Fishman (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Subclass 500 (Student) visa. The applicant sought to review the delegate's decision to refuse the visa. The core of the dispute revolved around whether the applicant genuinely intended to stay in Australia temporarily, as required by clause 500.212 of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine if the applicant satisfied the criteria for a genuine temporary entrant. This involved assessing whether the applicant genuinely intended to stay in Australia temporarily, having regard to their circumstances, immigration history, and any other relevant matters, as guided by Ministerial Direction No. 69. The Direction outlines various factors to consider, including the applicant's circumstances in their home country and potential circumstances in Australia, the value of the proposed course to their future, and their immigration history.

In its reasoning, the Tribunal noted that the applicant had been in Australia for nearly 10 years, holding various student and bridging visas, with a period on a temporary skilled visa. The delegate had refused the application on the basis that the applicant was not a genuine temporary entrant and was using the student visa program to maintain residence in Australia. The delegate also observed that the applicant’s father resided permanently in Australia, the applicant had been self-employed as a computer engineer since 2012, and possessed multiple computing qualifications. The Tribunal found that the vocational courses the applicant sought to study would not provide significant value to his future.

Consequently, the Tribunal concluded that the applicant did not meet the criteria for the grant of a Subclass 500 (Student) visa. The Tribunal affirmed the delegate's decision not to grant the visa.