Rokka (Migration)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister for Home Affairs to refuse a Subclass 500 (Student) visa application made by a citizen of Nepal. The applicant, who had been residing in Australia since November 2015, sought to remain in Australia to complete a Graduate Diploma of Management.

The primary legal issue before the Tribunal was whether the applicant met the criteria under clause 500.212 of Schedule 2 to the Regulations, specifically whether he was a "genuine applicant for entry and stay as a student." This required the Tribunal to assess whether the applicant genuinely intended to stay in Australia temporarily and intended to comply with visa conditions, having regard to Direction No 69.

The Tribunal considered the applicant's circumstances, including his academic history, employment in Australia, and his stated intention to pursue further study relevant to his future career in Nepal. It noted his continuous academic progress, including completing a Master's degree and subsequently enrolling in a Graduate Diploma of Management after his Temporary Graduate visa ceased. The Tribunal accepted that it was reasonable for him to undertake further study during the COVID-19 pandemic and that successful completion of his current course would enhance his employment prospects in Nepal. While acknowledging his family ties in Nepal, the Tribunal found the evidence insufficient to establish these as a significant incentive for his return.

Ultimately, the Tribunal concluded that the applicant had demonstrated a genuine intention to stay in Australia temporarily for the purpose of study and had made satisfactory academic progress. Consequently, the Tribunal remitted the matter for reconsideration.