Devanesan (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Subclass 500 (Student) visa. The dispute centred on whether the applicant met the criteria for this visa, specifically the requirement to be a genuine temporary entrant. The applicant was seeking to satisfy the secondary criteria as a member of the family unit of a primary student visa applicant.

The Tribunal was required to determine two primary legal issues. Firstly, whether the applicant was enrolled in a registered full-time course of study as required by clause 500.211 of the Regulations. Secondly, the Tribunal had to assess whether the applicant was a genuine applicant for entry and stay as a student, as stipulated in clause 500.212, which involved evaluating the applicant's genuine intention to stay in Australia temporarily.

In its reasoning, the Tribunal found that the applicant did not meet the enrolment criterion as they were not currently enrolled in a course of study and had last undertaken study in December 2017. Furthermore, the Tribunal was not satisfied that the applicant genuinely intended to stay in Australia temporarily. This conclusion was based on the applicant's circumstances, including their immigration and study history, their current non-enrolment, a lack of stated future goals, and the comparative economic and employment opportunities in Australia. The Tribunal considered that the applicant appeared to be using the student visa program to circumvent the intentions of the migration program, referencing judicial consideration of the "genuinely intends to stay in Australia temporarily" requirement, which necessitates an unqualified intention to remain only temporarily.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa, finding that the criteria for the visa were not met.