Kandel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

In the case of Kandel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the appellant, a national of Nepal, challenged the decision of the Administrative Appeals Tribunal (AAT) which had dismissed her application for a student visa on the basis that she was not a genuine temporary entrant. The Federal Circuit Court was tasked with reviewing the decision of the AAT. The central legal issue before the court was whether the AAT had misinterpreted and misapplied clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth). The court was also required to determine if the criteria for a student visa were met in the absence of any evidence of the appellant's intention to apply for a permanent visa or any fraudulent behaviour.

The court found that the AAT's decision was correct and dismissed the appeal. The court held that the AAT had properly interpreted and applied the relevant provisions of the Migration Regulations. It was observed that the appellant's pattern of enrolling in numerous similar and overlapping courses did not demonstrate a genuine intention to stay in Australia temporarily. The court further noted that the absence of evidence of the appellant's intention to apply for a permanent visa or any fraudulent behaviour did not negate the AAT's finding that she was not a genuine temporary entrant. Consequently, the court upheld the AAT's decision and dismissed the appeal.

The court also ordered that the appellants pay the first respondent's costs to be assessed if not agreed, in accordance with Rule 39.32 of the Federal Court Rules 2011.