Malla (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a Subclass 500 (Student) visa. The applicant, a Nepalese citizen, had arrived in Australia on a visitor visa and subsequently applied for a student visa. The delegate had refused the visa application, and the applicant sought review of this decision by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied the "genuine temporary entrant" (GTE) criterion for a Subclass 500 (Student) visa, as guided by Direction No. 69. This involved assessing the applicant's circumstances in their home country and in Australia, the value of the proposed course to their future, and their immigration history. The Tribunal was required to consider these factors holistically and determine, on balance, if the applicant genuinely intended to stay in Australia temporarily.

The Tribunal acknowledged that Direction No. 69, issued under section 499 of the Migration Act 1958, was a lawful direction binding on decision-makers. However, it also recognised its independent statutory role to reach its own conclusions. The Tribunal noted that the applicant's educational background was interrupted by periods of ill health affecting his father in Nepal, for which he provided corroborating medical documentation. The applicant had also delayed commencing his studies but had a new completion date and presented factors such as his father's ill health as incentives to return home. The Tribunal found that the factors presented by the applicant were closely balanced.

Consequently, the Tribunal remitted the application for the visa to the Minister for reconsideration, directing that the applicant met the criteria under clause 500.212(a) of Schedule 2 to the Regulations.