Tan (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by a Malaysian male, aged 32, who sought review of a decision to refuse him a Subclass 500 (Student) visa. The applicant had entered Australia on a Tourist visa and subsequently applied for the student visa to undertake a Certificate III and Certificate IV in Business. The primary issue before the Tribunal was whether the applicant met the criteria for a genuine temporary entrant.

The Tribunal was required to determine if the applicant genuinely intended to stay in Australia temporarily as a full-time student, as stipulated by clause 500.212 of Schedule 2 to the Migration Regulations 1994. This assessment involved considering the applicant's circumstances in his home country and potential circumstances in Australia, the value of the proposed course to his future, and his immigration history, in accordance with Direction No. 69 issued under section 499 of the Migration Act 1958.

In its reasoning, the Tribunal noted that Direction No. 69 provides guidance on assessing the genuine temporary entrant criterion, emphasizing that specified factors should not be treated as a checklist but rather as a guide to considering the applicant's circumstances holistically. The Tribunal found that the applicant did not satisfy the criteria for the grant of the visa, concluding that the student visa program was being used to maintain ongoing residence in Australia. Consequently, the Tribunal affirmed the delegate's decision not to grant the visa.