ENKHBAT (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning an application for a Subclass 500 (Student) visa made by a citizen of Mongolia. The applicant had initially applied to undertake an Advanced Diploma of Travel and Tourism Management. The core of the dispute revolved around whether the applicant met the criteria for being a genuine temporary entrant, specifically regarding their enrolment and intention to study in Australia.

The Tribunal was required to determine if the applicant was a genuine applicant for entry and stay as a student, and if they were enrolled in a registered course of study, as mandated by the Migration Regulations 1994. Additionally, the Tribunal considered whether the applicant's circumstances warranted a referral to the Minister for intervention under section 351 of the Migration Act 1958, which allows for more favourable decisions in exceptional circumstances.

The Tribunal found that the applicant had not met the criteria for the visa. While the applicant provided updated enrolment details and explained their reasons for not completing a previous course, the Tribunal was not satisfied that they were a genuine student. Crucially, the applicant conceded at the hearing that they no longer wished to pursue a student visa but instead sought a referral to the Minister to apply for a partner visa onshore. The Tribunal noted inconsistencies in the applicant's evidence regarding their relationship status and the claimed duration of their relationship, and found no exceptional circumstances, such as significant economic, scientific, or cultural benefit to Australia, that would justify ministerial intervention.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Subclass 500 (Student) visa. The Tribunal also noted that the applicant retained the ability to make a direct request to the Minister under section 351 of the Act.