CHISHIMBA v Minister for Immigration

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration to refuse to grant the applicant a student (Temporary) (Class TU) visa. The applicant had applied for the visa to undertake study in Australia. The delegate's refusal was based on the applicant not satisfying the requirements of clause 572.223 of Schedule 2 to the Migration Regulations 1994, specifically that he was not a genuine applicant for entry and stay as a student. The Administrative Appeals Tribunal (AAT) considered the matter and ultimately affirmed the delegate's decision.

The primary legal issue before the AAT was whether the applicant met the enrolment requirements for a student visa at the time of the AAT's decision. This involved determining if the applicant was currently enrolled in a course of study or held a current offer of enrolment, as generally required by various clauses within Schedule 2 of the Regulations for different student visa subclasses. The AAT also considered whether the applicant fell within any exceptions to these enrolment requirements, such as being an eligible higher degree student, eligible university exchange student, or eligible non-award student.

The AAT reasoned that, with limited exceptions not applicable to the applicant, the relevant clauses of the Regulations required an applicant to be enrolled in, or have a current offer of enrolment in, a principal course of study at the time of the decision. The Tribunal noted that records indicated the applicant was not currently enrolled and had ceased enrolment in October 2015. The applicant confirmed he was not enrolled and stated he believed he could not be enrolled due to the visa refusal, but had not sought clarification. The AAT found no evidence that the applicant was currently enrolled or had a current offer of enrolment, and therefore concluded that the applicant did not satisfy the enrolment criteria for a student visa. The AAT also found no evidence that the applicant met the criteria for a Subclass 576 or Subclass 580 visa.

Consequently, the AAT affirmed the decision under review.