Dias (Migration)

This matter concerned an application for a Student (Temporary) (Class TU) visa, Subclass 572 (Vocational Education and Training Sector), made by the applicant on 15 March 2013. The applicant's initial application was refused due to a failure to provide evidence of English language proficiency. A subsequent appeal to the Migration Review Tribunal (MRT) was affirmed due to the applicant's non-attendance at a scheduled hearing. The applicant appealed this decision to the Federal Circuit Court, which remitted the matter for reconsideration, finding that the MRT had failed to consider the applicant's study history as recorded in the PRISMS database.

Upon remittal, the MRT was satisfied that the applicant met the financial capacity and English language proficiency requirements. The matter was then referred back to the Department, which again refused the visa on 18 August 2016, on the grounds that the applicant did not satisfy the Genuine Temporary Entrant (GTE) requirements under clause 572.223. The applicant appealed this refusal to the Tribunal, which is the subject of the present decision.

The Tribunal was required to determine whether the applicant met the GTE requirements, which necessitate being both a genuine student engaged in a meaningful program of study and a genuine temporary entrant with an intention to remain in Australia temporarily. In assessing the GTE requirements, the Tribunal was obliged to consider Ministerial Direction No. 53, which outlines various factors including the applicant's circumstances, the value of their course to their future, their immigration history, their incentives to remain in or return from Australia, and whether the student visa program was being used to maintain ongoing residence in Australia. The Tribunal noted that PRISMS records are not definitive proof of completed studies but rather indicate that a course has finished and fees have been paid.