Acharya (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Subclass 500 (Student) visa made by a citizen of Nepal. The applicant had previously held a student visa and had undertaken various courses in Australia since 2013, including IT studies and, more recently, hospitality courses. The delegate had refused the visa application, and the applicant sought review of that decision.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994, specifically whether the applicant was a "genuine applicant for entry and stay as a student." This involved assessing whether the applicant genuinely intended to stay in Australia temporarily, having regard to their circumstances, immigration history, and any other relevant matters, as guided by Direction No. 69.

The Tribunal found that the applicant's chosen hospitality courses held real value for his future and supported his claim to be a genuine temporary entrant. However, the Tribunal noted that the applicant's immigration and study history since 2013 was complex, involving multiple course changes, incomplete studies, and a previous unsuccessful application for a regional employer nomination visa. Despite these complexities, the Tribunal concluded that the applicant had provided sufficient evidence of his ties to Nepal, including family and financial assets, which indicated strong incentives to return.

Consequently, the Tribunal remitted the application for the visa to the Minister for reconsideration, with a direction that the applicant met the genuine temporary entrant criterion (cl.500.212). The Minister was to consider the remaining criteria for the Subclass 500 (Student) visa.