Shrestha (Migration)

The Administrative Appeals Tribunal considered the case of Shrestha, who sought review of a delegate's decision to refuse a Subclass 500 (Student) visa. The applicant, a 35-year-old citizen of Nepal, had resided in Australia since 2009 on various student and temporary graduate visas. His wife was a secondary applicant. The delegate refused the visa application on 9 September 2019, and the applicant subsequently applied to the Tribunal for a review of that decision.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for a Subclass 500 (Student) visa, specifically the "genuine applicant for entry and stay as a student" requirement under clause 500.212 of Schedule 2 to the Regulations. This involved assessing whether the applicant genuinely intended to stay in Australia temporarily and intended to comply with visa conditions. The Tribunal was required to have regard to Direction No. 69, which outlines factors to consider when assessing the genuine temporary entrant criterion.

The Tribunal noted that the applicant's academic history appeared inconsistent with the level of education he was seeking to undertake, and that the value of the proposed course to his future was questionable. While the applicant had resided in Australia for an extended period on student visas, returning to Nepal only for short periods, the Tribunal found that his circumstances did not demonstrate a genuine intention to temporarily stay in Australia for the purpose of study. The Tribunal also noted that the applicant had not responded to a section 359(2) letter, which meant he was not entitled to appear before the Tribunal.

Consequently, the Tribunal affirmed the delegate's decision to refuse the visa application.