Sapkota (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Sapkota, an applicant for a Subclass 500 (Student) visa. The dispute concerned whether Mr. Sapkota met the criteria for the visa, specifically the requirement to be a genuine temporary entrant. The Tribunal was tasked with reviewing a decision that had affirmed the refusal of the visa.

The central legal issue before the Tribunal was whether the applicant satisfied the enrolment requirement stipulated in clause 500.211(a) of Schedule 2 to the Regulations. This clause requires an applicant to be enrolled in a full-time registered course of study at the time of the decision. The Tribunal also considered the applicant's intention to return to Nepal and whether he was a genuine temporary entrant.

The Tribunal reasoned that at the time of the hearing, the applicant was no longer enrolled in a registered course of study. The applicant himself gave evidence that he had withdrawn from his course due to embarrassment about his age and a difficult personal situation, stating he no longer wished to study. While the applicant had previously provided a Confirmation of Enrolment, this was no longer current. The Tribunal noted that the applicant had a history of prolonged study in Australia, commencing in 2008, and had not completed his initial Master's degree due to financial difficulties, subsequently undertaking diploma-level courses. The Tribunal concluded that the applicant did not meet the primary criteria for the visa.

Consequently, the Tribunal affirmed the decision not to grant the applicants Student (Temporary) (Class TU) visas. As the primary applicant did not satisfy the primary criteria, the secondary applicant, who had made a combined application, was also unable to meet the visa requirements.