Bobby (Migration)

This matter concerned an application for a Student (Temporary) (Class TU) visa, Subclass 500 (Student), brought before the Administrative Appeals Tribunal. The applicant, a 33-year-old Indian citizen, had arrived in Australia on a tourist visa prior to applying for the student visa. Her initial intention was to undertake a Diploma of Business and a Graduate Diploma of Management, but she subsequently changed her study pathway to an Advanced Diploma of Civil Construction and Design.

The primary legal issue before the Tribunal was whether the applicant met the genuine temporary entrant (GTE) criterion, as stipulated by clause 500.212 of Schedule 2 to the Migration Regulations 1994, and whether her enrolment satisfied clause 500.211. The Tribunal was also required to consider and apply Direction No. 108, issued by the Minister under section 499 of the Migration Act 1958, which provides guidance on assessing the GTE criterion.

The Tribunal found that the applicant was a genuine applicant for entry and stay as a student temporarily. In reaching this conclusion, the Tribunal considered the applicant's circumstances, including her previous academic qualifications and employment history in India, her change in study pathway, and her current progress in the Advanced Diploma of Civil Construction and Design. The Tribunal acknowledged that while the applicant had downgraded her level of education and arrived onshore as a tourist, these factors did not, in themselves, preclude her from meeting the GTE criterion. The Tribunal was satisfied that the applicant met clause 500.212(a) of Schedule 2 to the Regulations.

Accordingly, the Tribunal remitted the application to the Minister for reconsideration, with a direction that the applicant meets the genuine temporary entrant criterion (clause 500.212(a)) and the enrolment criterion (clause 500.211) for a Subclass 500 (Student) visa.