Beresnev (Migration)

This matter concerned an application for a Subclass 500 (Student) visa by a 37-year-old Russian citizen. The applicant had arrived in Australia on a tourist visa in May 2019 and subsequently applied for a student visa. His application was refused by a delegate of the Department, leading him to seek review of that decision before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion of being a "genuine applicant for entry and stay as a student" under clause 500.212 of Schedule 2 to the Migration Regulations 1994. This required the Tribunal to consider, among other things, whether the applicant genuinely intended to stay in Australia temporarily, having regard to his circumstances, immigration history, and any other relevant matters. In assessing this criterion, the Tribunal was obliged to have regard to Direction No. 69, which provides guidance on factors to consider when assessing the genuine temporary entrant criterion.

The Tribunal noted that the applicant had a reasonable academic record in Australia, having completed several English language courses with good attendance and progress. He was enrolled in further studies, a Certificate IV in Teaching English to Speakers of Other Languages, and intended to pursue a Diploma of Teaching English to Speakers of Other Languages. The applicant stated his intention to return to Russia upon completion of his studies to work as an English teacher, supported by a letter from a former Russian employer indicating a potential salary increase upon his return. However, the Tribunal found that the proposed further study was inconsistent with his previous level of education and professional experience, which included a Bachelor's degree in jurisprudence and significant managerial roles in the finance sector. This inconsistency, coupled with the applicant's age and the nature of the proposed studies, led the Tribunal to conclude that the applicant did not satisfy the genuine temporary entrant criterion.

The Tribunal affirmed the delegate's decision to refuse the visa application.