PHAN (Migration)

The Administrative Appeals Tribunal considered an application for a Subclass 500 (Student) visa by an applicant who is a citizen of Vietnam. The applicant had enrolled in a Diploma of Program Management and an Advanced Diploma of Program Management, and had successfully completed the Diploma course. The core of the dispute concerned whether the applicant met the criteria for a genuine applicant for entry and stay as a student, as stipulated in clause 500.212 of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine if the applicant genuinely intended to stay in Australia temporarily, and if they intended to comply with the conditions of the visa. In assessing the genuine temporary entrant criterion, the Tribunal was guided by Direction No. 108, which outlines factors to be considered, 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 noted the Federal Court's interpretation in *Kumar v Minister for Immigration and Border Protection* that while a decision maker must consider each factor in the Direction, there is no jurisdictional obligation to make a finding on every factor if it is not material to the case.

The Tribunal found that the applicant had satisfied clause 500.212 of the Regulations, specifically that they were a genuine applicant for entry and stay as a student. Given this finding, the Tribunal remitted the application to the Minister for reconsideration of the remaining criteria for the Subclass 500 (Student) visa. The Tribunal directed that the applicant met the criteria under clause 500.212.