Warui (Migration)

The Administrative Appeals Tribunal considered an application for a Subclass 500 (Student) visa. The primary applicant, a 44-year-old Kenyan male, had previously studied in Australia and applied for a further student visa to undertake a Certificate IV and Diploma of Work Health and Safety. His application was refused by a delegate of the Minister, leading to the review application before the Tribunal. The secondary applicant was the primary applicant's wife.

The central legal issue before the Tribunal was whether the primary applicant genuinely intended to stay in Australia temporarily, as required by clause 500.212(a) of the Migration Regulations 1994. This assessment was to be made in accordance with Direction No. 69, which outlines various factors to consider, including the applicant's circumstances in their home country and Australia, their immigration history, and the value of the proposed course to their future.

The Tribunal found that the primary applicant met the genuine temporary entrant criterion. While the text does not detail the specific reasoning for this finding, it notes that the Tribunal concluded the matter should be remitted for reconsideration. The Tribunal directed that both the first and second named applicants met the relevant criteria for the Subclass 500 (Student) visa, specifically clause 500.212 for the primary applicant and clause 500.311 for the secondary applicant as a family unit member. The Tribunal acknowledged that due to COVID-19 travel restrictions and the secondary applicant being overseas, the utility of the visa grant might be limited, but this was a matter for the Department.