Leite Silva (Migration)

This matter concerned an application for a Student (Temporary) (Class TU) visa, subclass 500, by a 35-year-old national of Brazil, and her spouse, who was 32 years old. The applicant had previously studied in Australia, completing a Certificate IV in Project Management and enrolling in commercial cookery courses at the time of this application. She also held a Bachelor degree in Biological Sciences from Brazil. The Department delegate had refused the visa, and the applicants sought review by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant genuinely intended to stay in Australia temporarily, as required by clause 500.212 of Schedule 2 to the Migration Regulations 1994. This assessment required consideration of the applicant's circumstances in her home country and in Australia, the value of her proposed course of study to her future, her immigration history, and any other relevant information, in accordance with Direction No. 69.

The Tribunal considered documentary evidence provided by the applicant, including submissions from her representative, support letters, and translated extracts relating to a business plan, property rights, and commercial lease rates. It noted that the Direction was intended to guide decision-makers rather than serve as a checklist. The Tribunal found that the applicant met the criteria under clause 500.212, indicating a genuine intention to stay temporarily.

Consequently, the Tribunal remitted the applications for reconsideration by the Minister. The remittal was with the direction that the first applicant met the criteria under clause 500.212, and the second applicant met the criteria under clause 500.311 of Schedule 2 to the Regulations.