Ghanem v Minister for Immigration &

This matter concerned an application for a Student (Temporary) (Class TU) visa by a male Egyptian citizen. The applicant had applied for an Advanced Diploma of Marketing. The delegate of the Minister refused the visa application, finding that the applicant was not a genuine applicant for entry and stay as a student, nor did he intend to stay in Australia temporarily. This decision was affirmed by the Administrative Appeals Tribunal.

The primary legal issue before the court was whether the Tribunal erred in affirming the delegate's decision. Specifically, the court was required to consider whether the Tribunal had properly assessed the applicant's intention to genuinely stay in Australia temporarily, having regard to his circumstances and immigration history, as required by cl.572.223(1)(a) of the Migration Regulations 1994. This assessment was to be conducted in accordance with Direction No. 53, which sets out factors to be considered when assessing the genuine temporary entrant criterion for student visa applications.

The court noted that the applicant had been in Australia on student or bridging visas for over nine years and had been enrolled in 22 courses, completing only four. While the applicant provided explanations for the cancellations of many of his courses, including college closures and personal reasons related to unrest in his home country, the delegate and the Tribunal were not satisfied that these explanations adequately addressed the concerns about his genuine intention to study and progress academically. The Tribunal's reasoning focused on the applicant's prolonged period in Australia and his limited academic progress, leading to the conclusion that he was using the student visa pathway to maintain residence in Australia.