Tanada (Migration) [2025] ARTA 1023 (25 June 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Crystel Joy Tanada
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2504264
Tribunal:General Member D. Barker
Place:Sydney
Date: 25 June 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 25 June 2025 at 4:16pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Circuit and Family Court remittal – genuine temporary entrant – applied after arriving on visitor visa – consistent enrolment and academic progress – coherent and credible explanation for study choices – work history and future intentions in home country – sister’s intention to live in Australia, and applicant’s responsibility to care for mother with disability – intention to leave after completing current degree course – application under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 65, 375A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)CASES
Baker v MIAC [2012] FCAFC 145
Chen v MIBP [2017] FCA 46
Cockrell v MIAC (2008) 171 FCR 345
FKP18 v MIBP [2018] FCA 1555
Jagroop v MIBP (2014) 225 FCR 482Kaur v MHA [2019] FCCA 1372
Khan v Minister for Immigration [2019] FCCA 565MIAC v Obele (2010) 119 ALD 358
Tshering v MHA [2019] FCCA 2667
Williams v MIBP (2014) 226 FCR 112
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 7 June 2019 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 April 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied the applicant intends genuinely to stay in Australia temporarily.
The applicant requested a review of this decision and the Administrative Appeals Tribunal (the AAT), on 16 September 2020, affirmed the visa refusal decision. The applicant subsequently appealed to the Federal Circuit and Family Court of Australia (the FCFCA) and on 3 December 2024 the FCFCA remitted the matter to the Tribunal for determination according to law.
The applicant appeared before the Tribunal on 18 June 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an…
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Details
- Case
- [2025] ARTA 1023
- Decision Date
CaseChat Overview and Summary
In the case of Tanada, a Filipino national, the Federal Circuit and Family Court of Australia was asked to review the decision to refuse her Subclass 500 (Student) visa application. The applicant arrived in Australia on a Subclass 600 Visitor visa and subsequently applied for a Student visa, seeking to study hospitality and restaurant management. The delegate's decision to refuse the visa application was based on concerns that the applicant had not provided sufficient evidence of ties to the Philippines and a clear intention to return after completing her studies. The applicant sought a review of this decision, submitting additional evidence and documentation to support her case.
The primary legal issue before the court was whether the applicant met the genuine temporary entrant criterion under clause 500.212 of Schedule 2 to the Regulations. This required the Tribunal to consider various factors, including the applicant's circumstances in the Philippines, her immigration history, and her intentions to comply with visa conditions. The Tribunal also needed to assess whether the delegate had appropriately considered all relevant information and whether the decision to refuse the visa was legally sound.
The Tribunal found that the delegate had not adequately considered the applicant's consistent enrolment and academic progress in hospitality and restaurant management, as well as her coherent and credible explanation for her study choices. The Tribunal highlighted the applicant's intention to leave Australia after completing her current degree course, her work history, and future intentions in her home country. Additionally, the Tribunal took into account the applicant's responsibility to care for her mother with a disability and her sister's intention to live in Australia. Given these factors, the Tribunal concluded that the delegate had not appropriately assessed all relevant information and that the decision to refuse the visa was flawed.
Consequently, the Tribunal set aside the decision under review and remitted the visa application for reconsideration by the Minister. The Tribunal directed that the application be reconsidered in accordance with the order that the applicant meets the criteria for a Subclass 500 (Student) visa, particularly clause 500.212. The Tribunal's decision underscored the importance of a comprehensive and balanced assessment of an applicant's circumstances and intentions in determining whether they genuinely intend to stay in Australia temporarily.
The primary legal issue before the court was whether the applicant met the genuine temporary entrant criterion under clause 500.212 of Schedule 2 to the Regulations. This required the Tribunal to consider various factors, including the applicant's circumstances in the Philippines, her immigration history, and her intentions to comply with visa conditions. The Tribunal also needed to assess whether the delegate had appropriately considered all relevant information and whether the decision to refuse the visa was legally sound.
The Tribunal found that the delegate had not adequately considered the applicant's consistent enrolment and academic progress in hospitality and restaurant management, as well as her coherent and credible explanation for her study choices. The Tribunal highlighted the applicant's intention to leave Australia after completing her current degree course, her work history, and future intentions in her home country. Additionally, the Tribunal took into account the applicant's responsibility to care for her mother with a disability and her sister's intention to live in Australia. Given these factors, the Tribunal concluded that the delegate had not appropriately assessed all relevant information and that the decision to refuse the visa was flawed.
Consequently, the Tribunal set aside the decision under review and remitted the visa application for reconsideration by the Minister. The Tribunal directed that the application be reconsidered in accordance with the order that the applicant meets the criteria for a Subclass 500 (Student) visa, particularly clause 500.212. The Tribunal's decision underscored the importance of a comprehensive and balanced assessment of an applicant's circumstances and intentions in determining whether they genuinely intend to stay in Australia temporarily.
Orders
Orders of the court
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Background
Background to the litigation
For the following reasons, the Tribunal sets aside the decision under review and remits the visa application for reconsideration.BACKGROUND The applicant is a national of the Philippines and is 31 years old. She first travelled to Australia on 25 January 2019 on a Subclass 600 Visitor visa, which was valid until 25 April 2019. The applicant then applied for the Subclass 500 Student visa (Student visa) on 8 April 2019. It is this latter Student visa application which is the focus of the current review. The delegate’s decision record, a copy of which was provided with the review application, in explaining why they were not satisfied that the applicant met required genuine temporary entrant criteria expressed concern, amongst other things, that the applicant did not provide evidence of having business ties or the ownership of assets in her home country. The delegate also found that whilst the applicant had personal ties in the Philippines, these did not in themselves constitute a strong incentive for her to return to the Philippines. The delegate was also concerned that the applicant had not produced evidence of the study she claimed that she had undertaken in the Philippines in the hospitality and restaurant vocational arena, nor of why she wished to study further in this vocational field in Australia. In association with the visa application the applicant provided the Department of Home Affairs (the Department) with documents, including but not limited to the following:·Application for a Student visa – Record of Responses, generated 8 April 2019.·Confirmation of Enrolment (CoE) for:i.General English, commencing 18 March 2019 and finishing 8 December 2019.ii.Certificate III in Commercial Cookery, commencing 20 January 2020 and finishing 11 April 2021.iii.Certificate IV in Commercial Cookery, commencing 12 April 2021 and finishing 16 January 2021.iv.Diploma of Hospitality Management, commencing 17 January 2022 and finishing 3 April 2022. In association with the review application the applicant provided the AAT with documents, including but not limited to the following:·Department delegate decision record dated 7 June 2019.·Duplicate copies of CoE’s for:i.General English, commencing 18 March 2019 and finishing 8 December 2019.ii.Certificate III in Commercial Cookery, commencing 20 January 2020 and finishing 11 April 2021.iii.Certificate IV in Commercial Cookery, commencing 12 April 2021 and finishing 16 January 2021.iv.Diploma of Hospitality Management, commencing 17 January 2022 and finishing 3 April 2022.·Documentation regarding applicant’s sister’s proceedings in Family Court of Australia.·Written document titled ‘Statement of Purpose.’·Financial support letter from the applicant’s sister.·On 7 May 2020, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act[1], inviting them to complete a questionnaire providing information about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student The Tribunal received a response to the s 359(2) letter on 11 May 2020.·Support letter from Nonika de Jorgensen, ELICOS trainer.·Certificate of Attainment – General English course, issued 11 December 2019.·Certificate of Attendance - Certificate III in Commercial Cookery, issued 11 May 2020. Academic Interim Progress report - Certificate III in Commercial Cookery, issued 11 May 2020.[1] Now repealed.
Evidence
Evidence Before The Court
Whilst there was no request from the applicant, or their representative for access to the certificated documents, the Tribunal nonetheless provided them with the gist of the information covered by the documents, as referred to above. Further to this, the Tribunal informed the applicant that it considered information pertaining to enquiries about her Bridging visa application to be irrelevant to the issues under consideration by the Tribunal in this review and that no weight would be placed on this material.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 a genuine applicant for entry and stay as a student.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.
Decision
Reasons for decision
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): 18 June 2025 Representative for the Applicant: Ms Navneet Singh (MARN: 0963866)Attachment – Direction No 108DIRECTION 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’NeilMinister for Home Affairs and Minister for Cyber SecurityNote: 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 - PreliminaryName of DirectionThis 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.CommencementThis Direction commences on 23 March 2024.RevocationDirection No. 69, given under section 499 of the Act, is revoked.InterpretationAct 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) visaStudent Guardian visa means a Subclass 590 (Student Guardian) visa.ApplicationThis 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.PreambleThe 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; andb)the applicant’s immigration history; andc)if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; andd)any other relevant matterThis 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 – DirectionsAssessing the genuine temporary entrant criterion1.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; andb)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; andd)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 circumstances6.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 country9.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; ande)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 Australia11.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; ande)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 future12.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; andb)relevance of the course to the student’s past or proposed future employment either in their home country or a third country; andc)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 history13.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; andii.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; andvii.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 applicant15.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 matters16.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.
Ratio Decidendi
Legal Principle Established
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