SHAPNA (Migration)

The Administrative Appeals Tribunal (AAT) considered an appeal concerning the cancellation of Student (Temporary) (Class TU) visas, Subclass 500 (Student). The primary applicant, born in 1994, had arrived in Australia in July 2019 and returned to her home country for a brief period in March 2020. Her partner, the second applicant, had resided in Australia for 15 years. The dispute centred on whether the applicants met the criteria for a genuine student and a genuine temporary entrant.

The legal issues before the Tribunal included determining whether the first applicant satisfied the genuine applicant for entry and stay as a student criterion, as stipulated by clause 500.212 of Schedule 2 to the Migration Regulations 1994. This involved assessing whether the applicant genuinely intended to stay in Australia temporarily, considering her circumstances, immigration history, and any other relevant matters, in accordance with Direction No. 69. The Tribunal also had to consider the applications of the second applicant.

The Tribunal reasoned that clause 500.212 requires an assessment of the applicant's genuine intention to stay temporarily in Australia, taking into account various factors outlined in Direction No. 69. This Direction guides decision-makers to consider the applicant's circumstances in their home country and potential circumstances in Australia, the value of the course to their future, and their immigration history. While the case text does not detail the specific findings regarding the first applicant's circumstances, the Tribunal concluded that the matter should be remitted for reconsideration.

Consequently, the Tribunal remitted the applications for Student (Temporary) (Class TU) visas for reconsideration. The direction specified that the first named applicant met the criteria under clause 500.212 of Schedule 2 to the Regulations. The application of the second named applicant was also remitted for reconsideration.