Maharjan (Migration)

The Administrative Appeals Tribunal considered an application for a Subclass 500 (Student) visa made by Mr. Maharjan. The core of the dispute revolved around whether the applicant was a "genuine applicant for entry and stay as a student," a criterion stipulated in the Migration Regulations. The Tribunal, presided over by Warren Stooke AM, ultimately concluded that the matter should be remitted for reconsideration.

The legal issues before the Tribunal were whether the applicant satisfied the primary criteria for a Subclass 500 visa, specifically the "genuine temporary entrant" requirement as outlined in clause 500.212(a) of Schedule 2 to the Regulations, and whether the applicant had made continuous academic progress in his courses of study. The Tribunal was required to assess the applicant's circumstances in his home country and in Australia, the value of his proposed course of study to his future, and his immigration history, in accordance with Direction No. 69.

The Tribunal's reasoning focused on the applicant's stated intentions and provided evidence. Mr. Maharjan, a 30-year-old from Nepal, presented evidence of personal ties to his home country, including a non-accompanying wife and son. He also detailed his aspirations to open his own restaurant in Nepal upon completion of his studies, citing the growing food industry and changing lifestyles in his home country as opportunities. The Tribunal noted that while the applicant had experienced delays in his studies due to COVID-19 restrictions, he had provided evidence of health insurance and confirmations of enrolment for his courses. The Tribunal found that the applicant had demonstrated continuous academic progress and that his stated intentions and personal ties to Nepal supported a genuine intention to temporarily remain in Australia.

Consequently, the Tribunal remitted the application for a Student (Temporary) (Class TU) visa for reconsideration. The Tribunal directed that the applicant met the criterion specified in cl.500.212(a) of Schedule 2 to the Regulations, indicating satisfaction of the genuine temporary entrant requirement.