Domingos (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Subclass 500 (Student) visa. The applicant sought review of a decision that had not been specified in the provided text, but the AAT ultimately remitted the matter for reconsideration.

The central legal issue before the Tribunal was whether the applicant met the criteria for a genuine applicant for entry and stay in Australia as a student, specifically clause 500.212 of Schedule 2 to the Migration Regulations 1994. This clause requires the applicant to genuinely intend to stay in Australia temporarily, having regard to their circumstances, immigration history, and any other relevant matters, and to intend to comply with visa conditions. The assessment of the genuine temporary entrant criterion was guided by Direction No. 69.

The Tribunal found that the applicant had provided detailed evidence regarding the value of the proposed course to their future. The Tribunal also considered the applicant's partner, who was a Brazilian citizen, noting that her aging parents in Brazil provided an incentive for her return, rather than an incentive to remain in Australia. The Tribunal reasoned that if the applicant intended to remain in Australia permanently, they would have applied for a partner visa, acknowledging that while Schedule 3 requirements would apply, they were not insurmountable. The Tribunal referenced *Inderjit v Minister* [2019] FCAFC to support the principle that a future intention to return is not inconsistent with being a temporary resident. The Tribunal concluded that the applicant met the genuine temporary entrant criterion under clause 500.212(a).

Consequently, the Tribunal remitted the application for a Student (Temporary) (Class TU) visa to the Minister for reconsideration, with a direction that the applicant satisfied the genuine temporary entrant criterion.