Bista (Migration)

The Administrative Appeals Tribunal (AAT) considered an appeal by a Nepalese citizen concerning the refusal of a Subclass 500 (Student) visa. The applicant, who arrived in Australia on a visitor visa, sought to undertake a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management. The delegate had refused the visa application, and the applicant sought review of this decision.

The primary legal issue before the Tribunal was whether the applicant met the "genuine temporary entrant" criterion as stipulated by clause 500.212(a) of Schedule 2 to the Migration Regulations 1994, and as guided by Direction No. 69. This involved assessing the applicant's circumstances in her home country and in Australia, the value of the proposed course to her future, and her immigration history.

The Tribunal acknowledged that while the applicant had encountered difficulties with online learning during the COVID-19 pandemic, resulting in some "not yet competent" grades, she had otherwise made good course progress. The applicant provided evidence of her intention to resubmit assessments and complete her Diploma, presenting as forthright and with a genuine desire to study. The Tribunal considered the applicant's limited financial circumstances onshore, her strong ties to her home country including elderly parents, and the lack of similar courses available in Nepal. Despite initial concerns regarding the timing of the visa application after arrival and a previous student visa refusal, the Tribunal found the factors for and against the applicant being a genuine temporary entrant to be closely balanced. Ultimately, the Tribunal decided to give the applicant the benefit of the doubt, finding she was a genuine applicant for entry and stay as a student temporarily.

Consequently, the Tribunal remitted the application for the visa to the Minister for reconsideration, with a direction that the applicant met the genuine temporary entrant criterion.