Khindey (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking review of a decision to refuse a Subclass 500 (Student) visa. The applicant had a history of visa breaches and a fragmented study record in Australia, which formed the basis of the Department's refusal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a genuine temporary entrant under 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, intended to comply with visa conditions, and if any other relevant matters existed. In making this assessment, the Tribunal was guided by Direction No. 69, which outlines factors to consider, including the applicant's circumstances in their home country and Australia, their immigration history, and the value of the proposed course to their future.

The Tribunal's reasoning focused on the applicant's immigration history and study path. It noted that the applicant had initially come to Australia on a Student (TU 573) visa to study English and a Master of Business degree, but failed to complete either. He then switched to a vocational college, again without completing the course, leading to a visa cancellation. Despite being granted a subsequent Student (TU-500) visa, his enrolment in a Master of Business Administration course was cancelled. The Tribunal found his subsequent enrolment in a Diploma of Hospitality Management also uncompleted, and his proposed Graduate Diploma of Management (Learning) course had an IELTS requirement he did not meet. The Tribunal concluded that the applicant's history demonstrated a lack of genuine intention to pursue a coherent course of study and a pattern of non-completion, which cast doubt on his genuine temporary entrant status.

The Tribunal affirmed the delegate's decision to refuse the visa, finding that the applicant had not satisfied the criteria for a genuine temporary entrant.