Pratap (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to refuse to grant Ms Pratap a Student (Temporary) (Class TU) visa, subclass 500. The applicant had applied for the visa on 28 August 2018, and the delegate refused it on 19 October 2018, on the basis that Ms Pratap did not satisfy the genuine temporary entrant criterion. The Administrative Appeals Tribunal considered the application for review on 30 April 2020.

The primary legal issue before the Tribunal was whether Ms Pratap was a genuine temporary entrant for the purpose of entering and staying in Australia as a student. In determining this, the Tribunal was required to have regard to Direction 69, which provides guidelines for assessing the genuine temporary entrant criterion for student visa applications. Direction 69 outlines various factors to be considered, including the applicant's circumstances in their home country and in Australia, the value of the proposed course to their future, their immigration history, and any other relevant matters. The Direction emphasizes that these factors are not a checklist but are intended to guide decision-makers in considering the applicant's circumstances holistically.

The Tribunal found that Ms Pratap, a citizen of Fiji, had been in Australia since 17 July 2011, with only five departures during that period. She lodged her current visa application three days before her previous student visa expired. At the time of the application, she was enrolled in an Advanced Diploma of Leadership and Management, which would extend her stay in Australia to approximately 12 years. Although she had initially proposed to study an Advanced Diploma of Banking Services Management, she gave evidence that she had not completed that course. The Tribunal concluded that these circumstances, including her extended stay in Australia and the regression in her studies, indicated a significant incentive to remain in Australia rather than a strong incentive to return to her home country, thus failing to satisfy the genuine temporary entrant criterion.

The Tribunal affirmed the delegate's decision to refuse to grant the visa.