Gjoni (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration and Border Protection to refuse the applicant a Student (Temporary) (Class TU) visa. The applicant had previously applied for the visa on 16 October 2015, and the delegate refused the application on 31 May 2016. The Administrative Appeals Tribunal affirmed this decision on 31 January 2018. The applicant then appealed to the Federal Circuit and Family Court of Australia, which on 4 June 2019, remitted the matter to the Tribunal for reconsideration.

The primary legal issue before the Tribunal was whether the applicant met the criterion in cl.572.223(1)(a) of the Migration Regulations 1994, which requires the Minister to be satisfied that the applicant genuinely intends to stay in Australia temporarily. In assessing this, the Tribunal was required to have regard to Direction No. 53, which outlines specific factors to consider, including the applicant's circumstances in their home country and potential circumstances in Australia, the value of the course to their future, their immigration history, and any other relevant matters. The Full Court of the Federal Court in *Kumar v Minister for Immigration and Border Protection* held that Direction No. 53 guides decision-makers to consider each factor and how it bears on the decision, without imposing a jurisdictional obligation to make a finding on every factor if it is not material.

The Tribunal considered the applicant's circumstances, including his ongoing studies in Australia, his relationship with an Australian citizen partner and their Australian citizen children, and his pending offshore Partner visa application. The applicant argued that his continued study and payment of fees demonstrated his genuine commitment to being a student, and that he would depart Australia if his Partner visa application were refused. The Tribunal noted that the applicant's Partner visa application could only be finalised when he was offshore, a situation complicated by travel restrictions. The Tribunal concluded that the matter should be remitted for reconsideration, indicating that a comprehensive weighing of all relevant factors was necessary to determine if the applicant met the genuine temporary entrant criterion.