Karki (Migration)

The Administrative Appeals Tribunal considered the case of an applicant, a national of Nepal, who sought review of a decision concerning her application for a Subclass 500 (Student) visa. The applicant, aged 37, had been in Australia on various temporary visas since 2007. Her husband, aged 40, was also a national of Nepal and a secondary applicant. The core dispute revolved around whether the applicant met the criteria for a genuine temporary entrant.

The Tribunal was required to determine if the applicant genuinely intended to stay in Australia temporarily and if she intended to comply with the conditions of any granted visa. This involved assessing her personal circumstances, her immigration history, and any other relevant matters, in accordance with Direction No 69. The assessment considered factors such as her reasons for studying in Australia, the value of the proposed course to her future, her past visa applications and travel history, and her record of compliance with previous visa conditions.

The Tribunal found that the applicant had been in Australia for over 15 years on temporary visas and had made minimal academic progress since obtaining a Certificate III in Financial Services in 2009. Despite enrolling in a Diploma of Leadership and Management, the Tribunal noted her history of non-compliance with previous student visa conditions, including periods where she was not enrolled while holding a student visa. While acknowledging personal stressors such as family deaths and injury, the Tribunal concluded these did not mitigate the non-compliance, particularly as it predated some of these events. The Tribunal also observed that the applicant maintained employment during periods she claimed inability to study due to emotional difficulties, and did not seek deferrals. Although the proposed course was accepted as potentially enhancing future prospects, the Tribunal ultimately affirmed the decision under review, finding the applicant did not satisfy the genuine temporary entrant criterion.