Lee (Migration)

The Administrative Appeals Tribunal (AAT) considered an appeal by an applicant for a Subclass 500 (Student) visa, who had been refused the visa on the grounds that she was not a genuine temporary entrant. The applicant and her husband had entered Australia on visitor visas and subsequently applied for student visas, with the applicant intending to undertake a Diploma in Remedial Massage and an Advanced Diploma of Business.

The primary legal issue before the Tribunal was whether the applicant genuinely intended to stay in Australia temporarily, as required by clause 500.212 of Schedule 2 to the Migration Regulations 1994. This assessment was to be conducted in accordance with Direction No. 69, which outlines various factors to be considered, including the applicant's circumstances in her home country and Australia, her immigration history, and the value of the proposed course to her future.

The Tribunal found that the applicant had not satisfied the genuine temporary entrant criterion. It noted that the applicant and her husband had stated an intention to return to Taiwan upon completion of their studies to take up employment, yet they had not provided any explanation regarding the status of this employment offer or their current intentions. The Tribunal gave weight to the applicant's successful completion of her previously stated academic objectives and her subsequent enrolment in further studies, which raised concerns that the primary purpose of the current enrolment was to maintain residence in Australia. Furthermore, the Tribunal considered it improbable that the applicants would leave two young children in Taiwan without significant prior planning, suggesting a potential lack of candour in their initial representations as visitors.

Consequently, the Tribunal affirmed the decision to refuse the visa. As the primary applicant failed to meet the requirements for a student visa, the Tribunal also found that the secondary applicant, her husband, did not meet the criteria under clause 500.311, which requires the applicant to be a member of the family unit holding a student visa. The Tribunal therefore affirmed the decisions not to grant the applicants Student (Temporary) (Class TU) visas.