Sthapit (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Subclass 500 (Student) visa. The primary applicant sought to study a Certificate IV in Commercial Cookery, and the secondary applicant was their spouse. The core dispute revolved around whether the primary applicant met the criteria for being a genuine temporary entrant and intended to comply with visa conditions, specifically condition 8202 relating to enrolment, course progress, and attendance.

The legal issues before the Tribunal were whether the primary applicant satisfied clause 500.212(b) of the Migration Regulations 1994, which requires the Tribunal to be satisfied that the applicant intends to comply with visa conditions, having regard to their past compliance record and stated intentions. This also involved assessing whether the applicant was a genuine applicant for entry and stay as a student, as per clause 500.212(a), which requires an intention to stay in Australia temporarily. The Tribunal was also guided by Direction No. 69, which outlines factors to consider when assessing the genuine temporary entrant criterion.

The Tribunal affirmed the delegate's decision to refuse the visa. It found that the primary applicant had not demonstrated an intention to comply with visa condition 8202. While the applicant claimed mental health issues, this was not sufficient to satisfy the Tribunal that they intended to comply with their enrolment and course progress obligations. Given that the primary applicant did not meet the relevant criteria, the secondary applicant, as a dependant, also failed to satisfy the secondary criteria for the visa.

Consequently, the Tribunal affirmed the decisions not to grant the applicants Student (Temporary) (Class TU) visas.