Wangchuk (Migration)

[2025] ARTA 1505

Wangchuk (Migration) [2025] ARTA 1505 (1 August 2025)

Applicant:Mr Singye Wangchuk

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:  2313901

Tribunal:General Member B Gogarty

Place:Melbourne

Date:1 August 2025

Statement made on 06 August 2025 at 11:48am

Corrigendum

Date of Corrigendum:  6 August 2025

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

1. The second sentence in paragraph 5 is altered to strike the phrase “by a lawyer”, so that the statement reads: “The applicant, who was assisted in the review, appeared before the Tribunal on 8 July 2025 to give evidence and present arguments.”

AND

2. The reporting clause in the first sentence of paragraph 31 is to replace the word “lawyer” with “migration agent”, so the statement reads: “Following the hearing, submissions were made by the applicant’s migration agent, which relevantly stated as follows:”

AND

3. In the first sentence of the verbatim quote contained in paragraph 34, insert the erratum indicator [sic] after the phrase “migration lawyer”, so the statement reads: “While my ART decision was still pending (I had not been informed of a Hearing date or even if a Hearing would take place), upon consultation with my migration lawyer [sic] and family both in Canberra and Bhutan, I decided to continue my study in the field of Management with the focus to upgrade my qualification, skills and knowledge that is consistent to my previous studies and in line with my personal and professional career goals.”

AND

4. In last sentence of paragraph 70 delete the repeated word “that”, so the statement reads: “The Tribunal considers that, even on the day of the hearing, the applicant and his representative remained uncertain and apparently confused about the state of his enrolment, which reinforces how recently it had been added to the evidence.”

The Tribunal Notes:

The mistakes corrected in orders 1-2 arose from the submission corrected in order 3 and not because of any misrepresentation by the relevant migration agent about their qualifications or registration status.

DECISION AND  

REASONS FOR DECISION

Applicant:Mr Singye Wangchuk

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:  2313901

Tribunal:General Member B Gogarty

Place:Hobart

Date:  1 August 2025

Decision:The decision under review is affirmed.

Statement made on 01 August 2025 at 1:30pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – applicant changed career pathway – family and business commitments in home country – property and financial interests in Bhutan – siblings obtained permanent residency – limited course relevance to career goals – maintaining ongoing residence in Australia – decision under review affirmed

LEGISLATION

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 65, 499; Direction No 108
Migration Regulations 1994, Schedule 2 cl 500.212

CASES

MEIA v Hafza (1985) 60 ALR 674

STATEMENT OF REASONS

APPLICATION FOR REVIEW

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

2. 24 January 2023 visa application. The applicant is a citizen of Bhutan who applied for the visa on 24 January 2023 with the stated intention of studying commercial cookery and hospitality management at a Registered Training Organisation in Canberra, ACT.

3. 23 August 2023 delegate refusal. The delegate refused to grant the visa applied on the basis that the applicant did not satisfy clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations), which requires that the applicant genuinely intended to stay temporarily in Australia.

4. 7 September 2023 review application. The applicant applied for a review of the delegate’s decision to the Administrative Appeals Tribunal (AAT). As the review was not finalised by 14 October 2024, when the AAT became the Administrative Review Tribunal (the Tribunal), the application for review to the AAT is taken to be an application to the Tribunal.[1]

   [1] By virtue of the operation of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth).

5. July 2025 review hearing. The applicant, who was assisted in the review by a lawyer, appeared before the Tribunal on 8 July 2025 to give evidence and present arguments.

6. A suitable interpreter could not be secured in time for the hearing. The Tribunal informed the applicant, through his representative, that the hearing could be adjourned until an interpreter could be secured. On 7 July 2025 the applicant’s representative wrote to convey the applicant’s consent to proceed in English “on the understanding that if, at any stage, he feels that he is unable to adequately understand the questions being put to him or feels incapable of properly responding to questions, he will indicate that he would prefer for the hearing to be postponed until an interpreter can be sourced”. The applicant did not make any such request or raise any issues during or after the hearing. The Tribunal observed the applicant to communicate proficiently in English throughout the hearing. However, it has taken into account that English is not the applicant’s first language in considering his responses and statements at the hearing.

7. Evidence and submissions considered. The Tribunal has read and considered all the applicant’s submissions and evidence and all of the other materials in the department and Tribunal file. The Tribunal also had before it the applicant’s official “PRISMS” record of enrolment for the purposes of the grant of student visas,[2]1 relevant curriculum and country information and relevant movement records. The applicant was provided further time to make additional written submissions after the hearing which were also considered in full before making this decision.

   [2] Commonwealth Department of Education “Explanatory notes for international student enrolment data/Pages/ExplanatoryNotesforAEIStudentEnrolmentData.aspx

8. For the following reasons, the Tribunal affirms the decision under review.

   BACKGROUND

9. According to his biometric information the applicant was, at the time of the hearing a 41- year-old citizen of Bhutan.[3] He says that he grew up in Trashiyangste in the eastern part of the country before moving to the capital Thimphu for study and work.

   [3] At the hearing the applicant stated he was 42 years old. The Tribunal considers that may have been a mistake but makes no other findings and prefers the biometric (passport) information.

10. The applicant is married and has two children, a daughter and son, who live with their mother in Thimphu. He provided evidence of an extended family living in Bhutan, which includes parents, grandparents and three siblings.

11. The applicant has two siblings: an older brother and a younger sister who live in Canberra, Australia. He told the Tribunal that both came to Australia as students, subsequently gained permanent residence and have lived here for more than 10 years. The Tribunal reviewed the relevant movement records and confirmed this was the case.

12. The applicant told the Tribunal that he lives with his brother and sister, although the documentary evidence before the Tribunal indicates that they live in separate houses in Canberra, and it would appear from the record that the applicant lives in his brother’s house.  The Tribunal does not consider it necessary to make a finding about which sibling the applicant lives with but accepts his various evidence that his Australian based siblings have contributed to his studies with accommodation, living and other financial support while he has been onshore.

13. Prior to his most recent studies in Australia the applicant had a varied educational and employment history. He completed his secondary studies in 2005 before beginning a career in media with the national television broadcaster in Bhutan. He worked as a video editor, camera operator and studio director. He provided evidence that he received professional skills training and experience throughout that career and was registered as a member of the Film Association of Bhutan.

14. The applicant’s evidence is that, in 2011, he moved from the national broadcaster to freelance filmmaking, private film production operating his own media and events management business. He provided letters of support from the Film Association of Bhutan which indicated that he had produced “five feature films, one TV series and made more than 50 documentary[sic] and managed first Miss Bhutan pageant show and many popular reality shows in the [sic] Bhutan and outside Bhutan”.

15. The applicant first entered Australia in November 2022 on a Temporary Activity (subclass 408) Visa which he submitted was for the purpose of participating in a cultural event for the Bhutan Youth Development Fund. Shortly thereafter, he applied for an Australian student visa and returned to Australia in December 2022 on a Bridging Visa related to his student visa application which was formally made on 24 January 2023.

    Background: Original study and onshore purpose

16. Attached to the applicant’s original application was a “Statement of Purpose” (commonly known as “GTE Statement”) in which the applicant claimed that during the COVID-19 pandemic, the Bhutanese entertainment industry stalled (cinemas closed, investors withdrew). He said that he identified an opportunity in the tourism/hospitality sector during this time and that, in mid-2022, he and his wife decided to open a café-restaurant in Thimphu to cater to locals and eventually tourists. He said he leased a commercial property for this venture and said that he hired a chef and staff. However, he said that he struggled to find a skilled chef trained in Western cuisine and often had to rely on online tutorials to prepare dishes. This experience motivated him to consider formal training in commercial cookery. He also noted that Bhutan’s tourism sector was rebounding post- pandemic and saw potential to grow a hospitality business and create jobs by upgrading his own skills.

17. Original course end date as nominated return date. In the applicant’s student visa application, he stated he was approved for enrolment in a Certificate IV in Commercial Cookery and Diploma of Hospitality Management at the registered training provider “Canberra Valley Institute”. Relevant departmental records establish that was the case. The Tribunal notes that the applicant referred to these two separate courses in the singular (that is one combined “course”) throughout all his pre- hearing submissions, whose completion date was the intended date for him to return to Bhutan. Hence, in his application the applicant stated:

    "After completion of the course the applicant is seeking to work in his wife's restaurant in Thimphu, Bhutan." [emphasis added]

18. Similarly in the GTE statement attached to the application, the applicant claimed:

    “After the completion of the course, I will go back to my country and use my skills and knowledge in starting my own business and contribute to the private sector development of the country by generating employment opportunities. I also wish to be a trainer for the youths who have the perseverance and zeal to learn about cookery and hospitality management. Apart from that as my wife has to look after our daughter and she is having a hard time to look after, overstaying in Australia will strain our relationship which I don’t want it to be happened. So, I am certain to return home to help my wife and children as soon as I complete the course." [emphasis added]

19. In 2024 the applicant responded to a direction by the Registrar of the Tribunal requiring that the applicant complete a visa information form. In response to the question "include details of how these course(s) relate to the Main Applicant’s future plans", the applicant, consistent with his previous statements, wrote:

    "After the completion of the course, I will go back to my country and use my skills and knowledge in starting my own business and contribute to the private sector development of the country by generating employment opportunities. I also wish to be a trainer for the youths who have the perseverance and zeal to learn about cookery and hospitality management. Apart from that as my wife has to look after our daughter and she is having a hard time to look after, overstaying in Australia will strain our relationship which I don’t want it to be happened. So, I am certain to return home to help my wife and children as soon as I complete the course. Further, I have ageing parents who are in their 70s and I cannot afford to be away from them for too long as it is children’s responsibility to take care when they become frail and weak.

    The other reason to return home is I have agreement to supply two movies to Samuh (SAMUH BHUTAN - Watch Bhutanese movies online) the first ever OTT platform in Bhutan. I have already delivered one project called The Crackdown, and one is due. Thus, I must return home to deliver the movies as per the agreement." [emphasis added]

20. Completion of course on 22 June 2025. The PRISMS record for the applicant indicates that he completed the Certificate IV component of his course on 14 July 2024 and the Diploma component on 22 June 2025. The various evidence before the Tribunal, including the applicant’s own submissions, satisfy the Tribunal that the applicant did not return home to Bhutan upon completing his course but remained onshore until the hearing through to the date of this decision.

    Background: New study intentions and further course enrolment

21. On 7 July 2025, the day before the hearing, the relevant PRISMS record for the applicant showed a ‘saved’ enrolment for the applicant in a new course of study, a Graduate Diploma of Management (Learning) at “Crown Institute of Business and Technology, which is a different registered training provider than the applicant had been enrolled with in his previous course of study. According to the PRISMS user manual ‘saved’ status indicates that the enrolment is in ‘draft’ form, has not been submitted for approval to the COE administrator and ‘cannot be approved or have a visa granted by Home Affairs against it.’.[4]3 The Tribunal is not satisfied that the applicant was enrolled in any course of study the day before the hearing.

    [4] Department of Education and Training “Provider Registration and International Student Management System (PRISMS) Provider User Guide”, (May 2018), 30 [4.9] ttps://internationaleducation.gov.au/regulatory- information/Provider-Registration/Fees-And-Charges/Documents/ProviderUserGuide.pdf

22. On the morning of the hearing, 8 July 2025, the applicant’s PRISMS record had been updated from ‘saved’ to ‘studying’ a Graduate Diploma of Management (Learning) course. The Tribunal is satisfied the applicant was enrolled in a course of study at a registered training organisation on 8 July 2025 which is scheduled to end on 13 June 2027.

23. At the hearing the applicant was asked about his enrolment status. In response he acknowledged that he had not yet started the course and that he was to attend an orientation the day after the hearing on 9 July 2025. When asked if he had received any account details to access online course materials, he said he had not. The applicant was unable to say whether he had paid course fees and that he would have to ask his representative if that had been done. However, at a different point in the hearing he told the Tribunal his sister was paying his course fees; which the Tribunal accepts may mean his sister would be the person paying for his enrolment, not that she had done so yet. The Tribunal asked when the applicant had found out about the new course, and he replied:

    “Yeah, actually I was since after the completion of the course, I was just waiting for this hearing and everything. So, there was then my I decided my I talked and decided with my web that meanwhile I wait for this decision so I would take another course.

    So, it was very recent”  [emphasis added]

24. Consistent with the applicant’s previous written submissions the Tribunal takes the applicant to have been referring to the combined Cert IV and Diploma courses in hospitality which he had completed on 22 June 2025.

25. Hearing testimony about new course content and rationale. The Tribunal separately asked the applicant at hearing to explain the content of the new course of study and its relevance to his career intentions. In response the applicant initially provided a general but, in the Tribunal’s view, somewhat confused, statement about the course purpose which appeared to adopt language from the course page of the provider website. When the Tribunal asked the applicant to be more specific, he also appeared to have difficulty articulating what he would be studying and noted he could not remember the specific details of the course. The Tribunal asked why he had chosen to enrol said:

    I have, I have enrolled in this course because when it comes to cooking … and the kitchen management, I have, I got, I, I could learn many things … I can, I can handle this cooking. But when it comes to management part … the diploma in hospitality that were those, those chapter were very basic and that was very short.

    … So, if I have to manage my … business and the production company, any sort of the business having a good knowledge about the management is management was what I have realised.

    … So that's why so I have decided to take further course in the management in order to manage my own business as well.”

26. Later in the hearing the Tribunal noted its concern that the applicant’s knowledge about the course appeared limited and appeared to “just reflect the paragraph on the website” of the provider. The Tribunal explained that this might suggest that he was not genuinely engaged in the course and that his enrolment was opportunistic in the circumstances. The applicant acknowledged he understood the concern and issues it raised and responded:

    “So, I couldn't give any specific and clear answer before on this particular thing.

    And because since it's a new course for me, so I don't have much idea.

    So, the only I don't have much idea about the course.

    So that's why that's why I'm going to take that course.

    And so, so I'm expecting so to learn up to the enrolment.

    So … I just went through the course details … and the course content. And so … I could get the clear idea how that the contents are very much important and relevant in the field of business, in the business that I'm doing right now. And the … help that is how it's going to help my future career as well.” [emphasis added]

27. The applicant was asked if he understood that he needed to enrol in a new course of active study to participate in the hearing, to which he replied:

    “No, Sir, because I had no work. So, I was just living ideally here. So, I thought if I could get some more advanced studies in the same similar field. So that was my decision, Sir.”

28. At a different point in the hearing the applicant was asked why he had enrolled in the new course if he had completed the previous course of studies which had indicated would mark the end of his study in Australia. He replied:

    “OK … yes … in previous submissions I have submitted … I was supposed to go back. I was supposed to go back after the completion of my [previous course]. But after the refusal, so I had April for the time and then then we were waiting for the waiting for the decision, the hearing, whatever the procedure was …

    So, I was just waiting for that because even I have decided discussed with my parents and in my family that now I have completed my course. So, I can come back but they even they suggested me, they suggest me you already have appeal to the Tribunal. So, [I] just wait for that hearing and see what's happening. And so, so meanwhile while I was waiting for that meanwhile, so I thought so I will take up a relevant course. So that's how so I take up the next course.”

1. The Tribunal asked the applicant why he would seek out a new course if it was his intention to return to Bhutan anyway, regardless of the status of his review. The applicant requested further time to prepare a written submission.

2. At the conclusion of the hearing the applicant’s representative submitted that they had only received the relevant CoE for the new course of study that morning (8 July 2025) and that the CoE had been generated on 4 July 2025. That CoE record was not submitted to the Tribunal in post-hearing submissions by the applicant. The Tribunal was able to access the relevant CoE and notes that it has a creation date of 4 July 2025 and a separate amendment date of 8 July 2025. As noted, the Tribunal also had a PRISMS record which indicates that the CoE was in draft form on 7 July 2025 and not yet submitted for registration to the Department. The Tribunal assumes that a draft of the CoE was created on 4 July 2025 and approved by the CoE Administrator on 8 July 2025 but makes no findings as to the reasons that the CoE had not been approved before that date.

3. Following the hearing submissions were made by the applicant’s lawyer which relevantly stated as follows:

   “The Applicant gave evidence that he had started looking for another course of study sometime prior to completing course requirements for the Diploma of Hospitality Management which was conferred on him on 23rd June 2025.

   The Applicant started making initial enquiries about enrolling for another course of study in early February 2025, well in advance of being informed about a hearing date in his ART application. The Applicant received the Notice of Hearing from the ART on 23rd June 2025, the date his Diploma of Hospitality Management was conferred on him.” [emphasis added]

4. No corroborating materials were attached to the submissions or separately provided to the Tribunal to substantiate these claims.

5. Further key claims from the representative’s post hearing submission include that the applicant:

   ·Decided on the Graduate Diploma in Management because it would give him “more advanced management training and skills” to grow his businesses and improve employment prospects on return to Bhutan. The course choice was portrayed as a logical progression building on his hospitality studies.

   ·Did not act unreasonably in deciding to stay in Australia after graduating his previous course, given that he had a lawful right to appeal and significant effort and money (e.g. Tribunal application fee) had been invested in that process. Departing early would forfeit the appeal and possibly prejudice any future visa applications (since a refusal would be on his record).

   ·Properly chose to enrol in a course while awaiting the outcome of the Tribunal decision, rather than an attempt to undermine immigration rules which was genuinely connected to his career (not a “cheap” or random course), suggesting genuine intent to benefit educationally.

   ·Continued to intend to return Bhutan and additional study was a temporary adjustment to his timeline, not a new plan to stay permanently.

6. The applicant made a separate personal submission which relevantly claims:

   “While my ART decision was still pending (I had not been informed of a Hearing date or even if a Hearing would take place), upon consultation with my migration lawyer and family both in Canberra and Bhutan, I decided to continue my study in the field of Management with the focus to upgrade my qualification, skills and knowledge that is consistent to my previous studies and in line with my personal and professional career goals.

   … the course is designed to provide skills, knowledge and competencies to deal with relevant real-life situations in the workplace for an individual to function as a manager or who aspires to get into business and senior executive positions across a wide range of organisations. I am also motivated to study the program’s core units such as Lead Strategic transformation, Implement improved learning practices, and development strategies and elective units such as apply critical thinking for complex problem solving and contribute to performance development.

   … This study plan is a logical progression of my career goals. It is genuine and well- aligned with the skills I need to build a long-term future in the hospitality and business management field. I am fully committed to complying with my visa conditions and completing my studies with integrity and dedication.”

7. For context to both these submissions the Tribunal notes that the applicant was first invited to a hearing on 23 June 2025.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 the applicant as the primary and only applicant. The issue in the present case is whether the applicant meets the conditions of clause 500.212 which requires the following:

   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 t; 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?

9. 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 reproduced as an attachment to this decision, requires the Tribunal to have regard to various specified factors relating 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; 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.

10. 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 when assessing whether they satisfy the genuine temporary entrant criterion.

    Circumstances in home country : Family

11. The applicant has relied principally on his family in Bhutan as the basis for his claimed intention to depart Australia upon completion of studies. In summary, the applicant contended that the prospect of prolonged separation from his family and the burdens it placed on his wife was an urgent and compelling reason for him to return to Bhutan “as soon” as his previous course of study concluded. That express representation is found in both the applicant’s:

    ·2023 GTE statement, with reference to the impact on his wife and their relationship; “Overstaying in Australia will strain our relationship … So, I am certain to return home to help my wife and children as soon as I complete the course”; and

    ·2024 Student Information Form: “After the completion of the course, I will go back to my country … my wife has to look after our daughter and she is having a hard time to look after, overstaying in Australia will strain our relationship which I don’t want”. As with other pre-hearing submissions the applicant here was clearly referring to the course which he completed on 22 June 2025.

12. In addition to his wife and children, the applicant also referred to his parents as a principal incentive. Hence, in his GTE statement he explained: “I have aging parents in their 70s and I cannot afford to be away from them for too long as it is children’s responsibility to take care when they become frail and weak.” Again, the context of these representations was directed to the course of study which was completed on 22 June 2025.

13. Notwithstanding his previously unequivocal commitment to return home at the conclusion of the Certificate IV and Diploma of Hospitality Management, the applicant did not do so. Instead, he remained in Australia and commenced the process of enrolling in a new, unrelated course of study. This occurred only four days before the Tribunal hearing and appears to have been a reactive measure rather than the result of long-term educational planning. The Tribunal finds this conduct to be inconsistent with his previous assertion that his family obligations were the primary proof that his intention to stay in Australia was temporary. As Wilcox J explained in MEIA v Hafza: [5]

    “[The] adjective ‘temporary’ was used to denote an absence that was, both in intention and in fact, limited to the fulfilment of a passing purpose … whatever the purpose, it seems to me to be implied in the concept of ‘temporary’ absence that the absence will be relatively short and that its duration will be either defined in advance or be related to the fulfilment of a specific, passing purpose.”

    [5] (1985) 60 ALR 674, 682.

14. Here, the passing purpose nominated by the applicant was to complete the Certificate IV and Diploma courses. That purpose has now been fulfilled. The associated timeframe has passed. Yet the applicant has not returned to Bhutan and, in fact, has taken positive steps to remain onshore.

15. The applicant did not provide evidence of any material change in his family’s changed family circumstances that would explain the reversal of his intention to return. Nor has he demonstrated that his obligations are now less acute. On the contrary, his children and parents are older, and his wife has borne full responsibility for the household and business throughout his absence. If anything, the burden is heavier now than when the applicant first made his commitment to return. Nor did he claim that his parents no longer required his support, in fact he claimed in his hearing testimony their needs were more pressing as time went on.

16. The evidence indicates continuing not changed intentions. The applicant’s representative submitted that study intentions may change, and that such change does not negate a temporary intent. The Tribunal accepts that general proposition. It also accepts that the applicant retains an emotional connection to his family in Bhutan.  However, where a person’s new study plan is presented as consistent with their intention to return, the Tribunal must evaluate whether this claim is credible, or whether it merely reproduces prior rationales that have already failed to translate into action.

17. In this case, the applicant was explicit and unequivocal in stating that his family obligations would compel him to return to Bhutan after his first course. The Tribunal considers that the reassertion of this same rationale as a basis for eventual return is significantly weakened by the fact that it was not acted upon the first time. Indeed, the applicant’s conduct indicates that his family obligations may not be the decisive factor he asserts. He has, by his own evidence, lived physically apart from his nuclear family since December 2022. Despite stating in 2023 that his wife’s burden was unsustainable and that his return was urgent, he chose to remain apart from them for over two and a half years and is now seeking to extend that separation until at least mid-2027. This raises questions about whether the emotional pressure of his physical absence is as compelling or immediate as claimed.

18. The Tribunal also considers that the applicant’s broader migration and familial context presents a more complex picture than initially suggested. At the hearing the applicant gave evidence that he previously supported his brother and sister to study in Australia and that they are now permanent residents residing in Canberra with their own families. He currently lives with his brother and is financially supported by his siblings, who are covering his living costs and tuition. This reciprocal support structure indicates a family-based migration dynamic that is not uncommon in extended settlement pathways and undercuts the claim that his nuclear family must remain in Bhutan while he studies in Australia. His siblings’ successful settlement, combined with their ongoing financial support and the applicant’s stated interest in remaining in Australia, raises a real possibility that he envisages reuniting with his nuclear family here if his own status is normalised.

19. The applicant submitted that it would be culturally inappropriate and practically impossible to relocate his children and wife to Australia. However, this claim is incongruent with the circumstances of his own Bhutanese siblings who migrated and started families here. The Tribunal acknowledges that each family faces different pressures, but this inconsistency raises further questions about the weight to be placed on family separation as a decisive factor compelling return.

20. Ultimately, the Tribunal is not satisfied that the applicant’s family circumstances in Bhutan are, in a present sense, credible reliable evidence of an intention to return home. The Tribunal finds that the applicant’s reuse of identical return justifications, without acknowledgment of their earlier non-fulfilment, significantly diminishes their probative value. When viewed in context, including the timing and nature of his continued stay in Australia, the Tribunal concludes that the applicant’s family obligations do not support a genuine temporary intention to remain in Australia.

    Circumstances in home country : economic and professional ties

21. The applicant’s submissions variously referred to property, commercial or financial interests in Bhutan which either expressly or impliedly serve as an incentive for him to return there. The exact nature of that property and the proof of its existence were however not particularly clear or consistent across the various submissions and evidence provided to the Tribunal.

22. The Tribunal notes that the applicant made no mention of owning land or immovable property in his original GTE statement, only that “my parents sustain with agricultural farming”. Separately he explained that having identified a gap in the tourist hospitality market in Bhutan, he made the joint decision to open a café with his wife: “I discussed with my wife and family about the decision, and we leased one café with restaurant.” However, in the submission made on behalf of the applicant by his representative it was stated: “The Applicant has a house and land in Bhutan. The Choi Café is in the house owned by the Applicant”. There is little documentary evidence to support that claim in the materials before the Tribunal.

23. The Tribunal notes that, in support of the original application the applicant submitted a lease agreement for a commercial premises between a lessor “Kuenzang Wangchuk” and a lessee “Yangzom”. Yangzom is the applicant’s wife’s name, and the applicant does not use Kuenzang as a name – and it seems improbable that the applicant and his wife would sign a tenancy agreement with each other - nor was any such name listed in his documentary evidence about family members. Regardless the statement and agreement indicate the commercial property that the café operates from – and which the applicant told the Tribunal is operated by his wife – is not owned by him and or his wife.

24. On 11 December 2024, the Tribunal Register directed the applicant to complete a Student Information Form via his representative as the authorised recipient. In the completed form the applicant claimed the following assets and property in Bhutan:

    ·Commercial Building, value A$191,497.60, located Babesa, Thimphu Bhutan

    ·Film Production Company, value $35,454.56, located Taba, Thimphu Bhutan

    ·Café and Restaurant, value $27,272.73, located Hejo, Thimphu Bhutan

25. The Tribunal notes the form instructed that the applicant could provide additional information in support of the application. However, no explanation or documentary evidence about these assets to prove ownership, entitlement or how their values were calculated in Australian dollar value equivalents were provided by the applicant with the form or afterwards. Moreover, the applicant provided no documentary evidence that he derives income from these assets or that he maintains financial obligations or responsibilities in respect of them.

26. Reviewing the materials presented by the applicant the Tribunal takes “Rabsel Entertainment” to be the “Film Production Company” he valued at over A$30,000. The Tribunal notes that the applicant did not refer to a company by that name (or that he owed a film production company at all) in his original application; his most recent employment was listed as an executive at “Film Association of Bhutan” and separately “self-employed”. A contemporaneous online search revealed no operational website, business listing, or publicly available materials related to “Rabsel Infotainment”, other than an empty Facebook page. These factors indicate that the business was likely a personal venture that has been inactive for at least two years.

27. The applicant initially claimed he was contractually obliged to deliver film protects in Bhutan as a reason he would need to return there. However, no contractual documents or communications were submitted to substantiate that claim. By the time of the hearing, the applicant had entirely abandoned this justification and did not reference any active plans to return for film production. The Tribunal considers this to be a substantial admission that raises questions about not only the viability of the production company as an active enterprise, but also the reliability of the applicant’s past and present assertions regarding career and return intentions.

28. Given the applicant claims to have come to Australia and made a career change to hospitality and has been apparently studying full-time since January 2023 – and researching and arranging for his study in the months before that – the Tribunal is not convinced that any film production company he owns has the value claims it does. In the same form he explained that his role at the stated company was “Owner/ Director/Editor/Cameraman” and in his GTE statement that he had been working as a “freelance film maker” from 2011 to the date of the application.

29. The Tribunal further notes that the applicant did not refer to owning any commercial property in his original application, specifically applicant’s GTE statement and the documentary evidence provided to the department. As noted, the applicant did not provide any documentary evidence to support his claim to own such property, or how the values ascribed to it were calculated. The Tribunal does note that the locations listed for the commercial property and the hospitality business are in different locations in Thimphu, indicating that the hospitality business is not located in a property which the applicant asserts he owns. The only objective evidence about the property from which the hospitality business operates therefore is the lease agreement. That indicates that neither the applicant, nor his wife, own the commercial property in which the café and restaurant the applicant’s wife runs. Noting the submissions made by the representative, which is that the café operates from the applicant’s house, the Tribunal places little weight on the claims that the applicant owns a house and attached commercial premises in Bhutan.

1. Based on the evidential issues above, particularly the oblique and limited evidence provided and the lack of documentary evidence of ownership of immovable property, or the basis of or justification for asserted property values, the Tribunal is not satisfied that the applicant has significant immovable financial assets in Bhutan.

2. The applicant also did not provide any documentary evidence of other assets in Bhutan to the department. Despite that being a primary concern of the delegate, and the applicant being represented in this review and making substantial submissions, he did not choose to submit any financial records to the Tribunal either. The Tribunal is not satisfied that there is objective evidence of financial ties to Bhutan which act as an incentive for the applicant to return to that country.

3. Beyond the lack of asset-based ties, the applicant also did not submit any documentation showing active financial responsibilities in Bhutan. There were no business contracts requiring his supervision, no debts or liabilities demanding repayment, and no indication that the café or film company required day-to-day oversight that only the applicant could provide. There is also no evidence that the applicant derives income from Bhutan while in Australia, or that he maintains any ongoing economic obligations necessitating his return.

4. By contrast, the applicant now resides with his siblings in Canberra, both of whom are permanent residents of Australia. He confirmed at hearing that they provide for his tuition, accommodation, and living costs. This support is not recent; the applicant previously assisted his siblings to migrate to Australia as students, and they have since obtained permanent residency and established families here. The Tribunal finds that this reciprocal support arrangement is consistent with an embedded pattern of family migration. It provides the applicant with a stable onshore support network and creates a viable alternative to returning to Bhutan. While not improper, this support structure is relevant in assessing the likelihood that the applicant’s long-term intention is to remain in Australia.

5. The existence of onshore siblings who have successfully transitioned from student visas to permanent residency, and who now fund the applicant’s onshore life, raises a strong inference of parallel migration objectives. The Tribunal also notes that this dynamic undermines the applicant’s claim that his family cannot join him in Australia. The applicant stated that his wife and children must remain in Bhutan because of financial and family limitations. However, he gave evidence that his onshore siblings, have settled in Australia, started families and that he had previously supported them in along this pathway to permanent residency. These facts suggest that the relocation of family members to Australia is both feasible and supported within the applicant’s immediate family network. While each family's circumstances are unique, the claim that the applicant's wife and children cannot join him is significantly weakened by the precedent of his siblings’ successful resettlement.

6. In summary, the Tribunal finds that the applicant has not substantiated his claims of strong economic or professional ties to Bhutan. Assertions of ownership, income, and contractual obligations are not supported by reliable documentation, and in some cases are contradicted by material on the record. Conversely, the applicant’s active financial and familial support system in Australia suggests that his circumstances are more conducive to long-term residence in Australia than to temporary stay. Accordingly, the Tribunal places little weight on the applicant’s asserted economic ties as evidence of a genuine intention to return to Bhutan following the completion of his course.

   Circumstances in Australia : course selection

7. The Tribunal notes that Direction No 108, in setting out the factors relevant to the clause 500.212 (a)(i) criterion of “applicant’s circumstances”, directs the Tribunal to consider the applicant’s “potential” circumstances in Australia. In this case, in which the applicant has been living and studying in Australia for a substantial time, the Tribunal takes this to mean the applicant’s current and future circumstances in Australia. Part of those circumstances are the applicant’s completion of an existing course of study and his very recent enrolment in a new course of study. A preliminary, but, in the Tribunal’s view, essential question in this regard is when and why the applicant decided to enrol in his new course of studies given that he previously stated that he would return to Bhutan after the completion of his previous course.

8. Varying evidence about when course selection began. The Tribunal notes the internal inconsistencies in the applicant’s evidence and submissions about just when he began the process of inquiring into and enrolling in the new Management Diploma course. His initial answer was that this had been a “very recent” decision, “after” the completion of his previous course on 22 June 2025. However, in his post-hearing submission the applicant claimed to have decided to continue his studies prior to the hearing notice of 23 June 2025. While not strictly inconsistent – insofar as he could have made a very quick decision between 22 and 23 June 2025 – he also claimed to have consulted his overseas family and onshore representative about the matter, which is highly to have been possible in those circumstances, especially given the personal repercussions for him and his family that he separately gave evidence about. The Tribunal takes the applicant’s post-hearing submission to connote that he had considered enrolling much early than 22 June 2025 which is inconsistent with his hearing testimony.

9. During the hearing itself the applicant separately referred to making the decision “after the refusal” with reference to April when he was “waiting for the decision, the hearing, whatever the procedure was”. The Tribunal can identify no meaningful dates in the months of, or surrounding, April in any of the years that the matter was before the Tribunal.[6] The Tribunal considers this nominal date may have been a misstatement or mistake and gives the statement no weight. That leaves only that the applicant claims the decision was made some time the matter was submitted for review.

   [6] The refusal was in September 2023 and the application for review in the same month, directions were made in respect of the matter in November 2024 and then there was no correspondence until June 2025.

10. Finally the applicant’s representative separately acknowledged that the applicant had given evidence at hearing that “he had started looking for another course of study sometime prior to completing course requirements for the Diploma of Hospitality Management which was conferred on him on 23rd June 2025” but that the applicant “started making initial enquiries about enrolling for another course of study in early February 2025, well in advance of being informed about a hearing date in his ART application.”

11. In the Tribunal’s view, the post-hearing submissions deviate from the actual the evidence given by the applicant at the hearing. What the applicant in fact said was that he made the decision “after” the completion of the course (that is 23 June 2025), not “sometime prior” as the representative submitted. The Tribunal has taken into account the applicant’s language and comprehension and does not accept that he misspoke or misunderstood what he was saying given his precise use of words and the wider context of the passage they were expressed in, in particular as part of his admission that his decision was one that was “very recent”.

12. No notice of course changes in any pre-hearing submissions. If the applicant’s submission that he began to enquire into study options as early as February 2025 was to be accepted, it suggests that the applicant had ample time to notify the Tribunal of his changed intentions; including in his pre-hearing form which invited him to update his claims and evidence if necessary. However, the Tribunal does not accept the objective evidence supports his claim to have begun considering a study continuation at such an early date. In fact, neither the applicant, nor his agent, mentioned any intention to enrol in another course in their numerous communications with the Tribunal before the hearing (including a written pre-hearing submission on 26 June 2025 where he was explicitly asked if any circumstances had changed).

13. The Tribunal notes that even as late as 2 July 2025, the applicant’s submissions focused on the completion of his Diploma and contained no reference to further study plans. Communications between the representative and Tribunal were ongoing from the day that the representative said the applicant received his award for completing his course (23 June 2025) until 7 July 2025 (the day before the hearing). Whilst not all those communications and submissions were directly related to the applicant’s enrolment or study intentions, they indicate that there was ongoing and active engagement by the applicant and his representative over the fortnight before the hearing. At no time during that period was the Tribunal informed that the applicant’s study intentions had changed, that he had undertaken inquiries into a new course of study or that he had begun the enrolment process. The Tribunal considers that that, even on the day of the hearing the applicant and his representative remained uncertain and apparently confused about the state of his enrolment which reinforces how recently it had been added to the evidence.

14. In the context of all the evidence considered together the Tribunal does not accept that the applicant had decided to enrol in a new course long before the hearing. The Tribunal does accept the applicant’s candid admission at the hearing that the decision was ‘very recent’, and, given both the general confusion about enrolment itself on the day of the hearing, and the inconsistencies set out above, finds that the only objective evidence was that an enrolment process began on 4 July 2025, which was four days before to the hearing. The Tribunal considers the circumstances to indicate a rapid and opportunistic enrolment decision, rather than one which was researched and carefully considered over a long period of time.

15. Having considered the timing of the applicant’s decision to enrol in a new course, the Tribunal turns to the rationale for that enrolment.

16. New course has limited relevance to previously stated career goals. The Tribunal has reviewed the publicly available curriculum and learning objectives for the Graduate Diploma of Management (Learning) [BSB80120] at the Crown Institute of Business and Technology.[7] This AQF Level 8 qualification is explicitly structured for individuals in organisational learning, capability development, and promises to train “leaders and mangers in organisation where learning is used to build organisational capability” for job roles such as “RTO [registered training organisation] manager and RTO director” not hospitality operators, chefs, or small business owners in the food or tourism sectors. The core units include ‘Lead strategic transformation’, ‘Implement improved learning practice’, and ‘Initiate and lead applied research’—each oriented toward designing and managing learning systems rather than operating hospitality ventures. Elective units offered include ‘Contribute to the development of learning and development strategies’ and ‘Apply critical thinking to complex problems’, again reflecting a focus on organisational pedagogy and training outcomes. The Tribunal finds that this course content is materially disconnected from the applicant’s previously stated intention to return to Bhutan and manage a café-restaurant. That finding takes into account the applicant’s vision of training youth in commercial cookery in the future.

    [7] Course page: Graduate Diploma of Management (Learning) - Crown Institute of Business and Technology >

    Limited knowledge about the course. At the hearing the Tribunal raised its concerns about the applicant’s apparent lack of knowledge and understanding about the new course of study in which he had very recently enrolled. That was because it found that his answers to its questions relating to the course to be peripheral and generally lacking in substance. While the Tribunal acknowledges the applicant’s language difficulties, it does not consider that those difficulties explain the lack of substantive engagement with the course.

17. At the hearing the applicant explicitly conceded that he had a limited knowledge of the program as he had not yet engaged fully with it and would only do so once he was participating in it. The Tribunal considers that this is a significant admission in the circumstances.

18. The applicant had given evidence that his family in Bhutan was under considerable emotional and logistical strain due to his absence and had previously relied on those circumstances as a compelling justification for returning home after completing his previous course. In this context, his decision to remain for a further two years of study would be expected to reflect careful research, weighing of competing priorities, and an in depth understanding of how the course warranted further time onshore. The applicant’s limited understanding of the course at hearing is not consistent with such a process. While the applicant later submitted a more detailed written explanation of the course’s relevance, the Tribunal considers his oral evidence to be the more reliable reflection of his actual level of engagement and genuine motivations given that he had already enrolled by the time of the hearing and could be expected to know the things asked if he had genuinely undertaken research and consideration.

19. Limited career justification for the course. The Tribunal also found the applicant’s ability to justify the relevance of the course to the applicant’s career pathway to be lacking. When asked about why he had enrolled he said it was to build management skills given the previous course only provided “very basic” and “very short” modules on management. He said that the skills would also assist him with his “production company … so I have decided to take further course in the management in order to manage my own business as well.” At another time he referred to “leading strategic transformation”, which is one of the units in the course, but had difficulty articulating what that meant other than it would allow for the “management of the business”. He did not speak to organisation learning or capability development or educator skills which appear to be the focus of the course; indeed “Learning” is in its title.

20. After the hearing the applicant provided a much more grounded and expanded submission which connected the course outline and structure to his ostensible career goals. However, as already explained, the Tribunal puts much less weight on these post hoc explanations when the real issue was why the applicant chose the course in the first place, which was better assessed at the hearing.

21. Limited coherence and career rationale in the circumstances. Even accepting the applicant’s broader submissions that the course will provide him with managerial and separately staff training and development skills, the Tribunal is not convinced that the applicant properly justified the course against the broader body of evidence about his circumstances and intentions.

22. The applicant’s original submissions did not identify any lack of business acumen. On the contrary, he described himself as having held senior roles in Bhutan’s media and events sector, including as studio director at the national broadcaster, freelance filmmaker, and organiser of nationally significant events such as the Miss Bhutan pageant. Letters of support attested to his leadership and entrepreneurial capability. He also provided evidence of recognised industry leadership in youth development; in fact, that was the basis upon which he said he had first been funded to come to Australia. Given that experiential history the applicant’s claim to not have appropriate managerial or training and development skills is not a compelling one. The Tribunal does not accept the applicant genuinely needs to be trained to do things in his home country he has already been employed to do and celebrated for doing in his home country.

23. Tribunal is not satisfied that the submissions or evidence supplied by the applicant addressed this issue given his career history and stated business ventures in that country (even if they are accepted on face value). Moreover, the applicant provided no separate or compelling evidence that he was offered or was needed to take up a role in organisational development or capability development in Bhutan on his return. In fact, the additional course of study appears to add to the impression of an eclectic and highly varied study and career plan which compounds impressions that his course choice is unjustified and opportunistic. In the Tribunal’s view is simply not enough of a compelling reason to select this course over the previously asserted urgent need to return home once the training he said kept him away from it was completed.

24. The Tribunal also takes into account that, unlike his previous studies, the Graduate Diploma of Management (Learning) is an AQF Level 8 qualification which is potentially relevant to certain skilled migration pathways.[8] While this does not automatically imply a migration motive, the Tribunal considers that the nature of the course increases the plausibility that the applicant may be seeking to improve his standing for permanent migration, rather than simply returning home to cook in and run a family café-restaurant.

    [8] The course is included under the ANZSCO categories for education managers, corporate trainers, and business professionals—roles that appear on some state nomination lists and may align with Subclass 189 or 190 skilled visa requirements. See: National Training Register - BSB80120 Graduate Diploma of Management (Learning) >

    Awaiting a review decision is not a compelling reason to enrol in a new course. The applicant and his representative submitted that there was nothing improper in wanting to be productive during the Tribunal process and that enrolling in a new course was better than “sitting idly” while awaiting a decision. This belies the point, already explored above, that the applicant had previously insisted that his purpose in Australia was to complete his course, which he was able to do on his bridging visa, then immediately return to Bhutan. The submission in fact lends weight to the perception that the applicant was “sitting idly” onshore for purposes which were not education related as he previously claimed. More specifically, the Tribunal notes that the applicant had been aware of his pending review since September 2023 and there is no reliable objective evidence that he took steps to explore further study until just before the hearing. He was also notified of the hearing date on 23 June 2025, just one day after completing his prior course. The brief gap between his course completion and the hearing undermines the suggestion that he had a prolonged period of uncertainty warranting further study.

25. The representative also asserted that remaining onshore was necessary to avoid forfeiting the review application fee and protect his prospects in future visa applications. The Tribunal does not accept these justifications as credible indicators of temporary intent. The application fee is modest in comparison to the total cost of two additional years of tuition, living expenses, and foregone income—particularly as the applicant is not currently working and is fully supported by family in Australia. The Tribunal does not accept that the Tribunal application fee was a reason for the applicant to enrol in the course.

1. The Tribunal has considered the representative’s submission that had the applicant departed Australia before the Tribunal hearing, his onshore visa application review would have been deemed withdrawn which might affect future visa applications due to a negative movement record. The Tribunal accepts that such procedural withdrawal may indeed appear on departmental systems, and that visa holders are required to disclose prior withdrawals or refusals in subsequent application. However, the argument principally fails for the simple reason that the applicant explicitly denied at the hearing that he enrolled in a new course of study so that he could participate in the review hearing. Even if he had not done so, the Tribunal is not satisfied the procedural impediments to future visa applications created by a withdrawal properly outweigh and justify the familial, financial and other costs of enrolling in a 2-year course of study in Australia. Indeed, had the applicant departed Australia when he said he would that would have reinforced that his intention to remain in the country was temporary.

2. The whole circumstances indicate enrolment is a step towards permanency. While the Tribunal accepts that career goals may evolve over the course of extended study, the Tribunal is not satisfied that the applicant has enrolled in a new course for study or career reasons. The applicant’s lack of a coherent trajectory, the absence of supporting evidence, the various evidence indicating opportunistic enrolment, his incongruent evidence about the seriousness of his continued absence from his family against his apparently peripheral understanding of what justified continuing that absence for, all indicate the reasons for his enrolment lie elsewhere.

3. The Tribunal is not satisfied that the applicant genuinely enrolled in the Graduate Diploma of Management (Learning) for rational career development reasons that would suggest that he would return to Bhutan when he completed it. The Tribunal considers the enrolment is more likely an opportunistic step in achieving permanent residence in Australia. Considering all the facts together the Tribunal weigh’s the applicant’s new enrolment as a significant factor indicating he intends to stay indefinitely in Australia and weighs the course enrolment recent accordingly.

   Circumstances in Australia : onshore connections, support and embeddedness

4. The applicant has been in Australia since December 2022, a period exceeding two and a half years by the time of decision. During this time, he has completed a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management and has commenced a Graduate Diploma of Management (Learning). Prior to that he visited Australia on a Temporary Activity visa and decided to enrol in a course of study here. This history suggests an affinity and growing integration in Australia.

5. The Tribunal notes that the applicant currently resides in Canberra with close family— namely, his brother and sister, both of whom he previously sponsored as student visa holders, and who are now permanent residents settled with their own families. The applicant gave oral evidence that he is financially supported by those siblings. This includes accommodation, day-to-day living costs, and at least partial payment of his tuition for the new course. The Tribunal accepts that such familial support is lawful and not uncommon; however, the presence of a robust and embedded family network creates a highly conducive environment for continued residence. It also places the applicant in a comparable situation to his siblings at the time they transitioned to permanent residence, creating a parallel trajectory for him to follow.

6. The applicant provided images and descriptions of community engagement, casual social integration, and English language development since arriving in Australia. No dissatisfaction or hardship associated with life in Australia was raised. To the contrary, his actions – including the recent enrolment in further study – indicate a willingness and desire to remain onshore. While the Tribunal does not assess subjective preference as determinative, such matters may illuminate the credibility of claimed return intentions. In this instance, they tend to reinforce the conclusion that the applicant finds life in Australia desirable and has adjusted accordingly.

7. Considering the above, the Tribunal finds that the applicant’s onshore circumstances reflect a pattern of embeddedness that is materially relevant to the GTE assessment. Although the applicant maintains family ties to Bhutan, those are now counterbalanced by the real and present support structures available to him in Australia. This includes a stable and financially supportive household, personal familiarity with Australian life, and the ongoing capacity of his siblings, who are now permanent residents, to facilitate a future transition to permanent residence or to eventually support a family reunion pathway.

8. While not unlawful, this context is pertinent when evaluating whether the applicant genuinely intends to stay only temporarily in Australia. The Tribunal considers he applicant’s onshore embeddedness when considered against all the other findings above, weighs towards him being on a long-term settlement trajectory already modelled by his siblings and now reinforced by his own extended stay, further study, and full reliance on Australian-based familial support.

   Immigration History and Other Relevant Matters

9. The applicant’s immigration history is not characterised by visa condition breaches, false declarations, or unauthorised stays. The Tribunal accepts that he entered Australia lawfully on a Temporary Activity visa in late 2022, and subsequently applied for a Subclass 500 visa in January 2023 while onshore. He remained lawfully in Australia throughout the visa application and merits review process, transitioning between visas without interruption. There is no evidence before the Tribunal of any prior visa refusal other than the current one under review, and there is no suggestion of adverse findings relating to visa compliance or conduct by immigration authorities in either Australia or other jurisdictions.

10. Accordingly, the Tribunal places no negative weight on the applicant’s past immigration history. That aspect of the criterion is satisfied in a technical and procedural sense. However, reflecting on all the evidence and findings set out above, the Tribunal finds that, while the applicant has complied with visa requirements to date, his actions reflect an onshore adaptation of plans designed to prolong residence, rather than a demonstration of a stable, limited-purpose stay. The criteria in cl 500.212(a)(ii) are formally satisfied, but the broader consideration of the context and timing of the applicant’s recent enrolment activity under cl 500.212(a)(iv) reinforces the Tribunal’s conclusion that the applicant’s intention is not genuinely temporary.

    Conclusion on cl 500.212(a): Genuine Intention to Stay Temporarily

11. Having considered all the evidence, submissions, and applicable guidance under Direction No. 108, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia as required by cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth).

12. The applicant previously declared, in explicit terms, that he would return to Bhutan immediately upon completing his Certificate IV in Commercial Cookery and Diploma of Hospitality Management. He remained in Australia beyond his course end date and, four days before the Tribunal hearing, took active steps to enrol in a new and different course submitting predominantly identical reasons why he would return to Bhutan at the end of this course of study.

13. The Tribunal accepts that plans may change over time. But in this case, the applicant has reused the same justifications for return, despite his history indicating the justifications are not a reliable indicator of his temporary intentions. No new evidence or change in circumstances was proffered to suggest the re-stated justification is more reliable this time. The Tribunal finds that this diminishes the probative value of the same reasons now being offered to explain his decision to remain for an additional two years of study.

14. In addition, the applicant’s claims of economic or professional ties to Bhutan were not substantiated by objective credible evidence. By contrast, the applicant is financially supported by his permanent resident siblings in Australia, whom he previously sponsored, and he currently resides in their home. That dynamic suggests not only a pattern of mutual onshore support, but also a viable migration pathway previously pursued successfully by his family members.

15. The applicant’s decision to enrol in the Graduate Diploma of Management was, on the objective evidence, very recent and given little genuine consideration or thought. The Tribunal considers the applicant’s clear lack of research and considered engagement with the course to be entirely at odds with his other evidence about the very serious affect his continued absence will have on his family. The Tribunal finds the timing of the very recent enrolment, combined with the lack of articulated educational purpose, sufficient rational justification in the circumstances, and the absence of a coherent career trajectory, to be indicative of opportunistic conduct designed to extend the applicant’ stay in Australia rather than a legitimate temporary educational purpose.

100.   Considered as a whole, the evidence does not support a finding that the applicant’s presence in Australia is for a specific, defined, and temporary purpose. His actions and statements, viewed in totality, point instead to an emerging plan to remain indefinitely, facilitated by familial support and strategic educational enrolment.

101. Accordingly, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia. The criterion in cl 500.212(a) is not satisfied.

102. As cl 500.212 is expressed in conjunctive terms, and the Tribunal has found the applicant does not meet cl 500.212(a), it is not necessary to consider cl 500.212(b) or (c). The failure to satisfy cl 500.212(a) is determinative of the applicant’s failure to meet the criterion in cl 500.212.

103.   Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

DECISION

104.   The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Dates of hearing(s):  8 July 2025

Representative for the Applicant:           Mr Nabeel Lang (MARN: 0601921)

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.