Matias (Migration) - [2025] ARTA 667

MATIAS (MIGRATION) [2025] ARTA 667 (9 MAY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr John Joseph Talplacido Matias
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2406174

Tribunal: General MemberD. Gordon
Place:Melbourne
Date: 9 May 2025
Decision:The decision under review is affirmed.

Statement made on 09 May 2025 at 4:45pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study and work history – enrolment in lower-level course – business plans – travelled on visitor visa soon after birth of child, then applied for student visa and course – vague reasons for studying and course, limited documentation and no supporting statements – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 375A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
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 5 March 2024 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 18 January 2024. 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 applicant was found not to be a genuine applicant for entry and stay as a student.
Although the delegate found that the applicant did not satisfy cl 500.212, a reading of the decision below shows that the delegate only assessed and determined cl 500.212(a) being whether the applicant intends genuinely to stay in Australia temporarily having regard to the prescribed sub-criteria therein.
As the applicant was found not to have met cl 500.212(a), the visa application was refused on that basis without the need to further examine the other limbs being cl 500.212(b)-(c). Therefore, this review is a review of whether the applicant meets cl 500.212(a).
The applicant appeared before the Tribunal on 7 May 2025 to give evidence and present arguments.
The applicant was represented by Ms Mati.
The Tribunal hearing was conducted with the assistance of an interpreter.
For the following reasons, the Tribunal 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 cl 500.212(a) which sets out that an applicant for a student visa must be a genuine temporary entrant.
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.
Consideration of claims and evidence
Applicant’s Documentary evidence
The applicant filed the following material which the Tribunal has read and considered:
a.Genuine temporary entrant questionnaire duly filled out.
b.Genuine temporary entrant submissions.
c.Confirmation of Enrolment papers.
d.Evidence of marriage, overseas education, property, business plans, bank statements, business registration and employment documents.
The evidence at the hearing
The following matters of relevance were given during the evidence of the applicant at the hearing.
The applicant stated he was born in the Philippines and presently was 31 years old.
The applicant confirmed he held a Bachelor of Science in Hotel and Restaurant Management from the Philippines.
Before coming to Australia, he was a customs broker representative. He also has three businesses. Two have closed down.
He came to Australia in October 2023.
When asked why he could not study cookery courses in the Philippines, he replied that he did not study cooking in the Philippines, he saw the differences in running a business in Australia with good customer service, and so got interested in studying in Australia.
He stated he saw different cuisines being served in Australia.
When asked what was so unique about the cuisines he saw in Australia and whether he could see and learn about these cuisines on-line, he replied that the standard was higher in Australia, and he wanted to experience learning cooking face-to-face.
His son was born in September 2023.
He went back to the Philippines in April 2025 for his sister’s wedding and son’s baptism.
The Tribunal put its concern that it did not seem plausible that he would leave his only baby and whilst visiting Australia, decide to study. The applicant replied that his wife approved of his decision for the betterment of their family and business back home.
The Tribunal asked about the businesses back home. The applicant replied that his ice cream and snack business were closed, and he had plans to open a café and mini restaurant.
The Tribunal queried why he would need to study cookery courses in Australia to open a café and mini restaurant. The applicant replied that overseas studies such as in Australia would carry significant weight and provide a good image for him as being overseas trained.
The Tribunal put to the applicant that cookery was not an occupation that required formal skills. The applicant replied that the learning in Australia would give him good cookery skills.
The Tribunal queried a lack of business plans being submitted and provided the applicant with time to submit them. The applicant explained that he had a business plan with his uncle to start a food and drinks business.
The Tribunal queried the lack of formal registration of property deeds in his name and the applicant explained that the property process was lengthy in the Philippines and would come about through inheritance.
The Tribunal queried the lack of supporting affidavits or statements from his brother-in-law and father when their bank statements were included but agreed to accept them.
Ms Mati as the representative made concluding submissions addressing that he and his wife have made this decision for him to study in Australia together, they want to give a good life to their family, their main goal is to expand their business, that in the Philippines the standard of teaching is not as good as Australia, and they apologise for the wording suggesting ownership of the land title, and that the majority of the course was done and the applicant only needs a year further.
After the hearing, a further bundle of evidence going to the applicant’s business plan was filed and the Tribunal has reviewed and considered them.
The Tribunal also notes that a s 375A non-disclosure certificate was on file but had previously written to the applicant as a matter of procedural fairness with a copy and advising that the matters in the certificate were not material and would not be further considered but inviting the applicant to make any comments. The applicant did not comment or raise any issue or objection.
Analysis of applicant’s claims and evidence against relevant criteria
The applicant already has a degree level qualification in Hotel and Restaurant Management. His present studies are at a lower diploma level.
The applicant says that his first and only child was born in September 2023. He then comes to Australia in October 2023 on a visitor visa. He says whilst here he decides to study after seeing the Australian way of business, cuisines and customer service. The Tribunal expressed its concerns that a new father such as the applicant would leave his first newborn after a month or so and come to Australia and suddenly decide to remain back and study. The applicant replied that he had his wife’s approval to remain in Australia and study as this would benefit their family and business back in the Philippines. The Tribunal does not find this explanation by the applicant to be plausible. The applicant did not call his wife to give a supporting statement or give oral evidence at the hearing. For a first-time father to leave his newborn child in the Philippines after a month and come to Australia and remain here for the sudden purpose of study is not believable.
The applicant was a customs broker representative at ATG SeaLandAir Freight Forwarding Co before coming to Australia. However, he provides no documents from this employer as to whether he took leave or resigned as part of his temporary visit and then decision to remain to seek a visa to study. By contrast, he does provide letters from Mini Depato, Fresh N’Famous Foods, and Kuya J Restaurant who were older historical prior employers.
One of the pictures provided by the applicant which shows two persons holding a ‘Otep’s’ cup below a ‘Daddy O! Snack Bar’ sign is dated “27 5 ‘98” which is 27^th May 1998. This may be a date error on the camera and the benefit of the doubt is given in favour of the applicant.
None of the pictures submitted depict or show the applicant. The Tribunal does however accept that these are his businesses based on the certificates of registration submitted.
The applicant provides no financial records or bank statements or tax returns with respect to ‘R and J Packaging Supplies’, ‘Daddy O Snack Bar’ and ‘Otep’s Dairy Icecream Products Manufacturing’ which would have given greater insight into their operations and future.
The applicant did make a trip back home in April 2025 for his sister’s wedding and son’s baptism.
When asked about why he wanted to study the cookery courses, the applicant’s answers were generic and vague. He said he saw the difference in running a business in Australia but could not explain what those differences were. He said he saw that Australia had good customer service but could not elaborate or further explain on this. He said the standards were higher in Australia but did not explain what standards these were and how they were higher. He said he saw the cuisine in Australia but did not further name, describe or discuss any cuisine or dish or meal.
Whilst the Tribunal does accept that an overseas education such as an Australian qualification can carry prestige and weight in a home country, the cookery courses proposed by the applicant are not special or unique or give any greater advantage to the applicant. He already has a bachelor’s degree in hotel and restaurant management from the Philippines and discounting the impact of Covid-19 was able to register, open and run two food businesses.
The applicant stated he had a business plan to open a café and mini restaurant with his uncle in the future. However, he does not provide a statement of support from his uncle or call his uncle to give oral evidence at the hearing. The Tribunal places little weight on this statement by the applicant.
The applicant after the hearing submitted a bundle of documents purporting to show his business plan for opening a café and mini restaurant. However, the business plan does not provide any detail of capital or financing and is not supported by any evidence of letters of instructions to the architect or designer. No supporting letter by an accountant is provided as to business viability.
The applicant’s agent in their email of 7 May 2025 states that the proposed plans, photos and planned construction was initiated in 2022.
However, the City of Cabanatuan blow-up plan submitted is signed and dated 06 October 2015. The plan is also now over 9 years old.
The Tribunal is concerned that two documents submitted have dates that do not match the claims made by the applicant. Whilst the date on the photo of Daddy O! Snack Bar can be accepted as a possible error, the date of 06 October 2015 on the City of Cabanatuan blow-up plan cannot be put down to error. The plan is clearly signed and dated. Furthermore, the pictures submitted in the business plan are in stark contrast to the style and structure of the applicant’s current business. The applicant provides no explanation or accountants letter or other financial outline of how he would engage in the design, build and running of such a business in a mall as shown in his pictures and designs.
Equally concerning, the applicant in his post hearing submissions as part of his business plan has supplied a “Construction Guidelines” document for SM Supermalls which is available for free download on the internet at
There is nothing before the Tribunal to suggest the applicant has liaised with the mall owners, or the architect/planner or the local council as part of the business plan.
The Tribunal finds the submitted business plan lacks credibility and does not accept it.
The Tribunal does not accept that the applicant could plausibly leave his firstborn baby a month after their birth and come to Australia on a visitor visa and suddenly decide to stay back to study on the basis of customer service, higher standards and the cuisine.
The applicant’s evidence as to his reasons for undertaking the studies were vague and generic. He displayed limited insight into the cookery course and their value to him.
The applicant provides no documents as to how he departed his most recent employment prior to coming to Australia.
The applicant already has a higher degree qualification from the Philippines.
The applicant provides no financial or business reports for his businesses back in the Philippines.
He does not call is wife or uncle to give evidence or a supporting statement.
The applicant’s post hearing business plan material was not credible.
Notably, two of his businesses have closed. He does not explain how he left his current employer. He only has the packaging business back home but provides no financials for it. This suggests there is little incentive to return to the Philippines. He can bring his wife and child to Australia as subsequent entrant family members if a visa is granted.
There is greater incentive for the applicant to use the student visa system to remain in Australia.
The Tribunal is not satisfied the applicant intends genuinely to stay in Australia temporarily as a student.
Conclusion
On the basis of the above analysis, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily.
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.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Dates of hearing(s): 7 May 2025
Representative for the Applicant:Mrs Shiela Camille Samala Mati (MARN: 2318256)
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.