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 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. I accept the applicant has her brother and his family, as well as three sons in Vietnam, and she remains in regular contact with them all. I also accept that she owns property in Vietnam and remains connected to former co-workers and high school friends. It is accepted that these financial, social and family ties may act as a significant incentive for her to return, particularly the presence of her sons.
2. The applicant gave evidence at the hearing that she resigned from her employment at the bank after she arrived in Australia in September 2023 (and didn't take leave without pay). She further gave evidence that they have orally confirmed she will be able to return there in the position of General Manager. When questioned further about this role she said her old boss is currently in the role but he will be removed on her return given she will have the Australian qualifications. Despite being given time to provide written evidence from her former employer that she has a job to return to, the applicant did not provide any such evidence. I note however that the applicant explained in her post hearing submissions that:

I wish to clarify that this promise was given to me verbally by my Branch Director. As an employee with over 22 years of loyal service to the bank, my relationship with management was built on mutual trust and long-standing professional respect. While I understand that a formal written offer would be ideal, a verbal commitment is a common practice in some professional settings, particularly for long-serving and trusted staff. The Director's encouragement solidified my decision to invest in this Australian education as a clear pathway for career advancement.

I acknowledge that this verbal promise is not a binding contract. However, the anticipated process is that after I complete my course in Australia, I will submit my credentials to the bank's Human Resources department. Following this, I will undergo an interview with the Director and HR to formalize my application for a higher-level position, such as General Manager. Only after successfully completing these steps will a formal written job offer be extended. Currently, they cannot provide a written promise to return to work, but I am 100% committed to and confident in my ability to re-apply for a higher-level position at the Dong Do Branch of ACB. The Diploma and Advanced Diploma of Leadership and Management from Australia will provide me with the necessary qualifications and skills to be a highly competitive candidate for a role such as General Manager. My extensive industry experience, combined with this formal, international training, will be a valuable asset to the bank.

1. Notwithstanding the applicant's confidence in being able to successfully obtain a higher-level position on return I am not satisfied that she is guaranteed a job with the bank on return at all, let alone as General manager, given that role is currently filled by an experienced manager, she did not take leave without pay to pursue the further education but resigned, the time she has been out of the workforce and the lack of corroborative evidence. For these reasons I am not satisfied that she has employment in her home country that would act as an incentive for her to return.
2. The applicant confirmed that she does not have any potential military service obligations or political or civil unrest concerns in her home country or that there are any other reasons why she would not return to Vietnam.
3. With respect to her reasons for studying English in Australia and not in Vietnam, she said she seldom needed English for her role at the bank so did not do any research as to English courses available in Vietnam. In relation to her reasons for studying leadership and management in Australia and not in Vietnam, again she did not do any research into what courses were available in Vietnam or elsewhere as it wasn't until she travelled to Australia and learnt about the course that she realised she wanted to study it to further her career at the bank. I find these reasons to be unconvincing. It is concerning that she has not researched whether similar courses are available in her home country given the cost and time involved as well as the time that she will be out of the workforce.

1. I accept that she has limited connections in Australia, having only some friends from studying, and that carries some weight in the applicant's favour in assessing whether she meets the genuine temporary entrant criteria. I also accept she has not entered into a relationship of concern for a successful Student visa outcome.
2. Further, the applicant demonstrated a reasonable level of knowledge of living in Australia commensurate with someone who has lived here since 2023.

The value of the course to the applicant's future

1. In relation to the English courses the applicant has undertaken, I find they are of little value to her future on their own as she acknowledged that English was not required for her work at the bank. However, I accept that it was necessary for her to obtain a better level of English to do further study in Australia.
2. In relation to the diploma and advanced diploma, I find that those courses are not consistent with her current level of education, given she holds a bachelor's degree. While it is somewhat relevant to her aspirations to work in leadership at her former workplace, it is not clear to me why she would need such a qualification to achieve that goal. She claimed to have never discussed her desire to undertake leadership and training courses with her former employer, despite having annual performance reviews. She explained that because she was in a junior, low-ranking position she did not expect to be offered such training and external training would not be funded by the bank. The applicant also confirmed that she did many years of internal training and professional development which helped her get promoted to the position she was in before resigning. I consider that it would have been of greater value to her career prospects if she had continued to stay working the banking industry, gained further on the job experience and undertaken further internal training and professional development to achieve her goal. Alternatively, one would have expected her to have explored what training opportunities were available to her in Vietnam, including courses which were more focused on the banking industry or could be done part time while she remained working at the bank. Further, the limited research the applicant did in relation to the courses and two colleges, the first of which she found not to be suitable, is of concern.
3. While I accept that she may earn a higher salary should she be offered the role of General Manager on return, for the reasons given above I am not satisfied there is sufficient evidence that she will be offered such a role. I therefore do not consider the qualifications will in fact assist the applicant to obtain a promotion in Vietnam nor will they increase her earning capacity.

1. The applicant travelled to Australia on her own for a holiday in August 2023. The length of time that the applicant now intends to remain in Australia when she initially intended to stay for a short period is troubling. It indicates that she may be using the student visa program to maintain ongoing residence.
2. The applicant was initially refused a visitor visa to Australia but was later granted one. The applicant claimed, and there is no evidence to dispute, that she had not previously a visa cancelled or considered for cancellation in Australia or elsewhere. I also accept that she has complied with her visa conditions since she has been in Australia from August 2023. Finally, I accept she complied with the conditions of the visas she held when she travelled to Japan and Taiwan.

1. I also have before me a copy of the Provider Registration and International Student Management System (PRISMS) records for the applicant. These records contained information consistent with the evidence of the applicant, as to her past and future study.

1. In conclusion, in weighing the relevant factors, I accept the applicant has strong family, social and financial ties in Vietnam which are circumstances favourable to the granting of the visa. On balance however, the Tribunal is not satisfied that these factors offer a significant incentive for her to return. I place greater weight on her circumstances in Australia and that, notwithstanding she has limited connections here, I have real concerns about her lack of research in relation to the courses and colleges she has enrolled in, as well as the fact she did no research and did not discuss with her employer the prospect doing further internal training or study in Vietnam. I am also concerned about her plans to remain in Australia for a lengthy period. I do not accept she has been verbally promised a promotion on return for the reasons given above. Finally, given the cost and time involved in obtaining further qualifications which are not consistent with her current level of education, I am not satisfied that there is demonstrated value of the proposed courses to the applicant's future.
2. Having considered the evidence provided of the applicant's circumstances overall, and other matters I consider relevant, including those in respect of Direction 108, as detailed above, I am not satisfied that the applicant is a genuine applicant for entry and stay as a student. This is because the Tribunal is not satisfied that she intends to genuinely stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
3. 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.

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).

Dated:

Clare O'Neil

Minister for Home Affairs and Minister for Cyber Security

Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

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

It may be cited as Direction No. 108.

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)

1. 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.
2. 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.

3. 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.
   1. 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.

1. b. Previous travels to Australia or other countries, including:
   1. 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;
   2. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
   3. 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
   4. 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.