Silwal (Migration)

This matter concerned an appeal by Ms Silwal against a decision regarding her application for a Subclass 500 (Student) visa. The Administrative Appeals Tribunal (AAT) was required to determine whether Ms Silwal met the primary criteria for the visa, specifically whether she was enrolled in a course of study as defined by the Migration Regulations 1994 and whether she genuinely intended to stay in Australia temporarily.

The Tribunal considered two key legal issues. Firstly, whether Ms Silwal was enrolled in a "course of study" as defined by the Regulations, which requires enrolment in a "full-time registered course" provided by an institution registered under the Education Services for Overseas Students Act 2000. Secondly, the Tribunal had to assess whether Ms Silwal met the "genuine temporary entrant" criterion, which requires satisfaction that the applicant genuinely intends to stay in Australia temporarily, having regard to their circumstances and immigration history, as guided by Direction No. 69.

The Tribunal found that Ms Silwal was enrolled in a full-time registered course, having completed a Diploma of Community Services and subsequently enrolling in a Bachelor of Community Services. Regarding the genuine temporary entrant criterion, the Tribunal accepted Ms Silwal's stated reasons for continuing her studies and her commitment to depart Australia upon completion. While acknowledging her previous Temporary Activities visa had expired and she had immediately applied for a student visa, the Tribunal found her explanation for this course of action to be credible, concluding she did not intend to stay indefinitely.

Consequently, the Tribunal remitted Ms Silwal's application for the Subclass 500 (Student) visa to the Minister for reconsideration, with a direction that she met the criteria relating to enrolment in a course of study and being a genuine temporary entrant.