MOHAMMED (Migration)

This matter concerned an appeal by an applicant against the decision to refuse a Subclass 500 (Student) visa. The applicant had arrived in Australia in November 2016 and subsequently made six overseas trips while holding a student visa. The applicant departed Australia on 11 October 2019 and had remained offshore since, despite enrolling in a course that would have required his presence in Australia until March 2020. The Tribunal was required to determine whether the applicant met the criteria for a Subclass 500 (Student) visa, specifically the genuine temporary entrant requirement.

The central legal issue before the Tribunal was whether the applicant was a genuine applicant for entry and stay as a student, as stipulated by clause 500.212 of the Migration Regulations 1994. This required an assessment of whether the applicant genuinely intended to stay in Australia temporarily, considering his circumstances, immigration history, and any other relevant matters. The Tribunal was also guided by Direction No. 69, which outlines factors to consider when assessing the genuine temporary entrant criterion, including the applicant's circumstances in their home country and in Australia, the value of the course to their future, and their immigration history.

The Tribunal found that the applicant had not made genuine progress in his studies, having enrolled in seven courses and completed only one of approximately ten weeks' duration. His academic record indicated a lack of genuine attempt at completion, and he had changed to an unrelated vocational course (hairdressing) after cancelling his previous Master of Professional Accounting course. Furthermore, the applicant had not responded to an invitation to provide further information about his studies and future work plans, and his nominated course was listed as cancelled in the PRISMS system. Given that the applicant had been offshore for over a year with no indication of his intended return, and had not provided evidence of ties to his home country, the Tribunal concluded that he was not a genuine student intending to temporarily stay and study in Australia.

Accordingly, the Tribunal affirmed the delegate's decision not to grant the applicant a Student (Temporary) (Class TU) visa, finding that the criteria for the visa were not met.