TRAN (Migration)

This matter concerned an application for a Student (Temporary) (Class TU) visa, specifically a Subclass 572 Vocational Education and Training Sector visa. The applicant, born in Vietnam in 1988, had a wife and child in his home country. He had previously studied in Australia, commencing a Bachelor of Information Technology in 2010 but failing to complete it, and later enrolled in a Diploma of Dental Technology in 2016, which he completed in 2017. The application for the Subclass 572 visa was made in August 2015, at which time he was enrolled in a Diploma of Dental Technology and an Advanced Diploma of Business. The Tribunal was tasked with reconsidering the applicant's eligibility for the visa.

The central legal issue before the Tribunal was whether the applicant satisfied the genuine temporary entrant criterion under cl.572.223(1)(a) of Schedule 2 to the Regulations. This criterion requires the Minister to be satisfied that the applicant genuinely intends to stay in Australia temporarily, having regard to the applicant's circumstances, immigration history, and any other relevant matters. In assessing this criterion, the Tribunal was guided by Direction No. 53, which outlines factors to consider, including the applicant's circumstances in their home country and Australia, the value of the proposed course to their future, their immigration history, and any other relevant information. The Direction emphasizes that these factors should be weighed holistically rather than treated as a checklist.

The Tribunal noted the applicant's extensive study history in Australia, which included a significant period of five years without completing any course, and his failure to achieve satisfactory course progress in his initial Bachelor of Information Technology degree. The applicant explained this by stating the course was too difficult and he lost interest, and he did not seek assistance or deferrals. Despite these concerns, the Tribunal found that the applicant met the genuine temporary entrant criterion for the specific purpose of completing a Diploma of Business. The Tribunal concluded that the applicant's circumstances, when weighed as a whole, satisfied cl.572.223(1)(a).

Consequently, the Tribunal remitted the application for a Student (Temporary) (Class TU) visa for reconsideration by the delegate. The Tribunal directed that the applicant meets the requirement of cl.572.223(1)(a) for a Subclass 572 Vocational Education and Training Sector visa.