Ali (Migration)

This matter concerned an appeal by an applicant for a Student (Temporary) (Class TU) visa, Subclass 572 Vocational Education and Training Sector, against the refusal of their visa application. The applicant sought review of the delegate's decision that they were not a genuine temporary entrant, but rather were using the student visa program to maintain residence in Australia. The Administrative Appeals Tribunal considered the applicant's circumstances in light of Ministerial Direction No. 53.

The primary legal issue before the Tribunal was whether the applicant met the criteria for being a genuine student and a genuine temporary entrant. This required the Tribunal to conduct a fresh assessment of the applicant's circumstances, paying particular regard to the factors outlined in Ministerial Direction No. 53, which include the applicant's personal circumstances, the value of their chosen course to their future, their immigration history, their incentive to remain in or return to their home country, and whether they are using the student visa program for ongoing residence.

The Tribunal noted that the applicant had been put on notice of the issues concerning their genuine temporary entrant status, both in the primary decision and in the hearing invitation, which requested a statement addressing the Direction 53 factors. The applicant did not provide such a statement. While the applicant's agent provided a letter suggesting the applicant would return home to support aging parents, the Tribunal found this did not address all the issues in Direction 53. The applicant was enrolled in an Advanced Diploma of Hospitality Management until January 2019, but failed to provide evidence of past studies when requested, although some past evidence had been provided to the Department. The Tribunal considered the applicant's enrolment history and the lack of a comprehensive response to the Direction 53 issues.