Chong (Migration)

This matter concerned an appeal by an applicant from Malaysia against a decision by a delegate to refuse to grant him a Subclass 500 (Student) visa. The refusal was based on the delegate's finding that the applicant did not meet the 'Genuine Temporary Entrant' (GTE) criterion. The applicant had arrived in Australia in March 2013 on a tourist visa and was subsequently granted a student visa in September 2014, which expired in October 2016. He applied for the Subclass 500 visa in October 2016.

The primary legal issue before the Tribunal was whether the applicant genuinely intended to stay in Australia temporarily, as required by clause 500.212 of Schedule 2 to the Migration Regulations 1994. This assessment required consideration of the applicant's circumstances in his home country, his circumstances in Australia, his immigration history, and any other relevant matters, in accordance with Direction No. 69.

The Tribunal considered the applicant's limited ties to Malaysia, noting that he had only returned once since 2013 and maintained weekly contact with his parents via social media. It also noted that his sister and brother resided in Australia. Crucially, the Tribunal found that the applicant had not completed any course of study since being granted his previous student visa in 2014, leading to a concern that the student visa program was being used to maintain ongoing residence in Australia rather than for genuine study purposes. The Tribunal gave no weight to the applicant being an unlawful non-citizen for two days between visa expiry and his application.

Based on these findings, the Tribunal concluded that the applicant had not satisfied the GTE criterion. Accordingly, the Tribunal affirmed the delegate's decision not to grant the Subclass 500 (Student) visa.