Sun (Migration)

The Administrative Appeals Tribunal considered an application for a Subclass 500 (Student) visa. The applicant, who had arrived in Australia as a guardian to a high-school child, sought to have a decision affirmed that she did not meet the criteria for the visa. The applicant's ability to depart Australia had been impacted by COVID-19 restrictions, and while she completed an English course, she had not undertaken further study relevant to her business in China, nor had she adequately explained the relevance of vocational courses to her future.

The primary legal issue before the Tribunal was whether the applicant satisfied the genuine temporary entrant (GTE) criterion, as stipulated by clause 500.212 of Schedule 2 to the Migration Regulations 1994 and guided by Direction No. 108. This criterion requires an applicant to demonstrate a genuine intention to stay in Australia temporarily, considering their circumstances in their home country and Australia, their immigration history, and any other relevant matters. For minors, the intentions of a parent or guardian are also considered.

The Tribunal reasoned that while the applicant had established ties to her home country, including a business and family members, her stated primary reason for studying in Australia was to care for her son, who was attending university there. This intention to remain in Australia primarily to look after her son weighed against her satisfying the GTE criterion. The Tribunal also noted the lack of a clear explanation regarding the relevance of the vocational courses to her business in China, further undermining the genuineness of her temporary stay for study purposes.

Consequently, the Tribunal concluded that the applicant did not meet the criteria for the grant of a Subclass 500 (Student) visa. The decision under review, which refused the visa, was therefore affirmed.