Rai (Migration)

The Administrative Appeals Tribunal considered an application for a Subclass 500 (Student) visa made by a 41-year-old man from Nepal. The applicant had arrived in Australia on a visitor visa in 2018, which expired in March 2019. Shortly before its expiry, he applied for the student visa to undertake an English course, which he completed. He then enrolled in further English and business courses, with the latter scheduled to conclude in December 2022. The core dispute before the Tribunal was whether the applicant genuinely intended to stay in Australia temporarily, as required by the criteria for the visa.

The Tribunal was required to determine if the applicant satisfied clause 500.212(a) of Schedule 2 to the Migration Regulations 1994, which mandates that an applicant must genuinely intend to stay in Australia temporarily. In making this assessment, the Tribunal was guided by Direction No. 69, issued under section 499 of the Migration Act 1958. This Direction outlines various factors to be considered, including the applicant's circumstances in their home country and potential circumstances in Australia, the value of the proposed course to their future, and their immigration history. The Direction emphasizes that these factors should not be treated as a checklist but rather as a guide to considering the applicant's circumstances as a whole.

The Tribunal found that the applicant did not meet the genuine temporary entrant criterion. While acknowledging the applicant's enrolment in further courses, the Tribunal's reasoning, informed by Direction No. 69, focused on factors suggesting an economic incentive to remain in Australia and personal ties within Australia. The applicant's age, his prolonged stay in Australia since 2018, and his continuous enrolment in courses since his initial visitor visa expired, without a clear pathway to employment or further study in his home country upon completion, contributed to the Tribunal's conclusion. The Tribunal considered that these circumstances indicated a potential intention to remain in Australia beyond the temporary purpose of study.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Subclass 500 (Student) visa, finding that the criteria for the visa were not met. The applicant did not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.