Romero Garay (Migration)

The Administrative Appeals Tribunal (AAT) considered an appeal by Donovan Josue Romero Garay against the refusal of his application for a Student (Temporary) (Class TU) visa, subclass 500. The visa application was made on 21 June 2021, as a dependent of his partner, who held a student visa. The delegate refused the application on 14 December 2022, finding that Mr. Garay was not a genuine temporary entrant.

The primary legal issue before the Tribunal was whether Mr. Garay satisfied the genuine temporary entrant (GTE) requirement as stipulated in clause 500.312 of Schedule 2 to the Migration Regulations 1994, and as guided by Ministerial Direction No. 108. This involved assessing Mr. Garay's circumstances in his home country and in Australia, his immigration history, and any other relevant matters to determine if he genuinely intended to stay temporarily in Australia for the purpose of study and then depart.

The Tribunal affirmed the delegate's decision, finding that Mr. Garay had not demonstrated he was a genuine temporary entrant. The Tribunal noted that Mr. Garay had been in Australia since March 2019 and had not returned to Colombia, with his only travel outside Australia being a one-week vacation to Indonesia in November 2022. While he had completed English language courses, his enrolment in a Certificate IV in Leadership and Management was cancelled due to unsatisfactory academic performance in March 2021, and he had not been enrolled in any course of study since then. The Tribunal also considered that Mr. Garay provided no evidence of his financial or employment circumstances in Colombia, and his financial incentives to remain in Australia appeared to outweigh those to return. Furthermore, his partner's studies had concluded, and the Tribunal was not satisfied that Mr. Garay's intentions were solely to remain in Australia while his partner studied, nor had he demonstrated strong ties to his home country to assure his return. The Tribunal concluded that Mr. Garay was using the student visa program as a means of maintaining ongoing residence in Australia.