Shrestha (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant the applicant a Subclass 500 (Student) visa. The applicant had applied for the visa to undertake study in Australia. The delegate's refusal was based on the applicant not satisfying the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994, specifically that the delegate was not satisfied the applicant genuinely intended to stay in Australia temporarily. The Administrative Appeals Tribunal (the Tribunal) heard the application for review by telephone due to circumstances arising from the COVID-19 pandemic, with the applicant appearing with interpreters and a registered migration agent.

The primary legal issue before the Tribunal was whether the applicant was a genuine applicant for entry and stay as a student, as stipulated by cl.500.212 of the Regulations. This clause requires consideration of whether the applicant genuinely intends to stay in Australia temporarily, having regard to their circumstances, immigration history, and any other relevant matters. The Tribunal was also required to have regard to Direction No. 69, which provides guidance on assessing the genuine temporary entrant criterion for student visas, outlining factors such as the applicant's circumstances in their home country and potential circumstances in Australia, the value of the course to their future, their immigration history, and the intentions of parents or guardians if the applicant is a minor.

The Tribunal considered all information provided by the applicant and the Department, including submissions and supporting documents submitted at various stages, as well as oral evidence given at the hearing. The Tribunal noted that the factors outlined in Direction No. 69 are intended to guide decision-makers and should not be treated as a checklist, but rather as a basis for considering the applicant's circumstances as a whole. After reviewing the evidence and submissions, the Tribunal concluded that the decision under review should be affirmed. The Tribunal found that the applicant did not satisfy the requirements of cl.500.212, meaning the delegate's decision to refuse the visa was upheld.