Le (Migration) - [2025] ARTA 1463

LE (MIGRATION) [2025] ARTA 1463 (22 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Quoc Dung Le
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2405835

Tribunal:Melissa Bray
Place:Melbourne
Date: 22 July 2025
Decision: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(a) of Schedule 2 to the Regulations.

Statement made on 22 July 2025 at 10:03pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – applied after arriving on visitor visa – work-related travel history – wife, young child and change of career path offering stability and flexibility – two certificate courses completed and diploma course in progress – substantial supporting evidence and documentation – cumulative weight and benefit of the doubt – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
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 5 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 22 September 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) because, on the evidence before them, they were not satisfied the requirements of cl. 500.212(a) were met.
The applicant appeared before the Tribunal on 29 April 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 was assisted in relation to the review.
For the following reasons, the Tribunal sets aside the decision under review and remits the visa application for reconsideration.
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 whether the Tribunal is satisfied the applicant meets any of the requirements of cl 500.212.
Genuine applicant for entry and stay as a student (cl 500.212)
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.
Does the applicant intend genuinely to stay in Australia temporarily?
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.
Summary of evidence from the applicant
For overall context, the applicant is a Vietnamese citizen aged around thirty, who initially arrived in Australia on a visitor visa around mid-2023 and then applied for a student visa in September 2023. Since then, and notwithstanding the Department’s decision to refuse his student visa (the subject of this review), he has studied a package of courses at Australian Sovereign College (ASC), completing two certificate courses and recently commencing the Diploma component, which is due to end in November 2025.
The applicant submitted a range of material to the Department in support of the visa application (including with English translations where relevant), regarding: his identity; his wife’s identity; their marriage certificate, and demonstration of his wife’s bank savings (as at the date of that document); his tour guide qualification and licence in Vietnam and a statement of purpose. He also indicated his past travel history to a range of southeast Asian countries in the years from 2017 to 2020 (to locations and for specified periods of time set out in the primary decision record and in a pre-hearing form to the Tribunal received on 16 March 2025).
On 28 April 2025, under cover of a submission from his representative, the applicant provided a substantial volume of material to the Tribunal in support of his review application, including: a further statement of purpose, photographs of him and his wife and child on a holiday, screenshots illustrating his online/video contact with his wife and child in Vietnam, and a range of screenshots illustrating potential jobs and income ranges for roles relevant to the applicant’s Australian qualifications, including in Vietnam and Singapore.
Regarding his studies in Australia, the applicant provided to the Tribunal during the review copies of course enrolments certificates, transcripts and awards in relation a Certificate III in Commercial Cookery and a Certificate IV in Kitchen Management at ASC from November 2023 to May 2025, together with photographs of him purportedly engaging in practical parts of his course in 2023 and 2024, and a letter from a work experience supervisor at a café. He also provided a certificate indicating his approved enrolment in a Diploma of Hospitality Management at ASC and an education provider letter confirming his enrolment in the Diploma of Hospitality due to run from 5 May to 2 November 2025. PRISM records checked by the Tribunal indicate that the applicant is enrolled in and studying that Diploma as at the date of this decision. Overall, I accept on its face the material evidence from the education provider of the enrolments, completion and awards, and therefore accept the applicant holds the two Certificates and is currently enrolled in and has commenced the Diploma, as stated.
At the hearing, the applicant provided oral evidence in response to a variety of questions about his circumstances in Vietnam and Australia, including about: his family circumstances, travel history and background in the years before his arrival in Australia; his past work and his reason for shifting career pathways from tourism to hospitality; his reasons for studying cookery and hospitality in Australia rather than Vietnam, and his means to afford the course fees and living expenses in Australia; his reasons for applying for the student visa while in Australia on a visitor visa; the value of the ASC course package to his future work and earning prospects in Vietnam; his future goals in Vietnam and his plans to return upon finishing the Diploma course in late 2025. I find his oral evidence at the hearing was offered flexibly and is generally consistent with the written statements before me. I am prepared to accept the applicant’s explanation at the hearing that his written statement of purpose to the Department was prepared with an agent’s assistance based on his instructions, given the applicant’s level of English at that time.
In summary, drawing on his overall evidence from the applicant, his narrative is as follows.
He previously worked successfully as a tour guide in Vietnam and surrounding countries for some years, before that work was interrupted by strict restrictions during the covid pandemic period (taken to be from around early 2020 to early 2022 or so). He decided to build a new skillset in food and hospitality as he believed work in this sector would offer more job security and good pay, and this became more important after his marriage in late 2022 and, the birth of his child in mid-2023. Through their tourism work, he and his wife saw that the restaurant sector offered more stable opportunities and flexibility. He realised he needed formal education and experience through a course to be competitive for work in that sector and thought courses in Vietnam offered less individual attention and less practical experience than Australian courses. He thought gaining well-regarded Australian qualifications and good quality training was important to make him more competitive for roles, and preferred Australia to other countries he considered for various (stated) reasons. He and his wife were willing to make the short-term sacrifice of him being away from her and their newborn child, for the long-term gains his study in Australia would offer. He has had sufficient funds available through his family, and his wife and her family, to meet his course fees and living expenses while in Australia, and they all support his goals. He has now completed the Certificate III and IV courses and is enrolled in (and at the time of hearing was about to commence) the associated Diploma course. On completion of that course, he intends to return to Vietnam to rejoin his wife and infant child and seek relevant work there in cooking and restaurant roles and ultimately open a restaurant.
Considerations and findings
Prior to the hearing, I had some doubts about the reliability of the applicant’s written narrative about his motivations for studying in Australia and his goals and plans to return to Vietnam and work in hospitality and open a restaurant, capitalising on skills and qualifications gained in Australia. I had some concerns that, in coming to Australia, he may have been motivated by incentives other than study, and that the overall narrative he offered may have been contrived. Further, I had no evidence of the applicant’s completion and award of the Certificate IV until after the hearing, given that on the hearing date, the course was not formally ended, and I could not predict that he would commence the Diploma component of his ASC course package. However, ultimately, having regard to the overall evidence before me now (at the time of this decision) and giving substantial weight to the applicant’s oral evidence at the hearing, I find as follows.
I accept on its face the material (and translations) the applicant provided about his tour-guide qualification, licence and work, and accept his past international travel was in the context of that work. His account that he decided to change careers for more job security and flexibility in the wake of the pandemic period and his marriage and the birth of his child, and that he and his wife were willing to sacrifice his absence for two or so years to achieve these goals, is not implausible and I give the benefit of the doubt in accepting it. I give the benefit of the doubt in accepting his account of the means through which he has paid so far, and will pay, his remaining course fees and living expenses in Australia until late 2025.
I give the benefit of the doubt in accepting the applicant’s explanation at the hearing about the apparent sophistication of his written statement of purpose to the Department, compared to his English language ability. Overall, I found the applicant was able to respond flexibly to a range of questions about his circumstances and mindset at the hearing in ways generally consistent with his written account. I did not have the impression his evidence was overly rehearsed or rigid. I find his overall narrative about his personal background, motivations and future goals in Vietnam is generally not implausible, and, giving weight to his oral evidence, I give the benefit of the doubt in accepting that narrative.
I also give positive cumulative weight to the following, in the applicant’s favour.
Since the time the applicant applied to the Department for the student visa in September 2023, (given the above findings about his studies) I accept he has progressed along the singular study pathway he indicated at the time of the student visa application, without substantial gaps or delays, and has now completed two sequential, related certificates and commenced study of the related Diploma course at ASC, and these studies broadly align to his narrative about his overall stated interests and future work and income goals in Vietnam.
On the evidence (described above) I accept the applicant is married and has a young child, and that his wife and child live in Vietnam, as do the applicant’s parents. Overall, I accept that his personal, family and cultural ties in Vietnam (as stated by him), and particularly the presence of his wife and infant child there, offer reasonable incentives for his return. The evidence before me does not support the view the applicant has outstanding military service obligations or any concerns about his safety in Vietnam.
The evidence before me regarding the applicant’s past travels suggests a pattern of compliance with past visas to other countries and I have no concern regarding his immigration and visa history in other countries. The applicant entered Australia in 2023, apparently for the first time, with a visitor visa and (before it ceased) applied for a student visa. On the evidence before me, I make no adverse findings about his immigration history or visa compliance to date.
Overall, given the above matters and findings, I am willing to accept the applicant’s account that he intends to continue and complete the Diploma at ASC in November 2025 and return to Vietnam soon after to rejoin his wife and child, and family. If, following this decision, he does not do these things, that would tend (obviously subject to the specific circumstances and explanations) to invite concerns about his ability to offer a reliable or genuine account of his intentions. If any such matters were to arise, they would be entirely for any future decision-maker to consider, in all the circumstances and on the evidence available at a future point in time.
On the evidence before me, and considering his circumstances in Vietnam and Australia, and his immigration history, and based on the matters and findings set out above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).
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.
DECISION
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(a) of Schedule 2 to the Regulations.
Dates of hearing(s): 29 April 2025
Representative for the Applicant: Mr He Hamish Zhao (MARN: 1573891)
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.