Shrestha (Migration)

The Administrative Appeals Tribunal considered the application of a national of Nepal, aged 29, and his spouse, aged 30, for a Subclass 500 Student (Temporary) (Class TU) visa. The applicant had previously held several student visas in Australia since 2008, including as a dependent spouse and primary visa holder. The Department had affirmed a decision to refuse the visa, and the applicant sought review of that decision.

The primary legal issue before the Tribunal was whether the applicant genuinely intended to stay in Australia temporarily, as required by clause 500.212(a) of the Migration Regulations 1994, and whether his proposed study was necessary for his future employment prospects in Nepal. The Tribunal was required to assess the applicant's migration history, including previous instances of ceasing study and the timing of his visa applications, in light of his stated intention to return to Nepal after completing his studies.

The Tribunal reasoned that the applicant's prolonged stay in Australia and his pattern of obtaining successive student visas, coupled with his cessation of previous studies, raised concerns about his genuine temporary entrant status. While the applicant provided evidence of his current enrolment and a statutory declaration explaining past disruptions due to family circumstances and a desire to return to Nepal, the Tribunal found this evidence insufficient to overcome the concerns arising from his migration history. The Tribunal noted that the applicant's generalised evidence regarding the necessity of his postgraduate accounting course for future employment in Nepal did not sufficiently demonstrate a compelling reason to pursue this specific course at this time.

Consequently, the Tribunal concluded that the applicant did not satisfy the primary criteria for the visa. As a result, his spouse, as a secondary applicant, also failed to meet the criteria. The Tribunal affirmed the decisions not to grant the applicants Student (Temporary) (Class TU) visas.