Naresh Kumar (Migration)

The Administrative Appeals Tribunal considered an application for a Subclass 500 (Student) visa made by Mr. Naresh Kumar, the main applicant, and his partner, the secondary applicant. The delegate of the Department of Home Affairs had refused the visa application. The Tribunal was tasked with reviewing this decision.

The central legal issue before the Tribunal was whether the applicant satisfied the criterion of being a "genuine applicant for entry and stay as a student" under clause 500.212 of Schedule 2 to the Migration Regulations 1994. This required the Tribunal to assess whether the applicant genuinely intended to stay in Australia temporarily, having regard to their circumstances, immigration history, and any other relevant matters, as guided by Direction No. 69.

The Tribunal reasoned that the applicant, a 39-year-old citizen of India, had resided in Australia since approximately 2012 on various temporary and bridging visas. The Tribunal noted that the applicant had been studying "low level, inexpensive courses" and had spent a "significant period of time living in Australia." Applying the principles in Direction No. 69, particularly paragraph 11(c) which states that weight should be placed on circumstances indicating the student visa is being used to maintain ongoing residence, and paragraph 14(b)(iii) which considers whether the visa is being used to maintain ongoing residence, including undertaking a series of short, inexpensive courses or being onshore for some time without successfully completing a qualification, the Tribunal concluded that the applicant was using the student migration program to maintain ongoing residence in Australia rather than for genuine temporary study.

Consequently, the Tribunal affirmed the delegate's decision not to grant the applicants Student (Temporary) (Class TU) visas, finding that the main applicant did not meet the genuine temporary entrant requirements, which in turn meant the secondary applicant also failed to meet those requirements.