Karki (Migration)

This matter concerned an appeal by two applicants, a husband and wife, against the decision of a delegate not to grant them Student (Temporary) (Class TU) visas, subclass 500 (Student). The primary applicant, a Nepali citizen, had been in Australia on various student and temporary graduate visas since January 2009, with a single trip to Nepal in 2013. He had completed a Bachelor of Professional Accounting and a Graduate Diploma in Business, having commenced an Advanced Diploma of Accounting prior to these. The Administrative Appeals Tribunal was required to consider whether the applicants met the genuine temporary entrant criterion.

The core legal issue before the Tribunal was whether the primary applicant genuinely intended to stay in Australia temporarily, as required by the genuine temporary entrant criterion for student visas. This involved assessing various factors outlined in Direction No. 69, issued by the Minister under section 499 of the Migration Act 1958, which guides decision-makers on assessing this criterion. The Tribunal had to determine how these factors applied to the applicant's specific circumstances, including his extensive study history in Australia, his enrolment in multiple courses, and his prolonged period of onshore residence.

The Tribunal reasoned that while the applicant had a commendable academic record and had complied with his visa conditions, his lengthy continuous stay in Australia, spanning over a decade with multiple completed courses, raised concerns about his genuine intention to temporarily remain in Australia. The Tribunal noted that the applicant had transitioned from an Advanced Diploma to a Bachelor's degree and then to a Graduate Diploma, and that he had also engaged in cricket playing and coaching in Australia. Despite acknowledging the applicant's explanation for ceasing his initial course and his overall good academic progress, the Tribunal concluded that the cumulative effect of his extensive onshore presence and study history, without a clear pathway to return to his home country for employment, did not satisfy the genuine temporary entrant criterion.

Consequently, the Tribunal affirmed the delegate's decisions not to grant the applicants their Student visas.