Shan (Migration)

This matter concerned an application for review of a decision by the Minister for Home Affairs to refuse to grant Student (Temporary) (Class TU) visas to Ms. Tong Shan and her husband. The applicants had applied for the visas on 13 September 2018, with Ms. Shan seeking to undertake study in Australia. The delegate refused the visas on the basis that Ms. Shan did not satisfy the genuine temporary entrant criterion under clause 500.212(a) of Schedule 2 to the Migration Regulations 1994. The Administrative Appeals Tribunal (AAT) heard the matter in Melbourne.

The primary legal issue before the Tribunal was whether Ms. Shan genuinely intended to stay in Australia temporarily as a full-time student, as required by clause 500.212(a) of the Migration Regulations. This required the Tribunal to consider various factors outlined in Direction No. 69, including the applicant's circumstances in her home country and Australia, her immigration history, and any other relevant matters. The Tribunal also had to determine if the secondary applicant, Ms. Shan's husband, met the criteria for the visa, which depended on Ms. Shan satisfying the primary criteria.

The Tribunal affirmed the delegate's decision, finding that Ms. Shan had not demonstrated a genuine intention to stay in Australia temporarily. The Tribunal noted that Ms. Shan, a 35-year-old Chinese national, had been in Australia since March 2010, holding various student and temporary visas. Her academic history was extensive, including a Master of Commerce, yet she was seeking to undertake an Advanced Diploma of Leadership and Management, a qualification at a lower level on the Australian Qualifications Framework than her Master's degree. The Tribunal considered this progression to a lower-level qualification, after an extended period of study, suggested her motivation was to maintain ongoing residence in Australia rather than genuine study. Furthermore, her financial circumstances in Australia, including significant deposits and property ownership, along with limited travel back to her home country, were seen as incentives to remain in Australia. The Tribunal concluded that, on balance, Ms. Shan was using the student visa program as a mechanism to maintain ongoing residence.

Consequently, the Tribunal was not satisfied that Ms. Shan met the genuine temporary entrant criterion under clause 500.212(a). As Ms. Shan did not meet the primary criteria for the grant of a Student visa, her husband, as a secondary applicant, also did not meet the relevant criteria. Accordingly, the Tribunal affirmed the decisions not to grant the Student (Temporary) (Class TU) visas to both applicants.