BAHARI (Migration)

This matter concerned an application for a Subclass 500 (Student) visa by a 43-year-old Malaysian female. The Administrative Appeals Tribunal (AAT), constituted by Member Vanessa Plain, was required to determine whether the applicant met the criteria for the visa, specifically whether she was a genuine applicant for entry and stay in Australia as a student. The primary issue was whether the applicant genuinely intended to stay in Australia temporarily, as required by clause 500.212(a) of the Migration Regulations 1994.

The Tribunal was required to consider the applicant's circumstances, her immigration history, and any other relevant matters, in accordance with Direction No. 69. This Direction outlines factors to be considered when assessing the genuine temporary entrant criterion, including the applicant's circumstances in her home country and potential circumstances in Australia, the value of the proposed course to her future, and her immigration history. The Tribunal noted that these factors were not to be used as a checklist but rather as a guide to assessing the applicant's circumstances as a whole.

The Tribunal found that the applicant had not provided sufficient evidence regarding the value of her nominated course to her future employment prospects in her home country. Furthermore, the Tribunal expressed serious concerns about the applicant's immigration history, noting her extensive visitor visa history prior to applying for a student visa, and the lack of a reasonable explanation for any change in her travel plans. This history, coupled with the absence of evidence demonstrating the course's future benefit, led the Tribunal to conclude that the applicant's behaviour was not consistent with that of a genuine student intending a temporary stay. Instead, the Tribunal found that her actions suggested an intention to use the student migration program to maintain ongoing residence in Australia. Consequently, the Tribunal was not satisfied that the applicant genuinely intended to stay in Australia temporarily and therefore did not meet the criteria for the visa.

The Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa.