Unay (Migration)

The Administrative Appeals Tribunal (AAT) considered an appeal by an applicant for a Subclass 500 (Student) visa. The applicant, who had previously entered Australia on a tourist visa and later applied for a student visa, was undertaking a Diploma of Community Service. The core of the dispute revolved around whether the applicant genuinely intended to remain in Australia temporarily, as required by clause 500.212 of the Migration Regulations 1994 and Ministerial Direction 69.

The Tribunal was required to determine if the applicant met the criteria for being a genuine temporary entrant. This involved assessing various factors outlined in Ministerial Direction 69, including the applicant's circumstances in her home country (the Philippines), her potential circumstances in Australia, the value of her chosen course of study to her future, and her immigration history. Specific considerations included her ties to the Philippines, such as her mother's property and the expectation that she would care for her mother upon her return, as well as her study choices in Australia, which were at a lower level and in a different field than her previous university degree.

In its reasoning, the Tribunal acknowledged that Ministerial Direction 69 provides guidance rather than a checklist, and that a holistic approach is necessary. The Tribunal noted that the applicant had not completed any courses since arriving in Australia and had returned to the Philippines during the COVID-19 pandemic, only returning to commence her current course in April 2021. While the applicant stated her intention to return to the Philippines to care for her mother and inherit property, the Tribunal found that the matter should be remitted for reconsideration. The Tribunal directed that the applicant met the criteria for being a genuine temporary entrant under clause 500.212.