Ghuliani (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered an application for a Student (Temporary) (Class TU) visa, Subclass 500 (Student). The applicant sought to review a decision to refuse the visa. The Federal Circuit Court had previously quashed an earlier Tribunal decision due to jurisdictional error, specifically the failure to consider relevant information provided by the applicant concerning clause 500.212(a) of the Migration Regulations 1994.

The central legal issue before the Tribunal was whether the applicant was a genuine applicant for entry and stay in Australia as a student, as required by clause 500.212(a) of the Migration Regulations. This required the Tribunal to assess whether the applicant genuinely intended to stay in Australia temporarily, having regard to their circumstances, immigration history, and any other relevant matters, in accordance with Direction No. 69.

The Tribunal reasoned that while re-education or skill acquisition is permissible, the applicant's extensive history of undertaking numerous vocational courses, without objective demonstration of their future benefit outweighing the financial commitment, was inconsistent with the behaviour of a genuine student. Furthermore, the Tribunal noted the applicant's immigration history since 2011, including a failed attempt to secure a subclass 457 visa and the current application for a third student visa, which collectively indicated an intention to use the student program to maintain ongoing residence in Australia rather than for temporary study. Despite acknowledging the applicant's completed courses and job market research, the Tribunal concluded, on balance, that the applicant had not demonstrated a genuine intention to stay in Australia temporarily.

Consequently, the Tribunal found that the applicant did not satisfy the criteria for a Subclass 500 (Student) visa. The Tribunal affirmed the decision not to grant the visa.