Gurung (Migration) - [2025] ARTA 1458

GURUNG (MIGRATION) [2025] ARTA 1458 (23 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Sujan Gurung
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2443596

Tribunal:General Member S Waring
Place: Brisbane
Date: 23 July 2025
Decision:The decision under review is affirmed.

Statement made on 23 July 2025 at 1:11pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English competency – short courses completed in English – Pearson Test of English Academic score – enrolment in a course of study – vocational course enrolment cancelled – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958 (Cth), ss 65, 359
Migration Regulations 1994, Schedule 2, cls 500.111, 500.211, 500.213; r 1.03
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 October 2024 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 28 March 2024. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate made the decision on the basis that evidence of the applicant’s English ability provided by him did not satisfy the requirements of cl 500.213 (3)(b) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The applicant appeared before the Tribunal via MS Teams video on 14 July 2025, to give evidence and present arguments.
The applicant was assisted in relation to the review by Mr Bhattarai. His representative did not attend the hearing.
On 6 January 2025, the applicant provided evidence of a Pearson Test of English Academic (PTE) dated 4 January 2025 showing he had achieved an overall score of 49.
On 25 June 2025, the applicant provided evidence that he had been enrolled as a full-time fee paying international student on the Sydney Campus of the Queensland International Business Academy (QIBA) and had attended its General English - Power Language - Elementary to Advanced course in English (CRICOS 080115D) between 25 March 2024 and 23 August 2024. The teaching method for this course was stated to be face-to-face for 20 hours per week delivered solely in English.
On 30 June 2025, the applicant provided a signed Response to Hearing Notice attaching the QIBA certification (above) and stating that he had studied at least 60 weeks and completed the QIBA course requirement.
On 9 July 2025, the Tribunal obtained a record from the electronic Provider Registration and International Student Management System (PRISMS) showing the applicant is not currently enrolled in a course of study as his enrolment in the Diploma of Hospitality Management [112225G] was cancelled (on 24 April 2025) due to “Non-commencement of studies.”
In light of the evidence received, the Tribunal is satisfied that the (English competency) requirements of cl 500.213 (3)(b) of Schedule 2 to the Regulations are met however, the requirement that the applicant be enrolled in a course of study [cl 500.211(a)] falls for consideration by the Tribunal as the applicant’s enrolment status has changed since the student visa application was lodged.
For the following reasons, the Tribunal considers the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by the applicant. The issue remaining to be determined in the present case is whether the applicant is enrolled in a course of study.
Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl 500.211(a). The applicant does not claim to meet any of the alternative criteria in cl 500.211.
‘Course of study’ is relevantly defined in cl 500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in reg 1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000 (Cth), to provide the course to overseas students.
The applicant is a 26-year-old citizen of Nepal. He has completed secondary schooling in his home country and (according to his student visa application) he came to Australia February 2020 as a dependent on his ex-wife’s student visa.
Movement records before the Tribunal disclose that 7 January 2020 was the applicant’s first date of arrival in Australia. He departed Australia on 1 August 2023 and returned on 6 September 2023.
The visa under review is the student visa sought by the applicant in order to study in Australia’s vocational education and training sector.
According to the applicant, he was unable to complete his intended Certificate IV in Kitchen Management, Diploma of Hospitality Management course (when he first attempted it) “because of ups and downs” in his life. When the applicant was subsequently granted a Covid Visa (subclass 408) he did not study.
The applicant stated that (by lodging the student visa application on 28 March 2024) he wants to start his academic journey again in order to provide himself with essential experience to pursue a career as a chef.
On 21 October 2024, a delegate of the Minister refused the visa for the above-stated reason.
The AAT received an application for review from the applicant on 14 November 2024, together with a copy of the decision record of the delegate, a copy of the applicant’s Marriage Registration Certificate, passport biographical pages for the applicant and his spouse, the applicant’s health insurance policy certificate and his 2017 ‘Mark Sheet’ from the National Examinations Board in Nepal.
At the hearing on 14 July 2025, the Tribunal explained to the applicant the existing provision of s 359A of the Act in the context of the PRISMS record before the Tribunal which does not disclose a current enrolment. It was explained to the applicant that this information, when considered by the Tribunal, would be part of the reason for affirming the decision under review. The applicant was invited to provide comments on particulars of the PRISMS record which may lead to the finding that he is not currently enrolled in a registered course of study and does not therefore meet cl 500.211(a) at the time of decision. The Tribunal told the applicant that these particulars may lead to the decision under review being affirmed (albeit on different grounds to the delegate’s decision).
At the hearing, the applicant was asked whether he was enrolled in a course of study and he said that he was not attending classes and recalled being advised by the education institution (in or about April 2025) that his enrolment in the Certificate IV in Kitchen Management, Diploma of Hospitality Management had been cancelled.
The Tribunal explained to the applicant that his PRISMS record showed a cancellation of his enrolment in the Certificate IV in Kitchen Management, Diploma of Hospitality Management due to “Non-commencement of studies.” The applicant stated that the PRISMS record is “not wrong.”
It was put to the applicant that being enrolled in a registered course of study was one of the requirements for the grant of a student visa. The applicant indicated that (when he applied for the student Visa in March 2024) he was aware of the requirement that he be enrolled in a registered course of study however, he did not realise that his enrolment status needed to be kept updated. The applicant again conceded that he is not currently enrolled.
The applicant indicated that he had been concentrating on improving his English ability. Having achieved that improvement (raising his PTE score from 41 to 49) the applicant said he now understands that the further requirement of current enrolment in a registered course of study is not met at this point in time.
PRISMS is a business record of the Department of Education and is used by the Department as evidence of enrolment for the purposes of assisting the grant of student visas. Unless there is specific evidence to the contrary, in relation to a particular case, the Tribunal will accept that PRISMS is a reliable record of enrolments. There is no such evidence in this case - the applicant conceded to the Tribunal that he is not currently enrolled.
On the material before it, and as conceded by the applicant, the Tribunal finds that at the time of this decision, the applicant is not enrolled in a course of study as is required by cl 500.211(a), and accordingly cl 500.211 of Schedule 2 to the Regulations is not met.
Given the above findings, the Tribunal concludes that the criteria for the grant of a Subclass 500 (Student) visa are not satisfied. As stated above, the applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Date of hearing: 14 July 2025
Representative for the Applicant: Mr Rabin Bhattarai (MARN: 2418398)