Truong (Migration) - [2025] ARTA 901

TRUONG (MIGRATION) [2025] ARTA 901 (28 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Dinh Sang Truong
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2319974

Tribunal:General Member D Hughes
Place:Melbourne
Date: 28 March 2025
Decision:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 28 March 2025 at 1:49pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study history – previous enrolments cancelled and no current enrolment – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.111, 500.211(a), 500.212
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 20 November 2023 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 4 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 they were not satisfied the applicant was a genuine applicant for entry and stay as a student.
The applicant appeared before the Tribunal on 25 March 2025 (via MS Teams) 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 by his representative Mr Sang Ik (Max) Moon, however Mr Moon did not participate in the hearing.
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.
Although the delegate considered the applicant against cl 500.212, in the course of this review a further issue arose as to whether the applicant was enrolled in a course of study for the purposes of cl 500.211.
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
Enrolment (cl 500.211)
The paragraphs below are intended for applications where the criterion in dispute is whether the applicant is enrolled in a course of study (cl 500.211(a)). Where the applicant seeks to satisfy the alternative criteria relating to postgraduate thesis marking, Foreign Affairs students or Defence Students (cl 500.211(b) to (d) respectively), adjust the following 3 paragraphs to reflect claims, evidence and findings on the relevant criteria.
Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl 500.211(a). The applicant does not claim to meet any of the alternative criteria in cl 500.211.
‘Course of study’ is relevantly defined in cl 500.111 of the Regulations as a ‘full-time registered course.’ ‘Registered course’ is defined in reg 1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000 (Cth), to provide the course to overseas students.
Assessment
At the time the applicant applied for a student visa, the applicant provided a range of evidence in support of his visa application. He also provided Confirmation of Enrolment (CoE) records indicating his enrolment in the following three courses:
·General English (Starter – Advanced 6 levels)
Intellect English

Course dates: 11/09/2023 – 14/06/2024
·Diploma of Leadership and Management
Central Melbourne Institute / Malvern International College

Course dates: 16/09/2024 – 15/09/2025
·Advanced Diploma of Leadership and Management
Central Melbourne Institute / Malvern International College

Course dates: 15/10/2025 – 09/12/2026
On 3 February 2025, the Tribunal wrote to the applicant through his representative. In that email, the Tribunal indicated that as the applicant applied for a student visa based on undertaking a course of study in Australia, it was a requirement for the visa that the applicant be enrolled in a registered course of study and a genuine applicant for entry and stay as a student. The email advised that the applicant would need to provide sufficient information to satisfy the Tribunal that he meets both of those requirements.
The applicant was invited to give, in writing, all relevant information about the course(s) of study they were undertaking and their entry and stay in Australia as a student. They were also invited to complete the Tribunal’s Student Visa Information (SVI) Form.
In the completed SVI form, the applicant checked ‘yes’ to the question of whether he has a current Confirmation of Enrolment (CoE) in a registered course of study. He indicated the following enrolments:
·English Course
Intellect English

Course dates: 1/11/2023-1/11/2024
·Diploma and Advanced Diploma of Leadership
Central Melbourne Institute

Course dates: 1/11/2024 – 09/10/2026
For each of these courses, the applicant indicated ‘did not complete’ as the enrolment status. The applicant also provided a range of other information and submissions about the value of these courses and his professional intentions on return to Vietnam.
Evidence at the hearing
At the start of the hearing, I asked the applicant if he was currently enrolled in a course in Australia. He said that he was enrolled, but because his visa was not granted, the enrolment was suspended. He indicated he was studying for a while, and when the visa was not granted he stopped studying. He said he stopped studying because the visa was not granted.
I put to the applicant that this did not prevent him from studying. He said he had paid the fees, but when the school advised him that the visa was not granted he did not study for ‘fear of affecting the school.’ He believed this was in November 2024.
The applicant said he stayed at home (St Albans) since that time waiting for a hearing.
At the hearing, I indicated to the applicant that one of the requirements for grant of a student visa was that he was enrolled in a course of study. The applicant said he was previously enrolled, but he was not enrolled because he does not know much and ‘did not dare’ enrol in a course.
The applicant indicated that he was not working. When asked what he was doing, he said every day he would stay home and ‘help the kids’ with cleaning. He said they were younger people from his hometown in Vietnam. He confirmed he had no family in Australia. He said the ‘young kids’ were students that he shared accommodation with.
I asked the applicant why his intended studies in leadership were important to him. He said he intended to open a small business when he got back to Vietnam. He said he wanted to study business administration and operation of a small business, so he could apply that training when he went back to Vietnam.
At the hearing, I explained to the applicant that the Department refused his application for a student visa because it was not satisfied he was a genuine temporary entrant as a student, however a further concern for me was that he was not enrolled in a course of study. He said that once his student visa is granted, he will enrol and attend classes and then return to Vietnam at the end of his course. I put to him that he could not be granted a student visa unless he was enrolled in a course. He said that he was not aware of the rules, and that he ended his enrolment when his visa was refused. When I put to him that he had an agent, the applicant said his English was not good and he did not understand.
I explained to the applicant that information before the Tribunal indicated that he was not enrolled in a registered course of study. That information indicated he was previously enrolled in three courses. Each of those enrolments were cancelled:
·General English (Starter – Advanced 6 levels)
Intellect English

Course dates: 11/09/2023 – 14/06/2024

Cancelled (25/03/2024: unsatisfactory course progress)
·Diploma of Leadership and Management
Central Melbourne Institute / Malvern International College

Course dates: 16/09/2024 – 15/09/2025
Cancelled (5/03/2024: non-payment of fees)
Advanced Diploma of Leadership and Management
Central Melbourne Institute / Malvern International College

Course dates: 15/10/2025 – 09/12/2026

Cancelled (5/03/2024: change to CoE/student details)
I put to the applicant that the information before the Tribunal indicated that he was not currently enrolled in a course of study in Australia. The information before the Tribunal also did not indicate there was a condition on his bridging visa that prevented him from studying in Australia. I explained the relevance of this information and that it indicated he would not meet the criteria for a student visa which requires he be enrolled in a course of study.
In response to the invitation to comment, the applicant said his English is not good and there are lots of issues he does not understand. He said his visa was not granted and he was not able to continue studying and that is why he did not pay the money and did not attend class, but if the visa was granted, he would pay the full fee and attend lessons so that he could complete the course and return to Vietnam.
He asked the Tribunal to consider his circumstances and that he be granted a student visa to study in Australia for 2 or 2.5 years. He claimed he could then return to his family and apply the knowledge from his studies to his work or business.
The applicant confirmed that he arrived in Australia in June 2023. The Tribunal observed that he had been in Australia for nearly two years. The applicant said he is very anxious because he has not been able to study anything. He said he was in the middle of his studies when the visa was refused. He reiterated that he had not been working in that time.
Assessment
It is a time of decision requirement in cl 500.211(a) that the applicant is enrolled in a course of study. The applicant has not claimed to meet any of the alternative criteria in cl 500.211.
The applicant’s student visa application was refused in November 2023. His enrolments were cancelled in March 2024. The applicant claims his enrolments were suspended when his visa was refused, but the evidence before the Tribunal confirms they were cancelled four months later because of his unsatisfactory course progress and non-payment of fees.
The applicant has not been enrolled in a registered course for over a year, despite advising the Tribunal that he was enrolled in a course in his completed SVI form.
The applicant has claimed he was not able to study. However, the information before the Tribunal indicates there was no condition attached to the applicant’s bridging visa that prevented him from enrolling or studying in Australia.
The applicant claims that he is not working, but he has provided no clear evidence as to what he has been doing in the intervening period, other than helping local young people.
The applicant also contends that he was unaware that he needed to be enrolled.
The applicant was assisted in this review by his representative. He was advised of the requirement to be enrolled in a registered course by this Tribunal on 3 February 2025. The applicant advised the Tribunal that he was currently enrolled in his SVI form. In that full context, I consider the applicant was aware of the enrolment requirements for a student visa and had full opportunity to rectify his enrolment situation.
On the evidence before me, I find that the applicant is not enrolled in a course of study at the time of the Tribunal’s decision and therefore he does not satisfy cl 500.211(a). There is no claim or evidence to suggest he satisfies any of the alternative criteria in cl 500.211(b), (c) or (d) relating to postgraduate, Foreign Affairs and Defence students. I find the applicant does not meet any of the alternative criteria in cl 500.211.
Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl 500.211 is not met.
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.
Date of hearing: 25 March 2025
Representative for the Applicant: Mr Sang Ik Moon (MARN: 5511267)