SHRESTHA (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Student (Temporary) (Class TU) visa, specifically Subclass 572 (Vocational Education and Training Sector). The central dispute revolved around whether the applicant met the criterion in cl.572.223, which requires the Minister to be satisfied that the applicant genuinely intends to stay in Australia temporarily.

The Tribunal was required to determine if the applicant satisfied the genuine temporary entrant criterion, having regard to Direction No. 53. This Direction mandates consideration of the applicant's circumstances in their home country and Australia, the value of the course to their future, their immigration history, and any other relevant information. The Tribunal was cautioned against using these factors as a checklist, but rather as a guide to weigh all circumstances holistically.

The Tribunal reasoned that the applicant did not satisfy the genuine temporary entrant criterion based on several factors. The applicant's explanation for cancelling a previous enrolment, which was not corroborated by their agent, raised doubts about their reliance on agent advice. The Tribunal noted the applicant's extended stay in Australia on various student visas since 2009, suggesting a familiarity with the visa system beyond mere reliance on an agent. Furthermore, the applicant demonstrated a lack of engagement with their proposed course of study, being unaware of its modules or commencement subjects, leading the Tribunal to conclude the enrolment was for visa purposes rather than a genuine interest in study.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa, finding that the applicant did not meet an essential requirement for the grant of such a visa. The Tribunal also found that the applicant did not meet the criteria for other subclasses within Class TU, nor was there material to suggest they met the criteria for a Subclass 580 (Student Guardian) visa.