Ma (Migration)

The applicant, Ma, sought review of a decision not to grant him a Subclass 500 (Student) visa as a subsequent entrant. He was applying as a member of the family unit of a person who already held a Subclass 500 visa. The Administrative Appeals Tribunal (AAT) was required to determine whether Ma satisfied the secondary criteria for the visa, specifically clause 500.317, which incorporated Public Interest Criterion 4013.

The central legal issue was whether Ma was affected by a risk factor under PIC 4013, which would necessitate him satisfying further conditions for the visa grant. This risk factor arises if a previously held visa was cancelled under section 116 of the Migration Act for specific reasons. Ma had previously held a Subclass 573 (Student) visa, which was cancelled on 19 December 2018 due to a breach of condition 8202, specifically for not being enrolled in a relevant course. This subclass and the condition breached were specified in the Regulations as giving rise to the risk factor under PIC 4013.

The Tribunal reasoned that because Ma's previous Subclass 573 visa was cancelled for non-enrolment, he was affected by the risk factor contemplated by subclause 4013(2)(b) of PIC 4013. Consequently, to satisfy PIC 4013, Ma was required to meet the conditions outlined in subclause 4013(1)(a) or (b). The Tribunal found that the applicant had not provided evidence to satisfy these conditions, nor did he claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

Accordingly, the Tribunal affirmed the decision not to grant Ma a Subclass 500 (Student) visa, as he did not meet the necessary visa criteria.