Baraily Pokharel (Migration)

The Administrative Appeals Tribunal (AAT) considered an appeal by Ms Baraily Pokharel against the refusal of her Student (Temporary) (Class TU) visa (subclass 500). The original refusal by the Department of Home Affairs was based on Ms Pokharel's failure to provide evidence of adequate health insurance, which meant she did not satisfy Public Interest Criterion 4005 and clause 500.217 of the Migration Regulations 1994.

The Tribunal was required to determine whether Ms Pokharel satisfied the criteria for the grant of a Student visa, undertaking a de novo review of her application. Specifically, the Tribunal needed to assess if Ms Pokharel had provided the necessary evidence of health cover and current enrolment in a course, which were prerequisites for the visa.

The Tribunal reasoned that while the original refusal was based on a lack of health insurance, Ms Pokharel also failed to provide evidence of current enrolment at the hearing. She stated she was no longer enrolled as her course had been cancelled, and the provided Certificate of Enrolment indicated a 12-month course that had commenced before her visa application was refused, suggesting she had studied for only a short period. The Tribunal noted that without current enrolment, it was impossible to assess other essential requirements such as financial capacity for course fees and living expenses, and the required duration of Overseas Student Health Cover. Consequently, Ms Pokharel did not satisfy clause 500.211, a prerequisite for the visa grant.