KHANAL (Migration)

This matter concerned an application for review of a decision not to grant the applicant a Student (Temporary) (Class TU) visa, specifically a Subclass 500 (Student) visa. The applicant sought to challenge the decision of the delegate.

The primary legal issue before the Tribunal was whether the applicant had satisfied the criteria for the grant of a Subclass 500 (Student) visa, as set out in Part 500 of Schedule 2 to the Regulations. Specifically, the Tribunal was required to determine if the applicant was enrolled in a course of study, as mandated by clause 500.211 of the Regulations.

The Tribunal reasoned that it is incumbent upon the applicant to provide sufficient detail to satisfy the decision maker that the requirements of the Act and Regulations have been met, noting that the concept of onus of proof is not strictly applicable in administrative decision-making. While the applicant had previously provided a Confirmation of Enrolment, there was no recent evidence before the Tribunal to establish current enrolment in a course of study, which is a primary criterion under clause 500.211. As the applicant did not claim to meet any alternative criteria within clause 500.211, nor the criteria for a Subclass 500 (Student Guardian) visa, the Tribunal could not be satisfied that the visa requirements were met. Consequently, the Tribunal affirmed the delegate's decision.