Shrestha (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Subclass 500 (Student) visa made by a 27-year-old applicant from Nepal. The applicant had arrived in Australia on a Visitor visa, subsequently obtained a Bridging Visa A with a 'no work' condition, and was enrolled in a Certificate IV in Commercial Cookery. The core of the dispute was whether the applicant met the criteria of being a genuine temporary entrant, a requirement for the student visa.

The legal issue before the Tribunal was to determine if the applicant genuinely intended to stay in Australia temporarily, as required by clause 500.211 of Schedule 2 to the Migration Regulations 1994, and as guided by Direction No. 69. This involved assessing various factors related to the applicant's circumstances in both Nepal and Australia, their immigration history, and the value of the proposed course of study to their future.

The Tribunal reasoned that several aspects of the applicant's situation weighed against a finding that they were a genuine temporary entrant. These included the applicant's failure to complete their previous course of study within the expected timeframe, being behind in their current course assignments due to unspecified issues, and working in their brother's business in breach of their visa conditions. Furthermore, the cost of study in Australia relative to Nepal, coupled with vague future business plans, and the presence of family members in Australia were considered. The Tribunal applied the principles outlined in Direction No. 69, which requires a holistic assessment of an applicant's circumstances, immigration history, and other relevant matters to ascertain their genuine intention for a temporary stay.

Ultimately, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of a Subclass 500 (Student) visa. Consequently, the decision under review, which affirmed the refusal of the visa, was affirmed by the Tribunal.