Kirnjit (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Subclass 500 (Student) visa. The applicant, an Indian woman who had previously entered Australia on a visitor visa, applied for the student visa while onshore. The core dispute revolved around whether the applicant met the criteria for being a "genuine temporary entrant" for entry and stay in Australia as a student.

The legal issue before the Tribunal was to determine if the applicant satisfied clause 500.212 of Schedule 2 to the Migration Regulations 1994, specifically whether she genuinely intended to stay in Australia temporarily. This assessment required the Tribunal to have regard to Direction No. 69, which outlines various factors to consider, including the applicant's circumstances in her home country and potential circumstances in Australia, the value of the proposed course to her future, and her immigration history.

The Tribunal reasoned that to assess the genuine temporary entrant criterion, it must consider the applicant's circumstances as a whole, guided by Direction No. 69, rather than using the specified factors as a checklist. The Direction mandates consideration of the applicant's home country circumstances, potential Australian circumstances, the course's value to her future, and her immigration history. The Tribunal found that the applicant did not meet the criteria for the grant of the visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa. The applicant did not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.