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. For overall context, the applicant is a Vietnamese citizen now aged in her late twenties, who first arrived in Australia in October 2015 aged around eighteen, after completing high school in Vietnam. She held successive student visas prior to her last application in mid-2023 (the subject of this review) and has a detailed history of course enrolments in Australia over an almost ten-year period. She last completed a substantive course in early-2020, and in late 2024, she enrolled in a new package of courses due to end in 2029. Further details of the applicant's account of her studies, circumstances, plans and goals are set out as part of my overall considerations, findings and reasons below.

Evidence of enrolment, studies and course completion

1. The following summary of the applicant's studies in Australia is based on information and supporting documentation provided by her to the Department and Tribunal in connection with the application and review, including a pre-hearing form to the Tribunal where she specified her course enrolment and completion history up to late 2024.
2. From early 2016 to mid-2020, the applicant completed the following courses in Australia:
   • an English pre-course and a Diploma of Science at University of Technology Sydney (UTS) Insearch between 2016 and June 2018 (after extending the study period)
   • a short English course at Kingsbury Institute around October 2018
   • an Advanced Diploma in Leadership and Management at Wells International College (WIC) between February 2019 and March 2020
   • a further short English course at Kingsbury Institute around June 2020.
3. The applicant provided material evidence of enrolment, awards and transcripts from education providers (UTS, WIC and Kingsbury Institute) regarding each of the courses noted above. I accept this material on its face and therefore accept the applicant completed each of these courses.
4. The applicant indicated that, in February 2021, she enrolled in a package of courses at Sydney Metro College (SMC) comprising a Diploma of Project Management due to run to February 2022, an Advanced Diploma of Project Management due to run from February 2022 to February 2023, and a Graduate Diploma of Management (Learning) due to run from February 2023 to February 2024.
5. The applicant provided to the Department alongside her student visa application in 2023 a provider letter from SMC dated 5 June 2023 which indicates she commenced studying the Diploma of Project Management on 15 May 2023, with the intention of completing it by 12 May 2024. While I accept the applicant's account at the hearing that this Diploma course finished in May 2024, I rely on her written indication in a pre-hearing response form to the Tribunal form in late November 2024 that she did not complete this Diploma.
6. Also in late November 2024, the applicant provided to the Tribunal certificates of enrolment in a further package of courses (that is, a Certificate IV, Diploma and Advanced Diploma in Leadership and Management) at Western Star Academy (WSA) due to run between late December 2024 to and June 2029. Based on these certificates, I accept she is enrolled in the Certificate IV course and has approved enrolments for the remainder of the course package. The applicant's representative wrote pre-hearing that the applicant instructed she had commenced the Certificate IV course in December 2024. I give the benefit of the doubt for the purpose of this decision that the applicant commenced the Certificate IV course as stated. She told me at the hearing that she planned to continue studying this Certificate following the expected birth of her child in around March 2025. She said while her partner's parents had previously resided in Vietnam and not been available to care for her older child, they now reside in Australia and will be more available to care for her two children while she studies. I consider her stated plans further below.

Consideration of the applicant's explanations about her study circumstances

1. I give the benefit of the doubt in accepting the range of explanations the applicant has offered (in written submissions and statements to the Department and Tribunal, and in oral evidence at the hearing) about her studies and circumstances, as follows.
   • she needed to extend the period of study of the initial English course and Diploma of Science, but ultimately completed that course in 2020;
   • she altered her study pathway from science to leadership and management in 2019 because she was young and changed her mind, and felt job opportunities with the Diploma of Science qualification might be limited in Vietnam;
   • she was able to manage the Diploma in Science (taught in English) because she completed the pre-course English qualification, and had familiarity with science subjects in high school in Vietnam, but needed to do further short English courses in 2019 (before the Advanced Diploma in Leadership and Management, and in 2020 before the Diploma in Project Management) to 'get skills to understand the lessons' and brush up her English;
   • her pregnancy and the birth of her first child in late 2018 and her mental state after the birth and the demands of parenting all affected her engagement with study for some years, and
   • the Covid-19 pandemic period (taken to be from late 2019 to early 2022) affected her parents' income in Vietnam and therefore her access to funds for study, and some courses did not proceed, and she found online learning modes challenging during this period
2. The above matters are referred to collectively below as the applicant's 'personal circumstances'.
3. I accept that challenging pandemic conditions coincided with the applicant's initial period of enrolment in the Diploma of Project Management course in early 2021. I give the benefit of the doubt in accepting the applicant's account that her parenting responsibilities, and that pandemic conditions interrupted her study of the Diploma of Project Management (and ability to pay course fees) until she commenced it in early 2023. However, given the pandemic period ended in the first part of 2022 and the applicant's child was aged around four by early 2023, I do not accept these matters (separately or combined) adequately or wholly account for her non-completion of the Diploma of Project Management between May 2023 and May 2024.
4. Additionally, I am not satisfied for the following reasons that the applicant was genuinely motivated to gain additional skills through the SMC course package (or has been motivated to recently enrol in and start the WSA course package for the reasons stated).
5. Asked at the hearing why she enrolled in a Diploma of Project Management after the 2019/20 Advanced Diploma in Leadership and Management, and what additional or different skills she obtained in the Diploma of Project Management, the applicant said she thought there might come an opportunity (in Vietnam) to 'apply leadership' so she did Project Management. Asked what she studied in that course that was useful (that she had not covered in the previous Advanced Diploma) she said

I thought in this field to apply leadership and maybe I can find a job and whatever" and "I think the range of (subjects) gave me more information like for the business, marketing, all the knowledge. In this industry it is easy for me to understand, and I don't know... for international students like me it's easier.

6. I found this account of her motivations for embarking on that Diploma, and the benefits of study in that course, to be superficial and unconvincing. Given her account that she had consciously decided to re-attempt this Diploma (in 2023/24) after years of disruption (in 2021/22), she could reasonably be expected to offer a more detailed explanation.
7. By contrast, the applicant's statement of purpose to the Department alongside her visa student application, indicates (in excerpt):

While Vietnam offers various academic programs in leadership and management, the level of specialization, resources, and global exposure available in Australian institutions remains unparalleled. Australian institutions are renowned for providing up-to-date curricula that blend theoretical foundations with practical applications, ensuring students are prepared to meet the demands of the global market. In contrast, many programs in Vietnam tend to focus heavily on theoretical knowledge, with limited emphasis on hands-on training and real-world case studies, which are essential in fields like marketing and communication. Additionally, Australian institutions provide access to advanced technologies, expert faculty with international experience, and a multicultural learning environment that fosters innovation and creativity. This global exposure allows students to engage with peers from diverse cultural and professional backgrounds, broadening their perspectives and enhancing their problem-solving skills - an opportunity not readily available in Vietnam. Furthermore, the marketing and communication sectors in Vietnam are rapidly developing, yet they lack the specialized, practice-oriented frameworks found in Australian educational programs. By studying in Australia, I will gain exposure to cutting-edge marketing tools, digital strategies, and global business practices that align with international standards. This comprehensive training will give me a significant competitive advantage when I return to Vietnam to pursue my career. Choosing to study leadership and management in Australia ensures I receive the highest quality education, equipping me with the skills and knowledge needed to excel in Vietnam's growing marketing and communication industries.

8. Even accepting that a written account in general might be more detailed and polished than an oral account in the hearing setting, I observe a stark contrast between the written and oral accounts of the applicant's motivations. I give minor weight to the written account of the applicant's purpose in undertaking additional courses after the 2020 Advanced Diploma at WIC and the written material does not alleviate or overcome my concerns about the weaknesses of the applicant's evidence at the hearing about her motivations for additional study after 2020, or the value of the further courses in which she enrolled to her future goals.
9. I discussed with the applicant at the hearing whether she was able to gain course credits in the Diploma of Project Management course but give the benefit of the doubt she does not recall and did not receive credits, and this matter is not material to this decision.
10. Asked at the hearing why she did not complete the Diploma of Project Management (in 2023/24), the applicant said she thought she did not like that course or enjoy it, because there were not many people around her joining and learning that course, and she thought she would prefer to do a course that she liked. While I accept people can have disappointing study experiences, and even taking account of her personal circumstances, I am not satisfied that this account adequately explains the applicant's non-completion of this Diploma in 2023/24, particularly given the evidence that she purposefully re-enrolled in that course after unsuccessful previous attempts to engage in it during the pandemic period.
11. Given the above matters, overall, I am not persuaded that the various written statements of purpose before me convey the applicant's actual or genuine personal mindset or motivations for enrolling in the SMC course package, or adequately explain why she did not complete it. I have formed the view the applicant enrolled in the SMC Diploma for reasons other than any genuine motivation to develop an additional skill set to enable her to enhance her future work and pay prospects in Vietnam, including to work in her parents' company.
12. Asked at the hearing why she had, over several years (since 2020), enrolled in courses with the same (or similar) subject matters (that is project management and leadership and management), the applicant said felt with her level of English the courses were easier for her to understand. While I accept there is some difference between the subject matter of leadership and management and project management courses, I am not satisfied that the applicant's explanation sufficiently accounts for enrolment in either the SMC Diploma, or the Western Star Academy (WSA) course package in late 2024, when her English skills appear to have been sufficient to enable her completion of an Advanced Diploma in Leadership and Management in 2020.
13. The applicant's enrolment in the WSA package of courses (from late 2024 through to 2029) coincided with the Tribunal's pre-hearing outreach, on the subject matter of leadership and management, starting at Certificate IV-level, when she already completed Advanced Diploma in Leadership and Management (that is, a higher-level course in the same subject matter) in 2020. I accept that with help from her partner and his family, the applicant would be in a potential position to engage in further studies. However, I am not satisfied that she enrolled in these courses only due to skill-gaps, or her parents' encouragement to gain skills to equip her to open a company or work in their company in Vietnam, or is motivated to complete them. I have formed the view that her current enrolment with WSA is motivated by other reasons.
14. Overall, against the weight of the above matters, concerns and findings, the various explanations by the applicant (or her representative in submissions) about her circumstances, mindset or motivations do not alleviate or overcome my concerns and findings (as expressed in this decision). I am not satisfied that the applicant is genuinely motivated to obtain further skills and well-regarded qualifications in Australia to further her future work and income prospects in Vietnam, and/or to increase her competitiveness for jobs in Vietnam, and/or to work in her parents' business, as claimed. Overall, given the matters, reasons and findings above, I have formed the view the applicant is now using the student visa process and course enrolment primarily for maintaining ongoing residence.

1. Given the detailed reasons and findings in the section above, I am not persuaded or satisfied that the applicant's genuine motivations are to return to Vietnam at the end of her WSA course to pursue employment and earnings goals, capitalising on education and qualifications gained in Australia.
2. During the visa application and review process, the applicant provided information about her past visas and travels to other countries, and I accept these indicate past immigration compliance. On the evidence before me I have no concerns with the applicant's international movements and immigration history relating to them.
3. The applicant said at the hearing that she had worked as a beautician from around 2021/22 in accordance with her visa conditions, and that she had continued to do so at times since, though less so recently due to her pregnancy. I accept her account of these matters for the purposes of this decision. It has been unnecessary (given the findings below about cl. 500.212) to proceed to consider the applicant's compliance with visa conditions during her time in Australia.
4. I accept the applicant's account that, since 2015, she has returned to Vietnam five times to visit family, which includes her parents and brother, who live in the same area, and that she has ongoing substantial family and cultural connections in Vietnam. I give the benefit of the doubt the applicant's parents have contributed funds to enable her study in Australia and have opened a business in Vietnam. The applicant states she feels motivated to work and to care for her parents as they age, given their sacrifices for her.
5. The applicant has generally lived in Australia for almost ten years. At the hearing on 4 February 2025, she said her child (born in Australia in 2018) was now attending primary school in Australia. She indicated she was due to give birth to her second child in mid-to-late March 2025 (and in the absence of any update to the Tribunal, the birth is now taken to have occurred). She said she is in an ongoing relationship with her partner, who she states is an Australian permanent resident and is the father of her newborn child. By her account at the hearing, her partner's parents and some family members now live in Australia. At the end of her studies, she said her children would stay in the custody of her partner in Australia and she would return to Vietnam to work and care for her parents. I find the applicant's ongoing relationship with her partner and his ongoing residence in Australia, and her children's expected residence in Australia with him, amount to powerful ongoing incentives for the applicant to remain in Australia as long as possible.
6. I do not accept that the applicant's family and cultural connections to Vietnam, and/or desire to help in her parents' business, and/or sense of familial duty to support or care for them as they age, will outweigh her ongoing powerful connections to her partner and/or child or children in Australia and I do not accept that she genuinely plans to return to Vietnam following the end of her course package in 2029 and to live separately from her partner and children and only have contact with them through occasional visits or holidays. I have formed the view the applicant will seek ways to reside in Australia as long as possible.
7. Having regard to the overall evidence before me in the review, and given the above matters and findings, I am not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a). Given this finding, I have not proceeded to consider cl 500.212(b) or (c).
8. Given the above findings, I am not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
9. 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 decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Representative for the Applicant: Mr Ngoc Phuoc Nguyen (MARN: 1806068)

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.

Part 1 - Preliminary

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.

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.

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.