De Oliveira Gomes (Migration)

This matter concerned an application for review of a decision not to grant the applicant a Subclass 500 (Student) visa. The applicant, De Oliveira Gomes, sought to have the decision of the Department of Home Affairs set aside by the Administrative Appeals Tribunal. The Tribunal, constituted by Member Vanessa Plain, was tasked with determining whether the applicant met the criteria for the visa.

The central legal issue before the Tribunal was whether the applicant was enrolled in a registered course of study at the time of the decision, as required by clause 500.211(a) of Schedule 2 to the Migration Regulations 1994. A "course of study" was defined as a "full-time registered course," and a "registered course" was one provided by an institution registered under the Education Services for Overseas Students Act 2000. The Tribunal also considered whether the applicant was a genuine temporary entrant, although the primary focus of the Tribunal's decision was on the enrolment requirement.

The Tribunal noted that on 13 September 2019, it had invited the applicant, pursuant to section 359(2) of the Migration Act 1958, to provide further information to demonstrate enrolment in a registered course of study. The applicant failed to respond to this invitation. Consequently, there was no evidence before the Tribunal to establish that the applicant was enrolled in a registered course of study at the time of the decision. As clause 500.211(a) was not met, and the applicant did not claim to meet alternative criteria or the criteria for a Subclass 590 (Student Guardian) visa, the Tribunal concluded that the criteria for the grant of a Subclass 500 visa were not satisfied.

Accordingly, the Tribunal affirmed the decision under review. The decision not to grant the applicant a Student (Temporary) (Class TU) visa was upheld.