Lok (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning a Subclass 500 (Student) visa application made by a Malaysian citizen. The applicant had arrived in Australia on a visitor visa in September 2017 and was subsequently granted a student visa that expired in March 2020. The application under review was lodged in the same month, raising concerns for the Tribunal about the applicant's true intentions and whether the student visa program was being used to maintain residence in Australia. The applicant had completed high school in Malaysia in 2015 and worked as an accountant before coming to Australia.

The primary legal issue before the Tribunal was whether the applicant met the "genuine temporary entrant" criterion for a Subclass 500 (Student) visa, as guided by Direction No. 69. This criterion requires an assessment of the applicant's circumstances, immigration history, and any other relevant matters to determine if they genuinely intend to stay in Australia temporarily. The Tribunal was required to consider the applicant's lengthy stay in Australia, the multiple English language courses he had undertaken, and apparent delays or incomplete qualifications in these courses.

The Tribunal noted that while it was bound to consider Direction No. 69, it was an independent statutory body that must reach its own conclusions. The applicant had initially sought to undertake English courses and provided evidence of partial completion of Certificate II, III, and IV in EAL. However, the Tribunal was troubled by the apparent failure to complete the Certificate III and IV, although the applicant submitted that changes to the ELICOS program and document delays contributed to this. The Tribunal also considered the applicant's employment history in Malaysia and the timing of his visa application, which occurred concurrently with the expiry of his previous student visa.

Given the findings, the Tribunal remitted the application for a Subclass 500 (Student) visa to the Minister for reconsideration. The Tribunal directed that the applicant be taken to meet Clause 500.212(a) of Schedule 2 to the Regulations, which pertains to the genuine temporary entrant criterion.