WU (Migration)

The Federal Circuit and Family Court considered an appeal by an applicant for a Subclass 500 (Student) visa. The applicant, a 29-year-old Chinese citizen, had been in Australia since 2009, completing secondary education, a foundation program, and a Bachelor of Arts and Bachelor of Education. She subsequently held a Temporary Graduate visa (subclass 485) from 2018 to November 2019, during which time she worked as a teacher and decided to pursue further study in information technology. Her application for a Student visa was to undertake a Diploma of Software Development and an Advanced Diploma of Information Technology Business Analysis.

The primary legal issue before the Court was whether the applicant met the "genuine temporary entrant" criterion under clause 500.212(a) of Schedule 2 to the Migration Regulations 1994, having regard to Direction No. 69 issued by the Minister. This involved assessing the applicant's circumstances, immigration history, and any other relevant matters to determine her genuine intention to stay in Australia temporarily. The Court was required to apply the Direction lawfully, while also reaching its own independent conclusions on the merits of the applicant's case.

The Court acknowledged that Direction No. 69 was a lawful direction and bound to consider it. However, it also recognised that such guidelines might not be relevant if the facts raised by an applicant did not engage specific matters identified by the Direction. The Court found the applicant's explanation for remaining in Australia for two years after completing her courses, which was due to awaiting the outcome of her appeal and the impact of the COVID-19 pandemic on travel to China, to be a plausible reason. Considering the applicant's circumstances, her immigration history, and other relevant matters, the Court was satisfied that she was a genuine applicant for entry and stay as a student temporarily.

Accordingly, the Court remitted the 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 consider the remaining criteria for the Subclass 500 (Student) visa.