Khan (Migration)

The Administrative Appeals Tribunal considered an application for a Subclass 500 (Student) visa made by Mr Khan, who had arrived in Australia from Pakistan in 2014. The delegate had previously refused his application for a further student visa in March 2017. The applicant's immigration history indicated a series of enrolments in English language courses, vocational education and training in commercial cookery and hospitality, and two attempts at a Bachelor of Business (Accounting), none of which had resulted in the completion of a higher-level bachelor degree.

The primary legal issue before the Tribunal was whether Mr Khan was a "genuine applicant for entry and stay as a student," as required by 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, having regard to his circumstances, immigration history, and any other relevant matters, in accordance with Ministerial Direction 69.

The Tribunal found that Mr Khan had not demonstrated a genuine intention to stay in Australia temporarily. Despite having completed high school and a Bachelor of Commerce in his home country, and having family and business interests there, his study history in Australia since 2014 showed a pattern of incomplete courses, primarily in vocational education and training, with no completed higher-level bachelor degree. The Tribunal considered that his ongoing enrolment in further study, coupled with his inability to complete previous higher education courses, suggested he was content with his current situation in Australia and did not genuinely intend to return home after completing his studies.

Consequently, the Tribunal affirmed the delegate's decision not to grant Mr Khan a Subclass 500 (Student) visa, as he had failed to satisfy the criteria for a genuine temporary entrant.