Huang (Migration)

This matter concerned an appeal by a citizen of Taiwan against the decision not to grant him a Subclass 500 (Student) visa. The applicant, aged 42, had been in Australia since early 2016 on a student visa. He claimed to have undertaken several courses of study, including a Certificate II in Spoken and Written English, a Diploma of Business, a Diploma of Information Technology, a Certificate IV and Diploma in Marketing and Communication, and a Diploma of Leadership and Management. However, he had not provided any corroborating evidence of academic progress for any of these courses to the Department or the Tribunal.

The legal issues before the court were whether the applicant met the criteria for a Subclass 500 (Student) visa, specifically concerning enrolment in a course of study and whether he was a genuine temporary entrant. The court was required to consider the applicant's circumstances in light of Direction No. 69, issued by the Minister under section 499 of the Migration Act 1958, which provides guidance on assessing the genuine temporary entrant criterion.

The court noted that while bound to consider the Direction, it was an independent statutory body and had to reach its own conclusions on the merits of the case. The applicant's lack of evidence regarding academic progress was a significant concern. The court found that the applicant had not provided evidence of enrolment in a course of study as required by clause 500.211 of Schedule 2 of the Regulations. Furthermore, the court was not satisfied that the applicant was a genuine temporary entrant under clause 500.212, particularly given his extended onshore stay without demonstrable academic progress and the absence of evidence of community ties to Taiwan that would incentivise his return.

Consequently, the court affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa, finding that the criteria for the visa were not met. The applicant did not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.