KHADKA (Migration)

This matter concerned an application for a Student (Temporary) (Class TU) visa, subclass 500, brought before the Tribunal by the applicant, Mr. Khadka. The central dispute revolved around whether the applicant met the mandatory enrolment criteria for the visa. The Tribunal, constituted by Wendy Banfield, was tasked with reviewing the decision to refuse the visa.

The primary legal issue before the Tribunal was whether the applicant was enrolled in a registered course of study at the time of the decision, as required by clause 500.211 of the Migration Regulations 1994. This clause mandates that an applicant must be enrolled in a "full-time registered course," which is further defined by reference to courses provided by institutions registered under the Education Services for Overseas Students Act 2000. The applicant did not claim to meet any alternative criteria.

The Tribunal's reasoning focused on the mandatory nature of the enrolment requirement. Despite the applicant's submissions regarding compassionate grounds, including a failed marriage, depression, and anxiety, and a supporting psychological report, the Tribunal found that these circumstances did not grant it any discretion to waive the primary criterion. The applicant had been repeatedly advised of the need for a current Certificate of Enrolment (COE) and failed to provide evidence of current enrolment in an approved course of study, stating his COE had been cancelled and he was unable to re-enrol. As enrolment in a registered course is a non-discretionary criterion for the grant of a student visa, the Tribunal concluded that the applicant had not met the requirements.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Student (Temporary) (Class TU) visa, subclass 500, as the mandatory criteria were not satisfied.