Wickramatunga (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of a Sri Lankan citizen seeking a Subclass 500 (Student) visa. The applicant, a 28-year-old male, had arrived in Australia in 2011 and had since completed several qualifications, including a Bachelor of Information Technology and an Advanced Diploma of Business. He had previously held a graduate work visa and a further student visa. The applicant had made three visits to Sri Lanka between 2014 and 2015, but had not departed Australia since November 2015.

The primary legal issue before the Tribunal was whether the applicant satisfied the "genuine temporary entrant" criterion for the Subclass 500 visa, as guided by Direction No. 69 issued under section 499 of the Migration Act 1958. This criterion requires the applicant to demonstrate a genuine intention to temporarily enter and remain in Australia, having regard to their circumstances in their home country and in Australia, the value of their proposed course of study to their future, and their immigration history.

The Tribunal reasoned that while the applicant had achieved excellent academic results, several factors weighed against him satisfying the genuine temporary entrant criterion. These included his extended period of onshore stay in Australia since 2011, with limited travel back to his home country, and the fact that he had not departed Australia since November 2015. The Tribunal also noted the applicant's age and the fact that he had completed multiple courses of study. Applying the principles of Direction No. 69, the Tribunal concluded that the applicant's circumstances, particularly his prolonged presence in Australia without a clear pathway to return to his home country, did not demonstrate a genuine intention to stay in Australia temporarily.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Subclass 500 (Student) visa, finding that the criteria for the visa were not met.