ALAKHDAR (Migration)

This matter concerned an application for review of a decision not to grant the applicant a Student (Temporary) (Class TU) visa, specifically a Subclass 500 (Student) visa. The applicant sought to have the decision of the Department of Home Affairs, which had refused the visa, set aside by the Administrative Appeals Tribunal. The Tribunal, constituted by Vanessa Plain, was tasked with determining whether the applicant met the relevant visa criteria.

The central legal issue before the Tribunal was whether the applicant satisfied clause 500.211(a) of Schedule 2 to the Migration Regulations 1994. This clause requires that at the time of the decision, the applicant is enrolled in a registered course of study. A "course of study" is defined as a "full-time registered course," and a "registered course" is one provided by an institution registered under the Education Services for Overseas Students Act 2000 to provide courses to overseas students.

The Tribunal noted that while the Department's decision focused on the applicant being a genuine temporary entrant for study, the Tribunal's focus was on current enrolment. The Tribunal had invited the applicant to provide evidence of enrolment in a registered course of study. Although the applicant contended they had a current Confirmation of Enrolment, this evidence was not provided to the Tribunal within the prescribed period, or at all. Consequently, the Tribunal was not satisfied that the applicant was enrolled in a registered course of study at the time of the decision, meaning clause 500.211(a) was not met.

As the applicant did not claim to meet any alternative criteria for the Subclass 500 visa, nor did they claim to meet the criteria for a Subclass 590 (Student Guardian) visa, the Tribunal found that the criteria for the grant of the Subclass 500 visa were not met. Accordingly, the Tribunal affirmed the decision under review and refused to grant the visa.