Hsu (Migration)

The Administrative Appeals Tribunal considered an application for a Subclass 500 (Student) visa made by the main applicant, a 32-year-old citizen of Taiwan, and her partner as the secondary applicant. The applicant had been in Australia since October 2015, holding various visas including working holiday visas, a partner's student visa, and bridging visas. Her student visa application was refused by the Department, leading to the review by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion of being a "genuine applicant for entry and stay as a student" under clause 500.212 of Schedule 2 to the Migration Regulations 1994. This required the Tribunal to assess whether the applicant genuinely intended to stay in Australia temporarily, considering her circumstances, immigration history, and any other relevant matters, in accordance with Direction No. 69.

The Tribunal reasoned that the assessment of the genuine temporary entrant criterion under Direction No. 69 involves a holistic consideration of various factors, not a checklist approach. It noted that the applicant had successfully completed half of the units for her Diploma of Business, which was due to be completed in February 2022. While acknowledging the applicant's study history and the value of the course to her future, the Tribunal ultimately concluded that the matter should be remitted for reconsideration. The Tribunal directed that the first applicant met the criteria under clause 500.212.