Chan (Migration)

This matter concerned an appeal by the applicant, Ms. Chan, against the decision of a delegate to refuse her application for a Subclass 500 (Student) visa. The central issue before the Tribunal was whether Ms. Chan was a genuine applicant for entry and stay as a student, as required by clause 500.212 of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine if Ms. Chan genuinely intended to stay in Australia temporarily, considering her circumstances in Australia and her home country, her immigration history, and the value of her proposed studies to her future plans. This assessment was to be guided by Ministerial Direction 69, which outlines factors to consider when assessing the genuine temporary entrant criterion for student visas. The Tribunal also considered whether Ms. Chan intended to comply with the conditions of the visa.

In its reasoning, the Tribunal noted Ms. Chan's immigration history, including multiple previous student visa applications and cancellations of courses, with only one completed qualification since her arrival in Australia in 2013. It found that Ms. Chan's stated reasons for preferring Australian education over that in Hong Kong were not substantiated. Furthermore, the Tribunal considered that Ms. Chan's personal connections to her home country were not a significant incentive to return, and that she had no property there. Crucially, the Tribunal found that Ms. Chan's ability to earn approximately $800 AUD per week working 20 hours in restaurants presented a significant incentive for her to remain in Australia, outweighing any incentive to return home. The Tribunal concluded that the value of her current and proposed studies to her future plans was limited.

Consequently, the Tribunal found that Ms. Chan did not meet the criteria for the grant of a Subclass 500 (Student) visa, specifically the genuine temporary entrant requirement. The Tribunal affirmed the delegate's decision not to grant the visa.