Rathor (Migration)

This matter concerned an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant Student (Temporary) (Class TU) Subclass 500 visas to Mr Khurram Rathor, Mrs Sana Anjum, and Miss Moomal Rathor. The applicants, citizens of Pakistan, sought review of the refusal decisions made on 26 September 2016. The primary applicant, Mr Rathor, was the main applicant, and his wife and daughter were secondary applicants whose visa outcomes were contingent on his. The delegate refused the visas because they were not satisfied that Mr Rathor met the primary criteria, specifically the genuine applicant criterion under clause 500.212 of the Migration Regulations 1994.

The Administrative Appeals Tribunal (AAT) was required to determine whether Mr Rathor met the enrolment criterion in clause 500.211 and the genuine applicant criterion in clause 500.212 of the Migration Regulations. The genuine applicant criterion involves three elements: demonstrating that the applicant is genuine in their application for entry and stay as a student, that they genuinely intend to stay in Australia temporarily, and that they intend to comply with visa conditions. The Tribunal also had regard to Ministerial Direction No. 69, which elaborates on the regulatory criteria by requiring consideration of the applicant's circumstances in their home country, potential circumstances in Australia, the value of the proposed course of study, and their immigration history. Furthermore, the Tribunal was required to consider the principles established in *Kumar v Minister for Immigration and Border Protection* [2020] FCFCA 15 regarding the assessment of these factors.

The Tribunal found that Mr Rathor met the enrolment criterion as he had enrolled in a Graduate Diploma of Management of Applied Learning commencing on 5 July 2020. The critical issue was whether he met the genuine temporary entrant criterion. While the Tribunal was satisfied that Mr Rathor met the first and third elements of this criterion, it was not satisfied that he genuinely intended to stay in Australia temporarily. The Tribunal considered Mr Rathor's stated intentions, but also objective factors. It noted that Mr Rathor had been in Australia for 14 years, and his daughter was born in Australia, which would grant her automatic citizenship in four years if she remained. The Tribunal found that Mr Rathor had a strong incentive to remain in Australia due to the significant disparity in quality of life and economic development between Australia and Pakistan. Furthermore, the Tribunal was concerned by Mr Rathor's lengthy history of student visa applications, suggesting a pattern of seeking ongoing residence rather than temporary study. The Tribunal also found that his recent enrolment in the Graduate Diploma appeared to be a hasty decision made in anticipation of the hearing, rather than a genuine desire to study, particularly given his previous qualifications and the lack of a clear explanation for the course's value to his specific needs.

The Tribunal affirmed the delegate's decisions to refuse the visa applications.