Zhuge (Migration)

The Administrative Appeals Tribunal considered an application for a Student (Temporary) (Class TU) visa, Subclass 500 (Student), made by a 26-year-old Chinese citizen. The applicant was the spouse of a primary visa holder, Mr. Yan, who was undertaking further study in Australia. Mr. Yan had completed his initial Bachelor of Information Technology and had been granted a further student visa to pursue a Master of Business Analytics, with an expected completion date in July 2022. The applicant contended that upon completion of Mr. Yan's studies, they intended to return to China to pursue their careers, care for their parents, and start a family.

The central legal issue before the Tribunal was whether the applicant met the genuine temporary entrant criterion for the Subclass 500 visa. This involved assessing the applicant's circumstances, immigration history, and any other relevant matters, in accordance with Direction No. 69 issued by the Minister under section 499 of the Migration Act 1958. The Tribunal was required to determine if the applicant genuinely intended to stay in Australia temporarily.

The Tribunal acknowledged that it was bound to consider Direction No. 69 but retained its independence to reach its own conclusions on the merits of the case. It noted that guidelines such as the Direction may not be relevant if the facts presented by an applicant do not engage specific matters identified within those guidelines. The Tribunal considered the applicant's evidence regarding her husband's ongoing studies and their stated intention to return to China. The Tribunal found that the applicant met the genuine temporary entrant criterion under clause 500.312(a) of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for the Student (Temporary) (Class TU) visa to the Minister for reconsideration, with a direction that the applicant meets the genuine temporary entrant criterion.