Sham (Migration)

This matter concerned an application for a Student (Temporary) (Class TU) visa, subclass 500, brought by a 24-year-old student from Hong Kong. The applicant had been studying in Australia since 2010, successfully completing several courses, including English, foundation studies, a diploma of health sciences, and a Bachelor of Exercise and Sports. At the time of the decision, the applicant was undertaking a Bachelor of Nursing and had demonstrated satisfactory academic progress. The primary dispute before the Tribunal was whether the applicant met the criteria for being a genuine temporary entrant.

The legal issue before the Tribunal was to determine if the applicant was a "genuine applicant for entry and stay as a student" under clause 500.212 of Schedule 2 to the Migration Regulations. This clause requires consideration of whether the applicant genuinely intends to stay in Australia temporarily, having regard to their circumstances and immigration history, and whether they intend to comply with visa conditions. The Tribunal also had to consider any other relevant matters.

The Tribunal found that the applicant had demonstrated satisfactory academic progress and intended to return to Hong Kong to pursue a career in nursing. The applicant explained that the nursing course in Australia was shorter than in Hong Kong, and that upon completion, he intended to undertake further exams in Hong Kong for registration. The Tribunal noted the applicant's stated intention to return to Hong Kong and pursue professional opportunities there, which weighed in favour of him being a genuine temporary entrant.

Consequently, the Tribunal remitted the application for the visa to the Minister for reconsideration, with a direction that the applicant met the criteria under clause 500.212 of Schedule 2 to the Regulations.