Chen (Migration)

This matter concerned an application for review of a decision to refuse a Subclass 500 (Student) visa. The applicant, Ms Chen, sought to enter Australia as a student. The primary issue before the Tribunal was whether the applicant was a genuine temporary entrant, as required by clause 500.212 of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine whether the applicant genuinely intended to stay in Australia temporarily and whether she intended to comply with the conditions of the visa. In making this determination, the Tribunal was guided by Direction No. 69, which outlines various factors to consider, including the applicant's circumstances in her home country, her potential circumstances in Australia, the value of the proposed course to her future, her immigration history, and any other relevant information. The Tribunal noted that these factors were not to be treated as a checklist but rather as a guide to assessing the applicant's circumstances as a whole.

The Tribunal found the applicant's evidence to be vague, imprecise, and often unresponsive. Her study history in Australia, which commenced in 2018, involved multiple English language courses and enrolments in, but non-completion of, a Diploma of Leadership and Management and a Massage course. The applicant had arrived in Australia on a tourist visa in 2018 and had not returned to her home country since, nor had she returned when previous student visa applications were refused. The Tribunal expressed doubt as to whether she would complete her proposed future studies, given her past academic record and the lack of satisfactory explanation for her changing study directions and prolonged stay in Australia.

Consequently, the Tribunal affirmed the decision under review, concluding that the applicant had not satisfied the criteria for being a genuine temporary entrant.