Shrestha (Migration)

This matter concerned an application for review of a decision by a delegate of the Department of Home Affairs to refuse a Subclass 500 (Student) visa. The applicant, a citizen of Nepal, sought to study a Diploma of Leadership and Management and a Certificate IV in Leadership and Management in Australia. The delegate had refused the application on the grounds that the applicant was not a genuine applicant for entry and stay as a student.

The Tribunal was required to determine whether the applicant satisfied the primary criterion under clause 500.212 of Schedule 2 to the Migration Regulations 1994, which mandates that an applicant must be a "genuine applicant for entry and stay as a student". This involves assessing whether the applicant genuinely intends to stay in Australia temporarily and intends to comply with visa conditions. The Tribunal was guided by Direction No. 69, which outlines factors to consider, including the applicant's circumstances in their home country, potential circumstances in Australia, the value of the course to their future, and their immigration history.

The Tribunal noted that the applicant had commenced and progressed through her studies in Australia, completing a General English course and a Certificate IV in Leadership and Management, and was undertaking a Diploma of Leadership and Management. The Tribunal found that the applicant was doing what a student on a student visa ought to be doing, which weighed in favour of granting the application. The fact that she continued her studies after the visa refusal indicated a genuine interest in the educational benefits of the courses. The Tribunal also accepted that the Diploma course naturally followed from her previous studies and was consistent with her prior education.

The Tribunal concluded that the matter should be remitted for reconsideration.