Kang (Migration) - [2025] ARTA 2110

KANG (MIGRATION) [2025] ARTA 2110 (14 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Sukchan Kang
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2314620

Tribunal:General Member W Banfield
Place:Canberra
Date: 14 July 2025
Decision:The decision under review is affirmed.

Statement made on 14 July 2025 at 1:50pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – lengthy stay in Australia – multiple vocational courses completed – value of courses to benefit future career – diploma level courses in unrelated fields – return visits to Korea – family ties in home country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 499; Direction No 108
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 30 August 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 29 June 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) because they were not satisfied the applicant met the criteria of a genuine temporary entrant for study.
The applicant appeared before the Tribunal on 28 April 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The applicant was assisted in relation to the review. The representative attended the Tribunal hearing.
The applicant submitted the following evidence in support of the application for review:
·Department of Home Affairs (the Department) notification and decision record dated 30 August 2023.
·Certification and transcript for a Diploma of Business Administration dated 28 September 2017.
·Certification and transcript for a Certificate IV in Marketing and Communication dated 28 October 2018.
·Certification and transcript for a Diploma of Marketing dated 26 April 2020.
·Certification and transcript for a Certificate IV in Information Technology Networking dated 16 May 2021.
·Academic transcript for a Diploma of Information Technology (Advanced Networking) dated 4 December 2023.
·Confirmation of enrolment (COE) for a Certificate IV in Human Resource Management from 07/08/2023 to 04/08/2024.
·Certification and transcript for a Certificate IV in Human Resource Management dated 21 August 2024.
·Reference letter from York College – undated.
·Tax receipts from York Business Institute dated 13 November 2024.
·COE for a Diploma of Human Resource Management from 05/08/2024 to 01/02/2026.
·COE for an Advanced Diploma of Human Resource Management from 09/02/2026 to 08/08/2027.
·Completed Request for Student Visa Information form dated 21 November 2024.
·Commonwealth Bank account balance statement in the name of the applicant dated 30 January 2025.
·KB Kookmin Bank Certificate of Deposit in the name of the applicant dated 20 April 2025.
The Tribunal considered the evidence that was provided to the Department at the time of application including the Application for a Student Visa form and genuine temporary entrant statement.
Evidence at the hearing
The applicant advised he came to Australia in September 2015 and applied for a Student visa which was granted while he was onshore. The applicant planned to study marketing and communications after completing a Bachelor degree in Korea. He reported that his study majors had been in non-government organisations and English. The applicant advised he studied the degree course because it is linked to social community work, and he wanted to work in non-profit related activities. The Tribunal asked why the applicant had not pursued that type of employment. He said although her completed the course, he realised it was not the best fit for him and he considered different challenges. The applicant said after he completed military service in Korea he worked for a company and wanted to gain additional qualifications before returning to the same employer. He said the company was involved in IT and marketing related to games. The Tribunal asked the applicant why he has since enrolled in human resource (HR) studies. The applicant said the Korean employment market is down and he decided to study further to improve his opportunities. When asked about his current plans, the applicant claimed the company he worked for previously was involved in IT and also had HR functions, so he wants to return to a position there.
The applicant reported he has parents and a younger brother in Korea. He has returned several times since he arrived in Australia. The applicant does not have family in Australia. He has been working part-time as a tiling labourer on construction sites for the last three years and had previously worked in a café.
The applicant was asked why he has studied so many courses when he is planning to return to the same employer in his home country. He said he has been navigating which job is the best fit for him. It was submitted that English skills in Korea are in demand which is why he has continued to study. The Tribunal put to the applicant that he will have been a student for nearly 12 years if he continues to study until 2027. He agreed that was the case. Regarding justification of the cost, the applicant said it has value as an investment and his parents have said it is the last time they will assist him. The Tribunal put to the applicant that he completed a bachelor’s degree in Korea but has studied courses at a lower level in Australia. He said because he is studying in English he did not think of it as being lower. It was claimed any certificate obtained in an English-speaking country is recognised in Korea and will be of benefit in future. The applicant stated he is planning to work in HR now which is why he is taking his current course of study. Regarding an incentive to return to Korea, the applicant said his parents want him to return, he has life insurance and accumulated savings; and he wants to develop his future there.
The Tribunal put to the applicant that he had not included any work experience in his Student Visa Information form that was submitted prior to the hearing. He said that must have been a mistake. He advised he earns approximately $1,000 per week from his employment. He lives in shared accommodation in Australia. The applicant concluded his evidence and asked that he be allowed to study his final courses before he returns to Korea. He denied plans to undertake any further studies.
The representative submitted the applicant has very strong ties to his home country because he has life insurance and personal injury insurance as well as a savings account and superannuation. It was claimed the applicant sincerely wants to study his final courses in Australia and return to Korea.
For the following reasons, the considers the decision under review should be affirmed.
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 whether the applicant is a genuine applicant for entry and stay as a student and whether he intends genuinely to stay in Australia temporarily.
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
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.
The Tribunal considered the applicant’s circumstances in his home country. The applicant is unmarried with no dependents. He has parents and a brother still living in Korea and has travelled to his home country for visits during his temporary residency in Australia. The applicant completed a bachelor’s degree and military service in Korea. It was submitted the applicant has financial ties to his home country in the form of life insurance, superannuation, and savings. The Tribunal accepts the applicant has ongoing personal ties to his home country but is not satisfied this provides a strong incentive for him to return to Korea. The applicant has lived independently, away from his immediate family since 27 June 2015 which amounts to 10 years as of the date of this decision. While the applicant may have some financial and economic interests in Korea, there is no evidence his physical presence in his home country is required. Financial resources can be accessed from overseas, and the applicant has been supporting himself through his employment while living in Australia.
In Australia the applicant has completed a Diploma of Business Administration; a Certificate IV and a Diploma in Marketing and Communications; Certificate IV, Diploma and Advanced Diploma of IT; and a Certificate IV in HR. He is currently enrolled in a Diploma of HR and has a future enrolment in an Advanced Diploma of HR until 8 August 2027. When he applied for the Student visa, the applicant advised he has been employed as a tiler in the construction industry since September 2021. He has also worked as a trade assistant from 2019 to 2021. The applicant did not provide evidence of any work experience in a field related to his studies. The Tribunal is not satisfied the applicant has enrolled in additional courses in HR for genuine career purposes.
Regarding the value of the course to the applicant’s future, the Tribunal considered whether the applicant is undertaking a course that is consistent with his current level of education and whether it will assist in obtaining employment or improving employment prospects in his home country. The applicant declared he completed a bachelor’s degree in 2016 and was employed prior to travelling to Australia. In Australia, the applicant regressed in his studies to certificate and diploma level studies. The Tribunal notes the applicant’s evidence at the hearing that because his courses were in English, he did not consider them to be lower level. Nevertheless, the applicant has studied courses in three different subject areas, beginning each time at certificate level. His qualifications gained in Australia are largely unrelated to his degree course which he explained was related to non-government organisations. The Tribunal accepts the applicant has studied in an English-speaking environment and may have enhanced his skills NGO background by studying marketing and communications. The Tribunal is not satisfied his employment prospects will improve by further study in the field of HR.
In a genuine temporary entrant statement, the applicant declared he plans to return to Korea after completing his current studies in HR and find work as a manager. He claimed he will have a broad academic knowledge in business management, marketing, IT and HR. The Tribunal is concerned the applicant has not fixed on a career path and has changed the direction of his academic studies a number of times. The Tribunal acknowledges the applicant has completed courses of study successfully but is not satisfied he will be able to find a position as a manager, in marketing, IT, HR or business without relevant work experience. The applicant’s employment in Australia has been in an unrelated trade field and is unlikely assist in the business environment. The applicant claimed he intends to return to a former employer in his home country, but the Tribunal is not persuaded this is likely to occur given the amount of time since the applicant was last employed in Korea.
The applicant’s immigration history refers to his visa and travel history. The applicant first arrived in Australia in 2009 for a working holiday. He returned to Australia on 27 June 2015 holding a Visitor visa and applied for a Student visa onshore. He was granted Student visas on 6 November 2015; 6 March 2018; and 14 September 2020. The applicant applied for a fourth Student visa on 29 June 2023. The Tribunal is concerned the applicant has been in Australia for 10 years, and by the time he completes an Advanced Diploma of HR he will have been a student in Australia for 12 years. The Tribunal considers this to be excessive and inconsistent with a genuine intention to remain in Australia temporarily for the purposes of study.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
The Tribunal had access to the Provider Registration and International Student Management System (PRISMS) record which accurately lists the applicant’s enrolment history in Australia and is consistent with the applicant’s own evidence about his previous studies.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Dates of hearing(s): 28 April 2025
Representative for the Applicant: Mr Jae Chun
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.