Cali (Migration)

This matter concerned an application for a Student (Temporary) (Class TU) visa, Subclass 500, made by an Italian citizen. The applicant, who was 29 years old, had previously held a working holiday visa and a visitor visa before obtaining his first student visa. Under that initial student visa, he completed an English for academic purposes course, a Certificate IV, and a Diploma in Building and Construction. The application under review was initially for a Certificate III in Carpentry, but approximately one month after lodging the application, the applicant changed his study plans to a package of automotive courses with a proposed completion date in March 2024. The Administrative Appeals Tribunal (AAT) considered the applicant's circumstances, immigration history, and other relevant matters.

The primary legal issue before the Tribunal was whether the applicant was a "genuine temporary entrant" as required by clause 500.212 of Schedule 2 to the Migration Regulations 1994. This involved assessing whether the applicant genuinely intended to stay in Australia temporarily, having regard to his circumstances, immigration history, and any other relevant matters, in accordance with Direction No. 69 issued by the Minister under section 499 of the Migration Act 1958. The Tribunal also considered the requirement under clause 500.211 that the application be founded on evidence of enrolment in a course of study.

The Tribunal acknowledged that it was bound to consider the Minister's Direction but was required to reach its own conclusions independently. The applicant's change in study plans, from carpentry to automotive courses, was noted as a significant shift, but the Tribunal accepted the applicant's submission that this new pathway was more aligned with his prior study and work experience in Italy. The Tribunal also considered the applicant's ties to his home country, including family and friends, and noted that his brother was in Australia on a temporary visa, with no community ties established in Australia. The Tribunal found that the factors were finely balanced and that the benefit of the doubt should be given to the applicant.

Ultimately, the Tribunal was satisfied that the applicant was a genuine applicant for entry and stay as a student temporarily, meeting clause 500.212(a). Consequently, the Tribunal remitted the application to the Minister for reconsideration of the remaining criteria for the Subclass 500 (Student) visa, with a direction that the applicant met the genuine temporary entrant criterion.