Shah Thakuri (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Subclass 500 (Student) visa by a national of Nepal. The applicant, aged 29, had previously held a student visa and a temporary graduate visa. She had enrolled in a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management, which she completed in January 2023. Subsequently, she commenced a Diploma of Nursing, due for completion in October 2024. The delegate of the Minister had refused the visa application, and the applicant sought review of this decision.

The central legal issue before the Tribunal was whether the applicant met the criteria for a genuine temporary entrant under clause 500.212 of Schedule 2 to the Migration Regulations 1994. This clause requires the applicant to genuinely intend to stay in Australia temporarily, considering their circumstances, immigration history, and any other relevant matters. The Tribunal was also guided by Direction No. 108, which outlines factors to be considered when assessing this criterion, including the applicant's circumstances in their home country and Australia, the value of the course to their future, and their immigration history.

The Tribunal reasoned that while the applicant had a history of previous study in Australia and was now pursuing a different field of study, the provided information did not definitively establish that she did not intend to genuinely stay in Australia temporarily. The Tribunal noted that the applicant's previous spouse was no longer part of the family unit, and her future work plans were not fully elaborated upon. Given these considerations and the need to assess the applicant's circumstances holistically, the Tribunal concluded that the matter should be remitted for reconsideration.

Consequently, the Tribunal remitted the application for a Student (Temporary) (Class TU) visa for reconsideration by the Minister, with a direction that the applicant met the genuine temporary entrant criterion under clause 500.212(a) of Schedule 2 to the Regulations.