Adhikari (Migration)

This matter concerned an appeal by a Nepalese citizen, Mr. Adhikari, against a decision to refuse his application for a Student (Temporary) (Class TU) visa, subclass 500. The primary dispute revolved around whether Mr. Adhikari was a "genuine student" and a "genuine temporary entrant" as required by migration law. The decision was heard by T. Quinn.

The court was required to determine if the applicant genuinely intended to study in Australia and if his proposed course of study would benefit his future career. A key issue was the applicant's academic progress in previous courses and whether his continued presence in Australia, particularly in light of the COVID-19 pandemic, indicated an intention to circumvent the migration program rather than pursue genuine study. The court also had to consider the relevance and application of a lawful Ministerial Direction to the applicant's circumstances.

The court acknowledged its obligation to consider the Ministerial Direction but affirmed its independence as a statutory body to reach its own conclusions on the merits of the case. The applicant, a 24-year-old Nepalese citizen, had been in Australia since April 2018 on successive student visas. The court found the applicant's explanation for his lack of academic progress in previous courses and the timing of his current application unpersuasive, raising concerns that he might be using the student visa program to maintain his residence in Australia. The court noted that the applicant's parents had invested significantly in his education and that he expressed a desire to assist with their business.

The court affirmed the decision under review, finding that the applicant had not satisfied the criteria for a genuine student and genuine temporary entrant.