Kumar (Migration)

The Administrative Appeals Tribunal considered the application of an Indian citizen for a Subclass 500 (Student) visa. The applicant, who had previously studied a Master of Information Technology in Australia but struggled academically, sought to undertake a package of Cooking and Hospitality courses. The delegate had refused the visa application, and the applicant sought review of this decision.

The primary legal issue before the Tribunal was whether the applicant met the genuine temporary entrant (GTE) criterion under clause 500.212(a) of Schedule 2 to the Migration Regulations 1994. This required the Tribunal to assess the applicant's circumstances, immigration history, and any other relevant matters to determine if they genuinely intended to stay in Australia temporarily. The Tribunal was also bound to consider, and apply where relevant, Direction No. 69, which provides guidance on assessing the GTE criterion.

The Tribunal acknowledged that while Direction No. 69 provides guidance, it is not a checklist and decision-makers must reach their own conclusions based on the evidence. The applicant provided evidence of academic struggles in his previous Master's program, including failing one of two units attempted, and indicated personal difficulties. The Tribunal noted that it allows for reasonable changes to study and career pathways. Having considered the applicant's circumstances, immigration history, and all other relevant matters, the Tribunal was satisfied that the applicant was a genuine applicant for entry and stay as a student temporarily.

Consequently, the Tribunal remitted the application to the Minister for reconsideration, with a direction that the applicant meets clause 500.212(a) of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the Subclass 500 (Student) visa.