PRASAI (Migration)

This matter concerned an appeal by a national of Nepal, aged 29, against the refusal of a Subclass 500 (Student) visa. The applicant had previously held several student visas since arriving in Australia in 2008, completing a Master of Accounting degree in 2015. The Department delegate had raised concerns regarding the necessity of further study at a lower academic level (Diploma of Leadership and Management) for employment in Nepal, the applicant's failure to investigate similar courses in his home country, and the economic incentive provided by his stable employment in Australia. The delegate also noted the applicant's limited time offshore since his arrival.

The primary legal issue before the Tribunal was whether the applicant genuinely intended to stay in Australia temporarily, as required by clause 500.212(a) of Schedule 2 to the Migration Regulations 1994. This required the Tribunal to consider the applicant's circumstances in Australia and his home country, his immigration history, and any other relevant matters, in accordance with Direction No. 69. The Tribunal was also required to assess whether the applicant intended to comply with the conditions of the visa.

The Tribunal considered the applicant's stated intention to pursue a Diploma of Leadership and Management to assist his mother's business in Nepal and to enhance his own future business prospects. However, it also weighed this against the applicant's extended period of study in Australia since 2008, his stable employment, and the limited offshore period. The Tribunal noted the applicant's explanation for the gaps in his studies, including periods of stress and depression following visa refusals, and his mother's desire for him to return to Nepal to marry and start a family. Despite the applicant's assurances of a temporary stay, the Tribunal found that the overall circumstances, including the significant duration of his studies and his employment in Australia, did not sufficiently demonstrate a genuine temporary entrant intention.

Consequently, the Tribunal concluded that the applicant had not satisfied the criteria for the grant of a Subclass 500 (Student) visa. The decision under review, which affirmed the refusal of the visa, was therefore affirmed.