Gurung (Migration)

This matter concerned an application for review by Mr Gurung, a Nepalese citizen, and his partner, the secondary applicant, of the Department's decision not to grant them Student (Temporary) (Class TU) visas (Subclass 500). The primary applicant had applied to undertake courses in Commercial Cookery and Hospitality Management. The Tribunal was required to determine whether the applicants met the criteria for the grant of a student visa.

The central legal issue before the Tribunal was whether the primary applicant was a genuine temporary entrant and, crucially, whether he was enrolled in a registered course of study. The Tribunal considered the requirement under clause 500.211 of the Regulations that an applicant must be enrolled in a registered course of study, noting that this criterion is foundational to the consideration of all other primary criteria for a student visa.

The Tribunal reasoned that the primary applicant had failed to provide any evidence of current enrolment in a registered course of study, despite being invited to do so by the Tribunal. The applicant had not responded to a section 359(2) letter requesting updated information, including a questionnaire specifically addressing enrolment status, nor had he made any submissions since lodging his application for review in June 2019. Given the passage of time, any previously held Confirmation of Enrolment (COE) would have expired. The Tribunal concluded that without evidence of current enrolment, the primary criterion for a student visa was not met, rendering further consideration of other criteria unnecessary. The Tribunal also determined that it was not appropriate to postpone the determination to request further information again.

Consequently, the Tribunal affirmed the decisions not to grant the applicants their Student (Temporary) (Class TU) visas.