TAWIAH (Migration)

The Administrative Appeals Tribunal considered an application for a Student (Temporary) (Class TU) visa, Subclass 500 (Student), made by a Ghanaian citizen. The applicant had previously held a visa to attend the 2018 Commonwealth Games and applied for the student visa on the same day her previous visa expired. The applicant had completed a range of educational qualifications in Ghana and had ten years of teaching experience prior to her arrival in Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the genuine temporary entrant criterion for the Subclass 500 visa. This criterion requires the applicant to demonstrate an intention to genuinely stay in Australia temporarily, having regard to their circumstances in their home country and in Australia, their immigration history, and any other relevant matters. The Tribunal was also bound to consider Direction No. 69, issued by the Minister under section 499 of the Migration Act 1958, which provides guidance on assessing this criterion.

The Tribunal reasoned that while it must consider the Minister's Direction, it is an independent statutory body and must reach its own conclusions. The Tribunal noted that guidelines may not be relevant if the applicant's circumstances do not engage particular matters identified by those guidelines. In this instance, the Tribunal found that the applicant's circumstances, including her educational background, her intention to undertake a Masters course with a prestigious scholarship, and her employment prospects in Ghana, warranted further consideration.

Consequently, the Tribunal remitted the application for the visa to the Minister for reconsideration. The Tribunal directed that the applicant be taken to meet clause 500.212(a) of Schedule 2 to the Regulations, which pertains to the genuine temporary entrant criterion, and that the Minister consider the remaining criteria for the Subclass 500 visa.