KHRUEA-IN (Migration)

This matter concerned an application for Student (Temporary) (Class TU) visas, subclass 500, by two applicants. The primary applicant sought to remain in Australia as a student, and the second applicant sought a visa as a member of her family unit. The delegate of the Minister had refused to grant the visas, and the applicants sought review of that decision by the Tribunal.

The Tribunal was required to determine whether the primary applicant met the criteria for the grant of a Subclass 500 visa, specifically whether she was enrolled in a registered course of study at the time of the decision, as required by clause 500.211 of the Regulations. If the primary applicant did not satisfy the primary criteria, the Tribunal also had to consider whether the second applicant met the secondary criteria, which required him to be a member of the family unit of a person who satisfied the primary criteria.

The Tribunal reasoned that the onus was on the applicants to provide sufficient evidence to satisfy the requirements of the Act and Regulations, and that a decision-maker was not obliged to construct the applicant's case. While the applicant had provided a Confirmation of Enrolment (COE) at the time of her initial application, this document had lost its timeliness. The Tribunal found that the primary applicant had failed to provide cogent and recent evidence of her current enrolment in a registered course of study. Consequently, she did not meet the criterion in clause 500.211. As the primary applicant did not satisfy the primary criteria, the second applicant, as a member of the family unit, could not satisfy the secondary criteria.

The Tribunal affirmed the decisions not to grant the applicants Student (Temporary) (Class TU) visas.