Bui (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning an applicant for a Subclass 500 (Student) visa. The applicant, born in Vietnam in 1994, had been residing in Australia since May 2013, a period of nine years at the time of the review hearing. The core of the dispute revolved around whether the applicant met the criteria for a genuine student and a genuine temporary entrant, as required by the Migration Regulations.

The Tribunal was tasked with determining if the applicant satisfied the genuine temporary entrant criterion under clause 500.212 of Schedule 2 to the Regulations. This involved assessing whether the applicant genuinely intended to stay in Australia temporarily, considering their personal circumstances, immigration history, and any other relevant matters. The Tribunal was also required to have regard to Direction No 69, which provides guidance on assessing this criterion by considering factors such as the applicant's circumstances in their home country and Australia, the value of the proposed course to their future, their immigration history, and any other available information.

In its reasoning, the Tribunal noted the applicant's lengthy stay in Australia, which spanned nine years. While the applicant was enrolled in a Certificate IV in Commercial Cookery and a Diploma of Hospitality, the Tribunal considered the applicant's limited academic progress and employment in Australia as factors potentially weighing against a genuine intention to study temporarily. The Tribunal's assessment was holistic, considering all relevant information, including the impact of the COVID-19 pandemic, to determine if the applicant's overall circumstances indicated a genuine intention to study temporarily and comply with visa conditions. The Tribunal concluded that the decision under review should be affirmed.