In a remarkable turn of events, the Administrative Review Tribunal (ART) has overturned the refusal of a Student (Temporary) (Class TU, Subclass 500) (Student) visa application, originally rejected by a delegate of the Minister for Immigration and Multicultural Affairs.
Our client, a talented individual from Taiwan, had applied for the Student visa in May 2023. Her application was initially refused under the suspicion that she was not a genuine student, prompting the decision to be challenged.
Case Background
Our client arrived in Australia on a working holiday visa in 2019 after completing her Bachelor of Business Administration in Taiwan and working as an engineer. Seeking a career change, she transitioned into hospitality studies and applied for a Student visa to pursue a Diploma in Hospitality Management. Despite meeting all academic requirements, her application was refused under Section 500.212 of the Migration Regulations 1994, which assesses whether an applicant is considered a genuine student.
In response to this refusal, our client presented a comprehensive set of supporting documents to the ART. These included proof of her completed Certificate IV in Kitchen Management, her academic progress in hospitality studies, employment verification letters and a detailed business plan outlining her long-term career aspirations in the hospitality industry.
Genuine Temporary Entrant (GTE) Assessment
The ART carefully examined our client’s personal and professional circumstances both in Australia and Taiwan. The ART found that our client had a solid intent to return to Taiwan after her studies, supported by strong family and economic ties. Her plans for the future in Taiwan, including her professional goals, outweighed any potential reasons to stay in Australia beyond her temporary stay.
For applicants seeking a Student visa, it is essential to meet the Genuine Temporary Entrant (GTE) requirement. This requirement ensures that international students are coming to Australia for educational purposes only, with no intent of staying permanently. Direction No. 108, which guides the assessment of GTE, was crucial in the ART’s evaluation of our client’s case.
What is Direction No.108?
Direction No. 108 provides a framework for assessing the genuineness of an applicant’s intentions. It includes factors such as personal circumstances, immigration history and future plans. Importantly, Direction No. 108 advises a holistic approach rather than a strict checklist, allowing decision-makers to evaluate the totality of circumstances presented by the applicant.
Key Components of Direction No. 108
- Strong ties to an applicant’s home country, such as family, community and economic factors, play a critical role in determining their intent to return after their studies.
- The decision maker assesses the applicant’s circumstances in their home country, including economic conditions, available local courses and any other factors that could influence their decision to stay temporarily in Australia.
- The decision maker examines any connections to Australia, such as family or community ties, that could incentivise an applicant to overstay their visa.
- The decision maker also assesses if the applicant might use the student visa as a backdoor to permanent residency, raising concerns about whether their intentions align with the temporary nature of the visa.
- The course must align with the applicant’s prior qualifications and career ambitions. The decision maker evaluates whether the course offers clear benefits to the applicant’s professional prospects, either in their home country or abroad.
- The applicant’s past immigration history, including previous visa applications, compliance with visa conditions and any overstays, is a critical consideration.
- A positive immigration history reinforces the applicant’s intention to abide by the conditions of their student visa.
A Victory for Our Client!
After careful consideration, the ART concluded that our client met all the criteria set out in Section 500.212 of the Migration Regulations 1994. It determined that she was indeed a genuine student, with a legitimate plan for temporary stay in Australia, supported by her long-term career goals and personal circumstances.
With the original decision set aside, the ART remitted the application for reconsideration. This decision represents a significant win for our client, offering her the opportunity to continue her studies and pursue her career aspirations in Australia.
This outcome highlights the importance of presenting a well-rounded and compelling case in visa applications, ensuring that genuine students with clear intentions to study temporarily in Australia are given the opportunity to succeed.
This article is based on real cases handled by immigration lawyers at Brightstone Migration. It was written and reviewed by Mei Guo, Partner Solicitor and Head of Immigration, to share practical insights and experience. The content is for reference only and does not constitute specific legal advice.
Last updated: 05/03/2025
Testimonial
RG
Achieving the best result
I recommend Brightstone Migration to anyone and everyone seeking assistance with their visa application or who require support navigating the Australian Migration framework. Having previously encountered difficulties in obtaining a visa by ourselves, my partner and I consider ourselves very fortunate to have found Brightstone as Mei and her team exceeded the expectations we had for the outcome of the visa, as the result achieved more than what we thought could be possible. We will be continuing to engage with Brightstone as we have extreme confidence that Mei and the migration team are dedicated with achieving the best result for the client.
