Shrestha (Migration)

The Administrative Appeals Tribunal considered the case of Mr Shrestha, a 36-year-old Nepalese citizen who had been in Australia since February 2020. Mr Shrestha applied for a Subclass 500 (Student) visa to undertake commercial cookery and hospitality management courses. The delegate had refused his application, and Mr Shrestha sought merits review of that decision.

The Tribunal was required to determine whether Mr Shrestha met the criteria for a genuine temporary entrant under clause 500.212 of Schedule 2 to the Migration Regulations 1994, and whether he was enrolled in a course of study as required by clause 500.211. The Tribunal also had regard to Direction No. 69, issued by the Minister under section 499 of the Migration Act 1958, which provides guidance on assessing the genuine temporary entrant criterion.

The Tribunal found that while Mr Shrestha had not provided formal certificates of completion, his transcripts indicated he had completed his Certificate III and a significant portion of his Certificate IV and Diploma courses. The Tribunal was satisfied that Mr Shrestha was a genuine applicant for entry and stay as a student, having regard to his circumstances, including his age, previous employment in Nepal, and the value of the proposed course to his future career prospects. The Tribunal noted that the COVID-19 pandemic and associated travel restrictions had impacted the timing of his studies.

Accordingly, the Tribunal remitted the application to the Minister for reconsideration, with a direction that Mr Shrestha met the criterion under clause 500.212(a) of Schedule 2 to the Regulations.