SHRESTHA (Migration)

This matter concerned an appeal by the applicant, Ms Shrestha, against a decision to refuse her application for a Subclass 500 (Student) visa. The primary issue before the Tribunal was whether Ms Shrestha satisfied clause 500.212 of Schedule 2 to the Regulations, which requires an applicant to be a genuine applicant for entry and stay as a student, intending genuinely to stay in Australia temporarily and to comply with visa conditions.

The Tribunal was required to determine whether Ms Shrestha met the genuine temporary entrant criterion, having regard to her circumstances in Australia and her home country, her immigration history, and any other relevant matters. In assessing this criterion, the Tribunal was guided by Direction No. 69, which outlines factors to consider, such as the applicant's circumstances in their home country and potential circumstances in Australia, the value of the course to their future, and their immigration history. The Direction emphasizes that these factors are not a checklist but are intended to guide the decision-maker in considering the applicant's circumstances as a whole.

The Tribunal found the case difficult to assess, noting that Ms Shrestha had been in Australia for nine years, which raised concerns about her temporary entrant status. Her study path had also involved a change in career direction, from business in Nepal to web design, and then cookery and hospitality management in Australia, with only vocational level courses being successfully completed despite holding a Bachelor's degree from Nepal. The second applicant chose not to give evidence.

Ultimately, the Tribunal decided to remit the application for reconsideration by the Minister, with a direction that Ms Shrestha met the criteria under clause 500.212(a) of Schedule 2 to the Regulations.