Garyfalaki (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to refuse to grant the applicant a student (temporary) (class TU) visa. The delegate’s refusal was based on the applicant not satisfying the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994, specifically that the delegate was not satisfied the applicant was a genuine student intending to stay in Australia temporarily. The applicant had applied for the visa to undertake study in Australia.

The Tribunal was required to determine whether the applicant met the enrolment requirements for a student visa, as set out in clause 500.211 of Schedule 2 to the Migration Regulations. This clause mandates that an applicant must be enrolled in a course of study at the time of the decision. If this primary criterion is not met, the Tribunal does not proceed to consider the genuine temporary entrant criterion. The definition of "course of study" relevantly includes a "full time registered course," where "registered course" refers to a course provided by an institution registered under the Education Services for Overseas Students Act 2000.

At the hearing, the applicant's solicitor informed the Tribunal that a Confirmation of Enrolment and receipt of payment had been emailed to the Tribunal on the morning of the hearing. Although the Tribunal had not yet received these documents, the solicitor advised that the Confirmation of Enrolment, issued by the Centre of Excellence, indicated the applicant was enrolled in an English course from 6 June 2019 to 30 July 2020. Based on these representations from the applicant's legal representative, the Tribunal accepted that the applicant was enrolled in a registered course between June 2018 and July 2020.