Khrongwiriyapap (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant, a citizen of Thailand, who sought review of a decision to refuse her application for a Subclass 500 (Student) visa. The applicant had previously studied in Australia, completing a Bachelor of Commerce degree. Following this, she obtained a Graduate Work Scheme visa with the intention of working as an accountant but was unable to secure such employment. She subsequently decided to pursue a career as a chef and enrolled in commercial cookery and hospitality courses. The Department of Immigration and Border Protection refused her subsequent student visa application, leading to the review by the Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a Subclass 500 (Student) visa, specifically the requirement to be enrolled in a registered course of study at the time of the decision (cl.500.211) and the criterion of being a genuine temporary entrant (cl.500.212). The Tribunal noted that while the delegate's decision focused on the genuine temporary entrant criterion, the enrolment criterion had also become relevant and ultimately determinative during the hearing.

The Tribunal found that the applicant did not satisfy the enrolment criterion under cl.500.211, as she confirmed during the hearing that she was not enrolled in a course of study at that time and had no intention to enrol in further courses. Consequently, the Tribunal concluded that it was not strictly necessary to consider the genuine temporary entrant criterion. However, in fairness, the Tribunal briefly addressed cl.500.212, noting that the applicant's abrupt change of career path to a field unrelated to her previous studies, and at a lower academic level, along with her completion of the proposed courses before the hearing, were factors that would have warranted scrutiny under Direction No. 69 regarding the genuine temporary entrant assessment.

Given the failure to meet the enrolment criterion, the Tribunal affirmed the decision under review. The applicant did not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Therefore, the Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa.