Park (Migration) - [2025] ARTA 1973

PARK (MIGRATION) [2025] ARTA 1973 (12 SEPTEMBER 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Jusung PARK
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2411609

Tribunal: General MemberL Hill
Place:Brisbane
Date: 12 September 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 12 September 2025 at 5:21pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment at lower level and different subject area – change of work interests and employment in new sector – no equivalent courses in home country – enrolment and course progress – immediate and extended family in home country – girlfriend from another country in Australia on temporary visa – not working per visa condition – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on 01 May 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 08 November 2023. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The applicant appeared before the Tribunal on 12 September 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The applicant was assisted in relation to the review. The representative did not attend the Tribunal hearing.
On 14 October 2024, the Administrative Appeals Tribunal (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 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
For the following reasons, the Tribunal sets aside the decision under review and remits the visa application for reconsideration.
BACKGROUND
The applicant is a 32-year-old male. He has provided the biographical/biodata page of his current Republic of Korea passport. On 08 November 2023, the applicant applied for a student visa to study in the ‘vocational education and training sector’. In summary, at the time of applying for the student visa, he stated:
·He was born in Seoul in Korea.
·He is not married and has no dependent children.
·He has completed a Bachelor of Engineering at the Kongju National University in Korea. After finishing his university studies, he worked in the construction industry.
·There are no courses relating to tiling in Korea and he is seeking to complete a Certificate III in Wall and Floor Tiling in Australia.
·He claims this course along with the strengthening of his English language skills will assist him to obtain a higher salary job with a tiling company in Korea.
·His family remains in Korea, and he has sufficient savings to support his tuition and living costs in Australia.
On 01 May 2024, the delegate of the Minister (the delegate) refused to grant the applicant a Student (Temporary) (Class TU) visa. In summary, the delegate considered that the applicant had not demonstrated ties that would act as an incentive for him to return. The delegate also was not satisfied that the applicant had demonstrated a reasonable level of knowledge about their educational objectives, study outcomes or visa conditions and raised questions about his motivation to study in Australia. The delegate was also not convinced that the proposed course will be of greater benefit to his future given he has studied previously at a higher level. Finally, the delegate had concerns that given the applicant’s immigration history, the applicant was using the student visa program to maintain ongoing residence in Australia. Overall, the delegate was not satisfied that the applicant intended to genuinely stay in Australia temporarily and was not satisfied that he met cl 500.212 of Schedule 2 to the Regulations.
The applicant applied to the Tribunal for a review of the delegate’s decision on 13 May 2024. Prior to the Tribunal hearing, the applicant submitted to the Tribunal written submissions and supporting documents, including, but not limited to a completed ‘ART Request for Student Visa Information’ form (ART Form), applicant’s statement, educational certificates, confirmation of enrolment and financial documents.
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 is whether the applicant meets cl 500.212.
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.
As to the applicant’s circumstances in his home country, no evidence has been presented that the applicant’s economic circumstances would present as a significant incentive for the applicant not to return to Korea. The Tribunal accepts the applicant’s evidence that his immediate family members remain residing in Korea, including his parents and two older sisters and their families and his paternal grandparents. He stated that he remains in regular contact with his family by messenger and video calls. He also has extended family members in Korea who he contacts sporadically when special events are on. The applicant explained that in 2025, he applied for a bridging visa and travelled to Korea to see his family and Japan to attend his girlfriend’s sister’s wedding.
At the Tribunal hearing, the applicant confirmed that he owns an apartment in Korea which he purchased prior to coming to Australia. This property is rented out. He also has an interest in another family property (cemetery land). He continues to maintain active bank accounts in Korea including the account (Kookmin Bank) which he has provided a certificate of deposit for. He also confirmed that he has completed his compulsory miliary service commitments
The Tribunal accepts he does not have military service commitments, and his desire to study is not related to any concerns arising from any political or civil unrest in his home country. The Tribunal considers that the applicant’s circumstances in his home country, strongly indicate that he is only a temporary entrant and wishes to return to his home country.
At the Tribunal hearing, the applicant confirmed that he does not have any family members residing in Australia. He stated that while he met his girlfriend in Australia, she is a Japanese citizen who is in Australia temporarily on a working holiday visa. He was asked if he was working in Australia. He responded no as his visa conditions does not permit him to work. He financially supports himself from his savings in Korea and money provided by his parents. The Tribunal has considered the applicant’s evidence and finds that the applicant’s potential circumstances in Australia do not indicate that the applicant is using the student visa to maintain ongoing residence.
The evidence before the Tribunal, including that statement of attainment dated 29 July 2025 and confirmation of enrolment letter dated 29 July 2025 and the PRIMS records, indicates that the applicant has been continuously enrolled and been successfully completing subjects while applying for a student visa. The Tribunal accepts that the applicant has been continuously enrolled and achieving course progression and considers these factors to be indicative of a genuine student.
At the Tribunal hearing, the applicant was able to confirm the name of his institution and course. He was also able to provide details of the subjects he was studying. He was asked how often he attended his course. He stated that each Thursday, he attends the institution and completes the practical aspects of the course work and each Friday afternoon they are taught the theory components of the course work. As evidence of his attendance, he provided a confirmation of enrolment letter dated 29 July 2025 which states that he is currently enrolled in a Certificate III in Wall and Floor Tiling. This letter stated that he is progressing at a satisfactory level and states the course end date as 9 November 2025.
The applicant was asked to explain the relevance or value of the course to his return to Korea, particularly given his previous completion of a higher-level course in the past. He confirmed that he has completed a degree in environmental engineering. However, he found the research component of the degree was not something he was interested in. After graduating, he worked in an office job. However, he found that working in an office was also not something that he was interested in. He then obtained work with a tiling company and worked with this company until he came to Australia in 2023. He enjoyed this work, however, there are not proper schools offering courses in wall and floor tiling in Korea and this is why he chose to come to Australia. He researched different courses but was drawn to the course offered by the Entrepreneur Education on the Gold Coast. He was asked what his parents thought about his change in career. He stated that at first, they were not satisfied with the change and said no but after they realised, he had an interest in this area and enjoyed it they have been supportive.
The Tribunal accepts the applicant’s evidence as to the value of the course to his future. He has provided consistent oral and written evidence as to his future employment plans and the value of his studies to his future. The courses complement his previous employment history in the construction field in Korea, and the Tribunal is persuaded by the submissions and the applicant’s oral evidence, that he has a genuine interest in wanting to return to Korea and utilise the skills and qualification he has gained in Australia.
There is no evidence before the Tribunal to suggest that the applicant has failed to comply with the conditions of Australian visas or migration laws of other countries. He has been in Australia since October 2023 and been making satisfactory progress in the course. The Tribunal considers the applicant’s immigration history is positive and has placed weight on these matters.
Conclusion
As outlined above, the Tribunal considers that the applicant genuinely intends to return to Korea and utilise his knowledge and the qualifications which he has gained from his course and stay in Australia to advance his career in the construction industry. The Tribunal has placed weight on his personal ties to his home country, his statement regarding the value of the course and his evidence that the completion of the courses will enhance his employability on return.
The Tribunal has carefully considered all relevant evidence and matters before it, including matters specified in the Direction and, on balance, 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). For visa applications made on or after 1 July 2022, condition 8208 (no critical technology related study without approval) must also be imposed. The following conditions may also be imposed in some cases (cl 500.611(2)): 8535 (limited visa entitlement), 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).
At the Tribunal hearing, the applicant stated that he intends to comply with any visa conditions imposed. There is no evidence before the Tribunal to suggest that he has not complied with the conditions of the previous visas he has held, or his current bridging visa. As noted above, he has maintained enrolment in a registered course, attended the course and made satisfactory progress in this course.
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)).
The Tribunal has identified above, all matters relevant to this application. As outlined above, the Tribunal considers that the applicant has a genuine commitment to completing his courses and returning to Korea.
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.
Dates of hearing(s): 12 September 2025
Representative for the Applicant: Ms Yun Kyung Kwon (MARN: 0641129)
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.