Xiao (Migration) - [2025] ARTA 1325

XIAO (MIGRATION) [2025] ARTA 1325 (10 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Hong Xiao
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2408186

Tribunal:General Member J Horsley
Place:Melbourne
Date: 10 July 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 10 July 2025 at 9:48am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant and compliance with conditions – applied after arriving on visitor visa with no intention to study – permanent residence, business and adult child in third country, other family and financial ties to home country, and no ties to Australia – study as mature-aged student – research of providers and courses, knowledge of course contents, progress and value to applicant’s future – consistent written and oral evidence – previous travel to other countries – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Citizenship on 27 March 2024 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 5 October 2023. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The 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 that the applicant genuinely intends a temporary stay in Australia.
On 15 April 2024, the applicant applied for a review of the delegate’s decision to the Administrative Appeals Tribunal (AAT). On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is made by the Tribunal.[1]
[1] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The applicant appeared before the Tribunal on 3 July 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was assisted in relation to the review. The representative attended the Tribunal hearing.
CLAIMS AND EVIDENCE
Claims and evidence before the Department
Student visa application
According to the applicant’s Student visa application, she is a 43-year-old national of the People’s Republic of China (herein ‘China’), who was born and raised in Liujiang Town, Guangxi Sheng Province, China.
The applicant is divorced. Her ex-husband resides in Japan. The applicant has one son, Yijie Zhang, who is now 26 years old. The applicant’s parents, 2 sisters and one brother all reside in China.
From 2010 to 2012, the applicant studied Accounting at the Guangxi University of Finance and Economics. The applicant resided in Japan from 2011 to 2023, and she is a permanent resident of Japan. From February 2020 until her arrival in Australia, the applicant owned a business in Noda, Chiba Prefecture, Japan called ‘Robin Evolution Co. Ltd.’ Upon the completion of her studies in Australia, the applicant intends to return to Japan to manage her business.
The applicant first arrived in Australia on 5 August 2023 as the holder of a Visitor visa (subclass 600). On 5 October 2023, the applicant applied for a Student visa, with the intention of studying the following courses in Australia: General English and an Advanced Diploma of Leadership and Management.
In support of her Student visa application, the applicant provided the following documents:
·Genuine Temporary Entrant (GTE) Statement, dated 5 October 2023;
·Copy of Chinese passport [issued in 2021 in Japan];
·Copy of Chinese passport [issued in 2010 in China];
·Copy of Chinese Nationality Identity Card [in Mandarin];
·Copy of Graduation Certificate issued by Guangxi University of Finance and Economics [in Mandarin, with an English translation];
·Copy of Japanese Permanent Residence Certification Card;
·Copy of registration of the applicant’s business in Japan [with an English translation];
·Certificate of Balance issued by Mizuho Bank (Japan), dated 6 April 2023 [showing the applicant has a balance of 6,085,338 (JPY);
·Registration Card of Permanent Resident Population for the applicant and her son [in Mandarin, with an English translation]; and
·Evidence of Overseas Student Health Cover (OSHC).
In essence, the applicant made the following claims in the GTE Statement:
·She was born and raised in rural China, and her parents’ favoured sons over daughters. She dropped out of school at a young age in order to work to support her family. She worked hard and soon gained financial independence. She had difficulty finding work because all jobs required an applicant to have a qualification. The applicant self-funded further study, and completed a Diploma of Accounting at the Guangxi University of Finance and Economics in 2012.
·The applicant met a Japanese man, married him, and moved to Japan. There, she learned Japanese and settled in the country. She worked for around 10 years, and in February 2020, she opened her own company for international trade. After 3 years, her company was growing steadily but she realised that she needed to improve her English language skills. After a visit to Australia in 2023, she realised that she could pursue further education in the country to improve her English.
·She researched study options and found Rosehill College. She chose this education provider because it also offered an Advanced Diploma of Leadership and Management, which will give her the skills and knowledge required to lead her company and make informed decisions. The tuition fees for both courses in total is around $24,000 (AUD) and her living expenses in Australia will be around $27,000 (AUD) a year. The applicant has some $64,000 (AUD) in savings in a bank in Japan, which she will use to fund her tuition fees and living expenses in Australia.
·The applicant continues to operate her business in Japan remotely from Australia. She has a sufficient income from operating this company. However, she is the legal representative of her company, and she can only manage it remotely for so long. Upon the completion of her studies in Australia, the applicant will return to Japan, where she will use the skills and knowledge acquired in Australia to improve her business. In Japan, the applicant owns cars and apartments, so she promises to immediately return to Japan at the completion of her studies.
Summary of the delegate’s decision
As stated above, the delegate refused to grant the applicant a Student visa. The delegate did not invite the applicant to an interview. In essence, the delegate found:
·The fact that the applicant first arrived in Australia on a Visitor visa and later applied for a Student visa onshore is of serious concern and suggests that she is using the Student visa program to maintain ongoing residence in Australia.
·Even though the applicant has a business and provided evidence of the ownership of that business, she did not provide evidence of ownership of the apartments or cars she referred to. The applicant did not state how many employees work in her company. For these reasons, the delegate was not satisfied that the applicant demonstrated strong incentives to return to Japan at the completion of her studies.
·The applicant did not demonstrate that she had researched study options in Australia, other countries, or China. She did not demonstrate any consideration of her living arrangements in Australia. For these reasons, the delegate found that the applicant did not show a realistic level of knowledge of her potential living arrangements in Australia.
·The applicant did not give strong reasons for how her courses of study in Australia will add value to her company. She did not demonstrate that the courses of study will substantially improve her company. Considering the costs of studying in Australia, the delegate was not satisfied that the courses of study will add value to her future.
While the delegate noted that the applicant is divorced with one child, there is no other reference in the decision record to her family members in China or Japan, and whether they act as incentives for her to return to Japan or China at the completion of her studies.
Claims and evidence before the Tribunal
Procedural history and pre-hearing documents
On 8 April 2025, the Tribunal emailed the applicant’s representative, with a request to complete a ‘Student Visa Information Form.’ On 22 April 2025, the applicant’s representative sent this completed form to the Tribunal. In essence, this form contains the following information [the Tribunal has not repeated information that is already referred to above]:
·She earns some $133,000 (AUD) per annum from running her company in Japan.
·She is currently studying an Advanced Diploma of Leadership and Management at AISL (she commenced the course in October 2024 and is due to complete the course in October 2026);
·She chose to study at Rosehill College because it offered a practical and industry-relevant curriculum. Her Advanced Diploma course is aligned to her work as the director of an international trade business. The course focusses on strategic planning, operational management and effective team leadership, which are all skills she will use in operating the company in Japan. She chose to study at Rosehill College because of its diverse student body, it has a flexible class schedule, supportive student services, and a reputation for delivering high quality vocational education.
·She chose to study in Australia, compared to Japan or China, for several reasons. First, she wanted to study in an English-speaking country to improve her English language proficiency, which is essential for the running of her company in Japan. Second, Australia is known to have a high-quality vocational education sector. Third, she wanted to study in a multicultural country, as this exposure will assist her in her dealings with clients in international trade. Fourth, she hopes to establish connections in Australia that will help her company be competitive in the global market.
·The applicant’s parents and siblings continue to reside in China. She last saw them in August 2022. They maintain regular weekly contact through video calls, telephone calls, and messages.
·In terms of her financial ties, the applicant has some $20,000 (AUD) in a bank in Australia; some $64,000 (AUD) in China in the form of property; some $107,000 (AUD) in Japan in the form of vehicles; and she earns some 133,000 (AUD) per annum from running her company in Japan.
·At the completion of her studies in October 2026, the applicant intends to return to Japan, where she will expand her company. Her courses of study in Australia are directly aligned to her professional goals. Improving her English language proficiency will enhance her ability to communicate with global partners and clients. The Advanced Diploma will enhance her leadership, strategic planning and business management skills.
·The applicant is a permanent resident of Japan. She owns property and vehicles in Japan. She has legal and financial responsibilities in Japan that will act as anchors. In terms of her expected remuneration in Japan at the completion of her studies in Australia, the applicant expects to earn hundreds of thousands of dollars (AUD).
On 16 June 2025, the Tribunal emailed the applicant’s representative with a Notice of Hearing, listing the hearing for 3 July 2025 via video.
On 26 June 2025, the applicant’s representative emailed the Tribunal to request an extension of time (to 1 July 2025) to provide it with pre-hearing submissions. In this regard, the applicant’s representative noted, ‘[d]ue to the nature of the evidence required in support of Ms Xiao's claims, we are currently in the process of gathering documents from both Japan and China. This involves liaising with multiple institutions and authorities across different jurisdictions, and we are experiencing unavoidable delays due to differing administrative processes and time zones.’ On 27 June 2025, the Tribunal responded to the applicant’s representative’s email, informing them that the Tribunal had granted the extension of time request.
On 1 July 2025, the Tribunal received the following documents from the applicant’s representative:
·Pre-hearing submissions of the applicant’s representative, dated 1 July 2025;
·Personal Statement of the applicant, dated 1 July 2025;
·Declaration of the applicant, dated 1 July 2025 (confirms that the pre-hearing submissions have been explained to her and they accurately set out all claims);
·Confirmation of Enrolment (CoE) for Advanced Diploma of Leadership and Management;
·Copy of Japanese Permanent Residence Certification Card;
·Copy of Business Licence in Japan for the applicant (untranslated);
·Copy of Business Licence in Japan for the applicant’s son (untranslated);
·Certificates of Property Ownership in the applicant’s name x 2 (in Mandarin, with an English translation);
·Copy of rental agreement, where applicant is listed as the lessor, dated 26 September 2024 (in Mandarin, with an English translation);
·Copy of all pages of Chinese passport [issued in 2010 in China];
·Copy of her son’s Chinese Passport [issued in 2018 in Japan];
·Copy of the applicant’s son’s Japanese Residence Card; and
·Copies of her parents’ Chinese Social Security Cards (in Mandarin, with English translations).
In essence, the applicant made the following claims in the Personal Statement:
·The applicant is from China, and she has resided for a long time in Japan. When she was young, she worked in a small restaurant in her hometown. She worked hard for a better life. After some time, she began working in a factory.
·She met her ex-husband, and he helped her travel to Japan. In Japan, the applicant worked very hard and opened her own trading company, which was her dream come true. When she was 17 years old, she gave birth to her son. After this, she studied and finished a Diploma of Accounting. This degree gave her more choices in life, but raising a son meant she had to put her dreams on hold for many years.
·Her son continues to reside in Japan, and he operates his own company, which has a good turnover generating 50 million Yen every year. Her son wants her to return to Japan to help him with the company, believing that with her help, the company will turnover some 100 million Yen per year.
·Many people think that women over 40 years old should not study, and just stay at home to take care of the family. In Japan, this view is very common. She had many fights with her ex-husband for this reason because he believed that women should not work or study after marriage. When she travelled to Australia, she realised that she could break this old thinking and better herself.
·She chose Australia because it is an English-speaking country. The applicant wanted to learn English not only in the classroom but in real life. She then decided to study a leadership and management course because she wanted to make her company stronger. She checked many education providers and found that Rosehill College is most suitable for mature-aged students.
·Her Advanced Diploma will teach her how to plan better, how to manage people and a team, and how to problem solve. The applicant wants to learn these skills not only to improve her company in Japan, but also her son’s company. Her Advanced Diploma is not just study, it is her chance to change her life and make her dreams come true.
·There are many reasons for the applicant to return home at the completion of her studies. Her company needs her. Her elderly parents need her. She has properties in China.
·While Australia does have a good education system, she does not want to live in the country forever. She just wants to learn English and improve her management skills. She will then return to Japan to help her son’s company and improve her company, which will help her take care of the family.
·When the applicant first arrived in Australia, she had no intentions to study. However, she noticed that there was a free atmosphere everywhere and this gave her an urge to study again. In addition, she did not feel judgment in Australia for being a mature-aged student. She feels respected by people because she wants to study again. She realises that this is perhaps her last chance to ever study in a systematic way, so she wants to make it meaningful.
In essence, the applicant’s representative made the following submissions in the pre-hearing submissions, dated 1 July 2025:
·The applicant is a permanent resident of Japan. She had a modest life in China, working in a restaurant and a factory, before moving to Japan with her ex-husband. These life experiences show that the applicant has consistently attempted to improve her life and develop professionally.
·Her son operates his own business in Japan. He intends to study in future himself and hopes that the applicant will manage the company in his absence.
·The applicant owns 2 properties in China, worth some 2.7 million (RMB). One property is rented to a tenant, generating some 1,800 (RMB) monthly. Her parents and siblings reside in Guangxi, China. Her parents have a monthly pension income of some 6,000 (RMB). The applicant also financially supports her parents. These factors indicate that the applicant has strong personal and financial ties and obligations in China.
·The applicant carefully researched her study pathway. Her current course of study is directly relevant to her future, as it will help her manage her son’s company and expand her own business. The course will give her leadership and communication skills that will be crucial for her success in international markets.
·The applicant has no family ties in Australia. All her personal and financial ties are either in China or Japan. Long-term residence in Australia is both unnecessary and undesirable in the applicant’s circumstances.
On 3 July 2025, on the morning of the hearing, the applicant’s representative sent the Tribunal English translations of the Business Licences in Japan for the applicant and her son [untranslated copies of these documents were previously provided on 1 July 2025].
PRISMS record

On 26 June 2025, the Tribunal conducted a Provider Registration and International Students Management System (PRISMS) record search for the applicant, which indicates that as of October 2024, the applicant has been studying an Advanced Diploma of Leadership and Management at AISL (trading as Rosehill College), and she is projected to complete the course in October 2026. The PRISMS record also indicates that the applicant completed a General English course at Rosehill College in August 2024 (having commenced her studies in September 2023).
Summary of the Tribunal hearing
As stated above, the applicant appeared before the Tribunal on 3 July 2025 to give evidence and present arguments. The applicant’s representative also attended the hearing and declined the offer to give oral submissions at the conclusion of the hearing. Below is a summary of the applicant’s evidence at the hearing.
The applicant’s parents and 3 siblings reside in China. She maintains daily contact with them, as they have 2 family group chats, and she checks the messages every day.
The applicant’s ex-husband is a Japanese national. They divorced in 2016. She is not really in contact with him anymore, but he continues to reside in Japan. The applicant’s son is 26 years old, and he mainly resides in Japan. He often goes back-and-forth from Japan to China for his trading business. The applicant speaks with her son every week, and texts him more regularly. The applicant’s ex-husband is not the father of her son. The applicant gave birth to her son when she was 17 years old, and she has not seen his father, a Chinese national, for around 24 years. The applicant’s son is a Long-term Resident of Japan (as opposed to a Permanent Resident). This means that he must renew his visa every 5 years. He has resided in Japan from when he was 13 years old [approximately 2010/11] to the present. Her son owns a company in Japan that exports goods from China and imports them in Japan. Initially, he imported clothing and accessories, but more recently, he has been importing vehicle parts and accessories. He recently signed an agreement to import LED lights into Japan. He has 10 employees that work in his company. The company is based in Japan not China.
In 2020, during the Covid-19 pandemic, the applicant established her own company in Japan, which imported masks from China. Her business then transitioned to import everyday basics and clothing. She then started to export Japanese cosmetics to China from the Cao Corporation, which she sold to import / export goods shops in her home area in China. She currently has 2 employees working in her company, one is residing in Japan on Temporary Residency and the other is residing on Long-term Residency. Prior to establishing the company, the applicant primarily worked in restaurants and as a kitchen hand.
The applicant is currently studying an Advanced Diploma of Leadership and Management at Rosehill College. When she first arrived in Australia, she did not have intentions to study. After her arrival, she checked some education providers. She visited the Rosehill College campus and saw mature-aged students. This gave her courage to study in Australia. She commenced her studies on 14 October 2024 and is projected to finish the course on 11 October 2026. She is currently on a semester break and is waiting for the schedule to be issued to inform her of her upcoming units. In her course, she has learned how to improve management and leadership, how to make plans for companies, and how to plan for the future. She has completed some assignments in the course. In one assignment, she was tasked with planning for a company’s future, by looking at the branding and figuring out how to commercialise it. She was also required to draft a business plan. Her teachers said she could either make up a company or use an existing company. The applicant chose to use her own company as a model. In the course so far, the applicant has most enjoyed learning about how to manage business risk, as she will be able to apply this to her business. She has found comprehending aspects of her studies to be the most difficult part of the course, as her English language proficiency is not where she wants it to be. While her English language skills have improved since her arrival in Australia, she needs to learn more to improve her business in Japan.
In terms of her future, the applicant intends to improve her company and help with her son’s company. Her son is in negotiations with Autobacs, an automotive car parts company. If this partnership is successful, his business will grow significantly, and he will need help to manage the accounts and finances. Due to the expected high turnover of income, her son needs someone he can trust, and he trusts her. In terms of her own business, the applicant plans to use the skills she has acquired in Australia to improve the branding of her company in Japan. She believes her studies will help her to manage her employees more efficiently. In the long-term future, her son plans to resume studying because he dropped-out of a 5-year degree in the last year to establish his company. In future, he hopes to learn English in an English-speaking country and has told her that during his absence, he would like her to manage his company.
The applicant concluded by stating that in Japan, women in their 40s are not seen studying. She has found freedom and no judgment in Australia for being a mature-aged student. The applicant requested the Tribunal to look at her particular circumstances, and how they are different to other students. She explained that most students finish school, get a tertiary education, get married and then have children. However, in her circumstances, she had her son when she was underage, and she was unable to study until later in life. She then moved to Japan, where she had to learn Japanese from scratch and is now fully proficient in the language, and she can read Japanese books and newspapers. The applicant is committed to mastering the English language skills in much the same way, which she hopes will not only improve her business in Japan but equip her with skills to help her son’s company.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal sets aside the decision under review and remits the visa application for reconsideration.
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant meets cl 500.212.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 108, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Tribunal accepts that the applicant is a national of China and a Permanent Resident of Japan. In making this finding, the Tribunal gives weight to the applicant’s identity documents that she provided to the Tribunal and the Department, including her Chinese passport and her Japanese Permanent Residence card. The Tribunal accepts her claims that her ex-husband is a Japanese national and that her son is a Long-term Resident of Japan, which requires him to renew the visa every 5 years. The Tribunal also accepts that he often travels to-and-from China and Japan. In making these findings, the Tribunal gives weight to the applicant’s consistent oral and written evidence, as well as her son’s documentary evidence on the Tribunal file, which is consistent with her claims in this regard.
During the hearing the applicant provided limited but a sufficient level of detail about her current course of study. She correctly recalled the commencement and completion dates of the course and some of the units she has studied in the course. She also detailed an assignment where she was required to create a business plan for her company in Japan, among other tasks. While her oral evidence was somewhat limited regarding her current studies, the Tribunal has taken into account that English is her third language, and that she has found some aspects of the course difficult to comprehend. The Tribunal has also considered the applicant’s compelling and personalised account of her motivations to study the course, and how she felt inspired seeing mature-aged students at the education provider’s campus. She convincingly explained how she feels no judgment in Australia for studying as a mature-age student, which contrasts to people’s perception of her in Japan. During the hearing, the applicant gave a personalised account of the challenges she has faced in life, after having her son when she was underage, and how this impacted on her career prospects and dreams of studying a higher education. She detailed how she often had fights with her ex-husband about these topics, as he did not want her to work or study after marriage. During the hearing, despite her limited English language proficiency, the applicant presented as highly motivated and eager to continue her studies to equip her with the knowledge and skills needed to improve her company in Japan and assist her son with his company.
Further, this is not a case where the applicant has commenced a series of inexpensive or short courses. In fact, the applicant continues to study the course she proposed to study when applying for the Student visa. She has maintained a steady course progression with no gaps in her studies, and there is no evidence before the Tribunal to suggest that the applicant intends to enrol in another course of study or apply for another visa in Australia. Her claims regarding her course progression are consistent with the PRISMS record on the Tribunal file, which is summarised above. The applicant has managed to steadily progress through her course, despite the uncertainty of whether she will be granted a Student visa.
The Tribunal accepts that the applicant established an import / export company in Japan during the Covid-19 pandemic. In making this finding, the Tribunal gives weight to her consistent written and oral evidence, as well as the supporting documentation on the Tribunal file (including the applicant’s business licence). The Tribunal accepts that the company continues to operate in Japan, despite her absence from the country. The Tribunal is satisfied that the applicant’s course of study is related to her company, as well as her undergraduate degree in China. During the hearing, the applicant provided a sufficient level of detail of how her course of study will enhance her knowledge and skills in order to improve her company and manage staff more effectively. She also provided a persuasive account of how she intends to assist her son’s company, and in the long-term future, how she may run the company while he studies abroad to improve his English. For the above reasons, the Tribunal is satisfied that the applicant’s course of study will add value to her future.
There is no information or evidence before the Tribunal to suggest that the applicant has any personal or community ties in Australia. In contrast, the applicant has personal ties in Japan in the form of her son and her business associates. She also has personal ties in China in the form of her parents and siblings. There is no information or evidence before the Tribunal to suggest that the applicant has any economic ties in Australia. The applicant stated that she has never worked in Australia, and there is no evidence before the Tribunal to suggest otherwise. In contrast, the applicant has a registered company in Japan that continues to operate. She also has assets in both China and Japan. In China, she has properties, one of which is rented to a tenant, and from which she receives an income. Based on the above, the Tribunal is satisfied that the applicant has personal and economic ties in Japan and China, which will act as strong incentives for her to return to Japan at the completion of her studies.
There is no evidence before the Tribunal to suggest that the applicant is intending anything other than a temporary stay in Australia. The Tribunal is satisfied that she intends to finish her course to not only improve her leadership and management skills, but to also enhance her English language proficiency. As noted above, the Tribunal is satisfied that her course of study will add value to her future.
Finally, the Tribunal does not share the delegate’s concern that the applicant may be using the Student visa to maintain ongoing residence in Australia, simply because she applied for a Student visa while on a Visitor visa. The Tribunal found that the applicant gave a credible and compelling account of when her motivation to study developed, after her arrival in Australia. The applicant stated that she only originally travelled to Australia for a visit. In this regard, the Tribunal notes that the applicant has an extensive travel history prior to her arrival in Australia. For example, according to her Student visa application form, she travelled as a tourist to Thailand, India and Nepal on several occasions. As noted above, the Tribunal accepts that the applicant felt inspired to study in Australia after encountering mature-age students, which made her come to the realisation that she would be treated differently in Australia for studying at her age.
There is no evidence before the Tribunal to suggest that the applicant has any military service obligations in China or Japan. There is no evidence before the Tribunal to suggest that there is any civil or political unrest that would act as an incentive for the applicant to remain in Australia.
On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).
Does the applicant intend to comply with visa conditions?
For the applicant to meet cl 500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl 500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). For visa applications made on or after 1 July 2022, condition 8208 (no critical technology related study without approval) must also be imposed.
The evidence before the Tribunal indicates that the applicant has abided by conditions of the visas she has held to date.
On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl 500.212(b).
Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?
For the applicant to meet cl 500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl 500.212(a) and (b)).
There is no other relevant matter to consider. The Tribunal finds the applicant meets cl 500.212(c).
CONCLUSION
Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
DECISION
The Tribunal sets aside the decision under review and remits the application for a Student (Temporary) (Class TU) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.212 of Schedule 2 to the Regulations.
Dates of hearing(s): 3 July 2025
Representative for the applicant: Ms Sophie Xi Wang (MARN: 1278708)
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.