Huang (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 applicant sought the visa to undertake study in Australia. The delegate’s refusal was based on the applicant not satisfying the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994, as the delegate was not satisfied the applicant genuinely intended to stay temporarily in Australia. The review was heard by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied the enrolment criteria under cl.500.211(a) of Schedule 2 to the Regulations, specifically whether the applicant had a current Certificate of Enrolment or other document demonstrating current enrolment in a registered course of study. A registered course is defined as a full-time registered course provided by an institution registered to provide such courses to overseas students.

The Tribunal noted that the applicant had provided a Certificate of Enrolment for a Diploma of Project Management course at the Australian Vocational Training Institute, with a start date of October 2018 and an end date of October 2019. A letter from the institute dated October 2018 confirmed the applicant’s enrolment and then-current study of this course. However, the Tribunal had invited the applicant to a hearing to present evidence and arguments, which the applicant failed to attend. Despite the applicant indicating an intention to participate and requiring an interpreter, no appearance was made, and attempts to contact the applicant by phone were unsuccessful. The Tribunal was satisfied that the applicant had been properly notified of the hearing and, pursuant to s.362B of the Migration Act 1958, proceeded to make a decision without further action to enable the applicant to appear.

Given the lack of appearance and the absence of any further evidence presented by the applicant to demonstrate current enrolment in a registered course of study at the time of the Tribunal’s decision, the Tribunal concluded that the applicant had not satisfied the criteria under cl.500.211(a). Consequently, the Tribunal affirmed the delegate’s decision to refuse the visa.