Adhikari (Migration)

This matter concerned an application for a Subclass 500 Student visa. The applicant sought to review a decision by a delegate to refuse the visa, on the basis that the applicant was not considered a genuine temporary entrant. The applicant had previously completed two courses in Australia and sought to undertake further study. The Tribunal affirmed the delegate's decision.

The primary legal issue before the Tribunal was whether the applicant satisfied 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 required the Tribunal to assess whether the applicant genuinely intended to stay in Australia temporarily, having regard to their circumstances, immigration history, and any other relevant matters, and whether they intended to comply with visa conditions. In making this assessment, the Tribunal was guided by Direction No. 69, which outlines factors to consider, such as the applicant's circumstances in their home country, potential circumstances in Australia, the value of the course to their future career, and their immigration history.

The Tribunal considered the applicant's stated intention to return to their home country to start a business, their property and community involvement in Nepal, and significant family ties there. However, the Tribunal also had regard to the applicant's immigration history, including previous study in Australia. After considering all the evidence and submissions, the Tribunal concluded that the applicant did not satisfy the genuine temporary entrant criterion. The Tribunal affirmed the delegate's decision to refuse the visa.