Tiow (Migration)

The applicant, Tiow, sought judicial review of a decision by the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to affirm the refusal of his application for a Student (Temporary) (Class TU) visa, subclass 500. The delegate had found that Tiow did not meet the genuine temporary entrant criterion.

The Federal Circuit Court was required to determine whether the delegate’s decision was affected by jurisdictional error. Specifically, the court considered whether the delegate had properly applied the genuine temporary entrant criterion, which requires an assessment of whether the applicant genuinely intends to stay in Australia temporarily and whether their stated purpose for entering Australia is genuine.

The court found that the delegate had made a jurisdictional error by failing to consider relevant evidence. The delegate had concluded that Tiow was not a genuine temporary entrant because he was not enrolled in any course of study at the time of the decision. However, the delegate did not adequately consider evidence that Tiow had applied for a course and intended to enrol upon arrival in Australia. The court held that the delegate’s reasoning was flawed because it placed undue weight on the lack of current enrolment without properly assessing the applicant's stated intentions and supporting documentation.

The court set aside the delegate's decision and remitted the matter to the delegate to be reconsidered according to law.