SUTANTO (Migration) - [2025] ARTA 349

SUTANTO (MIGRATION) [2025] ARTA 349 (20 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr ALDIE SUTANTO
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2316135

Tribunal:General Member A Goodier
Place:Perth
Date: 20 February 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 20 February 2025 at 3:56pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – two children in Indonesia act as an incentive for applicant to return to home country – applicant has progressed his studies in Australia and complied with visa conditions – applicant successfully progressed in his studies – satisfied that the applicant is a genuine applicant for entry and stay as a student – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 500.212
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 20 September 2023 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 14 July 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 cl500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because they were not satisfied the applicant met the criteria of a genuine applicant for entry and stay as a student, as required for the grant of a student visa.
The applicant appeared before the Tribunal by Microsoft Teams video link on 20 February 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
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 applicant is a 30-year-old national of Indonesia.
The delegate was not satisfied the applicant was a genuine temporary entrant.
The applicant provided to the Tribunal copies of his children’s birth certificates, his marriage certificate, untranslated death certificate for his wife plus other medical information relating to her death.
In a statutory declaration dated 25 October 2023 the applicant declared that he was a genuine temporary entrant. He wished to study in Australia to upgrade his skills for a better future for himself and his children. His previous studies were in the field of pilot and aviation which he completed in the USA from November 2014 to February 2016. He obtained his licence from the FAA and returned to Indonesia where he attempted to apply for a position as airline pilot. While waiting to secure a suitable position, he helped his father running a car repair business and exploring other businesses such as F&B to channel his passion and his hobby. He began a F&B business in 2020 but COVID impacted his business and he had to close. In 2022 he transitioned to becoming a personal fitness trainer at well-known gyms. He chose this path as there were not many options for him and to maintain a basic fitness regime. His passion is to establish his own F&B business drawing from his past experiences. The applicant attached untranslated documents he claimed were evidence he ran his F&B business as well as photographs of himself outside a small stall. He came to Australia for a holiday to release from his stress and depression and trauma after losing his wife after giving birth to their second child. She expressed a wish to go to Australia with the family and he is making her dream come true. He aspires to become a professional chef as he promised to cook healthy for the children. He chose Evolution as they have received awards. It is an excellent vocational education and training centre. Australian qualifications are well recognised around the world. Compared to Indonesia, Australia’s hospitality industry offers a comprehensive and industry focussed approach to widely international cuisine which is not available in his country. Apart from a recognised educational qualification, Australia is known for its multiculturalism and diversity which he believes enhances his knowledge in dealing with social and cultural diversity. He has received an offer to work as a professional chef in a restaurant from 21 November 2025. He would like to start his own catering business and aims to provide good quality food for airlines. He has a good network of friends in Indonesia and is the sole parent for his two children.
The applicant provided his offer of employment commencing 21 November 2025. He also provided his resume.
The applicant provided a Certificate of Attendance dated 11 October 2023 from Evolution indicating his overall attendance rate was 93%.
The applicant provided an Interim Academic Progress Report dated 11 October 2023.
The applicant provided a completed Student Visa Information Form to the Tribunal providing the following information:
- He arrived in Australia in June 2023 holding a visitor visa and returned to Indonesia for a week in April 2024 to see his two sons. He applied for this visa in July 2023.
- No details of previous courses were provided.
- He was employed in Australia as a personal trainer at Celebrity Fitness from 1/1/22 to 1/2/23.
- He previously studied in the USA for about 18 months from June 2014.
- He is currently enrolled in a Certificate IV in Kitchen Management with an expected finish date of March 2025 and is enrolled in a Diploma of Hospitality Management commencing April 2025, with a finish date of September 2025.
- He chose Evolution Hospitality Institute as it has a strong reputation for practical, hands-on training and focus on preparing students for real world success in hospitality. He wanted a course that would help him prepare healthy, delicious meals for his sons as well as give him skills for a future career.
- Evolution Hospitality offers a globally recognised qualification and provides exposure to international hospitality standards, not easily accessible in his home country. Studying in Australia allows him to immerse himself in a multicultural environment not available to him locally.
- He owns a house in Indonesia.
- He has been offered employment on the completion of his studies in a restaurant in Indonesia.
- He plans to open his own business in Indonesia. His qualifications will assist him to establish a successful business.
- He has no military service commitments in Indonesia or any concerns about political or civil unrest.
The applicant confirmed at hearing that he chose to study hospitality as his wife passed and he needed to know how to make proper food for his children. He is completing a Diploma in Hospitality as he would like to rebuild his business in Indonesia in the future. He has a job offer in the meantime on the condition he completes his studies in Australia. He does not have work rights and is supported by his parents.
He confirmed it is his intention to return home at the completion of his Diploma as his two children live in Indonesia and he needs to return for them. He has a job offer to return to.
He confirmed this is his vocation, as personal training is just a hobby for him.
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 meet the requirements of cl 500.212 of Schedule 2 to the Regulations.
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 several 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 applicant confirmed that his children are living in Indonesia, and as his wife, their mother has passed, he needs to return to care for them. He is learning how to cook proper food for them as it was his wife who did the cooking. He has returned several times to spend time with his family since his arrival in Australia. The Tribunal is satisfied his two children in Indonesia act as an incentive for him to return to his home country.
He has no concerns about military service or civil or political unrest in Indonesia and there are no other reasons for him not returning to Indonesia.
The applicant chose to study in Australia as the courses are recognised internationally. The courses in Australia offer a more practical experience and the standard of education is of good quality.
The applicant explained that personal training is a hobby, and his future vocation was in hospitality. He intends to develop and expand his business and has a job offer on the condition he completes his Australian qualification.
The applicant has progressed his studies in Australia and complied with visa conditions. He has demonstrated the relevance of the course in which he is currently enrolled as well as his future proposed course to his future employment, provided reasonable explanation for undertaking the course in Australia rather than in Indonesia, and provided evidence to satisfy the Tribunal about his intention to return to Indonesia after completion of the course and utilise his new skills and qualification to develop his own business and take up the offer of employment.
The Tribunal considers these factors as indicative of a person with an intention to obtain practical skills as well as theoretical knowledge, which they are unable to readily obtain in their home country, and to utilise their skills and knowledge to enhance their employment on return to their home country.
Based on the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).
Does the applicant intend to comply with visa conditions?
For the applicant to meet cl 500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl 500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). For visa applications made on or after 1 July 2022, condition 8208 (no critical technology related study without approval) must also be imposed
The applicant arrived in Australia holding a visitor visa in June 2023 and applied for this visa in July 2023. He has returned to Indonesia on several occasions. He has continuously complied with the conditions on any visa held. There is no evidence that the applicant has applied for any other visas in Australia prior to his arrival which have been refused or that he has not complied with conditions of any visa granted.
Based on the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl 500.212(b).
Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?
For the applicant to meet cl 500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl 500.212(a) and (b)). There is no other relevant matter to consider. The Tribunal finds that 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.
Dates of hearing(s): 20 February 2025
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 outcome, 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.