NHAM (Migration)

This matter concerned an appeal by the applicant, NHAM, against a decision of the Administrative Appeals Tribunal (AAT) which affirmed the delegate's refusal to grant a Subclass 500 (Student) visa. The central dispute revolved around whether the applicant met the "genuine temporary entrant" (GTE) criterion as required by clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth).

The AAT was required to determine whether the applicant genuinely intended to stay in Australia temporarily, having regard to their circumstances, immigration history, and any other relevant matters, as guided by Direction No. 69. This involved assessing various factors, including the applicant's travel history, stated intentions regarding future visa applications and employment, and the duration of their stay in Australia.

The Tribunal reasoned that the applicant's prolonged stay in Australia, which was approaching eight years by the completion of their current course, coupled with only one visit to their home country and a stated intention to apply for a work visa if possible, was inconsistent with a genuine temporary stay. The Tribunal also considered the applicant's employer's evidence of offering ongoing employment and the applicant's own statements about wishing to stay in Australia to save funds for a business. On balance, the Tribunal concluded that these factors indicated the applicant was using the student visa program to circumvent the intentions of the migration program, and therefore affirmed the delegate's decision.