DE OLIVEIRA MONTEIRO (Migration)

This matter concerned an appeal by the applicant, a 53-year-old citizen of Portugal, against the decision not to grant him a Subclass 500 (Student) visa. The applicant had arrived in Australia on a tourist visa and applied for a student visa to undertake an English language course with the stated intention of improving his English skills to enhance his employment prospects in Portugal and Europe upon his return. The Tribunal was required to determine whether the applicant was a genuine applicant for entry and stay as a student.

The central legal issue before the Tribunal was whether the applicant satisfied the criteria for a Subclass 500 (Student) visa, specifically the "genuine temporary entrant" criterion as outlined in clause 500.212 of Schedule 2 to the Regulations and further guided by Direction No. 69. This involved assessing whether the applicant genuinely intended to stay in Australia temporarily and whether he intended to comply with the visa conditions. The Tribunal was directed to consider various factors, including the applicant's circumstances in his home country, his potential circumstances in Australia, the value of the course to his future, his immigration history, and any other relevant information.

The Tribunal found that the applicant did not satisfy the genuine temporary entrant criterion. This conclusion was based on several factors, including the applicant's lack of specific knowledge about his current course and its level, his stated intention to continue studying in Australia for a couple more years to avoid alcohol-related issues in his home country, and the fact that he had no current residence in Portugal. While the applicant claimed medical certificates were available to explain past attendance issues, the Tribunal noted his lack of current enrolment evidence and his admission that he wanted to stay in Australia longer. Consequently, the Tribunal affirmed the decision not to grant the visa.