Sapkota (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Student (Temporary) (Class TU) visa, Subclass 500 (Student), made by an applicant from Nepal. The applicant had completed a Bachelor's degree in Business Studies in Nepal and subsequently undertook several courses in Australia, including a Graduate Certificate, Graduate Diploma, and Master of Commerce in Accounting, followed by a Certificate IV in Commercial Cookery, a Diploma of Hospitality Management, and was nearing completion of an Advanced Diploma in Leadership and Management. The delegate's decision to refuse the visa was under review by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the genuine temporary entrant (GTE) criterion for a Subclass 500 visa, as outlined in Direction No. 69. This involved assessing 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 Tribunal was required to determine if the applicant genuinely intended to stay in Australia temporarily.

The Tribunal reasoned that while the applicant had strong family ties to Nepal, they lacked significant community or economic ties to their home country. Conversely, the applicant had an extensive work history in Australia and had completed multiple courses, including those in different subject areas from their initial business studies. The Tribunal noted that the applicant was close to completing their current course and had provided evidence of potential employment in Nepal, such as an online job listing for an executive chef. However, the Tribunal also considered the applicant's immigration history, which included a series of study packages. Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant met the criteria under cl 500.212 of Schedule 2 to the Regulations.