GANBAATAR (Migration)

The Administrative Appeals Tribunal considered an application by Mr Ganbaatar, a citizen of Mongolia, for a Subclass 500 (Student) visa. Mr Ganbaatar sought to undertake a Diploma and an Advanced Diploma in Information Technology in Australia. The delegate of the Department of Immigration and Border Protection had refused his visa application, and Mr Ganbaatar sought review of this decision by the Tribunal.

The primary legal issue before the Tribunal was whether Mr Ganbaatar satisfied the criteria for a Subclass 500 (Student) visa, specifically clause 500.212 of Schedule 2 to the Migration Regulations 1994. This clause requires the applicant to be a genuine applicant for entry and stay as a student, demonstrating both a genuine intention to stay in Australia temporarily and an intention to comply with visa conditions. In assessing this criterion, the Tribunal was required to have regard to Direction No. 69, which outlines various factors to consider, including the applicant's circumstances in their home country and in Australia, the value of the course to their future, and their immigration history.

The Tribunal affirmed the delegate's decision, finding that Mr Ganbaatar had not satisfied the genuine temporary entrant criterion. The Tribunal noted Mr Ganbaatar's immigration history, which included previous student visas, a visa cancellation, and extended periods of stay in Australia, as unfavourable. Furthermore, the Tribunal was not satisfied that his stated intention to return to Mongolia to establish an online shopping business was credible, given his previous study choices and the lack of demonstrated economic or personal ties to Mongolia that would provide a significant incentive to return. The Tribunal concluded that, on balance, the evidence did not support a finding that Mr Ganbaatar genuinely intended to stay in Australia temporarily.