Rastogi (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by Mr. Rastogi, a citizen of India, for a review of a delegate's decision to refuse his application for a Subclass 500 (Student) visa. Mr. Rastogi, who was 32 years old, had arrived in Australia in 2012 and had previously held three student visas. His most recent application for a student visa was refused by the Department of Immigration and Border Protection.

The primary legal issue before the Tribunal was whether Mr. Rastogi satisfied the criterion of being a "genuine applicant for entry and stay as a student" as stipulated in clause 500.212 of Schedule 2 to the Migration Regulations 1994. This criterion requires the applicant to genuinely intend to stay in Australia temporarily, comply with visa conditions, and considers any other relevant matters. The Tribunal was guided by Direction No. 69, which outlines factors to be considered when assessing this criterion, including the applicant's circumstances in their home country and Australia, their immigration history, and the value of the proposed course to their future.

The Tribunal found that Mr. Rastogi met the genuine temporary entrant criterion (cl.500.212). However, the decision text indicates that the Tribunal did not make a final determination on all criteria for the visa. Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that Mr. Rastogi satisfied the genuine temporary entrant criterion.