Kaur (Migration)

This matter concerned a review of a decision to refuse a Subclass 500 (Student) visa. The primary applicant and her husband, the secondary applicant, had applied for the visas to undertake study in Australia. The original delegate had refused the visas on the basis that the primary applicant was not a genuine applicant for entry and stay as a student, as she did not intend to stay temporarily in Australia. The Tribunal was required to determine whether the primary applicant met the criteria for the grant of a student visa.

The central legal issue before the Tribunal became whether the primary applicant satisfied the enrolment requirement stipulated in clause 500.211(a) of Schedule 2 to the Migration Regulations 1994. This clause requires that at the time of the decision, the applicant is enrolled in a course of study, defined as a "full-time registered course". The Tribunal also considered the applicant's status as a genuine applicant for entry and stay as a student.

The Tribunal's reasoning focused on the applicant's own evidence given at the hearing. The primary applicant acknowledged that she was not, at the date of the hearing, presently enrolled in a course of study. This admission shifted the determinative issue before the Tribunal from the applicant's intention to stay temporarily to her current enrolment status. The Tribunal noted that it is incumbent upon applicants to provide sufficient detail to satisfy the requirements of the Act and Regulations, and that the decision-maker is not required to construct the applicants' case. Despite being given an opportunity to address the Tribunal on this changed determinative issue, the applicant did not demonstrate that she met the enrolment requirement.

The Tribunal affirmed the decision to refuse the visas.