Rai (Migration)

The Administrative Appeals Tribunal considered the case of an applicant for a Student (Temporary) (Class TU) visa, Subclass 500. The applicant, a Nepalese citizen, had arrived in Australia on a Temporary Skill Shortage visa (Subclass 482) and sought to transition to a student visa. The primary dispute concerned whether the applicant met the genuine temporary entrant (GTE) criterion, a requirement for the student visa.

The Tribunal was required to determine if the applicant genuinely intended to stay in Australia temporarily, as mandated by clause 500.212(a) of Schedule 2 to the Migration Regulations 1994. This assessment involved considering the applicant's circumstances, immigration history, and any other relevant matters, in accordance with Direction No. 69 issued under section 499 of the Migration Act 1958. The court also had to consider the applicant's enrolment in a course of study, as required by clause 500.211.

The Tribunal reasoned that the applicant had provided significant evidence of being a genuine student, including completing a Diploma of Leadership and Management while awaiting a decision on his visa application, despite a change in his intended study pathway. The court acknowledged the impact of COVID-19 on the applicant's employment and the hospitality industry, which contributed to his decision to change his course of study to a Certificate IV in Disability and a Diploma of Community Service. The Tribunal found that the applicant's circumstances, including his ties to his home country such as land, house, and family, supported his intention to return. The Tribunal concluded that the applicant met the genuine temporary entrant criterion.

Consequently, the Tribunal remitted the application for a Subclass 500 (Student) visa to the Minister for reconsideration, with a direction that the applicant satisfied clause 500.212(a) of Schedule 2 to the Regulations.