Bernareggi (Migration)

This matter concerned an appeal by an applicant for a Subclass 500 (Student) visa. The applicant had arrived in Australia on a working holiday visa and had remained in Australia for an extended period, making multiple course enrollments that were subsequently cancelled for non-commencement of studies. The core dispute before the Tribunal was whether the applicant genuinely intended to stay in Australia temporarily, as required by the Genuine Temporary Entrant (GTE) criterion under clause 500.212 of the Migration Regulations 1994.

The legal issues before the Tribunal were whether the applicant met the criteria for a Subclass 500 (Student) visa, specifically clause 500.212(a), which requires the applicant to genuinely intend to stay in Australia temporarily. This assessment was to be made having regard to the applicant's circumstances, immigration history, and any other relevant matters, guided by Ministerial Direction 69. The Tribunal also considered whether the applicant intended to comply with visa conditions, as per clause 500.212(b).

The Tribunal reasoned that the applicant's prolonged stay in Australia beyond the initial declared purpose of a one-year holiday, coupled with a history of enrolling in multiple courses that were cancelled for non-commencement, indicated a lack of genuine academic progress and a potential disinclination to return to her home country. The Tribunal noted that the applicant had not returned to Argentina since 2013 and had only travelled to New Zealand during her time in Australia. Furthermore, the information from the Provider Registration and International Students Management System (PRISMS) detailing numerous course cancellations for non-commencement was considered adverse information, which the applicant had been given an opportunity to address. The Tribunal concluded that these factors, when considered holistically under Ministerial Direction 69, did not support a finding that the applicant was a genuine temporary entrant.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa, finding that the criteria for the visa were not met.