Lesmana (Migration) - [2025] ARTA 1695

LESMANA (MIGRATION) [2025] ARTA 1695 (30 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Chandra Edwin Lesmana
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2409951

Tribunal:Kathleen Timbs
Place:Sydney
Date: 30 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 in cl.500.212(a).

Statement made on 30 July 2025 at 11:22am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – applied after arriving on working holiday visa – change of subject area – course progress, vocational placement and part-time work in same sector – no equivalent courses in home country – family and girlfriend, and plan to work in and eventually take over father’s business – income and cost of living – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

STATEMENT OF REASONS
APPLICATION FOR REVIEW

On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). The Tribunal is to continue AAT proceedings not finalised at that time and is taken to have done anything in relation to those proceedings done by the AAT before 14 October 2024.
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (the Act).
On 21 November 2023, the applicant applied for the student visa.
On 29 April 2024, the delegate refused to grant the visa.
On 30 April 2024, the applicant applied for review by the AAT.
On 23 July 2023, the Tribunal heard the application for review. The applicant was not represented at hearing.
RELEVANT LAW
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. To be granted the visa, the applicant must meet the primary criteria in cl 500.211 to cl 500.218. The delegate found that the applicant did not satisfy the criterion in cl 500.212(a) which relevantly requires:
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)      …
(iv)      any other relevant matter.
To deal with the application, the Tribunal reconsidered whether the applicant satisfies this criterion.
EVIDENCE AND MATERIAL CONSIDERED BY THE TRIBUNAL
The Tribunal considered:
·documents provided by the Department including the applicant’s visa application and supporting documents, and the delegate’s reasons for decision;
·documents provided by the applicant to the Tribunal before and after hearing, including a student visa information form, supporting documents, and confirmation of enrolment and course progression; and
·oral evidence and submissions made by the applicant at hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 (the Direction). The Direction requires the Tribunal to have regard to a number of matters 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; and
·any other relevant information provided by the applicant, or information otherwise available to the Tribunal.
The Direction is a guide for decision makers rather than a checklist.
Current enrolment
At the time of hearing, the applicant was enrolled in a Certificate III in Carpentry at Queensland TAFE starting January 2024. The expected end date is December 2025.
Is the applicant a genuine temporary entrant?
The applicant was born and grew up in Bali in Indonesia. The applicant has not lived in any third country. He has resided in Australia since December 2019.
His parents, three siblings and girlfriend currently reside there. The applicant told the Tribunal that the met his girlfriend on a visit home after he applied for the visa. He has regular contact with his family and speaks to his girlfriend every day. His movement records show he has regularly returned home, except when travel was not possible in 2020 and 2021. He told the Tribunal he has friends in Australia through social activities such as church and pickleball in Australia but no family. He said those relationships are not as significant as the ties to his family and his girlfriend. The Tribunal accepts, on that evidence, that the applicant has strong personal ties to Indonesia that are greater than those in Australia. It notes his family ties did not provide an incentive to return home, other than to visit, during his lengthy residence in Australia. However, it accepts he now has daily contact with his girlfriend and that this relationship is an additional incentive to do so.
The applicant attended primary and secondary school in Indonesia and completed a Diploma of Tourism (Food and Beverage Services) in 2016. After that he worked in related positions until early 2018. The applicant told the Tribunal he had thought it was a good idea to work in the tourism industry in Bali but he found it difficult to find a full time position without family or other connections, particularly as he is not Balinese. From early 2018, he worked in an administrative position with a state owned enterprise until he came to Australia in December 2019 on a three year working holiday visa. The Department extended the visa for another year because of the COVID pandemic. During that time, he worked in unskilled positions in agriculture or manufacturing. The applicant started his carpentry course in January 2024 and he has worked in construction from April 2024. He said he works each Monday to Wednesday as his bridging visa allows him to work more than 20 hours per week. The Tribunal has no evidence to suggest he has not complied with visa conditions.
The applicant said he attends TAFE each Thursday and Friday. He provided a progress report that shows that by the date of hearing he had completed 28 of 35 units in his course and the requisite 400 hours of vocational placement.
The applicant told the Tribunal that there are no equivalent courses in Bali and that it is necessary to learn on the job, usually from a family member, to become a tradesperson in the construction industry. He believes the formal qualification from Australia will place him in a good position generally in the job market but that he intends to work in his father’s business. He told the Tribunal his father works in real estate and buys and sells property. He said he sometimes develops the properties and the trade qualification will allow him to work with him to develop properties. He said he hopes to take over the business with time.
On the evidence, the Tribunal finds the applicant chose not to pursue a career in line with his qualifications in Hospitality some time before he came to Australia. It does not weigh against him that he is not pursuing a course that builds on those qualifications. He performed the usual work undertaken by working holiday visa holders in the four year period which is by nature unlikely to build on previous work experience, build on earlier qualifications or lead to a career. He now has work that reinforces his current learning and is on track to complete his course within the expected time frame. The Tribunal has consulted available country information and accepts the applicant could not easily obtain formal qualifications as a carpenter in Bali. It accepts such a qualification would improve his prospects for employment generally in Bali (as compared with his current qualification in hospitality) and that it is relevant to his father’s real estate business. It has value to the applicant’s future for those reasons. The applicant is a young man who did not have a clear career path before starting his current course. The Tribunal accepts he is a genuine student and plans to use his qualifications and work experience in construction in the future.
The qualifications would also lead to increased opportunity for employment in Australia and the applicant agreed with the Tribunal that he would earn more income in Australia than in Indonesia. However, he said that was less important to him than his personal ties and, in any event, the higher income he could earn in Australia is offset in his view by the very high cost of living. The Tribunal accepts it would not follow that he would have a more comfortable life in Australia and that the difference in remuneration is not a significant incentive for the applicant to remain.
For completeness, the Tribunal finds that the applicant would not be subject to military conscription if he returned to live in Indonesia and that there is no civil unrest in his home area of Bali.
Conclusion
The applicant stayed in Australia for many years on a working holiday visa which suggests that he found significant benefit to continuing residence despite his personal ties to his family. It is also the case that he would earn more money as a carpenter in Australia than in Indonesia. However, the Tribunal has found he now has an additional personal tie that is an incentive to return to his home country, that he is a genuine student of a course that has value to his future; and that the difference in remuneration is not a sufficient incentive for the applicant to remain in Australia. In these circumstances, the Tribunal accepts that the applicant intends to return to Indonesia when qualified as a carpenter and intends genuinely to remain in Australia temporarily. It follows he satisfied cl 500.212(a) and the Tribunal will set aside the decision to refuse to grant the visa for that reason. It will remit the matter to the Department for it to consider whether he meets the other criteria for a 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 criterion in cl 500.212(a) of Schedule 2 to the Migration Regulations 1994.
Kathleen Timbs
General Member
Date of hearing: 23 July 2025
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.