Teo (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Subclass 500 (Student) visa. The applicant sought to satisfy the primary criteria for the visa as a dependent of his wife, who held a student visa. The core of the dispute revolved around whether the applicant genuinely intended to stay in Australia temporarily, as required by clause 500.213(a) of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine if the applicant met the genuine temporary entrant criterion. This involved assessing the applicant's circumstances, immigration history, and any other relevant matters, in accordance with Direction No. 69, which provides guidance on assessing this criterion for student visa applications. The Direction emphasizes that the specified factors are not a checklist but are intended to guide decision-makers in considering the applicant's circumstances as a whole.

In its reasoning, the Tribunal noted that the applicant had not returned to his home country of Malaysia since arriving in March 2018 and had not seen his daughter since she was one and a half years old. While his wife had travelled back to Malaysia on several occasions, the applicant had not done so because he had not held a visa permitting his return. The Tribunal also considered the applicant's explanation for not being included as a dependent on his wife's initial application, which was that he initially intended only to visit Australia temporarily to help his wife settle, but then realised she would need his ongoing support. Given these findings, the Tribunal concluded that the applicant had not satisfied the genuine temporary entrant criterion.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Subclass 500 (Student) visa. The applicant did not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.