(a) proof of progress in the Advanced Diploma of Business course in which he is recorded to be enrolled, which was to have commenced on 15 January 2025. The directions stated that the proof of progress should be on the letterhead of the education provider and list subjects undertaken and results achieved in those subjects to date; and

(b) a statutory declaration by the Applicant describing his attempts to contact his employer in China about his employment status with his employer and any offer of re- employment or promotion on his return to China.

1. By 13 January 2026, neither the Applicant nor his representative had responded to either of the directions. On that day, the Tribunal sent an email to the Applicant's representative reminding her about the directions and that the Applicant was due to provide a response by 9 January 2026, but had not done so. The email informed the representative that it is important that the Applicant, in particular, provide evidence from his education provider as to his progress in his current course of study. The email pointed out that failure to demonstrate that he had been progressing in his course, which was to have commenced on 15 January 2025 is an important matter which may have the effect of determining the fate of his application for a student visa.
2. The email from the Tribunal asked for a response to the directions by 19 January 2026. Also, if neither the representative nor her client provided a response by that date, the Tribunal would make a decision based on the documents presently before it. As at the date of this decision, there has been no response either to the directions or the email dated 13 January 2026. The result is that there is no evidence before the Tribunal of the Applicant's progress in his Advanced Diploma course.

Decision in the absence of the Applicant at a hearing - application of s 106 of the ART Act

1. Section 106 of the ART Act describes the circumstances in which the Tribunal may reach a decision without a hearing where the matter is a review of a decision (in this case, a decision made by the Delegate).
2. Relevantly, s 106(1) provides that the Tribunal may make its decision in the proceeding after considering the documents and things given to the Tribunal and without holding a hearing in the proceeding if s 106(3) applies. The criteria for the Tribunal making a decision without a hearing contained in s 106(3) apply if the only parties to the proceeding are the Applicant and a 'non-participating party' to the proceeding. That factor applies in this case, since the Minister for Immigration and Multicultural Affairs is a 'non-participating party'.[2]
3. Since that is the case, the criteria under which the Tribunal may make a decision without holding a hearing are:
   • the Applicant has requested the Tribunal to make its decision without holding the hearing of the proceeding (s 106(3)(b)(ii)); and
   • it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding (s 106(3)(c)).
4. The expression 'adequately determined' is not defined in the ART Act. The Macquarie Dictionary defines 'adequate' as 'equal to the requirement or occasion; fully sufficient, suitable or fit' and in a legal context as 'reasonably sufficient for starting legal action' in the sense of 'adequate grounds'.[3] I do not consider that 'adequately determined' requires a decision favourable to the Applicant, as it if did, sub-paragraph 106(3)(b)(i), which contemplates a decision being made wholly in favour of the Applicant, would be superfluous.
5. The Tribunal decided that way in 2010120 (Refugee),[4] by a Tribunal panel consisting of the President, Kyrou J, and Deputy Presidents Burford and Dordevic. My decision is in accordance with the principles described in that case for when the Tribunal may make a decision 'on the papers' under s 106 the ART Act.
6. The starting point for ascertaining the meaning of a statutory provision is the text of the statute whilst, at the same time, having regard to its context and purpose.[5] Section 106 of the ART Act relates to circumstances in which the Tribunal may reach its decision on review without a hearing. It is found in Part 4, Division 8, Subdivision C of the ART Act which sets out the process for the Tribunal making decisions on review of 'reviewable decisions'.[6]
7. The objective of the ART is set out in s 9 of the ART Act and says:

The Tribunal must pursue the objective of providing an independent mechanism of review that:

a) is fair and just; and

b) ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and

c) is accessible and responsive to the diverse needs of parties to proceedings; and

d) improves the transparency and quality of government decision-making; and

e) promotes public trust and confidence in the Tribunal.

1. In my view, that objective informs the meaning of whether the Applicant's application can be 'adequately determined' without a hearing.
2. In the context of s 106 and the ART Act more broadly, in my view, 'adequately determined' means that the Tribunal may make its decision without holding a hearing in the proceeding, and in that way resolving the proceeding quickly, if it also appears to the Tribunal that this can be done in a fully sufficient or suitable manner based on all the evidence before it and where it would be reasonable in all the circumstances to do so.[7]
3. Based on the evidence before the Tribunal, I have decided to give effect to the Applicant's request to decide this matter without holding a hearing of the proceeding, and I am satisfied that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding. The Tribunal has given the Applicant several opportunities to provide the information the Tribunal sought about progress in his current course, and on contact with his employer in China about promotion in his employment when he returns to China. He has not taken up those opportunities.
4. As the Tribunal noted in 2010120 (Refugee), the Tribunal is not under a general duty to undertake its own inquiries in addition to the information placed before it by an applicant[8] and generally, it is up to an applicant to make out their case.[9]

1. 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 is genuinely in Australia temporarily for the purpose of study.

Genuine applicant for entry and stay as a student (cl 500.212)

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?

1. In considering whether the applicant for a student visa satisfies cl 500.212(a), the Tribunal must have regard to Direction No 69, 'Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications', made under s 499 of the Act. This Direction, which was in force as at the date of the Applicant's application for a student visa, 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.
2. 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.

1. For the following reasons, I consider the decision under review should be affirmed.
2. To be sure, the Applicant's representative provided proof of the Applicant's completion of his Diploma of Business course, on the day of the hearing, through a 'Letter of completion' from the Applicant's education provider stating that he had completed that course and also providing a copy of the Diploma itself, dated 8 January 2025. However, that course was completed on 5 January 2025.
3. The Applicant was due to commence an Advanced Diploma of Business course starting 13 January 2025, to be completed on 5 July 2026. However, the Applicant has provided no proof of any progress in that course despite the several attempts by the Tribunal to obtain evidence on that progress as described above. If the Applicant had diligently undertaken his studies in that course, he would have completed one year of units in that course and be able to demonstrate that by a record provided on the letterhead of his education provider. He has not done that.
4. I give significant weight to demonstrated proof of progress through courses of study that an applicant for a student visa says they are undertaking, in applying the statutory test of whether an applicant is a genuine temporary entrant in Australia for the purposes of study. The failure of the Applicant in this case do demonstrate progress in the course he said he was undertaking for the last year causes me to doubt that he is a genuine temporary entrant in Australia for the purposes of study.
5. That failure to provide proof of his progress in his current course is compounded by the Applicant failing to provide to the Tribunal a statutory declaration of what he had said in his 'Genuine Temporary Entrant' statement accompanying his application for a student visa that after he completed his course he would go back to his China and his employer will offer him a higher position in the company he worked for there. He repeated a statement to that effect in his response to the Request for Student Visa Information (response dated 26 August 2025) sent to him by the Tribunal.
6. The evident purpose of that statement is to demonstrate the value to him of temporarily studying in Australia before return to China. I accept that it is one of the factors for consideration by a decision-maker as described in Direction 69 referred to above, on the Applicant's circumstances in his home country, and the value of the course to the Applicant's future. Despite the Tribunal giving the Applicant several opportunities to provide a statutory declaration verifying that statement, he has not done so. The failure of the Applicant to do so is a further consideration to which I attach weight in the Applicant not being in Australia temporarily for the purposes of study, at least since completing the Diploma of Business course in early 2025.
7. On the basis of the above, I am not satisfied that the Applicant intends genuinely to stay in Australia temporarily. Accordingly, the Applicant does not meet cl 500.212(a).
8. Clause 500.212 requires that the Applicant meet each of paragraphs (a), (b) and (c) of that clause. Because the Applicant has not met paragraph (a) it is not necessary for me to consider whether he meets paragraphs (b) and (c).

1. Accordingly, I am not satisfied that the Applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
2. Given the above findings, I find 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.

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

Representative for the Applicant: Mrs Yi Zhou (MARN: 1794845)

[1] As was the then Minister's then title.

[2] Section 348A(1) of the Act provides that the Minister is taken to be a non-participating party to a proceeding for review of a 'reviewable protection decision' for the purposes of the ART Act.

[3] https://app.macquariedictionary.com.au/ (accessed 21 January 2026).

[5] SZTAL v MIBP [2017] HCA 34, [14]; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28.

[7] See the decision of the Federal Circuit and Family Court in EIZ20 v Child Support Registrar [2023] FedCFamC2G 637 (20 July 2023).

[8] Minister for Immigration and Citizenshp v SZIAI (2009) 111 ALD 15, 16[1], 21 [24]; [2009] HCA 39.

[9] WAKK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 225, [73].