Cherkawi (Migration)

The Administrative Appeals Tribunal considered an application for a Student (Temporary) (Class TU) visa, subclass 500, made by Cherkawi. The applicant failed to provide requested information within the prescribed period, and the Tribunal was required to determine whether the applicant met the visa criteria, specifically the genuine temporary entrant criterion and the requirement of being enrolled in a registered course of study.

The central legal issue before the Tribunal was whether the applicant had satisfied the criteria for a Subclass 500 visa, as set out in Part 500 of Schedule 2 to the Regulations. This included the primary criterion in cl.500.211(a), which requires the applicant to be enrolled in a full-time registered course of study at the time of the decision. The Tribunal also considered the applicant's obligation to provide sufficient information to enable the administrative decision-maker to establish the relevant facts.

The Tribunal reasoned that it is the applicant's responsibility to satisfy the requirements of the Act and Regulations, and that while the concept of 'onus of proof' is not strictly applicable in administrative decision-making, the applicant must supply the necessary facts. In this instance, there was no recent evidence before the Tribunal demonstrating that the applicant was enrolled in a registered course of study, as defined by the Regulations and the Education Services for Overseas Students Act 2000. Consequently, the Tribunal could not be satisfied that the criteria for the visa were met.

Accordingly, the Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa.