DURAN (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Subclass 500 (Student) visa. The applicant's previous student visa was due to expire shortly before the completion of her Master's course, necessitating an application for a further student visa. However, by the time a decision was made on her new application, she had completed her course and was no longer enrolled, leading to the refusal of her visa.

The central legal issue before the Tribunal was whether the applicant met the criteria for a genuine temporary entrant for study, as stipulated in clause 500.212 of Schedule 2 to the Migration Regulations 1994. This clause requires the applicant to genuinely intend to stay in Australia temporarily and to comply with visa conditions, having regard to various factors including their circumstances, immigration history, and any other relevant matters. The Tribunal was also guided by Direction No. 69, which outlines specific factors to consider when assessing the genuine temporary entrant criterion.

The Tribunal reasoned that the applicant's circumstances, particularly the delay in completing her preliminary English course which pushed back the commencement of her Master's, meant she no longer met the core requirement of being enrolled in a course of study at the time of the decision. Although the applicant provided evidence and explanations for her situation, the Tribunal found that she did not satisfy the genuine temporary entrant criterion. Consequently, the Tribunal affirmed the decision not to grant the applicant a Subclass 500 (Student) visa.