1. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student.

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

The applicant is a genuine applicant for entry and stay as a student because:

(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:

(i) the applicant's circumstances; and

(ii) the applicant's immigration history; and

(iii) if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and

(iv) any other relevant matter; and

(b) the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

(i) the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and

(ii) the applicant's stated intention to comply with any conditions to which the visa may be subject; and

(c) of any other relevant matter.

Does the applicant intend genuinely to stay in Australia temporarily?

1. In considering whether the applicant 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.
3. As to the applicant's circumstances in her home country, the Tribunal finds that the evidence presented does not suggest that the applicant's personal circumstances would present as a significant incentive for the applicant not to return to Vietnam. The applicant has family ties in Vietnam, that being her parents and brother. Since she lodged her application for a student visa in 2024, the applicant has travelled to Vietnam to see her parents on one occasion. Her mother's statement also indicates that her parents travelled to Australia in September 2024 to attend the applicant's graduation ceremony. She has also stated in her ART Form that she regularly communicates with her parents, and they continue to financially support her by providing her with money to cover her tuition fees and living expenses.
4. At the Tribunal hearing, the applicant was asked to explain the relevance of the 'land use right certificate'. She stated that Hoi An is her parent's hometown and they have transferred to her a property which she can use in the future to start a business. She was asked why she had not provided this information to the Department. She indicated that she wasn't aware that such information was relevant. She was asked if she had any bank accounts in Vietnam. She stated she did have some, but she no longer uses them. Her money is held in accounts with the Commonwealth Bank. She stated she had previously provided a statement about this account to the Department. She was also asked about her employment history in Vietnam. She stated that she worked in the family's fabric business.
5. The Tribunal accepts the applicant's evidence in the ART form that she does not have military service commitments, and her desire to study is not related to any concerns arising from any political or civil unrest in her home country. The Tribunal considers that these factors, that being the applicant's circumstances in her home country, strongly indicate that she is only a temporary entrant and wishes to return to her home country.
6. At the Tribunal hearing, the applicant confirmed that she continues to reside in Adelaide where she studies and works. She stated that she lives alone in rental accommodation and does not have a partner. She also confirmed that her two sisters, who are Australian citizens, reside together in Melbourne. She owns a car and has bank accounts with the Commonwealth Bank and ING. The applicant was asked about the relevance of the CommSec shares, particularly given the information before the Tribunal that CommSec accounts are only able to be held by Australian residents, and as such could be considered as a tie to Australia. She responded that she believes she started this account in 2021. She invested her own money and money her parents gave her. She invested it so it could grow. Her representative further contended that the applicant's plan was to use this money towards her future business plans on return to Vietnam.
7. The applicant was asked about her employment in Australia. She confirmed that she continues to work in the hospitality industry for an events company in Adelaide. She was able to speak at length about how much she enjoys this role and the connection it has to her studies in hospitality and tourism. The Tribunal has considered the applicant's evidence and while it does have some concerns that the presence of her sisters in Australia, employment and assets in Australia may present as an incentive to remain, the Tribunal accepts her evidence that she intends to return to Vietnam at the end of her course in June 2026.
8. The evidence before the Tribunal, including the educational details, financial statements and expected course completion letter submitted by the applicant and the PRIMS records, indicates that the applicant has been continuously enrolled and has successfully completed courses while applying for a student visa. Since the application for a student visa was lodged, she has completed a Bachelor of Business (Hospitality and Tourism Management) in August 2024 and is currently enrolled in Master of Business Administration with Kaplan Business School. The Tribunal accepts that the applicant has been continuously enrolled and has been successfully completing courses and achieving course progression and considers these factors to be indicative of a genuine student.
9. At the Tribunal hearing, the applicant was asked to provided details of her current course and what subjects she is studying. She confirmed she is enrolled in a Master of Business Administration and enrolled in two subjects: Strategic Project Management and Managing in Service Industries. She was asked about the delivery of this course. She stated that she has three hours of face-to-face classes in Adelaide city each week. She must attend these classes to maintain her enrolment as an international student. She has fours subjects left. She will complete two subjects in T3 and two subjects in T1 of 2026. As evidence of her attendance, the applicant has provided an expected course completion letter which indicates that she is enrolled, and the course is expected to be completed on 19 June 2026.
10. The applicant was asked about the information before the Tribunal that suggests that she could have studied this course online from Vietnam. She was asked why she had has chosen to remain in Australia to study this course. She indicated this was correct, but she preferred the in-person mode of delivery rather online. Later in the Tribunal hearing, the applicant explained the difficulties she had when attempting to complete her English language courses online during the COVID-19 pandemic. The Tribunal has considered the applicant's evidence, and while it did have some concerns as to why the applicant has remained in Australia to study this course, the Tribunal accepts her explanation that her preference is to attend classes in-person particularly given the difficulties she has experienced in the past with online courses.
11. The Tribunal asked the applicant about the value of the courses to her return to Vietnam. In summary, the applicant indicated that these courses have provided her with the knowledge to develop her professional skills and operate a business in the hospitality industry. The applicant was asked about her written statements to the Department and her intention to open a business on return to Vietnam. She responded that she has now had time to reflect her return to Vietnam and plans to pursue a career in the events industry with a company or hotel. Looking ahead, she also intends start her own hospitality business. She indicated that with international qualifications and proficiency in English she expects to receive a greater salary on return to Vietnam.
12. The Tribunal accepts the applicant's evidence as to the value of the courses to her future. While there have been some differences in the applicant's evidence as to her future employment plans and the value of her studies to her future, the Tribunal accepts that her current Master of Business Administration compliments her previously completed Bachelor of Business (Hospitality & Tourism Management). The Tribunal is also persuaded by the applicant's oral evidence, that she has a genuine interest in wanting to return to Vietnam and utilise the skills and qualifications she has gained in Australia - either by securing employment or by establishing her own business in the hospitality industry.
13. As outlined in the delegate's decision, there is information before the Tribunal to indicate that the applicant has in the past failed to comply with the conditions of an Australian visa. At the Tribunal hearing, this information was discussed with the applicant. The Tribunal also expressed its concerns, that like the delegate, this information may lead it to find that the applicant was using the student visa programme for purposes other than study and was not a genuine temporary entrant.
14. In summary, the applicant explained that she was not aware that she had breached a condition of her visa until she received the Department's letter. She was not aware that she needed to be enrolled in the Bachelor of Business (Hospitality & Tourism Management) at the same time she withdrew from the Bachelor of Social Science (Psychology). She believed when she moved to Adelaide, at the end of 2021, and started studying the hospitality package courses that everything had been finalised by the agent. She explained that she moved to Adelaide to study the courses and become more independent. She didn't want to live with her sisters in Melbourne anymore. She further explained that while she came to Australia with the intention of studying a Bachelor of Nursing, she knew that her English was not strong enough to achieve the score needed. She came to Australia in October 2019, and a few months later in 2020, the COVID-19 pandemic hit. During the COVID-19 pandemic, while residing in Melbourne, she attended English classes online, which significantly hindered her ability to develop and improve her English language skills. Lacking confidence in her spoken English and aware that she would not meet the entry requirements for the nursing degree, she decided to change to the psychology degree. While she completed one semester, she found it difficult to apply the theory, given her different cultural background. She then decided to follow her passion and changed to studying hospitality.
15. The applicant's sister, Ms Lien Ngoc Thi Nguyen also provided evidence in support of the applicant's application for review. In summary, Ms Nguyen stated that her sister was not aware of the multiple enrolments in the Bachelor of Nursing. These enrolment changes were made without her sister's knowledge. She sister put her trust in an agent within their community who advised it was ok to switch to the hospitality package. They believed that this agent had submitted the appropriate documentation and notified the Department, and this is why her sister went ahead and studied the Diploma of Hospitality Management. It was her sister's understanding that the hospitality package was equivalent to her enrolment in the Bachelor of Social Science (Psychology). Her sister was not aware that she needed to be enrolled in the Bachelor of Business (Hospitality & Tourism Management) at the same time she withdrew from the Bachelor of Social Science (Psychology). She further stated that at the time of coming to Australia, her sister, the applicant was young, and she didn't know what she wanted to do. She said it is quite common for young people to change their degrees. She indicated that she has many friends who have quit nursing after completing one semester. It was only after her sister started to study hospitality, did her sister find something she was interested in. Her sister's academic transcripts show that she has passed all the subjects she has been enrolled in.
16. The representative reiterated the applicant's evidence and stated that her breach of the condition was not deliberate. The applicant has continued to study since her arrival in Australia and at all times believed she was complying with her conditions and only became aware of the breach when the Department advised her in their letter. The applicant relied on the agent who was assisting her to have done the right thing, however, this wasn't the case. The applicant thought that by applying for hospitality package and by being enrolled and continuing to attend her studies she was doing the right thing. The applicant was not aware of the differences between the hospitality package and the condition that she must remain enrolled in a degree level course.
17. The Tribunal has carefully considered all the material before it, including but not limited to the applicant's and her sister's oral evidence, and while the information shows that the applicant did not comply with a condition of her previous student visa, the Tribunal is prepared to accept that this non-compliance was not deliberate. The Tribunal has had the benefit of speaking directly with the applicant and her sister at the Tribunal hearing, and accepts the explanations provided and that in this case, the applicant relied on the advice of an agent and was not aware she had breached a condition of an Australian visa until she was informed by the Department.
18. Overall, the Tribunal finds that after speaking with the applicant and her sister at the Tribunal hearing, the applicant genuinely intends to return to Vietnam and utilise her skills, knowledge and the qualifications gained from her courses and stay in Australia to advance her career prospects. The Tribunal acknowledges the applicant's potential to earn higher wages in Australia than in Vietnam, however, the Tribunal has placed weight on her personal ties to her home country, her continued progress and completion of all the courses she has been enrolled in and her evidence that the completion of the courses will enhance her employability on return to Vietnam.
19. The Tribunal has carefully considered all relevant evidence and matters before it, including matters specified in the Direction and, on balance, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).

Does the applicant intend to comply with visa conditions?

1. For the applicant to meet cl 500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant's record of compliance with any condition of any visa they previously held, and the applicant's stated intention to comply with any conditions to which the visa may be subject.
2. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl 500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents' education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). For visa applications made on or after 1 July 2022, condition 8208 (no critical technology related study without approval) must also be imposed. The following conditions may also be imposed in some cases (cl 500.611(2)): 8535 (limited visa entitlement), 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).
3. At the Tribunal hearing, the applicant stated that she intends to comply with any visa conditions imposed. As outlined above, the Tribunal has considered the applicant's record of non-compliance, however, it has accepted the applicant's explanations, and is satisfied that in this case, the applicant intents to comply with any conditions subject to which the visa is granted.
4. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl 500.212(b).

Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

1. For the applicant to meet cl 500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl 500.212(a) and (b)).
2. The Tribunal has identified above, all matters relevant to this application. As outlined above, the Tribunal considers that the applicant has a genuine commitment to completing her course and returning to Vietnam.
3. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
4. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

1. The Tribunal sets aside the decision under review and remits the application for a Student (Temporary) (Class TU) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 500 (Student) visa:
   • cl 500.212 of Schedule 2 to the Regulations.

Representative for the Applicant: Ms Nhi (Michelle) Huynh (MARN: 1069190)

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.