Chua (Migration)

This matter concerned an application for review of a decision not to grant the applicant a Student (Temporary) (Class TU) visa, specifically a Subclass 500 (Student) visa. The applicant had previously held a Confirmation of Enrolment when applying to the Department. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for the grant of the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 500.211 of Schedule 2 to the Migration Regulations 1994, which requires an applicant to be enrolled in a course of study at the time of the decision. A "course of study" is defined as a "full-time registered course," and a "registered course" is one provided by an institution registered under the Education Services for Overseas Students Act 2000.

The Tribunal reasoned that while the applicant had provided a Confirmation of Enrolment at the time of their initial application to the Department, there was no recent evidence before the Tribunal to satisfy it that the applicant remained enrolled in a course of study as required by clause 500.211. The Tribunal noted that the onus is on the applicant to provide the necessary details to enable the decision-maker to establish the relevant facts, and that a decision-maker is not required to make the applicant's case. As the applicant did not claim to meet any alternative criteria within clause 500.211 or the criteria for a Subclass 500 (Student Guardian) visa, the Tribunal was unable to be satisfied that the visa criteria were met. Consequently, the Tribunal affirmed the decision not to grant the applicant the visa.