Misador (Migration)

[2025] ARTA 1557

Misador (Migration) [2025] ARTA 1557 (10 July 2025)

Applicant:Ms Kristia Lorraine Griego Misador

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:  2409175

Tribunal:Fraser Robertson

Place:Perth

Date:10 July 2025

CORRIGENDUM

Date of Corrigendum:25 August 2025  

Pursuant to s 114 of the Administrative Review Tribunal Act 2024 (Cth), the following alterations are made to the decision:

Paragraph 22 of the decision is altered to read: I am satisfied that the applicant intends to stay in Australia temporarily. In those circumstances, the applicant meets subcl 500.212(a).

Paragraph 23 of the decision is removed as it was included in error.

Statement made on 25 August 2025 at 9:35am

Decision and
Reasons for Decision

Applicant:	Kristia Lorraine Griego Misador
Respondent:	Minister for Immigration and Citizenship
Tribunal Number:	2409175
Tribunal:	General Member F Robertson
Date:	10 July 2025
Decision:	The Tribunal sets aside the decision under review and remits the application for reconsideration in accordance with an order that the applicant meets cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth).

Statement made on 10 July 2025 at 1:50pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – applied after arriving on tourist visa – genuine assessment of educational opportunities – change of subject area consistent with family background and personal interests – certificate courses completed and diploma course in progress – career objectives and employment opportunities – parents, children and extended family in home country – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

CASES
Dait v MICMSMA (2022) 288 FCR 1
Eros v MICMSMA [2020] FCA 106
Vidiyala v Minister for Home Affairs [2018] FCA 1973

Statement of reasons

INTRODUCTION

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the 'Act').

2. The applicant applied for the visa in September 2023. The delegate refused to grant the applicant the visa because they were not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the 'Regulations').

3. The applicant has applied for review of that decision. On 7 April 2025, the applicant provided a completed student visa information form to the Tribunal.

4. The review application was heard earlier today, 10 July 2025, with a Filipino interpreter available. Whilst the applicant was represented in the review application by a registered migration agent, the agent was not instructed to attend the hearing and consequently did not attend the hearing.

5. Following the hearing, I have determined that the applicant is a genuine applicant for entry and stay as a student and meets cl 500.212 of Schedule 2 of the Regulations. Accordingly, the decision under review will be set aside and the application remitted for reconsideration on that basis. These are my reasons.

   CRITERIA FOR THE GRANT OF A STUDENT VISA

6. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. At least one applicant must satisfy the primary criteria in cl 500.211 to cl 500.218. The issue in the present case is whether the applicant satisfies cl 500.212 of the Regulations, in other words, whether I am satisfied that they are a genuine applicant for entry and stay as a student.

7. Clause 500.212 is in the following terms:

   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.

8. 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 (the 'Direction').[1] The Direction requires the Tribunal to have regard to a number of specified factors in relation to:

   (a)the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

   (b)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;

   (c)if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

   (d)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.

   [1] The relevant text of the Direction is reproduced in the attachment to this decision, albeit with an amendment to correct what I consider to be a clear and obvious typographical error that appears in paragraph 14(iii/b).

9. The factors specified in the Direction are not a checklist but intended as a guide to considering whether the applicant satisfies cl 500.212(a), which is commonly referred to as ‘the genuine temporary entrant criterion’.

10. Subclauses 500.212(a), (b) and (c) involve discrete inquiries.[2] To satisfy cl 500.212, all of subcls (a), (b) and (c) must be met and an unfavourable finding in relation to either (a) or (b) forecloses the possibility of a favourable outcome.[3] An applicant is only a genuine applicant for entry and stay as a student pursuant to cl 500.212 if they satisfy subclauses (a) and (b), in light of 'any other relevant matter' pursuant to subcl (c).[4]

    [2]        Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1 [32] (Jagot, Bromwich and Lee JJ); Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 106, [14]–[15] (Allsop CJ); Vidiyala v Minister for Home Affairs [2018] FCA 1973 [28].

    [3]        Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1 [32] (Jagot, Bromwich and Lee JJ).

    [4]        Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1 [35] (Jagot, Bromwich and Lee JJ).

    CONSIDERATION, FINDINGS AND REASONS

11. As already observed, the issue in the present case is whether the applicant satisfies cl 500.212, in other words, whether they are a genuine applicant for entry and stay as a student.

    Does the applicant intend genuinely to stay in Australia temporarily: subcl 500.212(a)

    The applicant's circumstances, immigration history and any other relevant matters

12. The applicant is a 36-year-old citizen of the Philippines. She is the mother of two children who reside in the Philippines under the care of extended family. She has submitted that she maintains daily contact with her children and provides for them financially. The applicant also gave evidence at the hearing that her motivation to return to the Philippines following the completion of her course is grounded in her commitment to her children’s upbringing. I am prepared to accept that the presence of her children and parents in the Philippines is a significant incentive for her to return at the end of her course.

13. I accept that the applicant initially came to Australia on a tourist visa in 2023 to celebrate her birthday and visit friends. She gave evidence that this was her first overseas trip and that during this visit, she became aware of educational opportunities in Australia that aligned with her long-standing interest in cookery. Having considered the applicant’s oral evidence and written materials, I am satisfied that the transition from tourist to student visa was not premeditated or opportunistic, but rather arose from a genuine reassessment of her educational opportunities while abroad for the first time in circumstances where she was at a stage in her life where her children were older and more independent. I find that the applicant was able to explain this transition in a credible and reasonable manner.

14. The applicant has completed Certificate III and Certificate IV in Commercial Cookery and is currently undertaking a Diploma of Hospitality Management at Macallan College, which she is expected to complete in January 2026. The applicant provided a detailed career plan and supporting documents, outlining her intention to gain employment in reputable hospitality establishments in the Philippines, including Resorts World Manila, Okada Manila, and Marriott Hotel. I accept that the skills and qualifications she is obtaining in Australia are relevant and valuable to her stated career objectives. I am satisfied that the course will enhance her employability and income potential in her home country.

15. The applicant claimed that she considered study options in the Philippines, Canada, the UK, and the USA, but ultimately selected Australia due to its cost, vocational structure, multicultural environment, and the presence of high-quality training providers. I have some reservations about this. I find it difficult to accept that in the approximately 3-week period after arriving in Australia that the applicant was able to research and compare her study options, but overall this is not something that I place much weight on and, overall, I am satisfied the applicant’s reasons for selecting study in Australia are sound and genuine.

16. The applicant has close family ties in the Philippines, including her two young children and her parents. She holds life insurance and government health cover in the Philippines, and has maintained a long history of residence and employment there. I am satisfied that these ties constitute a strong and enduring connection to her home country and act as a significant incentive for her to return following her studies.

17. The delegate considered that the lower remuneration available in the Philippines might encourage the applicant to remain in Australia. While I accept there may be an economic incentive to remain in Australia, having heard from the applicant, I am satisfied that this is outweighed by her familial responsibilities and desire to reunite with her children. I find her intention to return is genuine despite the economic disparity and potential economic incentive to remain.

18. The applicant completed a Diploma in Information and Communication Technology in 2008 and then experienced a significant educational gap. She has explained that this gap was due to raising her children as a single mother and working to support them financially. I accept this explanation and consider it to be a reasonable justification for the gap. Her move into the hospitality sector is consistent with her personal interest, her family’s professional background in the cooking industry, and her past employment experience. I am satisfied that the course is consistent with her education and career goals. I am further satisfied that it involves a reasonable career change for the applicant.

19. The applicant has held roles in customer service, technical support, and hospitality administration. She has also gained hands-on experience in fast-food and restaurant settings. The course she is undertaking is directly relevant to her future employment plans, which include working in hospitality in the Philippines and ultimately opening her own restaurant.

20. The applicant estimates entry-level remuneration as a chef in the Philippines to be PHP 25,000–35,000 per month, rising to PHP 70,000 per month in luxury resorts. I find this to be a reasonable estimate supported by research and consistent with her employment plans.

21. Having considered all the evidence, I find that the applicant has provided a coherent, well-researched, and credible explanation for her course of study in Australia and her intention to return to the Philippines on completion of that study. I am satisfied that she is a person who intends genuinely to stay in Australia temporarily.

    Conclusion on cl 500.212(a)

22. I am satisfied that the applicant intends genuinely to stay in Australia temporarily. In those circumstances, the applicant does not meet subcl 500.212(a). Having concluded that the applicant does not meet subcl 500.212(a) it is not necessary to further consider subcls 500.212(b) or (c).[5]

    [5]        Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1 [32]; [35] (Jagot, Bromwich and Lee JJ).

23. Moreover, having found that the applicant does not meet subcl 500.212(a), the applicant cannot satisfy cl 500.212 of the Regulations. In those circumstances, the decision to refuse to grant the applicant the visa should be affirmed.

    Does the applicant intent to comply with the conditions subject to which the visa is granted: subcl 500.212(b)

24. The applicant’s evidence, which I accept, is that she has not worked whilst subject to condition 8101. There is otherwise no evidence that the applicant does not intend to comply with the conditions that the visa would be subjected to if granted.

25. I am satisfied that that the applicant intends to comply with the conditions subject to which the visa is granted as required by subcl 500.212(b).

    Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter: subcl 500.212(c)

26. I have already concluded that the applicant meets subcls 500.212(a) and (b). The remaining question is whether the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter: subcl 500.212(c).

27. Based on the evidence and material before me, there are no other matters which, in my opinion, impact upon whether the applicant is a genuine applicant for entry and stay as a student. In my view subcl 500.212(c) is met.

    Conclusion

28. The effect of the above findings is that I am satisfied that the applicant meets cl 500.212 of the Regulations on the basis that they are a genuine applicant for entry and stay as a student as required by cl 500.212. In those circumstances, the decision under review will be set aside and the applicant remitted for reconsideration in accordance with my findings.

    DECISION

29. The Tribunal sets aside the decision under review and remits the application for reconsideration in accordance with an order that the applicant meets cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth).

Date of hearing:	10 July 2025
Representative for the Applicant:	N/A

Attachment - Direction No 108

Part 1 - Preliminary

…

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.

…

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.