Calma (Migration)

The Administrative Appeals Tribunal considered the applications of a 52-year-old Filipino citizen and his 49-year-old spouse for Student (Temporary) (Class TU) visas, subclass 500. The primary applicant had arrived in Australia on a visitor visa and subsequently applied for the student visa, remaining in Australia since that time. The dispute centred on whether the applicants met the criteria for a genuine temporary entrant and genuine student.

The Tribunal was required to determine if the primary applicant was a genuine applicant for entry and stay as a student, considering his circumstances, immigration history, and any other relevant matters, as well as whether he intended to comply with visa conditions. Additionally, the Tribunal had to assess if the secondary applicant, as a family unit member, was a genuine applicant for entry and stay as a student, with similar considerations regarding temporary stay and compliance with visa conditions. The assessment was to be conducted in light of Direction No. 69, which provides guidance on assessing the genuine temporary entrant criterion for student visa applications.

The Tribunal reasoned that while the primary applicant had completed some units of study towards a Certificate III and Certificate IV in Individual Support, and a Diploma of Community Services, his previous qualifications in electrical engineering and his work history as administrative staff and a garment business owner were in a different field. The fact that he had been in Australia since March 2019 and had not yet completed his intended four-and-a-half-year course raised concerns about the student visa program being used to maintain residence. The Tribunal noted the applicant's land ownership and family ties in the Philippines as factors potentially indicating an incentive to return, but these were to be weighed against other circumstances. The Tribunal found that the delegate's decision had not adequately considered all relevant factors, particularly in relation to the genuine temporary entrant criterion.

Consequently, the Tribunal remitted the applications for Student (Temporary) (Class TU) visas for reconsideration. The direction was that the first applicant met the criteria for a Subclass 500 (Student) visa, and by extension, the second applicant's application also required reconsideration.