Gurung (Migration)

The Administrative Appeals Tribunal considered an application for a Subclass 500 (Student) visa made by Mr. Gurung. The core of the dispute revolved around whether Mr. Gurung was a "genuine applicant for entry and stay as a student," a criterion stipulated in the Migration Regulations 1994. Mr. Gurung had arrived in Australia on a Temporary Activity (GG 408) visa and subsequently held a Bridging Visa A. He had completed an English language course and was enrolled in a Diploma of Sport, providing evidence of his academic progress and his intention to use the qualification to advance his career in Nepal's growing sports industry.

The Tribunal was required to determine if Mr. Gurung met the genuine temporary entrant criterion for a Subclass 500 visa. This involved assessing his circumstances in his home country, his potential circumstances in Australia, the value of his proposed course of study to his future, and his immigration history, in accordance with Direction No. 69 issued under section 499 of the Migration Act 1958. The Tribunal needed to weigh these factors to ascertain if Mr. Gurung genuinely intended to stay in Australia temporarily.

The Tribunal reasoned that Mr. Gurung had demonstrated continuous academic progress and presented a compelling case for the value of his chosen course to his future career prospects in Nepal. His stated intention to return to Nepal upon completion of his studies, coupled with his background as a national soccer player for Nepal and the limited opportunities for such specialised sports qualifications in his home country, supported his claim. While Mr. Gurung had not returned to Nepal since his arrival, this was acknowledged in the context of COVID-19 border restrictions. The Tribunal concluded that, based on the evidence presented, Mr. Gurung met the genuine temporary entrant criterion.

Consequently, the Tribunal remitted the application for a Subclass 500 (Student) visa for reconsideration by the Minister, with a direction that Mr. Gurung satisfied the criterion under clause 500.212(a) of Schedule 2 to the Regulations.