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Tribunal: Member J Harkess

The AAT affirmed the decision of a delegate of the Minister for Immigration refusing to grant the applicant a student visa. There was overwhelming evidence he was attempting to use the visa program to live here permanently.

This matter was before the AAT a second time after the Federal Circuit Court (the court) found the Tribunal’s reasoning contained several jurisdictional errors, overturning the decision and ordering the Tribunal to conduct a new review. While the matter was before a new member at the AAT, the issues to be determined remained the same as for the first Tribunal—whether the applicant met the criteria for enrolment and genuine temporary entry.

At the time of the new Tribunal’s decision, the applicant was enrolled in a graduate certificate in management and he met the enrolment criterion. The main issue for the Tribunal to decide was whether he was genuinely here temporarily.

The applicant lived in Australia for well over ten years and enrolled in a wide range of courses including baking, business, marketing, management, painting and decorating, and building and construction. The Tribunal found these courses did not form a cohesive collection of qualifications supporting a career trajectory. Rather, this series of short, inexpensive courses, completed over a long period of time, suggested he intended to live in Australia indefinitely.

The Tribunal considered the applicant’s circumstances in India and his reasons for not enrolling in a similar course there or another country in the region. The Tribunal found the applicant’s claims on the liveability of Melbourne were too general. His answers on the appeal of high-quality healthcare, education and housing did not further his claim to be here temporarily or with a specific study goal in mind. 

The Tribunal found the applicant had strong familial ties to his home country, but no significant community or financial interests remaining in India, and no significant incentive to return. Rather, his economic circumstances in Australia, relative to those in India, were a significant reason for him to stay here.

The applicant’s immigration history was concerning because he had now lived here for more than 10 years. With each day he stayed, the applicant became less temporary and more permanent. While he had complied with the other visas he had held to date, in this situation, complying over such a lengthy period was more consistent with the actions of person attempting to maintain an ongoing residence in Australia, than a person intending to stay temporarily.

Finally, although he enrolled in a bachelor’s course, he did not start that course of study and chose to live in Australia without either studying or returning home to India for two years while awaiting the outcome of his court appeal. Rather, perhaps prompted by the timing of this hearing, he chose to enrol in another certificate course, unrelated to his career ambitions.

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