Nguyen (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Subclass 500 (Student) visa. The applicant, a 25-year-old Vietnamese citizen, had arrived in Australia in September 2013 and had a history of enrolling in and cancelling various courses, including a Bachelor of Accounting for non-commencement and a Bachelor of Business for non-payment of fees. While some lower-level qualifications had been completed, the applicant had not undertaken any study for a significant period between October 2016 and August 2017, and her most recent course was not completed.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a genuine temporary entrant (GTE) under Direction No. 69, issued by the Minister for Immigration and Border Protection. This involved assessing the applicant's circumstances in her home country and in Australia, the value of her proposed course of study to her future, and her immigration history. The Tribunal was required to apply the principles outlined in Direction No. 69, which mandates a holistic assessment of these factors to determine if the applicant genuinely intended to stay in Australia temporarily.

The Tribunal reasoned that the applicant's overall lack of academic progress, the significant length of time she had spent onshore without completing a substantial qualification, and her vague and inconsistent future plans indicated that she had cultivated strong ties to Australia. Coupled with previous non-compliance with visa conditions, such as non-payment of fees, and a substantial period of non-enrolment, these factors weighed against a finding that she genuinely intended to temporarily remain in Australia. The Tribunal noted that while the applicant was undertaking further study, her history suggested the student visa program might be used to circumvent the migration program's intentions.

Consequently, the Tribunal found that the applicant did not satisfy the genuine temporary entrant criterion for the grant of a Subclass 500 (Student) visa. As the applicant did not claim to meet the criteria for any other visa class, the Tribunal affirmed the delegate's decision not to grant the visa.