Yap (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for review of a delegate's decision to refuse a Subclass 500 (Student) visa. The applicant sought to challenge the refusal, which was based on the assessment that she was not a genuine temporary entrant.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for being a genuine temporary entrant, as stipulated in clause 500.212 of Schedule 2 to the Migration Regulations 1994. This required the Tribunal to assess whether the applicant genuinely intended to stay in Australia temporarily, considering her circumstances, immigration history, and any other relevant matters, in accordance with Direction No. 69.

The Tribunal noted that the applicant, who was 31 years old, had arrived in Australia on a tourist visa with her husband and subsequently applied for a student visa onshore. She was enrolled in a Diploma of Business course, with the stated intention of returning to Malaysia to expand her husband's tyre business. However, the Tribunal found that the applicant's stated intention to return was undermined by her admission that she would apply for a Bachelor of Business course and remain in Australia if her current review application was successful. Furthermore, her reasons for not studying in Malaysia, citing ethnic discrimination and difficulties in accessing courses in Singapore, were not considered sufficiently compelling. The Tribunal concluded that the applicant had not demonstrated a genuine intention to temporarily stay in Australia.

Consequently, the Tribunal affirmed the delegate's decision not to grant the applicant a Subclass 500 (Student) visa, finding that the criteria for the visa were not met.