Federal Court. AAT wrote: "a successful applicant had to be both a genuine student and have a genuine intention to remain in Australia temporarily". Was AAT's approach wrong because "cl 572.223(1)(a) only requires a determination that the visa applicant intends genuinely to stay in Australia temporarily and ... there is no additional requirement that the applicant be a genuine student"? As studying in Australia would necessarily prolong Appellant's stay, was it wrong for AAT to reason that appellant wanted to prolong her stay? Was AAT required to make a finding in relation to each factor in Direction No 53?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Was the Tribunal's approach wrong because "cl 572.223(1)(a) only requires a determination that the visa applicant intends genuinely to stay in Australia temporarily and ... there is no additional requirement that the applicant be a genuine student"?
Question 2: As undertaking a course of study in Australia would inevitably prolong the appellant’s stay in Australia, did the Tribunal make a jurisdictional error by relying on its finding that Appellant "was seeking to prolong her stay in Australia when concluding that she was not intending to stay in Australia temporarily"?
Question 3: In assessing whether cl 572.223(1)(a) was satisfied, was the Tribunal required to make a finding in relation to each matter identified in Direction No 53?
The FCA answered those questions as follows:
The remainder of this article is only available to Case Law and Platinum subscribers.
Read our Terms & Conditions and upgrade below:
Where GST applies, the above amounts are inclusive of GST.
Basic Content includes basic news, some media articles and selected announcements.
Premium Content includes all our content, except for Case Law Content. In other words, it includes Basic Content, plus all our articles on legislative and policy changes, industry updates and the Migration Legislation Tracker.
Case Law Content includes Basic Content, plus case law summaries, analysis and extract, but does not include Premium Content.
Platinum Content includes Basic Content, plus Premium Content, plus Case Law Content. In other words, it includes ALL our content.
If you already have a Case Law or Platinum subscription, click on 'Login' below.