CONG (Migration) - [2025] ARTA 1507

CONG (MIGRATION) [2025] ARTA 1507 (1 AUGUST 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Miss Thuy Duong CONG
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2408459

Tribunal:General Member M Simmons
Place:Sydney
Date: 1 August 2025
Decision:The decision under review is affirmed.

Statement made on 01 August 2025 at 5:56pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU visa) – Subclass 500 (Student) – genuine temporary entrant – courses not completed and enrolments cancelled – contradictory information and evidence about past enrolments and future plans – recent new enrolments – running online business – family in home country – no additional information or submissions – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 March 2024 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 20 July 2023. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The applicant appeared before the Tribunal on 7 July 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant is represented by Ms Xi Fu (MARN: 1805614). Ms Fu also assisted the applicant to prepare her student visa application.
For the following reasons, the Tribunal considers the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 500.212(a).
Clause 500.212 requires as follows:
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.
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.
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.
Prior to the hearing the Tribunal provided to the applicant, via her migration agent, a copy of Direction 108. The applicant indicated her migration agent did not explain to her either cl.500.212 or Direction 108, so gave her an overview of these. She indicated that she understood these and had no questions in relation to them.
Applicant’s Evidence
I have had regard to the material provide with the visa application submitted on 20 July 2023.
Before the hearing, the applicant provided:
·The Tribunal’s ‘Student Visa Information Form’, which she completed and signed. The form was sent to her for her completion on 7 April 2025.
·A Certificate of Enrolment (COE) created 16 April 2025, for the course of ‘General English’ at Barton International College Pty Ltd commencing on 19 May 2025.
·A Certificate of Enrolment (COE) created 17 April 2025, for the course of ‘English for Academic Purposes’ at Barton International College Pty Ltd commencing on 3 November 2025.
·An offer of employment from An Phuc Real Estate Trading Joint Stock dated 15 April 2025.
·A land ownership certificate with her name on it for a property in Hoang Mai District, Hanoi City.
·A “Fixed savings book’ from Techcom Bank.
·A Citizen Identity Card for her father.
·A student certificate for her child..
The applicant told me she is currently enrolled in an English course at Barton College, which started in June 2024 and ran until 19 May 2025. She is currently continuing another English course at Barton College which runs until October 2025.
I noted that the COE she provided to the Tribunal does not indicate her course at Barton College started in June 2024. Rather, the COEs she submitted were only created in April 2025. The first course, per the COE, started 19 May 2025. The applicant replied “that course is continuing until 31 October 2025”.
I put to the applicant that she had not provided a COE or any other documents to show she was studying English, or any course, in 2024. In reply she asked “is there any chance I could send you an email to provide that information”. I noted that she has a migration agent who helped her to provide evidence prior to the hearing, and given that asked why such relevant information was not before the Tribunal already. She suggested that she only thought she had to provide a COE for her current courses, and not the courses which she studied in 2024.
The Tribunal ‘Request for Student Visa Information’ form, which the applicant completed, signed and returned to the Tribunal via her migration agent, indicates she was not studying or enrolled in a course from September 2024 until April 2025 because she was “waiting for ART result”. I noted she has told the Tribunal verbally that she was studying English in this period, which is contrary to what she wrote on the form, and asked her to explain these two different narratives. She stated: “I was confused I did two course of English, first course was June 2024 until September 2024, then the second course was from May 2025 until current”.
Noting the applicant had the benefit of assistance from Ms Fu, her migration agent, to ensure that she provided correct information to the Tribunal, I suggested I may have difficulty accepting her different evidence was due to confusion.
I also expressed concern that the applicant, in written correspondence submitted by her migration agent, would suggest that the reason she was not enrolled or studying for a period of nine months was because she was waiting for the Tribunal outcome. I put to her that if she was sincerely interested in studying in Australia, it was unclear me why she would need to wait for a Tribunal outcome to continue those studies. After a long pause, the applicant replied that she was nervous. She also suggested she “lost track of studies” due to “worries”. Invited to elaborate, she said she was worried she would not be able to continue her study and wanted to pause her study and wait for the result from the Tribunal.
The applicant told me she has not been working in Australia and has never worked here. Noting she claims she was not studying or working from September 2024 until May 2025, I asked her how she occupied her time. She said she did not study but was doing business online because she has a business in Vietnam that she still does online. I put to her that she did not disclose this on the Tribunal information form when asked to provide all details of work while in Australia. After a pause, she did not answer my question, but stated: “can I put in writing and send you by email?’. Asked to explain what she needed to put in writing, the applicant replied: “the question I have, if I did not get a visa to complete my course and if I went ahead and enrolled into a course that could waste my time and money”. I noted the applicant has a migration agent who would be able to explain her visa options and obligations, and given that I was unclear about this remark. She did not respond.
Given she was not enrolled in a course, was not studying and was not working for around nine months, I asked the applicant why she would not return to Vietnam to be with her family. She stated: “I wish to be able to continue my study so wish my visa is granted”. I noted that was not my question, and put to her that her choice to stay in Australia, while not working or studying here, does not suggest she had strong reasons to return to Vietnam. I reminded her that part of my assessment was to consider whether she genuinely intends to remain in Australia temporarily, and that staying in Australia while not studying or working for nine months was not, on its face suggestive of her intending to remain her only temporarily. I also expressed concern that the applicant only enrolled in her current courses after the Tribunal contacted her and asked her to complete the Request for Student Information Form.
The applicant told me she wants to remain in Australia to study because she has given her promise to her children that she would bring home an Australian qualifications and get a good job in Vietnam. She also stated that her children in Vietnam provide her a reason to return there.
The applicant came to Australia in May 2023. She has been in Australia for over two years. She confirmed that she has not completed any course of study during that time. Asked why she has not finished any course the applicant stated: “the fear I have, the fear when I was studying then I got notification from Department they are going to cancel my visa. That really scares me. I do not want to enrol in any course I would not be able to finish because I do not have any visa”.
The difficulty with the applicant’s explanation, I noted, was that she had since enrolled in two courses, in April 2025, without being granted a student visa. I asked her to comment on this, and she indicated she had nothing to say.
We discussed the courses she has attempted. She told me she “only studied at Barton College”. Then she added she enrolled in a “Certificate IV in Management”. At this time I noted that it appeared the applicant was reading from a document and asked her to explain what it was. She replied it was all the information on the courses she had attempted. She told me “after 6 or 7 months doing the management course, my visa was refused, so I stopped”. I asked her to provide evidence to show she studied this course for 6 or 7 months. She stated that she would need to look for this. I noted that the applicant had not provide any evidence to show that she had studied for any period while in Australia, despite having a migration agent who would be aware that such material is relevant. I asked if there was a reason for this, and the applicant suggested “I am not sure give me some time to check I will respond my email”. To date, the applicant has not provide any evidence of her course attendance for any of the courses she has attempted to study while in Australia.
Asked why she planned to study Management in Australia, the applicant said “I would like to study here to obtain a qualification from here so I can go back to Vietnam to get a good job because a position has been promised to me”. She indicated that she plans to return to Vietnam in March 2026. I asked her when her current course finishes, she indicated her current English course ends 17 April 2026.
Given she has not completed other attempted courses, I asked why the applicant was confident she would finish her course of study this time. She suggested she wants to finish her qualification and show her children she has finished something.
When I asked what course she wants to complete and take back to Vietnam, the applicant replied a “Diploma of Leadership and Management”. I asked when she was going to study that course. She replied: “if I have the opportunity to stay I will continue my study”. I noted that she had previously told the Tribunal her current English course ends in April 2026 and she will return to Vietnam then, so given that it was unclear when she would be studying a Diploma. She suggested if she has a visa for more study she will enrol.
I put to the applicant for comment, in accordance with s.359A, information from the Provider Registration and International Student Management System (PRISMS). I noted PRISMS indicates she has enrolled in a number of courses while in Australia but not completed any of them. It shows that she started, but stopped studying, a Certificate IV in Leadership and Management. It also shows she has enrolled in an General English Course on four different occasions, but twice the enrolment was cancelled because she did not pay her fees, and on the third occasion she had changed her enrolment details. Her fourth attempt is the course she is currently enrolled in. It put to her that her failure to progress in her studies while in Australia, including failing to pay her fees, may suggest to me that she is not sincerely interested in studying in Australia and that she does not intend to stay in Australia temporarily as a genuine student. She replied “give me a chance and I will go ahead and check with the college”.
The applicant confirmed that she had told me everything she wanted me to consider when I make my decision.
I asked Ms Fu if she wished to make submissions on behalf of the applicant noting the concerns raised by the Tribunal. She declined.
I asked the applicant if she wished to speak with her migration agent in private before the hearing was over. She declined.
I told the applicant and her representative that any information received before a decision is made would be considered. The applicant has not submitted any further material to the Tribunal since the hearing, despite expressing an intention to do so and having the benefit of a migration agent.
Does the applicant intend genuinely to stay in Australia temporarily?
In its entirety, I did not consider the applicant’s evidence to be persuasive.
Her suggestion that she was studying an English course from mid-2024 conflicts with her written evidence in the Request for Student Information Form that she decided not to enrol or study in any course for nine months from September 2024 while she was waiting for an outcome from the Tribunal. Notably, she only enrolled in her current courses of study after the Tribunal contacted her asking her to complete the information form in April 2025. I did not find her suggestions about not wanting to enrol in a course of study until she received her student visa to be persuasive, noting she has a migration agent and she has subsequently enrolled in two course in April 2025 in any event.
She has provided no proof from any education provider to demonstrate her course attendance or her efforts to pursue her study during her two years in Australia. Her failure to complete any course, and the lack of material to demonstrate a sincere effort to undertake studies while in Australia, causes me to doubt her intentions for seeking to remain here.
The applicant’s confused evidence regarding her current and intended future courses of studies causes me to doubt her commitment to completing these the importance they hold for her future career plans. Her evidence was that she hopes to return to Vietnam with a Diploma in Leadership and Management, despite not being enrolled in that course currently, and also telling the Tribunal she would return to Vietnam in April 2026 after completing her current English course.
I am prepared to accept the applicant’s evidence that she has no close family in Australia, and is not working here besides running her online business, and that she remains in regular contact with her family in Vietnam. However, she could not explain why she decided to remain in Australia and not return to Vietnam to be with her family, given she was not studying for an extended period during which she claims she was not working. This is not, in my view, suggestive of her having any commitments, obligations or responsibilities in Vietnam which might incentivise her to return there.
On the basis of the above, 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).
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.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Dates of hearing(s): 7 July 2025
Representative for the Applicant: Ms Xi Fu (MARN: 1805614)
Attachment – Direction No 108
DIRECTION NUMBER 108 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
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.
Part 1 - Preliminary
Name of 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.
Commencement
This Direction commences on 23 March 2024.
Revocation
Direction No. 69, given under section 499 of the Act, is revoked.
Interpretation
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.
Application
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.
Preamble
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.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.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
9.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.
10.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
11.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.
Value of the course to the applicant’s future
12.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.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.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:
i.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
ii.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.
iii.b. Previous travels to Australia or other countries, including:
iv.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;
v.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
vi.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
vii.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
15.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.
Any other relevant matters
16.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.