Sharma (Migration)

This matter concerned an application for a Student (Temporary) (Class TU) visa, subclass 500, where the applicant was seeking review of a decision not to grant the visa. The applicant had previously been granted a Temporary Student visa (subclass 500) and had arrived in Australia in March 2015, with that visa valid until May 2017. The applicant had since returned to India on two separate occasions for 35-day periods. The decision under review was affirmed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for being a genuine temporary entrant, as stipulated in clause 500.212 of Schedule 2 to the Regulations. This required the Tribunal to assess whether the applicant genuinely intended to stay in Australia temporarily, considering their circumstances, immigration history, and any other relevant matters. In making this assessment, the Tribunal was guided by Direction No. 69, which outlines specific factors to consider, including 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.

The Tribunal considered the applicant's circumstances in light of Direction No. 69. While the Direction emphasizes that specified factors should not be treated as a checklist but rather as guidance for a holistic assessment, the Tribunal found that the applicant's immigration history, including the time already spent in Australia and the two return trips to India, did not satisfy the Tribunal that the applicant genuinely intended to stay in Australia temporarily. Consequently, the Tribunal concluded that the applicant did not meet the genuine temporary entrant criterion under clause 500.212(a).

Accordingly, the Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa.