1516653 (Migration)

The Administrative Appeals Tribunal reviewed a decision not to grant the applicant a Student (Temporary) (Class TU) visa. The applicant had initially been granted a Student visa (TU 573) offshore and arrived in Australia in May 2013. He applied for a Subclass 572 visa in September 2015 to undertake a Diploma of Systems Analysis and Design, having previously been enrolled in an Advanced Master of Professional Accounting course at UWS. The applicant's circumstances had changed due to a workplace accident and the death of his grandmother, leading to deferrals and ultimately the cancellation of his enrolment at UWS. He expressed a desire to complete his accounting degree rather than the diploma, claiming he had been misled by migration agents and was a genuine student who did not intend to remain in Australia permanently.

The primary legal issue before the Tribunal was whether the applicant met the "genuine temporary entrant" criterion as stipulated in clause 572.223 of the Migration Regulations 1994. This criterion requires the Minister to be satisfied that the applicant genuinely intends to stay in Australia temporarily, considering the applicant's circumstances, immigration history, and any other relevant matters. The Tribunal was directed to consider Direction No. 53, which outlines specific factors to be assessed, including the applicant's circumstances in their home country, potential circumstances in Australia, the value of the course to their future, their immigration history, and any other relevant information.

The Tribunal found that the applicant did not meet the essential requirement of clause 572.223. It noted that this criterion, with the exception of Subclass 580, is identical across other TU visa subclasses. The Tribunal concluded that the applicant did not satisfy the prescribed criteria for a student visa. Furthermore, there was no material before the Tribunal to suggest the applicant met the criteria for a Subclass 580 (Student Guardian) visa. Consequently, the Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa.