Truong (Migration) - [2025] ARTA 1742

Truong (Migration) [2025] ARTA 1742 (25 August 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Hoang Quang Truong
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2410094

Tribunal:General Member C Stokes
Place:Adelaide
Date: 25 August 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 of Schedule 2 to the Regulations.

Statement made on 25 August 2025 at 4:36pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – family, social and financial ties in home country – genuine temporary entrant – immersed in English language – changed career path – Australian courses are internationally recognised and practice-oriented – improve employment and salary prospects – genuine passion for new course – future business plan – complying with visa conditions – good course progress – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 499; Direction No. 108
Migration Regulations 1994 (Cth), Schedule 2, cls 500.212, 500.611
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 17 April 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 17 October 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 they were not satisfied the applicant was a genuine applicant for entry and stay as a student.
The applicant appeared before the Tribunal via videoconference on 19 August 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 and the representative attended the hearing.
Student visa application
In the applicant’s student visa application and supporting material, he stated that he was born and raised in Vietnam, and his parents, wife, son, three sisters and brother remain there. He completed a bachelor’s degree of engineering in 2013 and has worked as an engineer in carious companies since, most recently as a supervising engineer for Artelia Vietnam Co Ltd. He also claimed his true calling was cooking and he decided to pursue his dream of studying cookery and initially working at a high-end restaurant in Vietnam on return and then later establishing his own restaurant.
The applicant also provided the following documents in support of his application: copies of his and his wife’s passports, his marriage certificate, conferral of his degree in engineering, financial records, Overseas Student Health Cover certificate, Certificates of Enrolments (CoEs), a certificate of attainment and attendance of an English course and a letter from the applicant with a statement dealing with the Genuine Temporary Entrant requirement.
Evidence to the Tribunal
The applicant completed a Student Visa Information form in which he provided information about his personal and family background; educational background and work experience; why he decided to pursue international studies including why he chose to study in Australia and not in Vientam or any other country; details regarding the courses he intends to complete and why he had chosen the courses; his future career plans; ties to Vietnam; his visa and travel history, and his financial situation.
The applicant also provided additional certificates of attainment and attendance of English courses.
Following the hearing, the applicant provided detailed written submissions addressing concerns that I put to him during the hearing as well as evidence demonstrating that he had attempted to study English in Vietnam but later withdrew.
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 applicant is a genuine applicant for entry and stay as a student.
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.
Applicant’s circumstances in his home country
The applicant said that he had his parents, four siblings, wife and 6 year old son in Vietnam and remains in regular contact with them all. He also agricultural land and his family own property, including the house his wife and children are living in which belonged to his grandmother. The applicant also remains in contact with friends from former workplaces and university. It is accepted that these family, social and financial ties may act as a significant incentive for him to return, particularly the presence of his wife and son whom he has visited twice since living and studying in Australia.
The applicant confirmed that he does not have any potential military service obligations or political or civil unrest concerns in his home country or that there are any other reasons why he would not return to Vietnam.
With respect to his reasons for studying English in Australia and not in Vietnam, the applicant gave evidence that he commenced several English language courses but found them difficult to fit in around his work and social life so did not complete them. He therefore considered that to properly learn English he needed to immerse himself in the language. I accept this evidence which was supported by documentary evidence submitted after the hearing.
With respect to his reasons for studying kitchen management and hospitality management in Australia and not Vietnam, I accept that the Australian courses are internationally recognised and practice-oriented whereas the Vietnam equivalent courses are not and are focused on local cuisines. I also accept he had the support of his cousin’s family in Australia and the cost of the courses were cheaper than in other countries. I further accept the applicant would have had to get entry-level work in Vietnam to make the change to a new industry, which would not have given the applicant English and international skills which will improve his employment and salary prospects on return.
Applicant’s potential circumstances in Australia
I find that he has reasonably strong family connections in Australia, having his Australian citizen cousins, aunty and cousin’s children who he lives with, and they may act as an incentive for him to remain in Australia. However, given he has returned twice to Vietnam to visit his wife and child I consider his connections to his home country carry greater weight in the applicant’s favour in assessing whether he meets the genuine temporary entrant criteria. I also accept he has not entered into a relationship of concern for a successful Student visa outcome and remains married to a Vietnamese citizen who resides in Vietnam.
Further, the applicant demonstrated a reasonable level of knowledge of living in Australia commensurate with someone who has lived here since 2023.
The value of the course to the applicant’s future
In relation to the English courses the applicant has undertaken, I accept the applicant had been wanting to learn English for many years and was not able to until he was immersed in an English-speaking environment. I also accept that English would assist him in working for foreign companies, including in the engineering industry, as well as in the hospitality industry.
In relation to the Certificate IV course in kitchen management and diploma course in hospitality management, the applicant explained while in Australia visiting his relatives, he went to his cousin’s restaurant and found out they have successful business where the family members are all working together and he liked the idea of opening a restaurant in Vietnam to work together with his family. He further claimed to want to get a more stable job, initially in hospitality close to his family and then later to open his own restaurant. He said in his engineering jobs he had been working at distant project sites all over Vietnam and challenging night shifts. While I had some concerns about this given the time he will now be away from his family to study in Australia, I am able to take into account reasonable changes to career paths and reasonable motives for undertaking further study. I accept that the applicant genuinely is passionate about cooking and wishes to change career paths. I also accept the applicant considers that the temporary study period is an investment, designed to secure a long-term career in Vietnam in hospitality that avoids the prolonged absences and night shifts that his engineering work required. I accept the courses will be of value to his career goals of working in hotels and later opening a family-fun restaurant or similar business.
Applicant’s immigration history
The applicant travelled to Australia on his own for a holiday to visit relatives in July 2023. His change of plan to stay in study may indicate that he was using the student visa primarily for maintaining ongoing residence.
The applicant claimed, and there is no evidence to dispute, that he had not previously been refused a visa in Australia or elsewhere, and that he had not had a visa cancelled or considered for cancellation. I also accept that he has complied with his visa conditions when since he has been in Australia from July 2023. Finally, I accept he did not need a visa when he travelled to Thailand and Malaysia for holidays but that he otherwise complied with their immigration laws.
Other information before the Tribunal
I also have before me a copy of the Provider Registration and International Student Management System (PRISMS) records for the applicant. These records contained information consistent with the evidence of the applicant, as to his past and future study.
Conclusion
In conclusion, in weighing the relevant factors, I accept that the applicant has strong family, social and financial ties in Vietnam and that there is no other reason why he may not wish to return there. I also accept that he ties to Australia, however I consider his connections to his home country carry greater weight in the applicant’s favour in assessing whether he meets the genuine temporary entrant criteria. I also accept that he has undertaken and is undertaking study that is of value to his future career plans. While he arrived on a visitor visa and changed his plan, which may indicate he was using the student visa primarily for maintaining ongoing residence, I consider the other evidence before me, such as his travel to Vietnam twice since arriving as well as his attendance records showing he is genuinely studying and progressing his qualifications carries greater weight in demonstrating that he is a genuine temporary entrant who is genuinely studying and is not using the student visa process to maintain ongoing residence.
On the basis of the above, I am 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?
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.
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)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).
There is nothing before me to suggest the applicant has breached any condition on any visa granted to him to date. The applicant also provided evidence at the hearing that he intends to comply with all conditions imposed on any student visa granted to him.
On the basis of the above, I am 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?
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)).
I find there is no other relevant matter to consider that may raise concerns that the applicant is not a genuine applicant for entry and stay as a student.
Accordingly, I am satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
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 of Schedule 2 to the Regulations.
Dates of hearing(s): 19 August 2025
Representative for the Applicant: Mr HUY QUANG NGUYEN (MARN: 2318079)
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.