MOSHABBO (Migration)

The Administrative Appeals Tribunal considered the case of an applicant, a citizen of Zimbabwe, who sought a Student (Temporary) (Class TU) visa, Subclass 572, to undertake vocational education in Australia. The applicant had arrived in Australia as a dependant on his wife's student visa and subsequently applied for his own student visa to pursue a Certificate III in Bricklaying and Blocklaying and a Certificate IV in Leadership and Management. The delegate had refused the visa, citing concerns that the applicant's proposed study would extend his stay in Australia significantly and that his intentions were to remain onshore.

The primary legal issue before the Tribunal was whether the applicant met the criterion in cl.572.223(1)(a) of Schedule 2 to the Regulations, which requires the Minister to be satisfied that the applicant is a genuine applicant for entry and stay as a student and genuinely intends to stay in Australia temporarily. In determining this, the Tribunal was required to have regard to Direction No. 53, which outlines factors to consider, including the applicant's circumstances in their home country, potential circumstances in Australia, the value of the course to their future, their immigration history, and any other relevant information.

The Tribunal reasoned that while the applicant's proposed study would extend his stay, this needed to be considered in the context of his overall circumstances. The Tribunal noted that the applicant had only been studying since May 2014 and had spent the initial period supporting his wife's studies, which was accepted as a credible reason for the delay in commencing his own education. Furthermore, the applicant had demonstrated academic progress in his completed courses and maintained consistent enrolment. The Tribunal found that the applicant's stated intentions to return to Zimbabwe to develop his community through construction skills and establish a business were credible, supported by his strong family ties in his home country.

Consequently, the Tribunal found that the applicant met the genuine temporary entrant criterion under cl.572.223(1)(a). The matter was remitted to the delegate for reconsideration with a direction that the applicant satisfied this specific criterion.