AVALA (Migration)

The Administrative Appeals Tribunal considered an application for a Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector), made by the applicant on 4 August 2015. The applicant's visa had been refused by a delegate of the Minister on the grounds that they did not satisfy the requirements of clause 573.223(1)(a) of Schedule 2 to the Migration Regulations, specifically that they were not a genuine student intending to stay in Australia temporarily. However, the determinative issue before the Tribunal was whether the applicant met the enrolment requirement for a student visa at the time of the Tribunal's decision.

The legal issue before the Tribunal was whether the applicant met the enrolment requirement for a student visa. This requirement, with limited exceptions not applicable in this case, mandates that at the time of the decision, an applicant must be enrolled in, or have a current offer of enrolment in, a principal course of study that is of a type specified for the relevant subclass at the time of application. The Tribunal had requested the applicant provide a copy of their current certificate of enrolment at least seven days prior to the hearing, a request that was not fulfilled.

In sworn evidence before the Tribunal, the applicant stated they were not presently enrolled in an appropriate course of study and had last been enrolled in a registered course in late 2016. They further confirmed they were not currently enrolled, nor did they have an offer of enrolment, in a course of study in Australia. The Tribunal applied the principle that a current enrolment or offer of enrolment is a prerequisite for a student visa. As the applicant failed to provide evidence of current enrolment or an offer of enrolment, and indeed confirmed their lack thereof, the Tribunal found that the applicant did not meet this essential requirement.

The Tribunal affirmed the applicant's visa refusal.