Alka (Migration)

This matter concerned an application for review of a decision by the Department of Home Affairs not to grant the applicant, a citizen of India, a Subclass 500 (Student) visa. The applicant, aged 26, had initially arrived in Australia in 2017 to undertake a Master of Professional Accounting. She claimed to have experienced isolation and a lack of family support, which hindered her academic progress. Subsequently, she applied for a student visa to complete a Certificate III and IV in Commercial Cookery and a Diploma of Hospitality Management, with a proposed completion date of November 2021. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for the grant of this visa.

The primary legal issues before the Tribunal were whether the applicant satisfied the "genuine temporary entrant" (GTE) criterion under clause 500.212 of Schedule 2 to the Migration Regulations 1994, and whether she was enrolled in a registered course of study as required by clause 500.211. The Tribunal was also bound to consider and apply Direction No. 69, issued by the Minister under section 499 of the Migration Act 1958, which provided guidance on assessing the GTE criterion. This Direction required consideration of the applicant's circumstances in her home country and in Australia, the value of the proposed course to her future, and her immigration history.

In its reasoning, the Tribunal acknowledged the applicant's stated difficulties with isolation and lack of support. However, it noted that the applicant had remained in Australia for five years without evidence of completing any courses. The Tribunal found that the applicant's proposed study period had passed, and she had not yet completed her courses or returned to her home country. Furthermore, the Tribunal observed that new enrolments were made the day before the hearing, and the applicant's response to the Tribunal's invitation to provide information was limited. These factors, combined with the applicant's family ties in India and work and community ties in Australia, raised serious concerns about her true intentions and whether she was using the student visa program to maintain residence in Australia. The Tribunal concluded that the applicant had not demonstrated that she was a genuine temporary entrant.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Subclass 500 (Student) visa, finding that the criteria for the visa were not met. The applicant did not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.