LIU (Migration)

This matter concerned an application for review of a decision by the Department of Home Affairs not to grant the applicant a Student (Temporary) (Class TU) visa, specifically a Subclass 500 (Student) visa. The applicant sought to have this decision set aside by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for the grant of a Subclass 500 (Student) visa, as set out in Schedule 2 of the Migration Regulations 1994. This included, crucially, whether the applicant was enrolled in a registered course of study, as required by clause 500.211 of the Regulations.

The Tribunal reasoned that it is incumbent upon an applicant to provide sufficient evidence to satisfy the decision maker that the requirements of the Act and Regulations have been met. While the onus of proof is not a concept strictly applied in administrative decision-making, the applicant must supply the relevant facts. In this instance, the applicant had indicated on her incoming passenger card that she came to Australia for a holiday with no intention to study, yet she was enrolled to study until March 2020. However, no evidence of current or past enrolment in a registered course of study was presented to the Tribunal. Without this evidence, the Tribunal could not be satisfied that the applicant met the criteria under clause 500.211. The applicant also did not claim to meet the criteria for a Subclass 500 (Student Guardian) visa.

Consequently, the Tribunal affirmed the decision of the Department not to grant the applicant a Student (Temporary) (Class TU) visa.