Kalongo (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant, a 38-year-old Zimbabwean citizen, who sought review of a decision to refuse her application for a Subclass 500 (Student) visa. The applicant had arrived in Australia in 2010 and had held multiple student visas and bridging visas, with a history of nine cancelled confirmations of enrolment. The core of the dispute revolved around whether the applicant met the "genuine temporary entrant" (GTE) criterion for the student visa.

The legal issues before the Tribunal were to determine if the applicant genuinely intended to stay in Australia temporarily, as required by clause 500.212 of Schedule 2 to the Migration Regulations 1994, and to assess the relevance and application of Direction No. 69, which provides guidance on assessing the GTE criterion. This involved considering the applicant's circumstances in her home country and in Australia, the value of her proposed course of study to her future, and her immigration history.

The Tribunal found that the applicant's extensive history in Australia, exceeding nine years, coupled with her failure to progress academically beyond vocational studies and the cancellation of multiple enrolments, raised concerns about her genuine intention to study temporarily. Furthermore, the Tribunal noted that the applicant's current employment in Australia as an Assistant in Nursing, earning significantly more than she could expect in her home country with her qualifications, presented a substantial incentive to remain in Australia. The Tribunal also considered the applicant's inconsistent submissions and the lack of clear relevance of her completed Workplace Health and Safety courses to her stated career goals, concluding that these factors, when weighed together, did not satisfy the Tribunal that she genuinely intended to stay in Australia temporarily.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Subclass 500 (Student) visa, finding that she did not meet the GTE criterion.