1514745 (Migration)

The Administrative Appeals Tribunal considered an application for a Student (Temporary) (Class TU) visa, specifically a subclass 573 Higher Education Sector visa. The applicant was enrolled in a Bachelor of Engineering Technology (Civil) course. The central issue before the Tribunal was whether the applicant qualified as a 'genuine applicant for entry and stay as a student' under the Migration Regulations 1994, as this is a requirement for most student visas, including subclass 573.

The Tribunal was required to determine if the applicant met the requirements of clause 573.223 of Schedule 2 to the Regulations. This clause outlines the criteria for a genuine student, which differ depending on whether the applicant is an 'eligible higher degree student' with a Confirmation of Enrolment. The Tribunal noted that the applicant did not meet the definition of an eligible higher degree student, meaning clause 573.223(1A) did not apply. Consequently, the applicant was required to provide evidence in accordance with Schedule 5A for the highest assessment level applicable to their course of study, covering aspects such as English language proficiency and financial capacity. The Tribunal also had to be satisfied that the applicant intended to comply with visa conditions and would have access to sufficient funds.

The Tribunal reasoned that the applicant had not been an eligible higher degree student with a Confirmation of Enrolment at any relevant time. Therefore, the applicant was required to satisfy the evidentiary requirements set out in Schedule 5A for the highest assessment level applicable to them, which broadly relate to English language ability and financial capacity. The Tribunal also had to be satisfied that the applicant was a genuine student and would have access to the necessary funds. The Tribunal concluded that the matter should be remitted for reconsideration, directing that the applicant met the criteria under clause 573.223(2)(a) of Schedule 2 to the Regulations.