Majai (Migration)

This matter concerned an appeal by the applicants against the Administrative Appeals Tribunal's decision to affirm the refusal of their Student (Temporary) (Class TU) visas, subclass 500. The primary applicant, a 38-year-old Thai national, had been in Australia since September 2014, with only four brief return trips to Thailand. She had previously completed an accounting certificate in Thailand and worked in accounting before applying for a student visa to undertake a Certificate IV in Business and a Diploma and Advanced Diploma in Leadership and Management. Due to delays, she had since completed the Certificate IV and Diploma and was undertaking a Certificate IV in Kitchen Management, though she had not provided comprehensive evidence of her course progress or completion for any of these courses, save for nine units in the kitchen management course.

The legal issues before the court were whether the applicants met the criteria for a Student visa, specifically concerning the genuine temporary entrant (GTE) requirement under clause 500.212 of Schedule 2 of the Migration Regulations 1994, and whether the secondary applicant met the equivalent criteria under clause 500.312. The court was also required to consider the Minister's Direction No. 69, which provides guidance on assessing the GTE criterion.

The court affirmed the Tribunal's decision, finding that the applicants had not satisfied the GTE criterion. The primary applicant's lengthy onshore stay since 2014, coupled with her pursuit of diploma-level courses in seemingly unrelated fields and the lack of comprehensive evidence of course completion or progress, raised concerns about her genuine intention to temporarily stay in Australia. The court noted that while the Direction was a lawful direction, it was bound to reach its own conclusions on the merits of the case, considering the applicant's circumstances as a whole. The lack of corroborating materials regarding her studies was a significant factor in the decision.

Consequently, the Tribunal affirmed the decisions not to grant the applicants Student (Temporary) (Class TU) visas.