Fun Har Yew (Migration)

This matter concerned an application for review of a delegate's decision to refuse a Subclass 500 (Student) visa. The applicant, a 48-year-old Malaysian citizen, had previously held multiple student and visitor visas in Australia. The core dispute revolved around whether the applicant genuinely intended to stay in Australia temporarily as a full-time student, as required by clause 500.212 of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine if the applicant met the criteria for a genuine temporary entrant. This involved assessing the applicant's circumstances in her home country, her immigration history, her potential circumstances in Australia, and the value of the proposed course to her future. The Tribunal was also to consider her intention to comply with visa conditions. Direction No. 69, which provides guidance on assessing the genuine temporary entrant criterion, was to be applied.

The Tribunal considered the applicant's extensive immigration history, including multiple student visas and a visitor visa, noting that her most recent student visa ceased in December 2017, and she applied for a further student visa shortly thereafter. While the applicant provided a Confirmation of Enrolment for a Diploma of Remedial Massage and stated her intention to up-skill to establish her own business, the Tribunal found that her GTE statement demonstrated some knowledge of her course and provider but lacked specific evidence of her knowledge of living in Australia, despite her previous extended stays. The Tribunal also noted that the applicant did not respond to an invitation under s 359(2) of the Act, meaning she was not entitled to appear before the Tribunal.

Ultimately, the Tribunal affirmed the delegate's decision. The Tribunal concluded that, having regard to all the circumstances, including the applicant's immigration history and the lack of specific evidence regarding her knowledge of living in Australia, the applicant had not satisfied the Tribunal that she was a genuine applicant for entry and stay as a student.