CHEAH (Migration)

The Administrative Appeals Tribunal considered an application for a Subclass 500 (Student) visa made by a citizen of Malaysia. The applicant, who arrived in Australia on a Visitor visa, sought to undertake a Certificate IV and Diploma in Leadership and Management. The delegate of the Minister refused to grant the visa, finding that the applicant was not a genuine applicant for entry and stay as a student, primarily due to inconsistencies between her stated purpose of visit on her incoming passenger card and her subsequent visa application, as well as her stated occupation.

The Tribunal was required to determine whether the applicant satisfied clause 500.212 of Schedule 2 to the Migration Regulations 1994, which mandates that an applicant be a genuine applicant for entry and stay as a student. This involves assessing whether the applicant genuinely intends to stay in Australia temporarily, intends to comply with visa conditions, and considering any other relevant matters. The delegate's refusal was based on the applicant's short stated duration of stay as a tourist, her stated intention to study for a longer period, and a discrepancy between her declared occupation as a housewife and her claim of being a clerk.

The Tribunal reasoned that the applicant had provided a credible explanation for the perceived inconsistencies. She explained that upon arrival, she connected with a friend in Sydney who was studying, which influenced her decision to explore educational opportunities in Australia. Furthermore, evidence was presented that the construction company where she had worked had closed prior to her travel, rendering her description of herself as a housewife accurate at the time of her arrival. The Tribunal also noted the applicant's successful completion of her Certificate IV and her satisfactory progress in her Diploma, including a good attendance rate and up-to-date fee payments, which demonstrated a genuine commitment to her studies.

Consequently, the Tribunal found that the applicant met the genuine temporary entrant criterion under clause 500.212. The application was remitted to the Minister for reconsideration of the remaining criteria for the Subclass 500 (Student) visa.