Pham (Migration)

This matter concerned an appeal by Mr. Pham against the decision of the delegate not to grant him a Subclass 500 (Student) visa. Mr. Pham, a 47-year-old Vietnamese citizen, had been in Australia since early 2020 on a student visa that expired on 8 October 2020. His current application was lodged less than two weeks before his previous visa's expiry, raising concerns that he might be using the student visa program to maintain his residence in Australia. Mr. Pham had previously completed a Bachelor of General Business Administration in Vietnam in 2009 and had worked in business operations and sales management roles in Vietnam until late 2019.

The Administrative Appeals Tribunal was required to determine whether Mr. Pham met the criteria for a Subclass 500 (Student) visa, specifically focusing on the genuine temporary entrant (GTE) requirement under clause 500.212 of Schedule 2 of the Migration Regulations 1994. This involved assessing whether Mr. Pham genuinely intended to stay in Australia temporarily, considering his circumstances, immigration history, and any other relevant matters, as well as whether he intended to comply with visa conditions. The Tribunal also had to consider Direction No. 69, issued by the Minister under section 499 of the Migration Act 1958, which provides guidance on assessing the GTE criterion.

The Tribunal found that Mr. Pham had not provided sufficient evidence to satisfy the GTE criterion. His application was lodged shortly before his previous visa expired, and there was no evidence of his study progress or completion. Furthermore, after the Tribunal inquired about his enrolment, he provided an unexplained new enrolment in a different subject area. The Tribunal also noted that Mr. Pham had family members in his home country, which, in the absence of other compelling evidence, did not sufficiently demonstrate a genuine intention to return. The Tribunal concluded that the applicant’s circumstances did not support a genuine intention to temporarily remain in Australia for the purpose of study.

Consequently, the Tribunal affirmed the delegate's decision not to grant Mr. Pham a Subclass 500 (Student) visa, as he had not met the required criteria.