Sharma (Migration)

The Administrative Appeals Tribunal considered an application for a subclass 500 student visa made by the applicant, who sought to join her spouse, Mr Kumar, who held a student visa. The delegate had refused the application on the grounds that the applicant did not satisfy the genuine temporary entrant requirement.

The primary legal issue before the Tribunal was whether the applicant genuinely intended to stay in Australia temporarily, having regard to her circumstances and immigration history, and whether she intended to comply with the conditions of the visa. This required the Tribunal to assess various factors, including the applicant's lack of enrolment in any course of study in Australia, her study and employment history in India, her immigration history, and the intentions of her spouse.

The Tribunal noted that the factors for and against the applicant being a genuine temporary entrant were closely balanced. While the applicant had resigned from her employment as a psychologist in India and had no study history in Australia, she had arrived on a tourist visa and subsequently applied for a student visa. The Tribunal found that the applicant's explanation for changing her intention to stay in Australia was not credible, as she claimed to have become aware of her pregnancy after applying for the student visa. However, the Tribunal acknowledged that the applicant was entitled to apply for the visa onshore.

Given the closely balanced nature of the evidence and the applicant's lack of a clear study plan or history in Australia, the Tribunal concluded that the matter should be remitted for reconsideration.