Le (Migration)

[2025] ARTA 413

Le (Migration) [2025] ARTA 413 (26 March 2025)

Decision and
Reasons for Decision

Applicant:	Huynh Dieu Minh Le
Respondent:	Minister for Immigration and Multicultural Affairs
Tribunal Number:	2319673
Tribunal:	General Member F Robertson
Date:	26 March 2025
Decision:	The Tribunal sets aside the decision under review and remits the application for reconsideration in accordance with an order that the applicant meets cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth).

Statement made on 26 March 2025 at 12:33pm

CATCHWORDS  
MIGRATION – Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – maintains close ties to her family in home country – course is consistent with the applicant’s current level of education – applicant is enrolled in a course of study – decision under review remitted  

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 500.212

Statement of reasons

INTRODUCTION

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the 'Act').

2. The applicant arrived in Australia as the holder of a visitor visa on 15 August 2023 and applied for the visa on 30 August 2023. The delegate refused to grant the applicant the visa because they were not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the 'Regulations').

3. The applicant has applied for review of that decision. On 17 February 2025, the applicant provided a completed student visa information form to the Tribunal.

4. The review application was heard on 25 March 2025. The applicant was represented at the hearing by her registered migration agent.

5. Following the hearing, I have determined that the applicant is a genuine applicant for entry and stay as a student and meets cl 500.212 of Schedule 2 of the Regulations. Accordingly, the decision under review will be set aside and the application remitted for reconsideration on that basis. These are my reasons.

   CRITERIA FOR THE GRANT OF A STUDENT VISA

6. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. At least one applicant must satisfy the primary criteria in cl 500.211 to cl 500.218. The issue in the present case is whether the applicant satisfies cl 500.212 of the Regulations, in other words, whether I am satisfied that they are a genuine applicant for entry and stay as a student.

7. Clause 500.212 is in the following terms:

   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.

8. 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 (the 'Direction').[1] The Direction requires the Tribunal to have regard to a number of specified factors in relation to:

   (a)the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

   (b)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;

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

   (d)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.

   [1] The relevant text of the Direction is reproduced in the attachment to this decision, albeit with an amendment to correct what I consider to be a clear and obvious typographical error that appears in paragraph 14(iii/b).

9. The factors specified in the Direction are not a checklist but intended as a guide to considering whether the applicant satisfies cl 500.212(a), which is commonly referred to as ‘the genuine temporary entrant criterion’.

10. Subclauses 500.212(a), (b) and (c) involve discrete inquiries.[2] To satisfy cl 500.212, all of subcls (a), (b) and (c) must be met and an unfavourable finding in relation to either (a) or (b) forecloses the possibility of a favourable outcome.[3] An applicant is only a genuine applicant for entry and stay as a student pursuant to cl 500.212 if they satisfy subclauses (a) and (b), in light of 'any other relevant matter' pursuant to subcl (c).[4]

    [2]        Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1 [32] (Jagot, Bromwich and Lee JJ); Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 106, [14]–[15] (Allsop CJ); Vidiyala v Minister for Home Affairs [2018] FCA 1973 [28].

    [3]        Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1 [32] (Jagot, Bromwich and Lee JJ).

    [4]        Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1 [35] (Jagot, Bromwich and Lee JJ).

    CONSIDERATION, FINDINGS AND REASONS

11. As already observed, the issue in the present case is whether the applicant satisfies cl 500.212, in other words, whether they are a genuine applicant for entry and stay as a student.

12. Whilst there is no need to demonstrate error in the primary decision, it is useful to begin by outlining the reasons why the delegate concluded that the applicant did not intend genuinely to stay in Australia temporarily.

13. Essentially, the delegate concluded the applicant failed to clearly explain why she did not pursue her proposed study in Vietnam or why the proposed qualification would assist her in obtaining employment or improving their employment prospects and that the course did not appear to be valuable to the applicant’s future. The delegate also reasoned that despite having significant familial ties to Vietnam, the applicant (who was 19 years old at the time) had a lack of economic ties to her home country. The delegate also reasoned the applicant’s particular circumstances indicated indicates that her primary motivation for pursuing this course may be other than the quality of education in Australia.

14. In support of the review application, the applicant has put a significant amount of additional material before the Tribunal. That material includes, but is not limited to:

    (a)documentary evidence as to the property held by her parents and a household registration certificate;

    (b)financial documents including bank statements, deposit certificates;

    (c)evidence as to the entitlement of the applicant’s mother to practice medicine in Vietnam; and

    (d)extensive written submissions.

    Does the applicant intend genuinely to stay in Australia temporarily: subcl 500.212(a)

15. The applicant is a 19-year-old citizen of Vietnam. She completed her secondary education at Hung Vuong High School for the Gifted in May 2023. She entered Australia on a Visitor visa (subclass 600) on 15 August 2023 and applied for a student visa shortly thereafter, on 30 August 2023. She commenced her enrolment in a Bachelor of Information Technology at Kaplan Business School on 1 September 2023, with an expected completion date of 12 June 2026.

16. I am prepared to accept that the applicant has strong and ongoing ties to her home country. Her parents, who are both practising doctors, operate a private clinic in Gia Lai Province, Vietnam. I am prepared to accept that the applicant wishes to participate in the family business, having previously supported its operations and intending to return to Vietnam to modernise the clinic’s systems using the skills she gains in her course. I am also prepared to accept that the applicant has no military service obligations and has not raised any concerns about political or civil unrest in Vietnam.

17. I accept that while the applicant currently resides in Australia with her brother, she maintains frequent contact with her parents in Vietnam. Her father is, and will remain, in Vietnam to manage the family business. I am prepared to accept the applicant plans to return to Vietnam to assist him following the completion of her studies. I am satisfied that her family connections provide an incentive for her to return home.

18. The applicant has enrolled in a Bachelor of Information Technology, a course she claims aligns with her long-term goal of integrating IT systems into her family’s medical practice. I am prepared to accept this claim, given the course’s emphasis on both technical and business aspects of IT, which is relevant to her intended contribution to the clinic’s modernisation. The applicant has otherwise indicated that she intends to seek initial employment with Vietnamese IT firms to gain industry experience, before applying her knowledge to the family business. I find that the course is relevant to her goals and has practical application in her intended career path in Vietnam.

19. I am further satisfied that the course is consistent with the applicant’s current level of education, as she transitioned directly from high school to an undergraduate program. The course aligns with her career goals and is expected to enhance her employability in the Vietnamese IT and healthcare sectors.

20. The applicant has acknowledged the availability of IT programs in Vietnam. However, she claims that these programs lack the business integration and international exposure offered by Kaplan Business School. I am prepared to accept that an Australian qualification offers advantages over those which take place locally. I am not prepared to draw an adverse inference simply because the same course can be studied locally in Vietnam.

21. The applicant has immediate family in Vietnam and is deeply connected to a long-standing family business. I am prepared to accept that her parents’ clinic is a significant income producing asset and that the applicant has a strong personal and economic interest in returning to support and develop it. In addition to her personal ties, the applicant’s family has substantial landholdings in Vietnam. I find these factors provide a significant incentive for the applicant to return to Vietnam upon the conclusion of her studies.

22. The applicant’s mother has previously applied for a Parent visa (subclass 143) in 2018. The applicant was listed as a dependant on that application. She was 15 at the time. The applicant submits that:

    Although Ms. LE is included as a dependent in her mother’s ongoing Parent Visa (subclass 143) application, submitted on 12 September 2018, it is important to clarify that this matter is entirely separate from her Student Visa application and does not alter the fact that Ms. LE is a genuine student with a clear intention to study temporarily in Australia. Ms. LE’s inclusion in the Parent Visa application, which was submitted when she was 15 years old (a minor), does not imply any intention to overstay in Australia. Ms. LE fully understands the obligations of a Student Visa and is committed to returning to Vietnam upon the completion of her studies.

    This Parent Visa application pertains solely to her mother’s long-term immigration plans and is unrelated to Ms. LE’s academic goals. Furthermore, her father is not included in the Parent Visa application, as he has chosen to remain in Vietnam to focus on growing and expanding  the family business. Ms. LE remains focused on her goal of studying temporarily in Australia and plans to reunite with her father in Vietnam after her studies and contribute to the growth and success of the family business.

23. That submission is made against a background which includes that the applicant’s brother having moved to Australia around 12 years ago. He is now an Australian citizen. I am prepared to accept that the applicant’s father is not included in that application. Whilst, in the event the visa was granted, the presence of the applicant’s mother in Australia may act as a significant incentive against the applicant returning to Vietnam. However, there is no outcome on that application. Processing timeframes on those visas are around 14 years.[5] The applicant’s mother remains in Vietnam and has remained in Vietnam since August 2023 where she returned to after accompanying the applicant to Australia. It appears likely that the application for a parent visa will not be determined before the applicant’s course finishes in June 2026.

    [5]        See ‘Nearly 2,300 applicants died waiting for a parent visa to Australia with processing times of up to 31 years’, 31 December 2024, The Guardian, <>

    I am not prepared to infer that because the applicant was included as a dependant applicant in a visa application made by her mother when the applicant was 15 years old means she does not intend genuinely to stay in Australia temporarily. In my view, an equally reasonable inference that might be drawn is that the applicant’s mother included the applicant as a dependant applicant on the application so that she can pursue an education in Australia – as the applicant is now doing.

24. I must make an evaluative decision about whether the applicant intends genuinely to stay in Australia, having regard to all the evidence and information before me. On balance, having considered the matters referred to in the Direction, I am satisfied that the applicant intends genuinely to stay in Australia temporarily and, accordingly, meets subcl 500.212(a) of the Regulations.

    Does the applicant intend to comply with the conditions subject to which the visa is granted: subcl 500.212(b)

25. There is no evidence before me that the applicant has failed to comply with the conditions subject to which her student visa would be granted. In those circumstances, I am satisfied that that the applicant intends to comply with the conditions subject to which the visa is granted as required by subcl 500.212(b).

    Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter: subcl 500.212(c)

26. I have already concluded that the applicant meets subcls 500.212(a) and (b). The remaining question is whether the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter: subcl 500.212(c).

27. Based on the evidence and material before me, there are no other matters which, in my opinion, impact upon whether the applicant is a genuine applicant for entry and stay as a student. In my view subcl 500.212(c) is met.

    Conclusion

28. The effect of the above findings is that I am satisfied that the applicant meets cl 500.212 of the Regulations on the basis that they are a genuine applicant for entry and stay as a student as required by cl 500.212. In those circumstances, the decision under review will be set aside and the applicant remitted for reconsideration in accordance with my findings.

    DECISION

29. The Tribunal sets aside the decision under review and remits the application for reconsideration in accordance with an order that the applicant meets cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth).

Date of hearing:	25 March 2025
Representative for the Applicant:	Ms S T A Tran

Attachment - Direction No 108

Part 1 - Preliminary

…

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.

…

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.