Du (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking review of a decision to refuse a Subclass 500 (Student) visa. The applicant, a 42-year-old Chinese national, had entered Australia on a Tourist Visa in May 2018, which expired in August 2018. On the same day her tourist visa expired, she applied for a student visa to undertake a General English course. The delegate refused this application, leading to the review by the Tribunal.

The central legal issue before the Tribunal was whether the applicant met the criteria for a Subclass 500 (Student) visa, specifically the genuine temporary entrant (GTE) requirement as stipulated in clause 500.212 of Schedule 2 to the Migration Regulations 1994. This criterion requires the applicant to genuinely intend to stay in Australia temporarily and to comply with visa conditions. The assessment of this criterion was guided by Direction No. 69, which outlines various factors to be considered, including the applicant's circumstances in their home country and Australia, their immigration history, and the value of the proposed course to their future.

The Tribunal reasoned that the applicant's circumstances did not satisfy the GTE criterion. It noted that the applicant had not commenced her originally proposed course and had not travelled home since her arrival in Australia. The Tribunal placed weight on factors indicating that the student visa was being used primarily to maintain ongoing residence in Australia, rather than for the genuine purpose of study. Consequently, the Tribunal found that the applicant did not genuinely intend to stay in Australia temporarily.

Accordingly, the Tribunal affirmed the delegate's decision not to grant the applicant a Subclass 500 (Student) visa, concluding that the applicant had not met the necessary criteria for the visa.