Bandaranayake (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a Subclass 500 (Student) visa. The dispute arose when the delegate refused the applicant's visa application, finding that they were not a genuine temporary entrant. The applicant had been residing in Australia since 2010, had made only three trips back to Sri Lanka during that time, and proposed to study a lower-level course, which the delegate considered indicative of an intention to secure ongoing residence rather than temporary study.

The primary legal issue before the Tribunal was whether the applicant genuinely intended to stay in Australia temporarily, as required by clause 500.212(a) of Schedule 2 to the Migration Regulations 1994. This assessment was to be conducted in accordance with Ministerial Direction No. 69, which outlines various factors to be considered, including the applicant's circumstances in their home country and Australia, their immigration history, and the value of the proposed course to their future. The Tribunal also had to consider whether the applicant intended to comply with visa conditions.

The Tribunal affirmed the delegate's decision, finding that the applicant had not satisfied the genuine temporary entrant criterion. The Tribunal noted that the applicant had been in Australia since 2010 with limited returns to their home country and had not demonstrated academic progression since 2012. These factors, taken together with the proposed lower-level course of study, indicated to the Tribunal that the applicant's primary motivation was to secure ongoing residence in Australia, rather than to pursue temporary study. As the primary applicant did not meet the visa requirements, the Tribunal also found that the secondary applicant did not meet the requirements.

Consequently, the Tribunal affirmed the decisions not to grant the applicants Student (Temporary) (Class TU) visas.