GURUNG (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Mr Gurung, a national of Nepal, who sought review of a decision to refuse him a Subclass 500 (Student) visa. Mr Gurung had previously held a Subclass 573 higher education student visa and had a history of multiple course completions and cancellations across various vocational education and training sectors. The delegate who made the original decision expressed concerns that Mr Gurung's study history indicated a lack of academic progression beyond vocational levels, despite holding higher education sector visas, and that his actions suggested an intention to circumvent the migration program by seeking a pathway to permanent residency.

The primary legal issue before the Tribunal was whether Mr Gurung was a genuine temporary entrant and therefore eligible for a Subclass 500 (Student) visa. This involved assessing whether he met the criteria for a student visa, particularly in light of his extensive and varied study history in Australia, which included numerous course enrolments and cancellations. The Tribunal was required to consider whether his stated intention to study was genuine, or if his actions indicated a primary purpose of remaining in Australia.

The Tribunal's reasoning focused on Mr Gurung's documented study history, which showed a pattern of enrolling in and completing vocational courses, with several higher education courses being cancelled or not progressed. The delegate had noted a lack of academic progression beyond the vocational level, despite previous grants of higher education sector visas. The Tribunal also considered the applicant's submissions regarding his marriage to Ms Magar, who held a Subclass 500 Student visa and was enrolled in a Master of Nursing course. While the Tribunal accepted that Mr Gurung was in a valid marriage with Ms Magar and that she met the criteria for her student visa, it ultimately found that the criteria for Mr Gurung's own Subclass 500 visa were not met.

Consequently, the Tribunal affirmed the decision not to grant Mr Gurung a Subclass 500 (Student) visa. The Tribunal found that the applicant did not meet the necessary criteria for the visa sought.