative to send the Tribunal a copy of any further documents to be relied on at least seven days before the hearing.
No further material was received until the day of the hearing. The hearing was listed for 9.30am on 5 June 2025. The legal practitioner emailed the Tribunal to submit supporting material at 8.27am and 9.12am, as well as submitting documents by hand during the hearing.
The Tribunal sought to establish from the legal practitioner why this material was not provided at least seven days prior to the hearing, noting that the Tribunal had first requested all material be provided five months earlier. The legal practitioner suggested they had reorganised, updated and added to some earlier submissions and the supporting evidence. There was no suggestion any of this new information was only obtained in the days before the hearing.
The Tribunal noted there is a statutory requirement to assist the Tribunal, and noted that it is important that a Member can review all material before a hearing in order to ask the applicant informed questions, such that they have a fair and meaningful opportunity to present their case. It noted that much of the material that was the day of the hearing did not on its face seem to have been recently obtained. The representative indicated that all the attachments labelled “A to R” were already before the Tribunal and had been submitted, however attachments “S to Z” were all new documents. The new material included documents related to the economic conditions in Nepal and evidence of the applicant’s communication with his family in Nepal, none of which it would seem only arose shortly before the hearing or otherwise could not have been provided at well before the morning of the hearing.
The Tribunal proceeded with the hearing. During a recess shortly after the hearing commenced, the Member reviewed the newly provided material. The applicant’s representative also assisted the Tribunal in identifying and explaining the material submitted just before the hearing. In this context, the Tribunal felt it was properly able to conduct the hearing and that the applicant was affordable a meaningful opportunity to present their case.
Notwithstanding, the Tribunal was not assisted in carrying out its review by the provision of substantial new material to it 18 minutes before a schedule hearing, in circumstances where the applicant’s legal practitioner was asked repeatedly to provide all material well in advance of the hearing.
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. The issue in the present case is 500.212(a).
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.
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.
Does the applicant intend genuinely to stay in Australia temporarily?
Material from the applicant’s education provider indicates that he has met all course attendance requirements and has successfully passed all undertaken units of his current course of study to date. He is currently studying a Certificate IV in Kitchen Management, due for completing in August 2026. He has also enrolled to undertake a Diploma of Hospitality Management, due for completion in March 2027.
When he first arrived in Australia the applicant commenced Business studies, however he explained to the Tribunal that he struggled with this course and its technical language due to difficulties in communication. Given his hospitality studies involve more practical exercises and less complex language, he indicated he is managing those studies much better. The applicant consulted with a Speech Pathologist provided a copy of their assessment to the Tribunal. The Speech Pathologist relevantly noted:
Based on the qualitative data collected, Dipak presents with Mild Receptive Language difficulties. Dipak is able to follow two-step verbal and written instructions and understand basic conversations, but he has more difficulty with higher-level language tasks which can have functional impacts on his participation in home and community activities, such as engaging in Instrumental Activities of Daily Living (IADLs), problem solving and managing social relationships, which are required for a good quality of life.
The Tribunal affords weight to the views of the Speech Pathologist. During the hearing, the applicant did, from time to time, speak unclearly which required the Member to confirm it had understood him correctly. While the Tribunal considers it was able to effectively understand the applicant, and that the applicant seemed to understand the Member, it did appear that the applicant has some difficulties in speaking and comprehension. The Tribunal accepts that the applicant’s difficulties with his attempted Business studies arose owing to his communication issues and it does not drawn an adverse inference from those attempted studies.
During our discussion the applicant explained that his wife and two young children remain in Nepal. He spoke with me about the regular communication he has with them and his desire to return to Nepal to be with them. He became quite upset when talking with the Tribunal about his family which necessitated a break. He has provided evidence to demonstrate that he remains in regular contact with his wife and children. The Tribunal considers that the applicant’s wife and children remain in Nepal weigh strongly in favour of a finding that he intends to remain in Australia on a temporary basis only.
The applicant indicated he is not working and has never worked while in Australia. There is no evidence before me to suggest otherwise. He receives financial support from his family, who he indicated are well off. Financial records he provided support this, as does his evidence that he once holidayed in America for the purpose of undertaking a study program with the National Aeronautics and Space Administration (NASA). The Tribunal is satisfied that the applicant is not and has not been working while in Australia, which is supportive of him having a genuine intention to remain here temporarily and is not indicative of him having a financial incentive to seek to remain in Australia after his studies.
The applicant applied for a student visa a shortly after arriving in Australia. He does not have a history of enrolling, re-enrolling, cancelling and/or changing course as a means of maintaining residency in Australia. To date he has only applied for one student visa and has only enrolled in one course of study, which he is due to complete in four months. The material before me is not at all suggestive of him seeking to use the student visa program to maintain residency in Australia.
The applicant has some experience working in kitchens in Nepal. He provided a reference letter detailing that from March 2014 until August 2017 he worked as a Kitchen Assistant at the Green Park Restaurant in Chitwan, Nepal. He explained to the Tribunal that prior to this we was working for the family’s successful poultry farm business, but he took the Kitchen Assistant job at much lower pay because he is passionate about cooking.
In the future, once he obtains his Australian qualifications, he plans to return to Nepal to open a resort on land that the family business has purchased near to the popular Chitwan National Park. This will encompass a restaurant and hotel. The applicant hopes to manage and oversea this business.
Evidence from the applicant’s family and their business accountant confirms the purchase of the land for this project. The applicant’s brother Dinesh gave consistent details to the Tribunal about the purchase of the land and the planned resort venture for the family business. He explained that their father was getting older and they wanted to diversify the business away from being reliant solely on the poultry farm, and that this plan would allow the applicant to pursue his interest in hospitality. Dinesh also spoke of how he is now settled in Australia and as such will not be assisting with the resort project, and that the applicant will eventually be overseeing it.
Following the hearing, the applicant provided confirmation from the Bharatpur Metropolitan City that the land owned by the family has been zoned for tourism development. Also provided was a letter from the applicant’s parents confirming the family’s future business plans and that applicant’s role in them, along with ownership documents for the relevant property.
The applicant and his brother both provided reasonable detail into the family business’s resort plan and the applicant’s intended role in that project. This was also corroborated by the supporting material from their parents and the family business. The Tribunal considers the applicant’s current and future course of study have direct relevance to his prior employment in Nepal and his intended future career there.
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).
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.
DECISION
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(a) of Schedule 2 to the Regulations.
Dates of hearing(s): 5 June 2025
Representative for the Applicant: Mr Bhavesh Lakhani
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.