FREIRE DE FREITAS (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Subclass 500 (Student) visa. The applicant, Freire de Freitas, sought to review the delegate's decision to refuse the visa. The Tribunal was tasked with determining whether the applicant met the criteria for a genuine temporary entrant.

The central legal issue before the Tribunal was whether the applicant genuinely intended to stay in Australia temporarily, as required by clause 500.212(a) of Schedule 2 to the Migration Regulations 1994. This assessment involved considering the applicant's circumstances in their home country and in Australia, their immigration history, and any other relevant matters, in accordance with Direction No. 69 issued under section 499 of the Migration Act 1958.

The Tribunal reasoned that the applicant's history demonstrated a pattern of multiple course enrolments and cancellations, coupled with holding five previous visas and returning to Brazil four times in eleven years. These factors, along with the presence of his wife on a 457 visa and a young child, suggested strong incentives to remain in Australia. The Tribunal found that the applicant was using the student visa program to maintain ongoing residence rather than for genuine study. Consequently, the Tribunal concluded that the applicant did not satisfy the criteria for a genuine temporary entrant.

The Tribunal affirmed the delegate's decision not to grant the applicant a Student (Temporary) (Class TU) visa.