Lim (Migration)

The Administrative Appeals Tribunal considered an application for review by an applicant who had been refused a Subclass 500 (Student) visa. The applicant, a 27-year-old South Korean male, had previously held several temporary visas in Australia, including an ETA, a Training visa, and a Working Holiday visa, before applying for the Student visa to undertake business administration and leadership and management courses. The delegate of the Minister had refused the visa application on 13 November 2019.

The central legal issue before the Tribunal was whether the applicant satisfied the genuine temporary entrant criterion under clause 500.212(a) of Schedule 2 to the Migration Regulations 1994. This criterion requires the applicant to genuinely intend to stay in Australia temporarily, considering their circumstances, immigration history, and any other relevant matters. The Tribunal was also required to have regard to Direction No. 69, which provides guidance on assessing this criterion by outlining various factors related to the applicant's circumstances in their home country and potential circumstances in Australia, the value of the proposed course, and their immigration history.

The Tribunal found that the applicant met the genuine temporary entrant criterion. While the applicant had a history of holding successive temporary visas in Australia, the Tribunal concluded that this history, when considered alongside the applicant's intention to study specific business administration and leadership and management courses, did not preclude him from satisfying the genuine temporary entrant requirement. The Tribunal determined that the applicant had demonstrated a genuine intention to study in Australia temporarily.

Consequently, the Tribunal remitted the application for the Subclass 500 (Student) visa to the Minister for reconsideration. The remittal was made with the direction that the applicant had satisfied the genuine temporary entrant criterion, allowing the Minister to consider the remaining criteria for the visa.