KHAENAM (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Subclass 500 (Student) visa. The applicant, a 31-year-old Thai national, had been in Australia since 2014 on various student visas and had completed multiple vocational education courses in diverse and unrelated fields, alongside general English courses. The decision under review affirmed the refusal of her most recent application for a Subclass 500 visa, lodged in July 2021, which proposed study in Certificate IV, Diploma, and Advanced Diploma of Marketing & Communication.

The central legal issue before the Tribunal was whether the applicant satisfied the criteria for being a "genuine applicant for entry and stay as a student," as stipulated by clause 500.212 of Schedule 2 to the Migration Regulations 1994. This clause requires the applicant to genuinely intend to stay in Australia temporarily, considering their circumstances, immigration history, and any other relevant matters. The Tribunal was guided by Direction No. 69, which outlines factors to consider when assessing the genuine temporary entrant criterion, including the applicant's circumstances in their home country and potential circumstances in Australia, the value of the course to their future, and their immigration history.

The Tribunal reasoned that the applicant's lengthy stay in Australia, her pursuit of diverse courses in unrelated fields, and her several changes in career path, coupled with managing a family business in Thailand and maintaining ongoing residence in Australia, did not demonstrate a genuine intention to temporarily stay in Australia for study. The Tribunal found that these circumstances weighed against the applicant's claim to be a genuine temporary entrant. Consequently, the Tribunal concluded that the applicant did not meet the criteria for the grant of a Subclass 500 (Student) visa.

The Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa.