Da Silva Moura (Migration)

The Administrative Appeals Tribunal (AAT) reviewed a decision concerning a Brazilian citizen, Ms. Da Silva Moura, who applied for a Subclass 500 (Student) visa. Ms. Da Silva Moura had arrived in Australia on a tourist visa and subsequently applied for the student visa to undertake an English course. The delegate had refused her application, finding she was not a genuine temporary entrant.

The primary legal issue before the Tribunal was whether Ms. Da Silva Moura met the genuine temporary entrant criterion under clause 500.212(a) of the Migration Regulations 1994. This involved assessing her circumstances in her home country and in Australia, her immigration history, and any other relevant matters, in accordance with Direction No. 69 issued by the Minister. The Tribunal was required to consider these factors holistically and independently, not as a mere checklist.

The Tribunal noted several factors that presented a complex picture. While Ms. Da Silva Moura had a history of employment in Brazil and had provided plausible reasons for studying English in Australia rather than her home country, the Tribunal expressed concern about her arrival on a tourist visa and subsequent application for a student visa shortly thereafter, finding it difficult to accept the level of planning involved. However, the Tribunal also acknowledged that her circumstances were closely balanced, that she was enrolled in a course and nearing completion, and that her previous study history was plausible.

Ultimately, the Tribunal was satisfied that Ms. Da Silva Moura met the genuine temporary entrant criterion. Consequently, the Tribunal remitted the application for the Subclass 500 (Student) visa to the Minister for reconsideration, with a direction that the applicant satisfied clause 500.212(a) of Schedule 2 to the Regulations.