Adhikari (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Subclass 500 (Student) visa. The applicant sought to review the decision to refuse their visa application. The primary issue before the Tribunal was whether the applicant met the criteria of being a genuine temporary entrant (GTE) under clause 500.212 of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine if the applicant genuinely intended to stay in Australia temporarily for the purpose of undertaking full-time studies. This assessment involved considering various factors outlined in Direction No. 69, including the applicant's circumstances in their home country and potential circumstances in Australia, the value of the proposed course to their future, and their immigration history. The Tribunal also had to consider any other relevant matters that might indicate whether the applicant's intention was genuinely temporary.

In its reasoning, the Tribunal applied the principles set out in Direction No. 69, which guides decision-makers in assessing the GTE criterion. The Tribunal considered factors such as the applicant's study gap, their primary role in caring for their newborn son, their husband's presence and stable employment in Australia, the value of the course, and the income disparity between Australia and the applicant's home country. The Tribunal found that these circumstances, when weighed together, did not satisfy the Tribunal that the applicant genuinely intended a temporary stay in Australia.

Consequently, the Tribunal concluded that the applicant did not meet the criteria for the grant of a Subclass 500 (Student) visa. Accordingly, the Tribunal affirmed the decision under review not to grant the visa.