Shrestha (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Subclass 500 (Student) visa made by two applicants, a husband and wife. The primary dispute concerned whether the applicants met the criteria for a genuine temporary entrant, as required by clause 500.212 of Schedule 2 to the Migration Regulations 1994.

The legal issue before the Tribunal was to determine if the applicants genuinely intended to stay in Australia temporarily, as mandated by the "genuine temporary entrant" criterion. This assessment required the Tribunal to consider various factors outlined in Direction No. 69, which provides guidance on assessing this criterion for student visa applications.

The Tribunal reasoned that the assessment of the genuine temporary entrant criterion involves a holistic consideration of the applicant's circumstances, including their ties to their home country, their immigration history, and the value of the proposed course of study to their future. Direction No. 69 specifies that these factors should not be treated as a checklist but rather as guides to inform a comprehensive assessment. In this instance, the Tribunal found that the matter should be remitted for reconsideration by the Minister, indicating that the applicants met the specified criteria for the visa.