Kumar (Migration)

The Federal Circuit and Family Court of Australia considered an application by Mr. Kumar, an Indian citizen, for a Subclass 500 (Student) visa. The applicant sought review of a decision that had refused his visa application.

The court was required to determine whether the applicant was a genuine temporary entrant, as defined by clause 500.212 of Schedule 2 to the Migration Regulations 1994, and whether the decision under review had been legally unreasonable. This involved assessing the applicant's circumstances, immigration history, and any other relevant matters, in light of Direction No. 69 issued by the Minister.

The court noted that while Direction No. 69 is a lawful direction and must be considered, it does not preclude the Tribunal from reaching its own conclusions on the merits of the case. The applicant, a 25-year-old male, had completed a Bachelor of Commerce in India and had applied to undertake vocational courses in automotive technology in Australia. The court acknowledged the applicant's academic progress in completing these courses, which was to his credit and indicated he was a genuine student. However, the court expressed puzzlement regarding his continued residence in Australia. Despite some concerns about changes in study and career pathways and a regression in the level of study, the court ultimately found that the applicant was a genuine applicant for entry and stay as a student temporarily.

Consequently, the court remitted the applicant's visa application to the Minister for reconsideration, with a direction that the applicant met the genuine temporary entrant criterion under clause 500.212(a) of Schedule 2 to the Regulations. The Minister was to then consider the remaining criteria for the Subclass 500 (Student) visa.