Phoparisuth (Migration)

This matter concerned an application for a Student (Temporary) (Class TU) visa, Subclass 500 (Student), by Ms Phoparisuth as a subsequent entrant, who was in a long-term relationship with the primary student visa holder. The dispute centred on whether Ms Phoparisuth was a genuine applicant for entry and stay as a member of the family unit of the primary student visa holder. The decision was made by Stephen Witts, a Member of the Tribunal.

The legal issue before the Tribunal was whether Ms Phoparisuth satisfied the criteria for a Subclass 500 (Student) visa, specifically clause 500.312 of Schedule 2 to the Regulations, which requires the applicant to be a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa. This involved determining whether Ms Phoparisuth genuinely intended to stay in Australia temporarily, having regard to her circumstances, immigration history, and any other relevant matters, and whether she intended to comply with visa conditions.

The Tribunal considered Ministerial Direction No. 69, which provides guidance on assessing the genuine temporary entrant criterion. This Direction requires consideration of the applicant's circumstances in their home country and potential circumstances in Australia, their immigration history, and any other relevant information. While the Tribunal discussed these considerations with the applicant, it ultimately concluded that the criteria for the visa were not met.

However, the Tribunal remitted the application for reconsideration with a direction that Ms Phoparisuth met the criteria under clause 500.312 of Schedule 2 to the Regulations.