Esho (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Mr Esho, who had applied for a Student (Temporary) (Class TU) visa, subclass 500. The primary decision maker had refused his application, finding that he did not meet the genuine temporary entrant criteria as required by clause 500.212 of the Migration Regulations. Mr Esho appealed this refusal to the AAT, seeking a review of the decision.

The central legal issue before the Tribunal was whether Mr Esho satisfied the criteria for being a genuine temporary entrant. This required the Tribunal to assess, on a fresh basis, whether Mr Esho was genuinely engaged in a meaningful program of study and whether his circumstances indicated a genuine intention to remain in Australia temporarily. In making this assessment, the Tribunal was required to have regard to Ministerial Direction No. 69, which outlines various factors to consider, including the applicant's circumstances, the value of their chosen course to their future, their immigration history, their incentives to remain in or depart Australia, and whether they were using the student visa program to maintain residency.

The Tribunal's reasoning focused on Mr Esho's limited knowledge of his enrolled course and his overall circumstances. Despite being enrolled in a Diploma of Business, Mr Esho was unable to state the total number of units required for the diploma, nor could he name the units he had yet to study. He also indicated he had completed a ten-week English course twice. The Tribunal noted that these factors, among others considered in the primary decision and Ministerial Direction No. 69, weighed against a finding that he was a genuine student and a genuine temporary entrant. The Tribunal concluded that Mr Esho did not satisfy the genuine temporary entrant criteria.