Thapa (Migration)

This matter concerned an appeal by Mr Thapa against a decision of the Administrative Appeals Tribunal (AAT) which affirmed the refusal of his application for a Student (Temporary) (Class TU) visa, subclass 500. The refusal was based on the applicant's failure to meet the genuine temporary stay requirement, stemming from a gap in his enrolment in a registered course.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the AAT had erred in law in its assessment of Mr Thapa's genuine temporary stay. Specifically, the court was required to consider whether the AAT had properly applied the relevant legislative criteria and whether its findings of fact were reasonably open to it.

In his reasoning, Justice Harkess noted that the AAT had considered the applicant's circumstances, including the liquidation of his education provider and his continued employment in Australia. However, the court found that the AAT had failed to adequately explain how the applicant's continued employment, in the context of a gap in his studies, demonstrated a lack of genuine intention to temporarily stay in Australia for the purpose of study. The AAT's conclusion that the applicant did not meet the genuine temporary stay requirement was therefore found to be not reasonably open on the evidence before it, constituting an error of law.

The court ordered that the AAT's decision be set aside and remitted to the AAT for redetermination according to law.