Quarantotto (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a Subclass 500 (Student) visa. The applicant, an Italian citizen, was applying as a member of the family unit of her partner, who held a student visa. The core dispute revolved around whether the applicant met the "genuine temporary entrant" criterion, a requirement for obtaining the visa. The AAT, specifically Member T. Quinn, was tasked with reviewing the delegate's decision.

The legal issues before the Tribunal were whether the applicant genuinely intended to stay in Australia temporarily, as required by clause 500.312(a) of the Migration Regulations 1994, and whether she was a member of the family unit of a person who held a student visa and satisfied the primary criteria for that visa. The Tribunal also had to consider the application of Direction No. 69, which provides guidance on assessing the genuine temporary entrant criterion, and determine how its various factors applied to the applicant's specific circumstances.

The Tribunal found that the applicant was indeed a member of the family unit of her partner, who held a valid student visa. Regarding the genuine temporary entrant criterion, the Tribunal acknowledged the applicant's strong community and family ties to Italy, noting her daily contact with her extensive family there and her deep connection to her culture. It also considered her economic circumstances in Australia relative to Italy, England, and Costa Rica, and concluded that these did not present a significant incentive for her to remain onshore. Crucially, the Tribunal noted that the applicant's partner, the primary visa holder, had been found by the Department to be a genuine temporary entrant. Given their joint future plans and unified approach, the Tribunal considered it inappropriate to conclude that the applicant's intention was not to remain temporarily, especially as they indicated an intention to depart Australia upon completion of his studies.

Consequently, the Tribunal remitted the application for a Student (Temporary) (Class TU) visa for reconsideration by the Minister. The direction was that the applicant met the requirements of clause 500.312(a) of Schedule 2 to the Regulations.