Charoenkhet (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking review of a decision to refuse a Subclass 500 (Student) visa. The applicant, a Thai citizen, had been in Australia since June 2015 and had undertaken several courses of study, including English for Academic Purposes, a Certificate IV in Business, and units towards a Diploma and an Advanced Diploma of Leadership and Management. The primary decision-maker had refused the visa application.

The Tribunal was required to determine whether the applicant met the criteria for a Subclass 500 (Student) visa, specifically focusing on the "genuine temporary entrant" (GTE) requirement as outlined in clause 500.212 of Schedule 2 to the Migration Regulations 1994. This involved assessing whether the applicant genuinely intended to stay in Australia temporarily, considering her circumstances, immigration history, and any other relevant matters. The Tribunal also had to consider the application of Direction No. 69, a lawful direction from the Minister, which provides guidance on assessing the GTE criterion.

The Tribunal noted that the applicant had been in Australia for an extended period, having arrived in June 2015. While she had undertaken various courses, the Tribunal considered the overall context of her study pathway and her length of time onshore. The Tribunal acknowledged that Direction No. 69 is a lawful direction and must be considered, but also recognised its role as an independent statutory body to reach its own conclusions on the merits of the case, applying established case law regarding the approach to such guidelines. The Tribunal found that the applicant did not meet the criteria for the grant of the visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa, as the criteria for the visa were not met.