Tung (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a Subclass 500 (Student) visa. The applicant, a 32-year-old Malaysian citizen, had arrived in Australia on a tourist visa in July 2017 and had not departed since. She subsequently applied for a student visa to undertake commercial cookery and hospitality management courses, with a prospective completion date in October 2019. The delegate had refused to grant the visa, a decision the applicant sought to have reviewed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Subclass 500 (Student) visa, specifically the genuine temporary entrant (GTE) criterion. This involved assessing whether the applicant genuinely intended to stay in Australia temporarily for the purpose of study, or if the student visa was being used to maintain ongoing residence in Australia. The Tribunal was also bound to consider and apply Direction No. 69, issued by the Minister under section 499 of the Migration Act 1958, which provides guidance on assessing the GTE criterion.

The Tribunal noted that while it was bound by the Direction, it was an independent statutory body required to reach its own conclusions on the merits of the case. In assessing the GTE criterion, the Tribunal found a significant lack of evidence regarding the applicant's academic progress since her application in October 2017. There was no information to confirm whether she had maintained her enrolments or engaged with her proposed courses. Furthermore, the applicant had been in Australia since July 2017, with an unclear status between the expiry of her tourist visa and her student visa application. The Tribunal concluded that, given the absence of evidence demonstrating genuine engagement with her studies and the prolonged period of onshore presence without clear academic progress, the applicant had not satisfied the GTE criterion.

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