JOSHI (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Subclass 500 (Student) visa. The applicant sought review of a decision to refuse this visa. The core of the dispute revolved around whether the applicant met the criteria for being a "genuine temporary entrant" as required by the Migration Regulations 1994.

The legal issue before the Tribunal was whether the applicant satisfied clause 500.212(a) of Schedule 2 to the Regulations, which requires an applicant to genuinely intend to stay in Australia temporarily. In assessing this, the Tribunal was guided by Direction No. 69, which outlines various factors to consider, including the applicant's circumstances in their home country and in Australia, their immigration history, and the value of the proposed course of study to their future.

The Tribunal found that the applicant did not satisfy the genuine temporary entrant criterion. This conclusion was based on several factors, including periods of non-enrolment, the applicant undertaking short, inexpensive courses at the VET level that overlapped with previous studies, limited travel home, and the presence of his wife and brother in Australia. These circumstances, when considered holistically under Direction No. 69, indicated that the applicant's intention was not genuinely temporary.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa.