Thapa (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a Subclass 500 (Student) visa. The applicant was applying as a member of the family unit of a person who held a Student visa. The core dispute revolved around whether the applicant met the criteria of a genuine temporary entrant, as stipulated by clause 500.312 of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine if the applicant genuinely intended to stay in Australia temporarily, having regard to their circumstances, immigration history, and any other relevant matters. This assessment was guided by Direction No. 69, which outlines factors to consider when evaluating the genuine temporary entrant criterion for student visas. These factors include the applicant's circumstances in their home country and potential circumstances in Australia, the value of the proposed course of study to the applicant's future, and their immigration history.

In its reasoning, the Tribunal noted that the applicant had indicated a lack of ongoing ties to their home country, Nepal, stating that their immediate family was in Hong Kong and they held a UK passport with an intention to live there in the future. The applicant also had no property or assets outside of Australia and had only returned to Hong Kong once since arriving in Australia in 2014. The Tribunal found that these circumstances did not provide sufficient incentive for the applicant to depart Australia upon the completion of their spouse's studies. Consequently, the Tribunal was not satisfied that the applicant met the genuine temporary entrant criterion.

Accordingly, the Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa, finding that the criteria for the visa were not met.