Purja Rontija (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Subclass 500 (Student) visa. The applicant, a 36-year-old woman from Nepal, arrived in Australia on a tourist visa with her spouse. She subsequently enrolled in a series of English language and business administration courses, with her most recent enrolment being for an Advanced Diploma of Business Administration. The Tribunal was tasked with determining whether the applicant met the criteria for a genuine temporary entrant.

The central legal issue before the Tribunal was whether the applicant genuinely intended to stay in Australia temporarily, as required by clause 500.211 of Schedule 2 to the Migration Regulations 1994 and guided by Direction No. 69. This involved assessing various factors, including the applicant's circumstances in her home country, her potential circumstances in Australia, the value of her proposed course of study to her future, and her immigration history. The Tribunal also considered the applicant's stated intention to return to Nepal upon completion of her studies, her business interests there, and her husband's land ownership.

The Tribunal's reasoning focused on the applicant's prolonged stay in Australia since her arrival on a tourist visa in May 2019, her continuous enrolment in courses, and the apparent lack of significant income relative to her living expenses. While the applicant presented evidence of a business in Nepal and her husband's land ownership, the Tribunal found these factors insufficient to outweigh concerns about her genuine temporary entrant status. The Tribunal noted that the applicant's stated reason for studying in Australia, "Compared to other countries, I really liked this country and study as well," lacked specific detail regarding the value of the course to her future prospects in Nepal. Furthermore, the applicant's initial arrival on a tourist visa with no intention to study, followed by a change of intention, raised questions about her original purpose.

Consequently, the Tribunal affirmed the decision not to grant the applicants Student (Temporary) (Class TU) visas, concluding that the applicant had not satisfied the criteria for a genuine temporary entrant. As a result, the secondary applicant, who was a member of the family unit, also did not satisfy the required criteria.