Gomez (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision to refuse a Student (Temporary) (Class TU) visa, subclass 500 (Student), to the applicant. The applicant had applied for the visa to undertake study in Australia. The delegate had refused the visa on the basis that the applicant was not a genuine temporary entrant, failing to satisfy clause 500.212 of Schedule 2 to the Migration Regulations 1994. The Tribunal's focus, however, shifted to whether the applicant met the enrolment requirements for a student visa at the time of the Tribunal's decision.

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 that at the time of the decision, the applicant is enrolled in a course of study. 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 applicant did not claim to meet any alternative criteria within clause 500.211.

The Tribunal noted that it had twice requested evidence of enrolment in a full-time registered course, including a current certificate of enrolment, at least seven days prior to the hearing and again at the hearing itself. This evidence was not provided. In sworn evidence, the applicant confirmed that their last enrolment in a Masters of Information Technology course had concluded on 8 March 2018 and that the course had been cancelled. Crucially, the applicant also confirmed that they were not currently enrolled in any course of study in Australia.

Given the applicant's uncontradicted sworn evidence that they were not enrolled in any course of study at the time of the Tribunal's decision, the Tribunal found that the applicant failed to satisfy the primary criteria for the grant of a subclass 500 (Student) visa under clause 500.211. Consequently, the Tribunal affirmed the delegate's decision to refuse the visa.