Dorji (Migration)

The Administrative Appeals Tribunal considered the applications of Mr Dorji and his family for Student (Temporary) (Class TU) visas, Subclass 500 (Student). The primary applicant, Mr Dorji, a Bhutanese citizen, had been in Australia since December 2014, initially on his wife's student visa and subsequently on a temporary graduate visa. He applied to undertake vocational courses in Business, but the delegate refused his application. The Tribunal was tasked with reviewing this refusal.

The central legal issue before the Tribunal was whether the primary applicant, Mr Dorji, satisfied the genuine temporary entrant (GTE) criterion for a Subclass 500 visa, as guided by Direction No. 69. This involved assessing his circumstances in his home country and in Australia, the value of the proposed course to his future, and his immigration history, to determine if he genuinely intended to stay in Australia temporarily.

The Tribunal acknowledged that Direction No. 69 is a lawful direction that must be considered. However, it also noted that the direction's factors are not a checklist and may not be relevant if the applicant's circumstances do not engage them. In this case, the Tribunal found that Mr Dorji's progress in completing a Certificate III and Certificate IV in Business while onshore, despite the uncertainty of his visa application and during a global pandemic, was strong evidence of his genuine intention to study. This sustained effort, even while on a bridging visa, was considered a particularly strong factor in favour of his GTE status. The Tribunal also noted that Mr Dorji had previously completed a Bachelor of Education and worked as a teacher and principal in Bhutan, indicating a prior commitment to education.

Consequently, the Tribunal remitted the applications for reconsideration. It directed that the first applicant, Mr Dorji, met the genuine temporary entrant criterion for a Subclass 500 (Student) visa, specifically clause 500.212(a) of Schedule 2 to the Regulations. The decision in relation to the second, third, and fourth applicants' reviews was also remitted.