Chen (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for review of a decision to refuse a Subclass 500 (Student) visa. The applicant sought to undertake General English and a Diploma of Leadership and Management. The primary issue before the Tribunal was whether the applicant met the "genuine temporary entrant" (GTE) criterion as set out in clause 500.212(a) of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine if the applicant genuinely intended to stay in Australia temporarily. This assessment involved considering the applicant's circumstances in their home country and in Australia, the value of the proposed courses to their future, and their immigration history, in accordance with Direction No. 69 issued under section 499 of the Migration Act 1958. The Tribunal noted that the term "genuine" meant authentic, real, or true.

In its reasoning, the Tribunal found that the proposed courses were not consistent with the applicant's current level of education and would not assist them in obtaining employment or improving their employment prospects in their home country. Furthermore, the Tribunal considered the applicant's immigration history, noting they had arrived in Australia on a tourist visa and subsequently applied for a student visa. The applicant had been in Australia for a lengthy period, repeatedly enrolling in short, low-cost courses in the VET sector without successfully completing a qualification. The Tribunal concluded that these factors indicated the applicant had been in Australia for an extended period without achieving a qualification, and it was not persuaded that the applicant genuinely intended to return to their home country at the expiry of their visa.

Consequently, the Tribunal was not satisfied that the applicant met the genuine temporary entrant criterion under clause 500.212(a). As this criterion was not met, the Tribunal found that the applicant did not satisfy the criteria for the grant of a Subclass 500 (Student) visa. Accordingly, the Tribunal affirmed the decision under review.