Jasni (Migration)

The Administrative Appeals Tribunal reviewed a decision to refuse a Subclass 500 (Student) visa to the applicant, a Malaysian citizen. The applicant had been living in Australia since August 2015 and had enrolled in various business courses, but had failed to complete any of them, with the exception of two general English courses and a Certificate III in Commercial Cookery for which he did not receive a completion certificate. The Tribunal considered 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 for student visas.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Subclass 500 (Student) visa, specifically the genuine temporary entrant requirement. This involved assessing whether the applicant genuinely intended to stay in Australia temporarily for the purpose of study, or if the student visa program was being used to maintain ongoing residence in Australia. The Tribunal was required to consider the applicant's circumstances in his home country and in Australia, the value of the proposed course to his future, and his immigration history, as outlined in Direction No. 69.

The Tribunal reasoned that the applicant's prolonged stay in Australia since 2015, coupled with his poor academic record and failure to complete his enrolled courses, indicated that he was not a genuine applicant for entry and stay as a student. Instead, his actions suggested an intention to use the student migration program to maintain ongoing residence in Australia. The Tribunal noted that while it was bound to consider the Minister's Direction, it retained its independence to reach its own conclusions on the merits of the case, referencing previous Federal Circuit Court decisions on the proper approach to such guidelines.

Ultimately, the Tribunal found that the applicant did not satisfy the criteria for the grant of a Subclass 500 (Student) visa. As the applicant did not claim to meet the criteria for a Subclass 590 (Student Guardian) visa, the Tribunal affirmed the decision under review.