Rito (Migration) - [2025] ARTA 1675

RITO (MIGRATION) [2025] ARTA 1675 (24 AUGUST 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Jocelyn Breboneria Rito
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2409306

Tribunal:Clyde Cosentino
Place:Brisbane
Date: 24 August 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 24 August 2025 at 3:22pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment at lower level and in different subject area – original course discontinued by provider – reasons for change of subject and studying in Australia – future personal and business plans – mother, two sisters, partner and child in home country and one sister in Australia – social and community ties – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, 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 April 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 8 October 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 applicant provided various material and documents in support of her student visa application including:
·Overseas Student Confirmation of Enrolment (CoE) – Advanced Diploma of Leadership and Management (commencing 4.11.2024 and ending 2.11.2025)
·“Barangay Business Clearance” cleating the applicant to undertake a business in the Philippines.
·Copy of Registration of Business of the applicant in Barangay, Philippines.
·CoE – Diploma of Leadership and Management (commencing 09.10.2023 and ending 06.10.2024)
·Statement of the applicant responding to the Genuine Temporary Entrant (GTE) Requirements for a student visa in Australia.
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) on the basis that the applicant is not a genuine applicant for entry and stay as a student because she does not intend to stay in Australia temporarily.
Evidence provided after the delegate’s decision
On 24 April 2024, the applicant lodged an application for review with the former Administrative Appeals Tribunal (the AAT)
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), 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.
On 14 March 2025, the Tribunal received correspondence stating as follows:
I am writing to inform you of a change in course for Jocelyn Breboneria RITO, who was initially enrolled in the Advanced Diploma course at Charlton Brown. Unfortunately, this course is no longer being offered at the school, and as such, [the] applicant has transitioned to the Individual Support course, which is currently available.
Please find attached the COE (Confirmation of Enrolment) letter for your reference. This letter confirms that [the applicant] is now enrolled in the Individual Support course, which aligns with their academic and career goals.
On 14 March 2025, the Tribunal received confirmation of enrolment (CoE) of the applicant in a registered course of study, namely Certificate III in Individual Support at Charlton Brown education provider (course commencing 03.03.2025 and ending 26 .10.2025).
On 24 March 2025, the Tribunal requested the applicant provide information that she is enrolled in a registered course of study, and information that she is a genuine applicant for entry and stay as a student. The Tribunal indicated that the applicant will need to provide sufficient information to satisfy the Tribunal that she meet both of these visa requirements. It referred her to the Request for Student Visa Information Form and noted that in considering whether an applicant is a genuine applicant for entry and stay as a student, the Tribunal must have regard to Ministerial Direction No.108 ‘Assessing the genuine temporary entrant criterion for Student visa’.
The applicant provided a completed form providing the following information:
·She owned her own small business before coming to Australia in 2018.
·She previously arrived in Australia on a tourist visas (subclass 600) in 2018 and in 2023 respectively.
·She was initially enrolled in a Diploma of Leadership and Management in September 2023 with Charlton Brown education provider (Charlton Brown) before re-enrolling in an Individual Support III course with Charlton Brown in February 2025.
·She chose Charlton Brown for its “strong reputation, practical training with workplace placements, and industry-aligned course structure.”
·She chose to study in Australia instead of the Philippines because the “Certificate III in Individual Support offers internationally recognised, hands-on training with real workplace placements.” She states that “Australia’s aged care sector is more regulated, ensuring higher education standards.” She states that studying “in a multicultural environment also helps improved English skills and provides better global career opportunities”.
·She maintains regular contact with her family in the Philippines through social media forums. She states that through her regular communications while studying in Australia, she stays “involved in family matters” back in the Philippines.
·Her goal is “to become a skilled and compassionate care worker”. It is her plan “in the short term” to “gain experience in Australia” and “in the long term” “return to the Philippines to improve care services using the skills and training gained abroad.” She states that “this course supports [her] goal of building a meaningful, long-term career in the health and community services sector both locally and internationally.”
·She anticipates that a Certificate III in Individual Support will improve employability and provide better career opportunities in the Philippines.
·She states that her “decision to study abroad is driven by the desire for better career opportunities and professional growth in a stable environment.”
On 15 July 2025, the applicant sent further material in support of her review application as follows:
·A statement of confirmation from Charlton Brown (dated 6 October 2024) that the applicant has successfully undertaken and completed six units in a Diploma of Leadership and Management
·Confirmation of enrolment of the applicant with Charlton Brown (as of 15 July 2025) undertaking a Certificate III in Individual Support, commencement date 3 March 2025. The confirmation letter outlines 15 core subjects for the course, all which commenced 3 March 2025 and end 26 October 2025. The letter indicates that the subjects undertaken by the applicant, as of 15 July 2025, are marked as “continuing activity”.
·Confirmation of enrolment from Charlton Brown (dated 15 July 2025) for a Certificate III in Individual Support.
On 18 July 2025, the applicant provided further material in support of her review application, as follows:
·Birth certificate of the applicant’s daughter born in 2010 in the Philippines.
·Barangay Business Clearance certificate
·CoE – Certificate III in Individual Support at Charlton Brown (start date: 3 March 2025 and end date: 26 October 2025)
·A pathology report relating to her mother back in the Philippines.
·Submissions from the applicant’s authorised representative.
She also provided an updated GTE statement. In that statement she gives further information as follows:
·That her family is the cornerstone of her life. Her long-term partner and child live in the Philippines. Their child is being looked after by her partner while she studies in Australia. The applicant is also the primary caregiver of her mother in the Philippines. She is a devoted mother, partner and carer back in the Philippines. She wishes to enhance her knowledge and skills in the field of aged care so that she can go back to the Philippines and apply these skills there and be with her family again. She also has two sisters living in the Philippines and one living in Australia.
·In the Philippines, she operates and owns a small retail business. The business is presently operational and being looked after by her partner while she finishes her studies in Australia.
·She states that “[her] initial academic plan was to proceed to the Advanced Diploma of Leadership and Management, which would build on [her] previous studies and further strengthen [her] management capabilities—especially in relation to business operations and team leadership.” The “institution discontinued that course offering, which led [her to reassess [her] future goals. Rather than interrupting [her] education, [she] chose to pivot into a new and highly relevant field: aged care.”
·She states that “[a]fter thorough research and consultation with [her] family and mentors, [she] identified the Certificate III in Individual Support (Aged Care) as a vocational program that align[ed] strongly with both [her] personal values and national needs. [She] commenced the course in March 2025 and [is] due to complete it in October 2025. This course provid[ed] a practical and meaningful career pathway in the care industry while also allowing [her] to gain skills that [she] can use immediately to support [her] elderly mother and serve vulnerable groups in [her] community”.
·She gives reasons for studying Aged Care as follows:
My decision to undertake the Certificate III in Individual Support (Aged Care) stems from a combination of personal experience, social awareness, and a desire to create long-term community impact. I have cared for my elderly mother for many years and understand the physical and emotional demands of supporting an ageing family member. However, I have always lacked formal training and practical knowledge in how to deliver care safely, ethically, and effectively. This course will give me the foundational skills required to perform aged care duties with competence, compassion, and professionalism.
The curriculum is structured to include both core theoretical subjects and essential practical components. It covers individualised support, wellbeing promotion, ethical and legal care responsibilities, infection control, and communication strategies within culturally diverse care environments. One of the most significant aspects of the course is the mandatory work placement in a registered aged care facility, which allows students like me to gain valuable real-world experience. This practical exposure is essential for applying classroom knowledge to the day-to-day realities of care work and will prepare me to deliver services that are both professional and person-centred.
Through this course, I aim to become a well-trained caregiver who can directly support the elderly in my country and contribute to raising the standards of home-based and community care in underserved areas of the Philippines.
·She gives reasons for studying in Australia as follows:
I chose to study in Australia because of its global reputation for excellence in vocational education, particularly in healthcare and community services. Australian training institutions are known for their hands-on teaching methodology, workplace-integrated learning, and strict educational standards regulated by ASQA (Australian Skills Quality Authority). The Certificate III in Individual Support is nationally accredited and internationally respected, with its curriculum tailored to real industry needs.
Australia offers one of the most advanced aged care systems in the world, supported by strong government oversight, a trained workforce, and future-focused policies. The structured nature of Australia’s education and student visa systems, along with built-in support services for international students, provide an ideal environment for learning and professional growth. Additionally, I have family support here through my sister, which makes it easier to manage my studies and personal wellbeing. Compared to other countries, Australia is more affordable, safer, and closer to the Philippines—making it the most practical and suitable choice for me.
In contrast, studying aged care in the Philippines would not provide the same standard of training or access to real-time placements. Programs in my home country are generally more theoretical, and aged care is still an emerging sector with limited formal infrastructure. Studying in Australia allows me to gain world-class knowledge and experience that I can later bring home and apply effectively in both family and community contexts.
·She gives reasons for studying with Charlton Brown as follows:
I am currently studying at Charlton Brown, a leading Registered Training Organisation (RTO) located in Brisbane, Queensland. I previously completed my Diploma of Leadership and Management at this institution and had an excellent learning experience. The faculty includes industry professionals who bring their practical knowledge into the classroom, while the institution offers modern facilities and a strong support network for students.
Charlton Brown’s reputation for high-quality, hands-on education and its successful track record in placing students in relevant work environments were significant factors in my decision to return for the Certificate III in Individual Support. The college’s focus on job readiness, skills development, and personalised student care has allowed me to thrive academically and personally.
·She outlines a future plan after finishing her course as follows:
After completing my studies, I plan to return to the Philippines and apply the knowledge and skills I have gained in aged care to improve both my family life and the broader community. One of my immediate goals is to provide professional-level care for my elderly mother, whose daily needs and long-term wellbeing are a top priority for me. I want to be able to care for her in a way that is not only loving but also safe, structured, and aligned with best practices in health and hygiene.
In addition, I intend to use my qualification to expand my existing retail business by incorporating community-based services focused on elder support. As I already operate a small business in my hometown, I am in a position to gradually introduce care-related services and educational outreach, which could include wellness programs, home support services, or even caregiver training workshops for others in my community. My long-term ambition is to establish a small consultancy or care facility in a rural area, where services for the elderly are especially lacking. I also plan to use my skills and experience to participate in or lead local training initiatives to raise awareness about proper aged care and the importance of compassionate service delivery.
The Philippines is experiencing a demographic shift, with a steadily growing ageing population. This trend signals an urgent need for more qualified caregivers, improved elderly services, and public education. I hope to be at the forefront of this movement in my local region, offering both care and capacity building to uplift my community in meaningful ways.
·She provides her reasons for wanting to return home after her studies as follows:
I have deep and compelling reasons to return to the Philippines after the completion of my studies. My family responsibilities are substantial and emotionally significant. I have a child who depends on me for long-term guidance and upbringing, and my elderly mother requires ongoing care and emotional support. I am her primary caregiver, and my presence at home is essential to her wellbeing.
Beyond my family duties, I have strong economic and professional commitments in the Philippines. I currently own and manage a small retail business that provides a livelihood for my family and contributes to our local economy. My physical presence is necessary for the long-term growth and development of this business, and I plan to actively manage and expand it upon my return. I have invested significant time, effort, and capital into building this business, and it remains one of my most important professional priorities.
Additionally, I have strong social and community ties that connect me deeply to my hometown. I was born, raised, and educated in the Philippines, and I maintain lasting relationships and networks that are important for both personal and professional reasons. I have no desire to remain in Australia beyond the permitted visa period, and I have never viewed my education as a migration pathway. Instead, I see it as a valuable opportunity to equip myself with the skills and training that will allow me to return home and make a meaningful contribution to my family and society.
·She states that she has complied with visa conditions in the following way:
Since arriving in Australia, I have made every effort to fully comply with all the conditions of my student visa. I have maintained active and valid enrolment in all of my approved courses and have attended classes regularly, as confirmed by my academic and attendance records. I have consistently met the course requirements, completed my assessments, and demonstrated satisfactory academic progress throughout my time in Australia.
I have also maintained valid Overseas Student Health Cover (OSHC) for the entire duration of my stay and have abided by the work limitations placed on student visa holders by ensuring that I do not work more than 48 hours per fortnight during study periods. Additionally, I have promptly informed both my education provider and the Department of Home Affairs of any changes in my address or personal circumstances, in accordance with visa reporting obligations.
My actions reflect a strong commitment to abiding by Australian immigration laws and to preserving the integrity of the student visa program. I understand the importance of maintaining compliance and have consistently demonstrated respect for the responsibilities that come with my visa.
On 21 July 2025, the applicant appeared before the Tribunal via Teams Conferencing to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Filipino and English languages. The applicant was assisted in relation to the review.
The Tribunal noted that the issue before it was whether the applicant meets the genuine temporary entrant criterion as outlined in cl 500.212.
The applicant provided evidence to the Tribunal in support of her review. The Tribunal asked her a range of questions relating to the relevant factors for consideration under Direction 108.
She answered consistently with information dealing with the above relevant factors outlined in Direction 108. The applicant also provided oral evidence consistent with her supporting documents.

The Tribunal’s findings relating to her oral evidence, along with her written material and supporting documents, are given below under “Consideration of Claims and Evidence”.
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 meets cl 500.212(a).
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.
The Tribunal is satisfied with the evidence before it, that the applicant has strong and close connections to her family members back in the Philippines, in particular her partner and her child who both reside in her home area in the Philippines together. At the hearing, the applicant spoke genuinely about her 15-year-old daughter and her long-term partner who was looking after her daughter, along with her mother. The applicant gave evidence at the hearing as to why it is very important for her to gain her qualifications as soon as possible in Australia so that she can return to the Philippines to be with her daughter, partner and mother again, as a family. She made it clear in her evidence that her family are the “cornerstone of her life”. The applicant has given consistent evidence throughout, both in writing and orally, as to how important her family are to her back in the Philippines. The applicant gave evidence that she is close to her two sisters who are also living in the Philippines. The applicant has only one other sibling – her sister - who lives in Australia. The Tribunal accepts her oral evidence that she has been responsible for the welfare of her mother when she was in the Philippines and that her partner has taken over these responsibilities while the applicant is in Australia.
The Tribunal accepts her evidence that she wishes to return to continue to look after her mother and to be with her child and partner, after she has completed her course of study in Australia. The Tribunal is also satisfied on the evidence before it that the applicant maintains a regular and consistent communication with her daughter, partner and mother, as well as her two sisters in the Philippines while she is studying in Australia. Given the extent of the applicant’s personal ties to the Philippines, the Tribunal is satisfied that these factors serve as a significant incentive to return to the Philippines.
Having regard to the applicant’s circumstances in her home country, having regard to the supporting documents provided by the applicant, and having regard to her oral evidence at the hearing, there is no evidence that has been presented to the Tribunal which indicate that her economic circumstances would present as a significant incentive for the applicant not to return to the Philippines. The Tribunal notes that the applicant has not provided documentary evidence of her ownership of property in the Philippines. However, having considered the consistency of evidence provided in her written material and oral evidence given at the hearing, the Tribunal is satisfied that the applicant left behind a small retail business in the Philippines. This is also supported by a copy of the Business clearance Certificate in Barangay that she has provided as evidence to the Tribunal. The Tribunal accepts the applicant’s evidence, which has been consistently expressed in her written material and at the hearing, that, since she has been in Australia studying, her retail business remains operational and that her partner runs her business in the applicant’s absence. The Tribunal is satisfied on the evidence that her economic circumstances would not present as a significant incentive for the applicant not to return to the Philippines.
There is no evidence before the Tribunal that political and civil unrest would result in the applicant choosing to remain in Australia indefinitely. There is no evidence before the Tribunal of military commitments that would present as a significant motive not to return.
Having regard to the applicant’s potential circumstances in Australia and having regard to the supporting documents and oral evidence provided by the applicant, there is no evidence that has been presented to the Tribunal which present as a strong incentive to remain in Australia. The Tribunal is mindful that she has a sister living in Australia and who is supporting her while she is studying here. However, given all the other evidence before the Tribunal which indicates a stronger pull for her to return to the Philippines at the end of her registered course of study, the Tribunal is satisfied that the applicant’s only family connection in Australia, her sister, is not a stronger reason for her to remain in Australia.
Having regard to the value of the course to the applicant’s future, the Tribunal has had regard to the applicant’s written statements and oral evidence about how the courses add significant value to her future employment back in the Philippines. It has considered, and accepts, her written evidence outlining why completing a Certificate III in Individual Support will provide her with accreditation and skills in the aged care sector. It has considered, and accepts, her written evidence outlining how the Certificate III in Individual Support will provide her with foundational skills required to perform aged care duties back in the Philippines. It has considered, and accepts, her written evidence that the Philippines does not provide the same standard of training, with the aged care there still developing as an emerging sector and providing less formal infrastructure than that provided in Australian learning centres. While it notes that she was previously undertaking a different course of study, namely a Diploma of Leadership and Management, there is sufficient evidence before the Tribunal for it to be satisfied that this course was discontinued by her education provider and not by her, and that she “pivoted into a new and highly relevant field” in aged care, thus reassessing her future goals with the same education provider.
The Tribunal is satisfied from the evidence before it that she understands what the Certificate III in Individual Support entails, the learnings from this course and the value this course has to her future back in the Philippines. The applicant has also expressed how she wishes to apply her learning to hospitals in the Philippines, as well as closer to home when looking after her mother. The Tribunal has some concerns that the applicant has given evidence that her retail shop continues to be run back in the Philippines by her partner. It has some concerns that this retail shop might, in part, be an employment motivation when she returns to the Philippines, thus negating part of the reason for her to be studying in Certificate III in Individual Support in Australia. However, the Tribunal has given careful consideration to her evidence that she is very much motivated in applying her aged care skills to hospitals and aged care facilities back in the Philippines, as well as having regard to her representative’s submissions made on her behalf that she has been studying Certificate III in Individual Support because there was a need for skills in this sector in the Philippines and that it will greatly increase her work prospects back home as a result. Given this finding, the Tribunal is satisfied that the value of her course in Australia will increase her prospects of employment in the aged care sector back in the Philippines.
The Tribunal notes the applicant’s commitment already in studying Certificate III in Individual Support with her education provider. The Tribunal is satisfied from the letter from Charlton Brown that the applicant was a successful student previously, having studied and completed six units in a Diploma of Leadership and Management before the education provider discontinued this course requiring the applicant to reassess her future goals and commencing a Certificate III in Individual Support with the same education provider. The Tribunal is satisfied from the letter from Charlton Brown (dated 15 July 2025) that the applicant is enrolled in 15 core subjects for a Certificate III in Individual Support and that the status of these subjects are marked “continuing activity” and not marked as cancelled or not having been passed due to unsatisfactory results. The Tribunal is also satisfied from the CoE provided by the applicant that she is presently enrolled in a Certificate III in Individual Support. It is satisfied that she commenced this course on or about 3 March 2025 and that she will compete this course on or about 26 October 2025.
The evidence indicates that the applicant has been continuously enrolled, successfully completing her subjects and that she is presently enrolled in a Certificate III in Individual Support. The Tribunal accepts that the applicant has been continuously enrolled and is achieving course progression which is indicative of a genuine student.
The applicant has indicated that she will return to the Philippines on completion of her course. No evidence has been presented that she will need to stay further in Australia to study for a future career aim following completion of this course and should she choose to do so and present a further application for a student visa or enrolment in a further course this would be of concern.
The Tribunal does not have any information before it to indicate that the applicant has not complied with visa requirements while studying in Australia. There is no evidence before the Tribunal to suggest that the applicant will not comply with visa conditions into the future.
On the basis of the above and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, 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.
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 finds the applicant meets cl 500.212(c).
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.
Date of hearing: 21 July 2025
Representative for the Applicant: Ms THARA SUJITH KUMA
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.