LOPES DA SILVA (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 central issue was whether the applicant was a genuine temporary entrant, as required by clause 500.212 of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine if the applicant genuinely intended to stay in Australia temporarily, having regard to their circumstances, immigration history, and any other relevant matters. This assessment was guided by Direction No. 69, which outlines factors to consider, including the applicant's circumstances in their home country and potential circumstances in Australia, the value of the proposed course to their future, and their immigration history. The Tribunal also considered the applicant's pattern of enrolment, the nature of the courses undertaken, and any potential disparity in income.

In its reasoning, the Tribunal noted that the applicant had a history of enrolling in short, inexpensive courses and had regressed in their level of study. Furthermore, there was an indication that an offer of employment was not conditional on obtaining an Australian qualification. The Tribunal applied the principles set out in Direction No. 69, which directs decision-makers to consider the applicant's circumstances as a whole rather than using a checklist. The Tribunal found that the applicant's pattern of study and other circumstances did not satisfy the genuine temporary entrant criterion.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Subclass 500 (Student) visa, finding that the criteria for the visa were not met.