Cai (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Subclass 500 (Student) visa made by a 36-year-old woman from China. The applicant had arrived in Australia on a tourist visa and applied for the student visa shortly before her tourist visa expired, intending to study an Advanced Diploma of Leadership and Management. The AAT was required to determine whether the applicant met the criteria for the student visa, specifically whether she was a genuine temporary entrant.

The central legal issue before the Tribunal was whether the applicant genuinely intended to stay in Australia temporarily, as required by clause 500.212(a) of Schedule 2 to the Migration Regulations 1994. This assessment was to be conducted in accordance with Direction No. 69, which outlines various factors to be considered, 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 was directed to consider these factors holistically rather than as a checklist.

The Tribunal found that the applicant did not satisfy the genuine temporary entrant criterion. While the applicant had previously studied in Australia compliantly, the Tribunal considered her circumstances in her home country, including the availability of similar courses, comparative costs, and incentives to remain or return, such as her parents and child being in China and her future employment plans. The Tribunal concluded that, on balance, the applicant's circumstances did not demonstrate a genuine intention to temporarily stay in Australia. Consequently, the Tribunal affirmed the decision to refuse the grant of the visa.