Nikolli (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for review of a delegate's decision to refuse a Subclass 500 (Student) visa. The applicant sought to have the decision set aside and a visa granted.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Subclass 500 (Student) visa, specifically the genuine temporary entrant requirement as set out in 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, in accordance with Direction No. 69.

The Tribunal found that the applicant had not been enrolled in a registered course for 16 months, had not studied while on a bridging visa that provided study rights, and had been assessed as not competent in English. These factors, combined with a lack of evidence demonstrating an intention to return to their home country, led the Tribunal to conclude that the applicant did not satisfy the genuine temporary entrant criterion.

Accordingly, the Tribunal affirmed the delegate's decision not to grant the applicant a Student (Temporary) (Class TU) visa.