Maharjan (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Ms. Maharjan and her husband, Mr. Maharjan, who sought to appeal a decision not to grant them Student (Temporary) (Class TU) visas, subclass 500. Ms. Maharjan, a 37-year-old citizen of Nepal, had been in Australia since 2009, holding various student and temporary graduate visas. Her application for a further student visa was based on a desire to undertake a Master of Business Administration, with her husband applying as a family unit member.

The primary legal issue before the Tribunal was whether the applicants met the criteria for a genuine temporary entrant, as stipulated by Direction No. 69 issued under section 499 of the Migration Act 1958. This involved assessing whether Ms. Maharjan genuinely intended to stay in Australia temporarily, considering her personal circumstances, immigration history, and the value of her proposed course of study to her future.

The Tribunal affirmed the delegate's decision, finding that Ms. Maharjan was not a genuine applicant for entry and stay as a student. This conclusion was based on several factors, including her extended period of onshore residence in Australia, which would have reached nine years upon completion of the proposed course. The Tribunal noted that she had not undertaken study during a previous Temporary Graduate visa and appeared to be recommencing study primarily to maintain her ongoing residence. Furthermore, the delegate was not satisfied that she had substantial personal ties to Nepal that would serve as a significant incentive to return, nor had she demonstrated a clear and substantial benefit from the proposed courses that would outweigh the time and expense involved. The Tribunal concluded that the criteria for the visa were not met.