Tran (Migration) [2025] ARTA 298 (24 February 2025)

Decision and			
Reasons for Decision 

Applicant:	Mr Dinh Dat Tran
Respondent:	Minister for Immigration and Multicultural Affairs 
Tribunal Number:	2318276
Tribunal:	Damian Creedon
Place:	Perth
Date:	24 February 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 24 February 2025 at 2:47pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – applied after arriving on visitor visa – study and work history – reasonable change of subject area and future plans – completion of Cert III, progress in Cert IV and enrolment in diploma – credible and persuasive evidence and supporting documentation – sisters in Australia and wife and children in home country – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a) 

CASE
Kumar v MIBP [2020] FCAFC 16

Statement of reasons
APPLICATION FOR REVIEW
1.  	This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 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).
2.  	The applicant applied for the visa on 28 August 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.
3.	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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).
CONSIDERATION OF CLAIMS AND EVIDENCE
4.	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 satisfies cl.500.212(a).
5.	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?
6.	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.
7.	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.
8.	In Kumar v Minister for Immigration and Border Protection the Full Court of the Federal Court held that the Direction requires that, in reaching the state of satisfaction required by cl 500.212(a), the decision maker should turn his or her attention to each factor during the decision-making process and consider whether and how that factor should be brought to bear in reaching that decision.  The Court went on to note that:
[The Direction] does not impose a jurisdictional obligation to make a finding in respect of each factor irrespective of its materiality to the particular case.  Less still is there an obligation, after forming the view that a factor was not material to the particular case, to express that conclusion in the statement of reasons.
Overview of evidence
9.	The applicant is a 35-year-old Vietnamese national who first arrived in Australia on 16 June 2023 as the holder of a Visitor (FA 600) visa.
10.	The Tribunal had before it a copy of both the delegate’s decision, which the applicant provided to the Tribunal, and the Department’s file in relation to the application.
11.	Accompanying the applicant’s application to the Department was a written statement addressing the ‘genuine temporary entrant’ criterion (First GTE Statement).  The GTE Statement is undated, is relatively brief and it is convenient to set it out in full:
My name is Dat Dinh Tran. I come from Viet Nam, this is the first time I come to Australia. I have arrived here for over one month, and I already love the experience here in Australia. The people here are so friendly and welcoming. Australia is very multi-cultural, and I enjoy meeting people from different nationalities and background. The great experience here has prompted me to consider furthering my studies here in Australia.
I’ve heard that Charlton Brown is one of the best vocational institutions to study English and Diploma program. Charlton Brown also has many courses that I am interested in. My study plan at Charlton Brown will be Certificate III in Commercial Cookery, Certificate IV in Kitchen Management and Diploma of Hospitality Management, the total duration of the courses are around 26 months from 4 September 2023 until 30 November 2025. I have chosen to undertake these courses because I have passion about people and food, and I know that Australia’s cuisine is one of the most diverse in the world. I always believe that food and culture is the most interesting mix and I believe that in Australia, I can explore fusion cuisines. My dream is to add Vietnamese influence on international cuisines. This qualification in Australia is more valuable in Viet Nam as I can upgrade myself with international experience, while learning another language, more skills and life experience here.
In Viet Nam, after graduating from University, I went back to my hometown and ran our business with my wife. The life in Viet Nam was good but not fulfilling. I feel a void in my life, and I want to challenge myself in new field and I want to develop myself in new environment. My educational plan is to learn a new culinary skill through the cookery program in Australia. I am interested in the fusion of international cuisine and Vietnam culture. In Australia, I can explore the diversity of food and a fusion of culture.
I am aware of the cost involved in supporting my education in Australia and I have my savings from running my business over the years and the support of my wife and family who’s still in Viet Nam. My wife is still running the business in Viet Nam and will be supporting me financially. For living agreement, I have sisters who lives in Brisbane, I will living with sisters during my studying in Brisbane.
I am very thankful for the support of my family to pursue my dreams. More importantly, I will return to Viet Nam after completed my study in Australia, to reunite with my wife and children after my education. I plan to use my culinary skill and the working experience I’ve acquired to improve my prospects of working as a chef in international hotels in the Viet Nam. I can foresee that Viet Nam’s tourism is developing exponentially every year. If all goes well, my dream is to own a fine dining
restaurant in Viet Nam that boost a fusion menu of international cuisine with Vietnamese influence. I think there is a lot of opportunities in this field in Viet Nam. I think I can use my cookery knowledge to contribute to that development as well as benefit from the many business opportunities in my home country.
12.	The applicant’s Provider Registration and International Student Management System (PRISMS) record shows that since arriving onshore she has successfully completed the following course:
Course Name	Date Commenced	Date Completed	
•	Certificate III in Commercial Cookery	04/09/2023	01/09/2024	
13.	PRISMS also records that since the applicant is currently studying a Certificate IV in Kitchen Management (14/10/2024 – 13/04/2025) and holds future enrolments in a Diploma of Hospitality Management (02/06/2025 – 30/11/2025).
14.	Accompanying his application to the Tribunal for review the applicant provided the following undated statement (Second GTE Statement):
I was born and raised in Dak Lak province which is one of the country’s premier coffee-growing regions, renowned for its high-quality Robusta beans. Blessed with fertile soil, a suitable climate, and abundant water resources, Dak Lak coffee is known for its rich flavor and aroma. With such potentials, I like to develop my own café serving only coffee from my province. However, this idea is not new in Vietnam so I would like to have something special for my business. Today, people concern about their health and they like to consume organic foods. While there some business focus on this idea, I think there is still a place for me. A café and bakery which serves variety coffee from sustainable farmers and international dishes with Vietnamese taste, using only organic material, will be a good business. I learnt about natural yeast in baking goods. This is also a new trend in Vietnam. It seems a good match when my restaurant will also bake and provide freshly bake good from natural yeast. 
While I had a degree in Information Technology, I am keen on doing business rather than technical jobs, especially hospitality industry. I grew up on a traditional Vietnamese family which was influenced by Buddhism and Confucianism, resulting in a unique blended educational experience which means parents have a strong influence on their children’s decision. Therefore, my parents would like me to be an engineer. However, I found this major does not match my personality as I enjoy communicating with people, customer service. It took me longer time to graduate my career while I was a good student from a high reputation gifted school in my hometown. When completed the course to please parents, I had started to do what I like which is a business with my spouse in footwear wholesale. It generates a good income. Now, when my finance is stable to support my dream, I can start to work on my initial business idea.
15.	The applicant appeared before the Tribunal on 24 February 2025 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.  Where relevant, the applicant’s evidence to the Tribunal is referred to in its analysis below.
16.	For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Analysis and findings
17.	The Tribunal found the applicant to be a credible and truthful witness who, where possible, supported his oral statements with documentary evidence.  The Tribunal found the applicant’s oral evidence to be internally coherent, and consistent with both of his GTE Statements.
18.	The Tribunal discussed with the applicant his motive for undertaking study in Australia and his history as a student. The applicant stated that he had completed a bachelor’s degree in IT in Vietnam, but had decided that IT was not a area in which he wished to work. 
19.	That applicant stated that instead, when he married some 10 years ago, he worked with his wife in “her” business, which he described as a wholesale shoe importer and distributor. When pressed as to his motive to change his career pathway and pursue studies in Australia in an unrelated area, the applicant stated, in effect, that he wished to have an alternative income source in a different sector should anything happen with the wholesale shoe business.
20.	The applicant stated, when pressed, that he had plans to open a café and bread shop in his hometown, although the plans were not significantly advanced as he and his wife would need to consider their economic situation when he returned to Vietnam at the conclusion of his studies and plan for their future at that time.
21.	The applicant stated, again when pressed, that although there are similar courses he could have undertaken in Vietnam, the quality of the courses and faculty there were poor when compared to that in Australia.
22.	Overall, the Tribunal found the applicant’s evidence to be persuasive.  The Tribunal is mindful, in assessing whether a study pathway will assist an applicant to obtain employment or improve employment prospects in their home country, that it must allow for reasonable changes to career or study pathways.  In all of the circumstances the Tribunal is persuaded that the applicant’s change and career pathway is reasonable in the circumstances. 
23.	There is no evidence that the applicant is seeking to building a career in Australia; and there is no evidence before the Tribunal that the applicant has sought to establish relationships in Australia inconsistent with those of a genuine student.  Overall, the applicant’s evidence did not persuade the Tribunal that he has ties to Australia, either social or economic, sufficient to act as a strong incentive for him to remain in Australia at the conclusion of his studies.
24.	In contrast, the applicant and his wife have two children and the applicant mentioned, unprompted, on several occasions during the hearing that he is motivated to finish his studies as quickly as possible so as to return to Vietnam to reunite with his family. The Tribunal accepts that his family are a strong incentive for him to return to his home country.
25.	There is no evidence before the Tribunal of any civil unrest or military service commitments in the applicant’s home country that would act as a clear incentive for the applicant to remain in Australia. There is also no evidence that the applicant, or a relative of the applicant, has not complied with previous visas or previously held visas that were refused, cancelled, or considered for cancellation.  Overall, the applicant’s immigration history does not raise concerns for the Tribunal.  
26.	The Tribunal has had the benefit of speaking to the applicant which has enabled it to obtain more information regarding his circumstances and genuineness in the presentation of his evidence.  The Tribunal has assessed all of the evidence before it, including that the applicant is currently enrolled, has previously completed the courses claimed in Australia, has said he will return home on completion of his studies, has strong family and economic ties to his home country and all the other matters he has raised.
27.	Overall, the Tribunal is persuaded that the student visa programme is not being used by the applicant to circumvent the intentions of the migration programme.  For the reasons outlined above the Tribunal accepts that the applicant is undertaking his current study or future study for the reasons he claims.
28.	On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. It follows that the applicant meets cl.500.212(a).
29.	Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
30.	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
31.	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.

D Creedon
General Member

Dates of hearing(s):	24 February 2025  

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.