Karki (Migration)

The Administrative Appeals Tribunal considered the application of a 33-year-old female Nepalese citizen for a Subclass 500 (Student) visa. The applicant had arrived in Australia on a tourist visa and subsequently applied for a student visa to undertake a Certificate III in Commercial Cookery and a Diploma of Hospitality Management. The Tribunal noted the applicant's academic progress, having completed her Certificate III and being close to completing her Diploma, despite the uncertainty of her application's outcome.

The primary legal issue before the Tribunal was whether the applicant met the "genuine temporary entrant" criterion, as outlined in clause 500.212(a) of Schedule 2 to the Migration Regulations 1994 and guided by Direction No. 69. This criterion requires the applicant to demonstrate a genuine intention to stay in Australia temporarily. The Tribunal was also bound to consider and apply the Minister's Direction No. 69, which provides guidance on assessing this criterion, while retaining its independence to reach its own conclusions.

The Tribunal reasoned that while the applicant's circumstances in Nepal, including economic factors and the availability of comparable courses, provided reasonable grounds for her to study in Australia, concerns arose regarding the timing of her visa application and the significant change in her initial travel intentions. However, the Tribunal acknowledged the applicant's commendable academic progress and her stated reasons for choosing to study in Australia, which were considered reasonable. Weighing these factors, the Tribunal was satisfied that the applicant met the genuine temporary entrant criterion.

Consequently, the Tribunal remitted the application for a Student (Temporary) (Class TU) visa to the Minister for reconsideration, with a direction that the applicant satisfies clause 500.212(a) of Schedule 2 to the Regulations.