1602711 (Migration)

This matter concerned 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 Business (Accounting) course. The central issue before the Tribunal was whether the applicant met the requirement of being a 'genuine applicant for entry and stay as a student', as stipulated by clause 573.223 of the Migration Regulations 1994.

The Tribunal was required to determine if the applicant satisfied the evidentiary requirements of Schedule 5A to the Regulations, given that the applicant was not an 'eligible higher degree student' as defined in clause 573.111. This involved assessing whether the applicant met the prescribed criteria for English language ability, financial capacity, and other relevant matters, as well as demonstrating that they would have access to the claimed funds during their proposed stay in Australia. The assessment level applicable to the applicant, which dictates the stringency of these requirements, was also a factor.

The Tribunal found that the applicant had not been an eligible higher degree student at any relevant time, meaning that subclause 573.223(1A) did not apply. Consequently, the applicant was required to meet the requirements of subclause 573.223(2), which necessitates providing evidence in accordance with Schedule 5A for the highest assessment level applicable. The Tribunal concluded that the matter should be remitted for reconsideration, with a direction that the applicant meets the criteria under clause 573.223(2)(a) of Schedule 2 to the Regulations.