Rodrigues Mendoca Dos Santos (Migration)

This matter concerned an application for a Subclass 500 (Student) visa by a Brazilian citizen. The applicant, a 51-year-old male, arrived in Australia on a visitor visa in April 2019, accompanied by his partner and two young children. His application was to undertake a General English course. Crucially, the applicant did not provide a statement demonstrating he met the genuine temporary entrant criteria, leading to limited information before the Department regarding his reasons for not studying in Brazil, his knowledge of the course, its relevance to future employment, and expected remuneration. The Administrative Appeals Tribunal (AAT) reviewed the delegate's decision to refuse the visa.

The primary legal issue before the court was whether the Tribunal had erred in its assessment of the applicant's genuine temporary entrant status, particularly in light of Direction No. 69 issued by the Minister under section 499 of the Migration Act 1958. This Direction provides guidance on factors to be considered when assessing whether an applicant genuinely intends to stay in Australia temporarily. The Tribunal was required to determine how this Direction applied to the applicant's circumstances, including the lack of a specific statement addressing the genuine temporary entrant criteria.

The Tribunal acknowledged that it was bound to consider Direction No. 69 but also recognised its independence as a statutory body to reach its own conclusions. It noted that such guidelines may not be relevant if the applicant's case does not engage the specific matters identified by the guidelines. In this instance, the Tribunal found that the applicant's failure to provide a genuine temporary entrant statement meant the Department had limited submissions on key aspects outlined in the Direction, such as the relevance of the course to future employment prospects in his home country. The Tribunal considered this lack of information to be contrary to the expected behaviour of a genuine student.

Ultimately, the Tribunal remitted the applications for reconsideration. It directed that the first applicant met the criteria for a Subclass 500 (Student) visa, implying that the benefit of the doubt was given to the applicant in relation to the genuine temporary entrant criterion, despite the initial lack of a statement. The decisions concerning the other applicants were also remitted as a consequence.