1507920 (Migration)

This matter concerned an application for review of a decision not to grant a Student (Temporary) (Class TU) visa. The applicant had initially been enrolled in a Certificate III in Spoken and Written English, which would have made them eligible for a subclass 570 visa. However, upon completion of this course, the applicant enrolled in a Certificate IV in Business and a Diploma of Business, suggesting eligibility for a subclass 572 visa. The Tribunal, presided over by Alexis Wallace, was required to determine whether the applicant met the criteria for a genuine applicant for entry and stay as a student, as stipulated by the Migration Regulations 1994.

The central legal issue was whether the applicant satisfied the requirements of clause 572.223 of the Migration Regulations 1994, which outlines the conditions for a genuine student visa applicant. This clause differentiates between "eligible vocational education and training students" with a confirmation of enrolment and other applicants. For the latter category, compliance with Schedule 5A requirements, including English language proficiency and financial capacity, is mandatory. The Tribunal specifically considered whether the applicant qualified as an "eligible VET student" and, if not, whether they had provided the necessary evidence under Schedule 5A for their highest assessment level.

The Tribunal reasoned that the applicant was not an "eligible VET student" as defined by the regulations, meaning clause 572.223(1A) did not apply. Consequently, the applicant was required to satisfy the evidentiary requirements of Schedule 5A for the highest assessment level applicable to them. The applicant had provided confirmation of enrolment for diploma courses but had not submitted the required additional evidence pertaining to Schedule 5A, such as proof of English language proficiency and financial capacity, as mandated by clause 572.223(2). Without this evidence, the Tribunal concluded that the criteria for the grant of a subclass 572 visa were not met.

As the applicant had not demonstrated eligibility for a subclass 572 visa and had not provided evidence to suggest eligibility for any other student visa subclass, the Tribunal affirmed the original decision not to grant the visa.