Bajracharya (Migration)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister for Immigration to refuse Mr Sachin Bajracharya a Student (Temporary) (Class TU) visa, Subclass 500 (Student) visa. Mr Bajracharya had applied for the visa to undertake study in Australia. The delegate's refusal was based on the applicant not satisfying clause 500.212 of Schedule 2 to the Migration Regulations 1994, as the delegate was not satisfied that he was a genuine student intending to stay in Australia temporarily.

The primary legal issue before the Tribunal was whether Mr Bajracharya met the enrolment requirements for a student visa at the time of the Tribunal's decision. Specifically, the Tribunal considered clause 500.211 of Schedule 2 to the Regulations, which requires that at the time of the decision, the applicant is enrolled in a course of study. The definition of "course of study" under clause 500.111 refers to a "full-time registered course," with "registered course" defined in regulation 1.03 as a course provided by an institution registered to provide such courses to overseas students.

The Tribunal noted that the applicant had not provided any evidence of enrolment in an approved course of study, despite being invited to do so by the Tribunal at least seven days before the hearing. As the applicant did not claim to meet any alternative criteria within clause 500.211 and had failed to provide the required evidence of enrolment, the Tribunal found that the applicant did not satisfy the primary criteria for the Subclass 500 visa. Consequently, the Tribunal affirmed the delegate's decision to refuse the visa.