LE (Migration) [2026] ARTA 568 (11 March 2026)

1. 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.
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. The first named applicant is a citizen of Vietnam who was born in 1982. He first arrived in Australia on 28 July 2017 on a visitor visa and stayed for two months before returning to Vietnam.
2. In June 2022, the first applicant and his wife (second named applicant) arrived in Australia, on anther visitor visa. They were accompanied by their youngest child (fourth named Applicant). Over the next year the first applicant and his family departed and returned to Australia on multiple occasions. They were joined in Australia by the third named applicant in October 2022. The first applicant and his family have been living in Australia since that time.
3. Though there are only four applicants listed on the student visa application, their family consists of two additional members. These are two elder daughters of the second applicant from a previous marriage. The first named applicant is their stepfather. The two stepchildren grew up in Vietnam in a household with the first, second, third and fourth applicants. In 2022, the two stepchildren came to Australia in order to study in this country. This was possible because their natural father (second applicant's first husband) is an Australian citizen, and both stepchildren also hold Australian citizenship.
4. When the first, second, third and fourth applicants came to Australia in 2022, they did so in order to support the two stepchildren while they studied in Australia. In 2022, the applicants submitted a subclass 143 Contributary Parent visa application (the subclass 143 visa). In that application, the second applicant was sponsored by her eldest children (first applicant's stepchildren), and the first applicant is identified as their stepfather. The subclass 143 visa application is ongoing.
5. In August 2023, around a year after their first arrival, and four days before his visitor visa was due to expire, the first applicant submitted a student visa application. His wife (second applicant) and children (third & fourth applicants) were listed as dependents on the 2023 student visa application.
6. In support of his 2023 student visa application, the first applicant has also provided a range of additional documentation to the Department:
   • A Vietnamese Marriage Certificate indicating he and his wife were married in 2018.
   • A copy of a Certificate of Insurance indicating the applicant had obtained health cover in Australia.
   • A Vietnamese Birth Certificate issued in the name of the third applicant. A copy of the biodata page from a Vietnam Passport issued in 2022 in the third applicant's name.
   • A Vietnamese Birth Certificate issued in the name of the fourth applicant. A copy of the biodata page from a Vietnam Passport issued in 2022 in the fourth applicant's name.
   • A copy of the biodata page, and several other pages from a Vietnamese Passport issued in 2018 in the first applicant's name.
   • A copy of the biodata page from a Vietnam Passport issued in 2022 in the second applicant's name.
   • A four-page written statement which outlined the first applicant's reasons for study in Australia and his commitment to stay in Australia temporarily (the 2023 GTE Statement).
   • A two-page written statement which outlined the second applicant's support for her husband's study in Australia and their commitment to stay in Australia temporarily (the second applicant's 2023 Statement).
   • A Vietnamese 'Contract of Land Transfer of Land Use Rights & Land-attached assets' from January 2021. A Vietnamese 'Agreement on Deposit payment for transfer of Ocean Vista Apartment purchase and Sale Contract' from 2009.
7. The applicant's student visa application and his 2023 GTE Statement indicated that in Australia he had decided that he wanted to strengthen his management skills in order to manage a real estate company he owned in Vietnam. With that aim, in Australia he intended to study a package of General English courses (GE I, II, III, IV) in order to strengthen his language skills then study a Diploma of Leadership and Management followed by an Advanced Diploma of Leadership and Management before returning to Vietnam. The second applicant's 2023 written statement confirmed his intention to study the English courses followed by the Diploma of Leadership and Management and the Advanced Diploma of Leadership and Management before returning to their home country.

1. As noted above, the applicant's student visa application was refused in January 2024, and the applicant subsequently submitted the application for review to the Tribunal in February 2024.
2. In November 2025, the Tribunal wrote to the applicants authorised recipient and notified him that the applicant's case would soon be submitted to a Tribunal Member. That correspondence invited the applicant to give, in writing, all relevant information about the course(s) of study he had undertaken in Australia, and his entry and stay in Australia as a student. The Tribunal requested the applicant submit this information in a Student Visa Information Form. The applicant subsequently provided a completed Student Visa Information Form to the Tribunal which contained a declaration that was completed by the first applicant indicating the information in the form was complete and correct.
3. The completed Student Visa Information Form contained information about the applicant; information about his education and employment before coming to Australia; information about his travel to Australia and other countries; information about his current visa application; information about his current and previous enrolment in educational courses in Australia; information about his employment and expenses in this country, and other circumstances including information about his assets, his future plans, his family, and his community ties to Vietnam. The Tribunal has considered the completed Student Visa Information Form.
4. In support of his 2023 student visa application, the applicant has also provided a range of additional documentation to the Tribunal:
   • A Vietnamese 'Board of Directors' memo from 2016 indicating the applicant had been issue bonus shares in a real estate company in Vietnam.
   • A document indicating the first applicant had completed a Technical Internship and Training program in Japan in 2009.
   • A Vietnamese 'Professional Degree' issued by a Highschool in Vietnam to the applicant tin 2006.
   • An Overseas Student Confirmation-of-Enrolment Certificate for a _Diploma of Leadership & Managemen_t course which commenced in October 2024 and ended in October 2025.
   • An Overseas Student Confirmation-of-Enrolment Certificate for an Advanced Diploma of Leadership & Management course which commenced in November 2025, and which is scheduled to be completed in May 2027.
5. The Tribunal has considered this material.
6. In addition to the material provided by the applicant, the Tribunal has obtained:
   • A copy of an Australian government movement record. This document contains information about the applicant's travel to Australia, his visa status in this country, and the conditions attached to his visa.
   • The Tribunal has also obtained records from the Provider Registration and International Student Management System ('PRISMS') for the applicant. These records contain information about the applicant's enrolment and study in Australia.
7. These records contained information consistent with the applicant's evidence about his study and travel to Australia, and the Tribunal places no adverse weight on these records.

1. As noted earlier, the Tribunal conducted a hearing with the applicant on 19 January 2026 and a second hearing on 19 February 2026. During the hearings, the Tribunal questioned the applicant about various aspects of his student visa application and his intentions. In response, the applicant gave oral evidence regarding these issues.
2. During the first hearing, a witness gave evidence on the applicant's behalf (W1). The witness said:
   • He had known the applicant for some time. The applicant was a student in Australia. He did not know what the applicant was studying.
3. The applicant had notified the Tribunal that a second witness was to give further evidence on his behalf (W2). However, at the time of the hearing, the Tribunal was not able to contact W2, and it appeared that W2 had turned off his phone. W2 did not provide any evidence to the Tribunal. During the second hearing, the second named applicant attended and gave evidence.
4. At the end of the second hearing, the applicant's representative asked for a short period in which to provide a written submission to the Tribunal about the issues canvassed in the hearings. The Tribunal granted the applicant a short period in which to provide additional written submission to the Tribunal.
5. The applicant's representative subsequently provided a seven-page written submission to the Tribunal about the applicant's case (the 2026 submission).The 2026 submission had five attached appendices. These were:
   • Appendix 1: a copy of an email confirming the applicant's enrolment in an Advanced Diploma of Leadership & Management which commenced in November 2025, and which is scheduled to end in 2027.
   • Appendix 2: a copy of a screenshot from the applicant phone confirming payment of the applicant's latest tuition fee on 1 March 2026.
   • Appendix 3: a copy of a screenshot from the applicant phone confirming payment of health insurance coverage in August 2023.
   • Appendix 4: a copy of a receipt for payment of health insurance from August 2023
   • Appendix 5: a copy of a second receipt for payment of health insurance from August 2023
6. The Tribunal has considered the 2026 submission and Appendices 1-5. According to the 2026 submission, Appendices 1 to 5, demonstrate the applicant's genuine intention to study, his financial capacity to pay the costs of his study, and his personal circumstances.

Applicant's Circumstances in Vietnam & Australia, immigration history, value of the applicant's study

1. Direction 108 requires decision makers to consider the applicants circumstances in his home country. The applicant is a Vietnamese citizen who was born in Vietnam. In Vietnam, the applicant has the political and social rights associated with citizenship. He speaks the Vietnamese language and has cultural links to Vietnamese society. The educational documents provided by the applicant indicate he completed his early education in Vietnam and lived there throughout his childhood. In Vietnam he finished high school and completed a Certificate of Mechanical Engineering between 2004 - 2006. The Tribunal accepts the applicant has political, social, cultural and community ties to Vietnam.
2. According to the first named applicant's student visa application his family consists of his Parents, a brother, and his wife and children. The 2025 Student Visa Information Form indicates that his immediate family lives with him. The applicant's student visa application indicates his parents and other family remain in Vietnam and during his hearing, the first applicant confirmed that his parent's and his brother remain in Vietnam.
3. The applicant's immediate family was discussed during his hearings and as noted earlier, the first applicant lives in Australia with his wife (second applicant), his two natural children (third & fourth applicants) and his two stepchildren (Australian citizens from second applicant's previous marriage).
4. The Tribunal accepts that the applicant has family ties to Vietnam and that he maintains regular contact with his family members who remain in that country. However, noting that the applicant's immediate family all reside in Australia with him, the Tribunal does not consider that these ties, on their own, represent a significant incentive to return to his home country.
5. Direction 108 says that decision makers should consider the applicant's economic ties to their home country and whether the applicant's economic circumstances that would present as a significant incentive for the applicant not to return to their home country.
6. The Student Visa Information Form did not disclose any economic ties to Vietnam, but his 2023 GTE Statement mentioned a real estate company that the applicant owned in that country. The applicant's economic ties and assets were discussed during his hearings before the Tribunal. Both the applicant and his wife asserted that in Vietnam they owned multiple properties and a real estate business. They indicated that the real estate business was not operating while they were in Australia, but that they continued to draw an income from the many properties they owned in Vietnam. They said they earned enough from those properties to pay for their life in Australia. According to the first applicant, the properties in Vietnam are worth more than $1000,000AUD. The 2026 submission asserts the second applicant own four properties in Vietnam in her own name and that the first applicant owns 7000 square metres of land. The properties and land provide income to the applicants, and they are said to be financially self-sufficient. The applicant asserted that after his study in Australia, he intended to return to Vietnam and reopen the real estate business. The Tribunal accepts the applicant has business and property ties to Vietnam . However, the Tribunal does not consider that these economic ties, on their own, represent a significant incentive to return to Vietnam.
7. The 2023 GTE Statement and the 2026 submission both indicate the applicant's intention to return to Vietnam at the conclusion of the Advanced Diploma of Leadership & Management. That the GTE Statement asserts that the applicant will definitely return back to Vietnam because Vietnam has become a promising destination him to expand his business due to its increasing economic growth, stable political environment, and favourable investment policies. The 2026 submission also asserts they will return and work in Vietnam. The applicant's 2025 Student Visa Information Form, the applicant indicated that he did not have any concerns about returning to Vietnam including in relation to political or civil conflict in that country, nor does he have any outstanding military service obligations. During his hearing He stated that he was intending to return to Vietnam at the completion of his study in Australia and had not concerns. He said he was happy to return to his home country. Overall, the tribunal considers these factors to be favourable.
8. Direction 108 indicates that decision makers should consider 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. The direction indicates that decision makers should allow for any reasonable motives established by the applicant.
9. The first applicant's 2023 GTE Statement says that similar Leadership & Management courses are not available in his home country and that he wanted to pursue this subject because it is a 'soft skill' which he needs to update to achieve the best business outcomes. The GTE Statement also explains that the applicant wants his real estate company has many staff, and that strong leadership and management skills are necessary to effectively manage, motivate, and guide these teams to work cohesively and efficiently and because he needs to strengthen his management skills in order to lead and develop his company. The applicant's 2025 Student Visa Information Form says when the first applicant arrived in Australia as a tourist, he took up the Diploma of Leadership & Management in order to course to give himself the opportunity in gaining employment in the workplace and that in Vietnam, no such course was available. However, the same form also indicates that the applicant selected his study of the Diploma of Leadership & Management because by doing so, it was easy to obtain a student visa in Australia.
10. During the hearing, the Tribunal questioned the applicant about whether a similar course is available in in his home country or region and whether he has reasons for not undertaking the study there. In response, the applicant said that there were leadership and management courses available in Vietnam. Initially he said that only 'small programs' were available in Vietnam but later asserted that in order to study at a bigger institution, he would have to sit an entrance exam. He said he had participated in some 'smaller classes' but did not identify these or indicate their relevance to his current study in Australia. Earlier in the hearing the first applicant indicated that he submitted his student visa application because he wanted to support his stepchildren and stay in Australia to await the outcome of the subclass 143 visa application. The Tribunal considers the applicant has only demonstrated very cursory consideration of study options in his own country.
11. Direction 108 requires the decision makers to consider the value of the first applicant's course of study in Australia to his future.
12. The applicant's 2023 GTE Statement indicates the applicant only became aware of the importance and advantages of studying the English language and Leadership and Management courses while he was in Australia on a tourist visa. The statement says his study would allow him to make sound business choices that align his company with its goals and market conditions. Real estate is said to be a dynamic industry which can lead to conflict, and the skills he would learn would allow him to maintaining positive relationships and a harmonious work environment. The strong management skills he would learn in Australia were also said to ensure that he could set appropriate strategic goals; that ensure business growth is sustainable; that he would have the knowledge to adapt to changing market conditions. During his hearing, he said the value of his course was to learn professionalism and develop his business management skills. In this context, he asserted that he had only worked in the real estate business since 2016.
13. The applicant is currently studying an Advanced Diploma of Leadership & Management in Australia. During his hearing, the applicant described his Mechanical Engineering qualification as a 'certificate' and said that study was at higher than a High School qualification, but lower than a university degree. In the circumstances, it appears that the applicant's current study is at a similar level to his prior studies in his home country. Direction 108 indicates that decision makers should allow for reasonable changes to career or study pathways. The applicant's current study is in a different field from the Mechanical Engineering the applicant had previously completed in Vietnam. According to the applicant he commenced working in the real estate sector in Vietnam in around 2016, and the Tribunal accepts that he no longer works in the Mechanical Engineering. In the circumstances, study in a different field is unsurprising.
14. The Tribunal has considered the arguments offered about these the benefits of his current study. The applicant owns a real estate company that he says he intends to return and operate in Vietnam and since the company is owned by the applicant and he ran it for years before coming to Australia, the tribunal is not satisfied that the course could be said to assist the applicant to obtain employment or improve his employment prospects. However, the tribunal does accept that the Advanced Diploma of Leadership & Management may have some benefit in relation the future management o his real estate company.
15. The 2025 Student Visa Information Form asked the applicant to provide details of his estimated renumeration in Vietnam using the qualifications obtained from his current study. In response the applicant indicated he expected to earn between 15 to $20 million Vietnamese dong, which was said to be equivalent to $1,000.00 to $1,500.00 AUD per month. No evidence was provided to support the applicant's assertions about his earnings estimate. When this issue was discussed during his second hearing, the applicant estimated he would earn between to $4,000.00 to $ 5000.00 AUD per month, substantially more that he mentioned in his Student Visa Information Form. The applicant did not cite any evidence in support of his claims about his expected remuneration during his hearing. The applicant's evidence about his expected remuneration in Vietnam has increased threefold since he submitted his Student Visa Information Form in December 2025, though he has not provided any supporting evidence for either estimate.
16. Direction 108 requires decision makers to consider an applicant's immigration history and whether there is any evidence that he had failed to comply with the migration laws of Australia or another country.
17. The applicant's student visa application disclosed prior travel to Malaysia (2014 & 2017), Cambodia (2015), Thailand (2015), Taiwan (2016, 2017 & 2018), Australia (2017), the United States (2018), South Korea (2018) and Indonesia (2019) all for holiday purposes. His student visa application also indicates he worked in Japan in 2009. During his hearing, he indicated that he had never encountered any migration or visa problem while he was travelling overseas in the past. There is no evidence before the Tribunal that the applicant has failed to comply with any with the migration laws of any other country.
18. The applicants arrived in Australia in June 2022 on a visitor visa and then departed and returned to Australia on multiple occasions. The first applicant subsequently submitted his student visa application in August 2023. As noted above, during the Tribunal hearings, the first and second applicants both disclosed that in 2022, before the first applicant submitted his 2023 student visa application, they had submitted a subclass 143 visa application. They both indicated that the subclass 143 visa process was ongoing at the time of the hearings, and that they were still awaiting a positive result. The first applicant indicated that by submitting the subclass 143 visa, the applicants were hoping to obtain permanent residency status in Australia.
19. The first applicant's student visa application indicates his intention to understand and abide by the conditions of his visa in Australia. At the time he submitted the student visa application, the applicants were granted bridging visas allowing them to remain in this country while the first applicant's student visa application was assessed. At this time, the applicants remain on the bridging visa. The 2026 submission argues the applicants have a favourable immigration history and that their history of travel to Australia and other places demonstrates their past compliance with visa conditions. There is no evidence before the Tribunal that the applicant has failed to comply with any conditions of his visa.
20. Direction 108 indicates that decision makers should consider whether the applicant has entered into a relationship of concern for a successful Student visa outcome. No such relationship has been disclosed by the applicants in in the student visa application or his Student Visa Information Form or is mentioned in any of the other material they have has provided to the Department or the Tribunal. The Tribunal is satisfied the applicants have not entered into a relationship of concern for a successful Student visa outcome.
21. During his hearing, the applicant was able to discuss his current and past study in Australia. He was able to identify his institution of study and discuss the current unit he was studying and what he was learning in class. In the Tribunal's view, the applicant demonstrated a reasonable level of knowledge of his current course of study, and his institution of study.
22. Direction 108 requires decision makers to consider the applicants potential circumstances in Australia and indicates that decision makers should have regard to whether an applicant's ties to Australia would present as a strong incentive to remain in this country. The direction also indicates that decision makers should consider whether the student visa programme is being used to circumvent the intentions of the migration programme or to maintain ongoing residence.
23. During his hearing, the first applicant indicated that he lives in Victoria in rental accommodation with his wife (second applicant), his two children (third and fourth applicants) and his two stepchildren. The Student Visa Information Form asked the first applicant to provide details of his community ties (if any) to Australia. The Student Visa Information Form indicated that the first applicant and his wife attend church on Sundays. The Student Visa Information Form indicated the applicant did not have any other family in Australia and also noted that the second applicant's family members were all in Vietnam. However, at his hearing he indicated that the second applicant does have some members of her extended family (uncles & aunts) in Australia. The applicant's 2026 submission argues, and the Tribunal accepts, that the applicants do not work in Australia, and that they are financially self-sufficient because of the assets they own in their home country. The submission indicates that their only asset of significance in Australia is a 2014 Mercedes-Benz, a depreciating asset.
24. During his hearing, the applicant indicated that in addition to his two natural children with his wife (born in 2019 and 2021), he was the stepfather of two elder children, from his wife's first marriage. He stated that he had initially come to Australia in June 2022 with his wife and his two children. He said that at the time of the family's arrival in Australia, they had been accompanied by his two elder stepchildren. He said their motive for coming to Australia was to accompany the two elder stepchildren who wanted to study in Australia. The applicant also disclosed that his stepchildren's birth father was an Australian citizen, and that, for that reason, his stepchildren both held Australian citizenship. These circumstances are confirmed in the 2026 submission. The Tribunal has considered the applicant's evidence about his family.
25. The Tribunal has considered the applicant's ties with Australia and whether they would present as a strong incentive to remain in Australia. While the Tribunal acknowledges that the first applicant's parents and brother remain in Vietnam and that other members of the second applicant's family also remain in their home country, in the Tribunals view, the presence of the applicant's immediate family in Australia, including his wife, and his four children, may present as an incentive to remain in this country.
26. In this context, the Tribunal is also concerned by the first and second applicants' disclosure that their two eldest daughters/stepdaughters have Australian citizenship and have lodged the subclass 143 visa in order to sponsor the first and second applicants for Permanent Residency in Australia. During the second hearing, both applicants asserted that the subclass 143 visa application process was ongoing, and that they were currently awaiting the outcome of that application. The first named applicant clearly indicated that his family was hoping to secure permanent residency in Australia from the subclass 143 visa application.
27. As noted earlier, the applicant's student visa application, his 2023 GTE Statement, his 2025 Student Visa Information Form, and the second applicant's 2023 written statement all indicated that the first applicant and his family intended to return to Vietnam after he had completed his General English courses, the Diploma of Leadership and Management and the Advanced Diploma of Leadership and Management. During his hearing, the applicant continued to assert that he would return Vietnam at the conclusion of the Advanced Diploma of Leadership and Management in June 2027. The 2026 continues to argue that the applicants will return to Vietnam after the Advanced Diploma of Leadership & Management concludes.
28. However, in the Tribunal's view, the applicant's disclosures about his stepchildren, and the subclass 143 visa cast considerable doubt on these claims. It appears to the Tribunal that the applicants do not intend to return to Vietnam when in 2027 when the Advanced Diploma of Leadership and Management has been completed. Instead, the subclass 143 visa, and the Permanent Residency status granted by that visa, suggests that the first applicant and his family intend to remain in Australia and reside here permanently.
29. During the hearing, the applicant also made another concerning disclosure. He said that in 2023, when he applied for the student visa, he had wanted to stay in Australia to support his two stepchildren, and to await the resolution of the subclass 143 visa application. On its face, this explanation suggests that the first applicant only submitted the student visa application to prolong his stay in Australia, while the subclass 143 visa application process was ongoing. When asked about this statement, and the applicant continued to assert that he intends to return to Vietnam in 2027, after he completes the Advanced Diploma of Leadership and Management. However, in light of the applicant's earlier explanation of his motivation for submitting the student visa application, the Tribunal found this assertion unconvincing.
30. The applicant's 2026 submission addressed the applicant's subclass 143 visa application at some length and argues that the applicants intend to return to Vietnam in 2027, after the Advanced Diploma of Leadership & Management is completed. The submission argues that if the applicant's have a history of of lawful compliance with visa conditions, and that if they wanted to prolong their stay in Australia, there were more practical and lest costly options, such as such as submitting a subclass 866 Protection Visa and appealing any refusal decision. The submission argues that as the applicant's are self-funded, and that financial constraints would not prevent them from pursuing the alternative strategy of submitting a Protection Visa, "it is clear" that the first applicant has a "genuine intention" to complete his studies in Australia.
31. The Tribunal has considered the 2026 submissions arguments about these issues. The Tribunal does accept that the applicant intends to complete his Advanced Diploma of Leadership & Management in Australia. However, Direction 108 indicates that decision makers should consider whether there is evidence that the applicant is using the student visa programme to circumvent the intentions of the migration programme or maintain ongoing residence in this country.
32. Taking into account that these applicants applied for permanent residency in Australia in 2022, well prior to the submission of the 2023 student visa application, and also that during his hearing, the first applicant made the concerning disclosure that his student visa application was submitted in order to await the resolution of the subclass 143 visa application, the Tribunal considers that in this case, there is evidence that the first applicant and his family is using the student visa programme to maintain ongoing residence in this country. The Tribunal considers that the arguments against this that are advanced in the 2026 submission and during their hearing, are unpersuasive.

1. According to Direction 108, a successful student applicant must be both a genuine temporary entrant and a genuine student. 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.
2. Direction 108 indicates that an application for a student 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 Tribunal has considered the first applicant's circumstances in Australia and in his home country, the value of his course of study to his future, and his immigration history. The applicant is a not a minor, nor has he submitted a Student Guardian application.
3. Above, the Tribunal has accepted the first applicant has family, political, social, cultural and economic ties to Vietnam. The Tribunal also accepts that the first applicant does not have any fears about returning to Vietnam. The Tribunal considers that the applicants study level in Australia is consistent with his current level of education and that his course of study may have some benefit in relation the future management of his real estate company in Vietnam. There is no evidence that the applicants have entered a relationship of concern, and the Tribunal has found that the applicant has a reasonable knowledge of his current and past study in Australia. These factors all weigh in his favour.
4. However, as noted above, the Tribunal has a range of concerns about the applicant's application. On the evidence he has provided, the Tribunal considers the applicant has done only limited and cursory research into study options in his home country, and he has not provided any supporting evidence for his claims about this issue, or his renumeration expectations in Vietnam. However, most concerningly, these applicants submitted the subclass 143 visa in 2022, well before the student visa application was submitted and the tribunal considers that the subclass 143 application indicates that the applicants were applying for permanent residency in Australia well prior to the submission of the 2023 student visa application. In the Tribunal's view, the first applicant's submission of a temporary student visa must be considered in this context. Furthermore, the Tribunal is concerned by the applicant's Student Visa Information Form, which indicates that that he selected the Diploma of Leadership & Management to study because by doing so, it would be easy to gain a student visa and his disclosure that he only submitted his student visa application in order to prolong his stay in Australia, while the subclass 143 visa application process was ongoing.
5. After considering all of these factors, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
6. 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.

1. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Dates of hearing(s): 19 January 2026 & 19 February 2026

Representative for the Applicant: Mr Hong Uyen Tan (MARN: 1171724)

DIRECTION NUMBER 108 - ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

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).

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.

This Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

Direction No. 69, given under section 499 of the Act, is revoked.

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.

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.

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.

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.

1. Decision makers should have regard to the applicant's circumstances in their home country and the applicant's potential circumstances in Australia.
2. For primary applicants of Student visas, decision makers should have regard to the value of the course to the applicant's future.
3. 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

1. 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.

2. 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

1. 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.

1. 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.

1. An applicant's immigration history refers both to their visa and travel history.
2. 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: > > 1. 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 > 2. 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. > 3. b. Previous travels to Australia or other countries, including: > 4. 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; > 5. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances; > 6. 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 > 7. 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

1. 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.

1. 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.