Liu (Migration) - [2025] ARTA 1038

LIU (MIGRATION) [2025] ARTA 1038 (30 JUNE 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Wei-cheng Liu
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2430904

Tribunal:General Member F Russo
Place:Sydney
Date: 30 June 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 of Schedule 2 to the Regulations.

Statement made on 30 June 2025 at 2:24pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Circuit Court remittal – genuine temporary entrant – study history and academic progression – enrolments cancelled then courses successfully completed – change of career goals after divorce – continuing study during tribunal review and court appeal – current enrolment at same level in subject previously not commenced – family, property and financial ties to home country and no evidence of ties to Australia – value of course to applicant’s future – plans for family business – consent to decision without hearing – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 106(3)(b)(i), 359(2), 359A, 360(2)(b), (3), 363(1)(b)
Migration Regulations 1994 (Cth), Schedule 2, cls 500.511, 500.212
CASE
Liu v MICMA [2024] FedCFamC2G 667
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 28 February 2020 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 7 December 2019. 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 the delegate was not satisfied that the applicant is a genuine applicant for entry and stay as a student.
The applicant lodged an application for review of the delegate’s decision with the former Administrative Appeals Tribunal (the AAT) on 2 March 2020.
On 10 September 2021, the AAT wrote to the applicant pursuant to s 359(2) of the Act, as was in force at the time, inviting the applicant to provide information in writing about the course(s) of study he was undertaking and about his entry and stay in Australia as a student (s 359(2) invitation).
On 23 September 2021 the applicant responded to the s 359(2) invitation with an email which attached a completed ‘Request for Student Visa Information’ form, as well as an undated genuine temporary entrant (GTE) letter from the applicant and confirmations of enrolment (CoE) for the following courses, issued by Colleges Australia International Pty Ltd (trading as Queens College):
a.Diploma of Leadership and Management from 6 January 2020 to 3 January 2021; and
b.Advanced Diploma of Leadership and Management from 11 January 2021 to 9 January 2022.
In the completed Request for Student Visa Information form, the applicant indicated that he consented to the AAT deciding the review without a hearing. Therefore, the applicant gave consent under s 360(2)(b) of the Act (as was in force at the time), and pursuant to s 360(3) of the Act, the applicant was no longer entitled to appear before the AAT. The matter could therefore be determined on the evidence available to the AAT.
On 28 January 2022 the AAT wrote to the applicant again pursuant to s 359A of the Act, indicating that according to a rent check of his enrolment records in the Provider Registration and International Student Management System (PRISMS), he appeared not to hold a current CoE in a course of study. The AAT advised the applicant that this information was relevant because he had applied for a Student visa and under cl 500.211 of Schedule 2 to the Regulations, it is a requirement for the grant of a Student visa that he be enrolled in a course of study at the time of the decision. The AAT advised that if it were to rely on the information from his PRISMS enrolment records in making its decision, the AAT may find that he is not currently enrolled in a course of study, and this would mean that he does not meet cl 500.211.
On 15 March 2022 a member of the AAT (differently constituted) made a decision in relation to the application for review and affirmed the decision not to grant the applicant the Student visa on the basis that at the time, the applicant was not enrolled in a full-time course of study. The AAT’s decision indicates that the applicant did not respond to the s 359A letter sent on 28 January 2022, and that that letter had advised the applicant that if he did not respond to the letter, a decision may be made on the review without taking any further action to obtain his views on the information and that he would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence.
The applicant made an application for judicial review to the Federal Circuit Court, and on 25 July 2024 the Court made its decision in Liu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 667. In its decision, the Court found that the AAT (differently constituted) had in its decision overlooked the applicant’s provision of a completed Request for Student Visa Information form, and considered that this was relevant to the AAT’s decision not to exercise its discretion to adjourn the proceedings and to write to the applicant to request further information following the applicant’s failure to respond to the s 359A letter. The Court found that the AAT’s discretionary exercise of the power proceeded on an incorrect factual basis, namely, that the applicant had not provided the completed Request for Student Visa Information form, and that this factual premise was a determinative consideration of the AAT when considering the applicant’s claims and evidence. The Court held that in the circumstances of this case, the AAT did not have regard to all of the information before it and acted on a mistaken procedural history, and therefore its failure to exercise its discretion pursuant to section 359(2) and 363(1)(b) of the Act was legally unreasonable. Accordingly, the Court quashed the decision of the AAT dated 15 March 2024 and remitted the matter back to the AAT.
On 14 October 2024, the 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 (Cth) (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. This decision and statement of reasons is made by the Tribunal.
While the Tribunal notes the applicant’s response to the s 359(2) invitation on 23 September 2021, including his indication that he consented to the AAT deciding the review without a hearing, given the passage of time and the remittal of the application for review by the Court, including the reasons for remittal of the application for review, the Tribunal considered it appropriate under the circumstances to consider whether the applicant still consented to the application for review being decided without holding a hearing.
Accordingly, on 10 April 2025 the Tribunal invited the applicant to attend a hearing by video on 6 May 2025. The invitation advised the applicant that if he did not appear at the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before it or may dismiss the application for review without further consideration of the application or the information before it. The Tribunal also advised that if the applicant wanted the Tribunal to make a decision without holding a hearing, he could use the enclosed ‘Response to hearing notice’ form to request this.
On 17 April 2025 the applicant provided a completed Response to hearing notice form, in which he advised that he would not be participating in the hearing and requested that the Tribunal make a decision on the papers without holding a hearing. The form was signed by the applicant’s representative and was dated 17 April 2025.
On 29 April 2024 the applicant provided a written submission which attached copies of the following additional documents:
a.Copy of the biodata page of the applicant’s Taiwanese passport;
b.CoEs for the following courses of study issued by Colleges Australia International Pty Ltd, trading as Queens College and London College:
i.Diploma of Marketing and Communication from 6 June 2025 to 4 January 2026; and
ii.Advanced Diploma of Marketing and Communication from 2 February 2026 to 31 January 2027;
c.Award of the Advanced Diploma of Leadership and Management by Queens College on 9 January 2022, including statement of results;
d.IELTS test report; and
e.Passbook account details of the applicant’s mother, together with household registration information and a letter of financial support and identification of the applicant’s mother.
On 1 May 2025 the Tribunal wrote to the applicant, acknowledging his response to the hearing invitation and confirming that he had requested that the Tribunal make a decision on the application for review without holding a hearing. The Tribunal noted that the applicant had provided copies of CoEs for the Diploma of Marketing and Communication and the Advanced Diploma of Marketing and Communication, and that while the written submission he had provided on 29 April 2025 addresses some of the criteria for the grant of the Student visa in general, it did not address whether the applicant is a genuine applicant for entry and stay as a student in any detail. The Tribunal also noted that while the applicant provided the AAT with a completed Request for Student Visa Information form and a GTE statement on 23 September 2021, the information in these documents related to the applicant’s enrolments in the Diploma of Leadership and Management and the Advanced Diploma of Leadership and Management, which are no longer current. The Tribunal therefore invited the applicant to provide an updated Request for Student Visa Information form and to address the factors in Ministerial Direction No. 108, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’.
On 13 May 2025 the applicant provided a further GTE statement (May 2025 GTE statement) and an updated completed Request for Student Visa Information form (updated Request for Student Visa Information form).
After considering the information provided by the applicant, on 4 June 2025 the Tribunal sent the applicant a s 359A letter, inviting the applicant to respond to potentially adverse information contained in his enrolment records within the PRISMS database and from his Movement Details held by the Department. In particular, the Tribunal raised concerns regarding information contained in these documents which indicate that:
a.The applicant has been residing in Australia for over 10 years, which may raise concerns about his claim that he genuinely intends to stay in Australia only temporarily;
b.He was previously enrolled in the Advanced Diploma of Marketing and Communication in June 2016, but did not commence the course at that time. This may raise concerns regarding why he had re-enrolled in this course 7 years later, which may indicate that he has re-enrolled in this course primarily to maintain ongoing residence;
c.He appears to have completed qualifications in Leadership and Management and in Business at the Advanced Diploma level and is now enrolled I the Advanced Diploma of Marketing and Communication, which is at the same academic level. This may raise concerns that he is not progressing academically and is enrolling in courses in different fields within the vocational sector to maintain ongoing residence and to circumvent the intentions of the migration programme. He was also enrolled in a course at the Graduate Diploma level in 2023, which was cancelled, and appears to have reverted to enrolments at a lower level. The further qualification at the Advanced Diploma level may also be of limited value in obtaining employment or in improving his employment prospects when compared against his two existing qualifications obtained at the same level; and
d.He appears not to have successfully completed any courses of study from April 2016 until the end of 2019 while holding a Student visa, with all of his enrolments in this period cancelled, although the Tribunal also noted that he appears to have completed three courses of study from 2020 to 2023.
On 17 June 2025 the applicant responded by providing a statement addressing the concerns put to him by the Tribunal in the s 359A letter, as well as evidence of the registration in 2020 of a restaurant owned by his family in Taiwan, the Four Seasons Flavor Restaurant and information from London College’s website regarding its syllabus for the Advanced Diploma of Leadership and Management and the Diploma of Marketing and Communication. The Tribunal is satisfied that the information provided by the applicant on 17 June 2025 addresses the concerns raised in the s 359A letter sent on 4 June 2025.
I have considered all of the information and evidence before me and find that a decision which is wholly in the applicants’ favour can be made pursuant to s 106(3)(b)(i) of the Administrative Review Tribunal Act 2024 on the basis of the material provided to the Tribunal without proceeding to a hearing.
The applicant was assisted in relation to the review.
For the following reasons, the Tribunal sets aside the decision under review and remits the visa application for reconsideration.
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 temporary applicant for entry and stay as a student.
Genuine applicant for entry and stay as a student (cl 500.212)
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.
Findings on factors set out in Direction No.108
Having considered the applicant’s claims against all the factors specified in Direction 108, and taking into account all the relevant information, the Tribunal is satisfied that the applicant meets the genuine temporary entrant criterion. The Tribunal notes that the application for the Student visa under review was made on 7 December 2019 in relation to the applicant’s enrolments in a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management. I note that over 5 years has elapsed since the applicant made the visa application and that his circumstances have changed significantly during this period. I have taken this history into account, including the Court’s remittal of the application for review back to the AAT as a result of jurisdictional error, and consider this to be a relevant factor in assessing the applicant’s circumstances as a whole.
I note that while the applicant’s academic record from April 2016 until the end of 2019 is problematic, with all of the enrolments which he held during his first Student visa having been cancelled, I consider the applicant has completed four vocational courses since January 2020 and now appears to be on track with his studies.
The applicant’s circumstances in his home country
In the updated Request for Student Visa Information form, the applicant declares that he completed high school in Taiwan, then studied in the Department of Materials Science and Engineering at ISU University from 2002 to 2007, but did not complete the qualification. He declares that he was a sergeant in the army from 2007 to 2012 and then the manager of a family restaurant from 2013 to February 2015. He declares that his family in Taiwan includes his parents and a sister. He declares that he last saw his mother in March of 2025 and his father and sister in July 2019. He declares that he talks to his mother and sister once a week and that his family shares photographs in a family group chat. He declares that he has returned to Taiwan on three occasions since arriving in Australia, in 2015, 2016 and 2018. The applicant restates this information in his May 2025 GTE statement, in which he states that he has strong personal and social ties to Taiwan, which includes social connections with friends from a volleyball team and junior high school friends.
The applicant declares in his May 2025 GTE statement that he is financially supported by his mother. He states that his family owns property in Taiwan, which is currently held in his sister’s name, but of which he is the actual owner, and that it has not been officially transferred to him yet because he is in Australia. He claims the property is valued at around AUD 500,000. The applicant claims that his future career plans are to apply the Marketing and Communication skills he gains from his current course of study to his family’s restaurant in Taiwan. He claims that with better marketing strategies he will increase the customer base and improve customer engagement. He states that in the long-term he plans to start his own business using both the leadership and marketing knowledge he has acquired. The applicant confirms this intention in the June 2025 response to the Tribunal’s s 359A letter.

The applicant has not provided any evidence that he or his sister have ‘property’ in Taiwan and therefore I give this claim little weight. I do, however, accept that the applicant has strong personal ties to Taiwan through the continued presence there of his immediate family members. I also accept the evidence the applicant has provided of a family run business, for which he has provided a registration document, indicating that the business is registered under his name. In his June 2025 response he states that the business is currently operated by his mother, uncle and other relatives and employs 8 staff and has an annual turnover of approximately TWD 5 million. I therefore accept that the applicant has a strong financial tie to Taiwan. I accept that the applicant has strong family and financial ties to Taiwan which would serve as a significant incentive for him to return to his home country. Given the evidence the applicant has provided of the registration of a family business in his name in Taiwan, I make no adverse findings regarding his economic circumstances. I consider there is insufficient evidence before the Tribunal to indicate that the applicant’s economic circumstances would present as a significant incentive for him not to return to his home country.
I make no adverse findings regarding the applicant’s reasons for not undertaking the proposed study in his home country rather than Australia. In his May 2025 GTE statement he states that he has previously completed qualifications at the vocational level in Australia from 2021 to 2022, and that he feels confident about the Australian education system, with its focus on practical, industry-aligned training.
The applicant has declared that he has served in the Taiwanese army and I make no adverse findings regarding any military service requirements as a reason for the applicant to remain in Australia. There is no evidence of any civil or political issues which would act as an incentive for the applicant to remain in Australia. There is no adverse evidence before the Tribunal regarding the applicant's circumstances in Taiwan, relative to others in that country, and the Tribunal makes no adverse findings in relation to this factor either.
The applicant’s potential circumstances in Australia
The applicant first arrived in Australia on 26 February 2015, holding a Working Holiday visa. He was granted a Student visa on 30 April 2016, which was valid until 4 June 2018. He was then granted a Temporary Work (Skilled) (subclass 457) visa on 4 June 2018, which was due to cease on 25 May 2021, but he applied for the Student visa application under review on 7 December 2019.
The applicant’s enrolment records from the PRISMS database indicate that the applicant did not make any academic progress while he held the Student visa from April 2016 to June 2018. The applicant had the following enrolments during this period, all of which were cancelled, and none of which he successfully completed:
a.Diploma of Business starting on 15 April 2016 and ending on 15 April 2017, which was cancelled on 24 March 2017 due to non-payment of fees;
b.Certificate IV in Accounting starting on 10 April 2017 and ending on 8 April 2018, which was cancelled on 26 October 2017 due to non-payment of fees;
c.Advanced Diploma of Marketing starting on 15 June 2017 and ending on 15 June 2018, which was cancelled on 28 June 2017 due to non-commencement of studies;
d.Certificate IV in Accounting starting on 6 November 2017 and ending on 4 November 2018, which was cancelled on 28 August 2018 due to unsatisfactory course progress; and
e.Diploma of Accounting starting on 9 April 2018 and ending on 7 April 2019, which was cancelled on 26 October 2017 due to non-commencement of studies.
The applicant’s enrolment history during this period potentially raises significant concerns, in particular the cancellation of the Certificate IV in Accounting in August 2018 due to unsatisfactory course progress. The applicant responded to these concerns in his response to the s 359A letter in June 2025. He submits that when he commenced full-time study in Australia, he was diligently working towards completing the Diploma of Business, but switched his studies to the Certificate IV in Accounting because he believed this course would be more practical and relevant for his employment prospects. He states that in June 2018 he married and obtained a 457 visa as a dependant. Due to his focus on his marriage and his family life, he discontinued his studies and therefore did not complete the Certificate IV in Accounting. He states despite an interruption in his studies, he remained committed to obtaining an Accounting qualification, and that after he transitioned to the 457 visa, he re-enrolled in the Diploma of Accounting. This is somewhat supported by the applicant’s PRISMS enrolment record, which indicate that he had a further enrolment in the Diploma of Accounting commencing on 5 November 2018, although this was cancelled on 28 August 2018 due to non-commencement of studies. The applicant claims that he was unable to continue with the course due to the challenges of his marriage, and that he divorced in 2019.
The applicant claims that after his divorce, his career goals shifted from accounting to management, which is why he enrolled in a Diploma of Leadership and Management in January 2020, followed by an Advanced Diploma of Business.
Despite the visa refusal decision, the applicant successfully completed the Diploma of Leadership and Management in January 2021 and the Advanced Diploma of Business in April 2023. The Tribunal notes the applicant completed these courses despite additional obstacles in the form the COVID-19 pandemic, including the change of study mode to online studies, as well as the continued uncertainty which the applicant experienced in appealing the Department’s refusal decision. The Tribunal notes that the delegate’s decision was affirmed by the AAT on 15 March 2022, following which the Court quashed the AAT’s decision and remitted the matter back to the AAT. The Tribunal notes the uncertainty to the applicant caused by these appeal processes. Despite these uncertainties the applicant also completed a Certificate IV in Marketing and Communication on 14 April 2024. The applicant is currently studying the Diploma of Marketing and Communication, which he is scheduled to complete on 4 January 2026, then the Advanced Diploma of Marketing and Communication, which he is scheduled to complete on 30 January 2027. This will bring the applicant’s stay in Australia to approximately 12 years on temporary visas, which is a lengthy period of time to remain in Australia on temporary visas and may raise concerns about the applicant’s claim that he intends to remain in Australia only temporarily for the purpose of study.
The applicant claims that his primary purpose for remaining in Australia is to obtain qualifications which will support his long-term career goals. Having considered the applicant’s explanation of his enrolment history, I consider there is insufficient evidence to indicate that the applicant is using the Student visa primarily to maintain ongoing residence or to circumvent the intentions of the migration programme. As noted above, despite the visa refusal decision the applicant has since 2020 completed three vocational qualifications, namely, the Diploma of Leadership and Management, the Advanced Diploma of Business and the Certificate IV in Marketing and Communication. He remains enrolled in the Diploma of Marketing and Communication and now appears to be on track with his studies. The Tribunal considers the applicant has also provided a reasonable explanation for his poor academic history and lack of progress with his studies while he held his first Student visa. While the applicant has now been in Australia for over 10 years, I note that for close to four years he went through review processes in relation to the Student visa application under review. I also note that from June 2018 to December 2019 the applicant held a 457 visa. The applicant has also explained his reasons for applying for the 457 visa, which was as a dependant to his wife, and his reasons for wishing to recommence his studies in December 2019.
There is no evidence of ties to Australia which would present as an incentive for the applicant to remain in Australia following the completion of his proposed courses of study. In his updated Request for Student Visa Information form, the applicant confirms that his immediate family members reside in Taiwan and that he has no family in Australia. The applicant declares that he worked as a part-time labourer from February 2016 to March 2018. There is no evidence regarding the applicant’s current employment, if any. In his updated GTE statement, the applicant declares that his mother financially supports his studies in Australia. There is also no evidence before the Tribunal to suggest the applicant has entered into a relationship of concern in order to obtain a successful Student visa outcome.
Given the length of time the applicant has lived in Australia, I make no adverse findings in relation to his knowledge of living in Australia. In his updated GTE statement, the applicant has provided an explanation for why he has chosen his current courses of study and education provider. Given the applicant’s successful completion of the Certificate IV in Marketing and Communication, I consider the applicant has demonstrated awareness of his education provider and courses of study.
Value of the course to the applicant’s future
The applicant commenced tertiary studies in Taiwan, but did not complete them and arrived in Australia with no qualifications other than having completed high school. Since 2020 the applicant has completed a Diploma of Leadership and Management, an Advanced Diploma of Business and a Certificate IV in Marketing and Communication. He now proposes completing a Diploma of Marketing and Communication and an Advanced Diploma of Marketing and Communication.
The applicant has provided the Tribunal with evidence of the registration of a family business, which is a restaurant registered in his name, and which is currently run by family members. The applicant claims that to ensure the continued success and expansion of the restaurant, they require strong marketing and communication strategies to build their brand, attract new customers, and compete effectively in the market. He claims that he is the only member of the family with the capability to lead this area. He claims that his current course of study is specifically aligned with the needs of the business and that the Diploma of Leadership and Management which he previously completed no longer aligns with his current career goals.
The Tribunal accepts that the applicant’s family own a restaurant and accept that the business is registered in the applicant’s name. I consider the applicant’s evidence regarding the value the proposed course of study will provide to his existing business interest to be somewhat limited and consider it would have benefitted from further evidence regarding the size and operations of the business and the plans for expansion, or otherwise would have benefitted from the applicant providing oral evidence at a hearing. The Tribunal is prepared to accept on this occasion that the applicant’s business may benefit from improved marketing, and therefore is prepared to accept that the proposed qualification may provide some value to the applicant’s business interests and future remuneration. The Tribunal also notes that the applicant possesses only one qualification at the same level, the Advanced Diploma of Business, and considers this qualification is also related to the applicant’s business plans. On this occasion the Tribunal makes no adverse findings regarding the value of the proposed courses of study to the applicant’s future and gives this factor some weight in favour of the visa being granted.
The applicant’s immigration history
The applicant’s immigration history refers to both his visa and travel history. As noted, the applicant first arrived in Australia in February 2015, holding a Working Holiday visa. He was granted a second Working Holiday visa, following which he held a Student visa from April 2016 to June 2018, during which period he did not complete any qualifications. He then held a 457 visa as a dependant, and following his divorce, he applied for the Student visa under review in December 2019. Following the refusal of the visa application by the Department, the decision to refuse the visa was affirmed by the AAT. The application for review was remitted by the Court back to the AAT on 25 July 2024 with a finding that the AAT’s decision had been affected by jurisdictional error. The applicant therefore experienced a period of uncertainty of over four years, during which he held Bridging visas. Despite the visa refusal decision, the applicant completed three vocational qualifications between 2020 and 2024 and he remains enrolled in the Diploma of Marketing and Communication. Although the applicant has remained in Australia for a lengthy period of time, the Tribunal considers there is an explanation for this given the lengthy review processes the applicant underwent. The Tribunal also considers the applicant is currently on track with his studies, having successfully completed the Certificate IV in Marketing and Communication on 14 April 2024.
Given this information, I find that there is no evidence that the applicant has undertaken a series of short, inexpensive courses, or that he has been onshore for some time without making progress with or completing a qualification. I therefore find there is insufficient evidence to indicate that the Student visa is intended primarily for maintaining ongoing residence.
I make no adverse findings regarding the remaining factors relevant to the applicant’s immigration history. I note that the delegate’s visa refusal decision was made on the basis that the applicant had breached Condition 8202 of his first Student visa application as he had not made progress with his studies during the period he held that visa. The delegate’s reasons for decision indicate that the applicant had not responded to a natural justice letter sent by the Department. I consider the applicant has now provided the Tribunal with some explanation for his lack of academic progress during the period he held the Student visa. I also note the applicant’s submission that he maintained enrolment during this period, which is supported by his PRISMS enrolment records. Given the applicant’s enrolment history since applying for the Student visa under review, I consider the applicant is currently on track with his studies and give little weight to the lack of academic progress which he made from 2016 to 2018. I therefore make no adverse findings regarding the applicant’s compliance of the conditions of previous visas to Australia.
There is no evidence of previous visa cancellations or of visas considered for cancellation. There is no evidence that the applicant has lodged applications for other classes of visa which are yet to be finally determined. There is no evidence of an adverse visa history to other countries.
Any other relevant matters and conclusion regarding findings
The Tribunal has also given regard to whether there are any other relevant matters and finds there are no other relevant matters to the assessment of the applicant's intentions to stay in Australia temporarily in addition to the matters covered above.
The Tribunal has considered the applicant’s explanation for the lack of progress which the applicant made with his studies from 2016 to 2018. The Tribunal accepts that the applicant then had a period without study as a result of being the holder of a 457 visa. The Tribunal has also taken into account the delays and uncertainty which resulted from the visa refusal decision, followed by the decision of the AAT from 2022, which was affected by jurisdictional error. The Tribunal also gives weight to the applicant’s progress with his studies since 2020 while holding Bridging visas, which include the successful completion of three vocational courses, including the Certificate IV in Marketing and Communication, which articulates into the applicant’s current courses of study. The Tribunal considers the applicant’s behaviour in completing these courses of study despite the visa refusal decision and subsequent appeal processes, to be consistent with the behaviour to be expected of a genuine applicant who wishes to remain in Australia temporarily for the purpose of obtaining qualifications which will be of value to his future. Given the history of the visa application and the applicant’s continued studies while holding Bridging visas, the Tribunal considers the applicant should be given the opportunity to complete his current studies in Marketing and Communication before returning to his home country, as he has repeatedly undertaken is his intention.
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).
Does the applicant intend to comply with visa conditions?
For the applicant to meet cl 500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl 500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed in some cases (cl 500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).
The applicant has provided with his visa application an undertaking to comply with any conditions subject to which the visa is granted. The applicant has demonstrated through his completion of three courses of study since 2020, including the Certificate IV in Marketing and Communication, which articulates to his current courses of study, that he can comply with the conditions of the Student visa, including maintaining enrolment, course attendance and course progress.
On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl 500.212(b).
Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?
For the applicant to meet cl 500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl 500.212(a) and (b)).
There is no evidence before the Tribunal of any other relevant matter that gives rise to a concern that the applicant is not a genuine applicant for entry and stay as a student.
Accordingly, the Tribunal is 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 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 of Schedule 2 to the Regulations.
Representative for the Applicant: Ms Natalie En Xin Lim
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.