Zhao (Migration)

This matter concerned an application for a Subclass 500 (Student) visa. The applicant, Mr Zhao, sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed the refusal of his visa application. The central issue before the Tribunal was whether Mr Zhao was a genuine temporary entrant, as required by clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth).

The Tribunal was required to determine whether Mr Zhao genuinely intended to stay in Australia temporarily, having regard to his circumstances, immigration history, and any other relevant matters. This assessment was to be conducted in accordance with Ministerial Direction No. 69, which outlines specific factors to be considered, including the applicant's circumstances in their home country and Australia, the value of the course to their future, their immigration history, and any other relevant information. The Tribunal was also to consider whether Mr Zhao intended to comply with the conditions of the visa.

In reaching its decision, the Tribunal considered Mr Zhao's extensive history in Australia, commencing in 2009, and the proposed extension of his stay until at least July 2023. The Tribunal found that the length of the proposed stay suggested an intention to remain in Australia rather than to study temporarily. Furthermore, Mr Zhao's evidence was often vague and unresponsive, and he failed to adequately explain multiple course changes, cancellations, and attempts to obtain other visa types, including a Subclass 457 visa. While the Tribunal accepted that Mr Zhao had some family ties to China, it was not satisfied that these, combined with other factors, provided a significant incentive for him to return to his home country, particularly given the prolonged period he had spent in Australia.

The Tribunal concluded that Mr Zhao had not demonstrated that he was a genuine temporary entrant. The Tribunal found that his conduct was more consistent with an intention to extend his stay in Australia by utilising the student visa program, rather than a genuine intention to study temporarily. Accordingly, the Tribunal affirmed the decision to refuse the visa application.