Sarakarn (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Student (Temporary) (Class TU) visa, Subclass 500 (Student), made by a citizen of Thailand. The delegate had refused to grant the visa, finding that the applicant was not a genuine applicant for entry and stay as a student, as required by clause 500.212 of Schedule 2 to the Migration Regulations 1994. The applicant sought review of this decision.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 500.212(a) of the Regulations, which requires the applicant to be a genuine applicant for entry and stay as a student, specifically by intending genuinely to stay in Australia temporarily. This assessment was to be conducted in accordance with Direction No. 69, which outlines various factors to consider, including the applicant's circumstances in their home country and Australia, their immigration history, and any other relevant matters.

The Tribunal acknowledged that the applicant had completed several courses in Australia and the specific marketing and communication courses for which the visa was sought. However, the Tribunal was not satisfied that the applicant met the genuine temporary entrant criterion. This conclusion was based on a holistic assessment of the applicant's circumstances, including her tertiary qualifications from Thailand, her extended period of study in Australia across multiple lower-level courses, her significant time spent onshore (95 days over seven years), and concerns regarding the genuineness of her future business plans and the economic incentives to remain in Australia. The Tribunal found inconsistencies in the information provided and concluded that the student visa program was being used to maintain ongoing residence in Australia.

Consequently, the Tribunal affirmed the delegate's decision to refuse the visa. The applicant did not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.