Yen (Migration)

This matter concerned an application for review of a decision not to grant the applicant a Subclass 500 (Student) visa. The applicant, who had previously entered Australia on a tourist visa, sought to demonstrate that they were a genuine applicant for entry and stay as a student, as required by clause 500.212 of Schedule 2 to the Migration Regulations 1994. The decision under review was made by the Administrative Appeals Tribunal, with Member Mark Bishop presiding.

The primary legal issue before the Tribunal was whether the applicant genuinely intended to stay in Australia temporarily, as contemplated by clause 500.212(a) of the Regulations. In assessing this, the Tribunal was required to have regard to Direction No. 69, which outlines various factors to consider, including the applicant's circumstances in their home country and in Australia, their immigration history, and the value of the proposed course of study to their future. The Tribunal was also to consider any other relevant matters, treating the specified factors not as a checklist but as guidance for a holistic assessment.

The Tribunal considered the applicant's history, noting that they had completed high school in Malaysia in 2007 and worked in various semi-skilled occupations until 2016. The applicant had only previously entered Australia on a tourist visa in August 2016 and had not returned to Malaysia since. While in Australia, the applicant enrolled in English language courses and then Diploma level courses in Leadership and Management. The Tribunal found it significant that the applicant had enrolled in a package of courses shortly before the expiration of their previous visa and had not returned to their home country. Coupled with the applicant's stated annual living expenses in Australia and the fact that they had not worked in Australia (and were not permitted to do so), the Tribunal inferred that the applicant's initial purpose for travel was not solely for a holiday and that they had planned to extend their stay beyond the tourist visa period. The Tribunal reasoned that if the applicant's genuine intention was to study, they could have applied for a student visa offshore.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Subclass 500 (Student) visa, concluding that the applicant had not satisfied the genuine temporary entrant criterion.