1507614 (Migration)

This matter concerned an application for a student visa by the applicant, which was refused by the delegate on the basis that the applicant was not a genuine temporary entrant. The applicant appealed this decision to the Migration Review Tribunal. The Tribunal was required to consider whether the applicant met the criteria for a genuine temporary entrant, having regard to Ministerial Direction No. 53, which outlines various factors to be assessed, including the applicant's circumstances, the value of their course to their future, their immigration history, their incentive to remain in Australia or return home, and whether they are using the student visa program to maintain residence in Australia.

The Tribunal was tasked with undertaking a fresh assessment of the applicant's circumstances and the issues raised in Ministerial Direction No. 53 to determine if the applicant was a genuine student with a genuine intention to stay in Australia temporarily. The applicant initially claimed not to have fully understood the primary decision, but this was clarified during the hearing. The Tribunal noted the unusual circumstance of seeking a review without fully understanding the decision being reviewed, especially given prior notification of the issues to be considered. The Tribunal also considered a submission from the applicant's agent, which it afforded little weight due to containing incorrect and misleading statements, and failing to address the core issues of Ministerial Direction No. 53.

The Tribunal found several statements in the agent's submission to be misleading. For instance, the claim that the applicant sought a visa for only three months, despite a longer course duration, and the assertion of having completed over 80% of enrolled courses, which was not met in relation to the applicant's current principal course, the Diploma of Hospitality. Furthermore, the explanation for ceasing work in the disability care sector due to a knee injury was deemed misleading, as the applicant was aware of the condition prior to commencing studies in that field. The Tribunal concluded that the applicant did not satisfy the genuine temporary entrant requirement.