Awasthi (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Subclass 500 (Student) visa made by the applicant, who arrived in Australia from Nepal on a visitor visa in February 2018 and subsequently applied for a student visa in November 2018. The primary decision-maker had refused the application. The applicant was enrolled in a Certificate IV in Commercial Cookery at Imperial College, with further studies planned in Hospitality Management.

The central legal issue before the Tribunal was whether the applicant was a "genuine applicant for entry and stay as a student," as required by clause 500.212 of Schedule 2 to the Migration Regulations 1994. This required the Tribunal to assess whether the applicant genuinely intended to stay in Australia temporarily, considering their circumstances in Australia and their home country, the value of their proposed course of study to their future, and their immigration history, in accordance with Ministerial Direction 69.

The Tribunal noted that the applicant intended to return to Nepal upon completion of his studies to manage a boutique hotel owned by his brother, with the current course intended to enhance his culinary skills. While the applicant had family ties in Nepal and stated an intention to return, the Tribunal did not make specific findings regarding the applicant's circumstances in his home country, such as potential military service or political unrest, as there was insufficient relevant evidence. The Tribunal also considered the applicant's study history in Australia, his living arrangements, and the financial assistance he received from his brother in Australia for his studies.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the applicant met the criterion under clause 500.212 of Schedule 2 to the Regulations, indicating that the applicant was a genuine applicant for entry and stay as a student.