MONTEJO (Migration)

The Administrative Appeals Tribunal considered an application for review of a decision to refuse a Subclass 500 (Student) visa. The applicant, a national of the Philippines, sought to study a Diploma of Human Resources Management and an Advanced Diploma of Management in Australia. The delegate had refused the visa, finding the applicant did not meet the genuine temporary entrant (GTE) criterion.

The primary 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 of Schedule 2 to the Migration Regulations 1994. This involved assessing whether the applicant genuinely intended to stay in Australia temporarily and whether she intended to comply with the conditions of the visa. The Tribunal was required to have regard to Direction No. 69, which outlines factors to consider when assessing the GTE criterion, including the applicant's circumstances in her home country and in Australia, the value of the proposed course to her future, and her immigration history.

The Tribunal's reasoning focused on several factors that cast doubt on the applicant's genuine temporary entrant status. These included her previous travel history to Australia on visitor visas with stated short-term purposes, her de facto relationship with a partner on a temporary work visa in Australia, and the financial support she indicated she would receive from him. The Tribunal also considered the applicant's stated career plan, her previous educational background, and her stated intention to return to the Philippines to care for her dependent child. The Tribunal noted that while the applicant claimed her partner was only in Australia temporarily, his employment was with a corporation that could reassign him internationally, and the applicant's own stated intention was to gain skills for future employment anywhere in the world. The Tribunal also considered the applicant's representative's submissions regarding the difficulty of meeting the GTE requirements and the potential for course changes.

Ultimately, the Tribunal concluded that the applicant had not satisfied the criteria for the grant of a Subclass 500 (Student) visa. The decision under review was affirmed, meaning the visa was not granted.