Bhandari (Migration)

The Administrative Appeals Tribunal considered the case of a visa applicant, identified as the "applicant," who sought review of a decision to refuse her Subclass 500 (Student) visa. The applicant, a 25-year-old citizen of Nepal, applied for the visa on 13 October 2021, with her husband listed as a secondary applicant. The delegate of the Minister for Home Affairs had refused her application on 23 November 2021.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Subclass 500 (Student) visa, specifically the "genuine applicant for entry and stay as a student" requirement under clause 500.212 of Schedule 2 to the Regulations. This clause requires the applicant to genuinely intend to stay in Australia temporarily, and to intend to comply with visa conditions. In assessing this, the Tribunal was required to have regard to Direction No 69, which outlines various factors to consider, including the applicant's circumstances in her home country and potential circumstances in Australia, the value of the course to her future, her immigration history, and any other relevant information.

The Tribunal affirmed the delegate's decision, concluding that the applicant did not satisfy the genuine temporary entrant criterion. This conclusion was based on an assessment of the applicant's study history, which revealed no completed courses, multiple changes in study areas, and a significant period of non-enrolment. Furthermore, the applicant's future business plans were described as vague. The Tribunal also considered that the husband's ongoing work was an incentive for the applicant to remain in Australia, rather than a genuine intention to study temporarily. The Tribunal found that these factors, when considered as a whole, indicated that the applicant's intention was not genuinely to stay in Australia temporarily for the purpose of study.