Shah (Migration)

The Administrative Appeals Tribunal (AAT) considered an appeal by Mr Shah concerning the refusal of his Subclass 500 (Student) visa. The primary issue before the Tribunal was whether Mr Shah was a genuine temporary entrant, as required by clause 500.212 of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine if Mr Shah genuinely intended to stay in Australia temporarily, having regard to his circumstances, immigration history, and any other relevant matters, in accordance with Direction No. 69. This Direction outlines various factors to be considered, including the applicant's circumstances in their home country and Australia, the value of the proposed course to their future, and their immigration history.

In its reasoning, the Tribunal noted that Mr Shah was enrolled in a diploma of business course, due to be completed in February 2020, and intended to return to Nepal to open a hotel business. He had arrived in Australia on a visitor visa in October 2017 and applied for the student visa shortly before its expiry. Mr Shah stated his immediate family resided in Nepal, while his wife, sister, and brother-in-law were in Australia. He was not currently working and his sister was funding his tuition fees. The Tribunal concluded that Mr Shah met the requirements of clause 500.212.

Consequently, the Tribunal remitted the applications for Subclass 500 (Student) visas for reconsideration, with a direction that Mr Shah satisfied the genuine temporary entrant criterion.