Moussa (Migration)

The Administrative Appeals Tribunal considered the case of an Egyptian national seeking review of a decision not to grant him a Subclass 500 (Student) visa. The applicant had been in Australia since 2006, undertaking numerous vocational education and training courses, including English language courses, certificates, and diplomas in business and human resources. Concerns were raised by the Department delegate regarding the applicant's consistent enrolment in VET-level courses over a decade, his repeated regression to certificate level after completing diplomas, frequent course changes, and numerous cancellations due to non-payment of fees, non-commencement, or ceasing studies. At the time of the visa application, the applicant proposed to study bookkeeping and then a Bachelor of Business (Professional Accounting).

The primary legal issue before the Tribunal was whether the applicant met the enrolment requirements for a Subclass 500 (Student) visa, specifically clause 500.211 of Schedule 2 to the Migration Regulations 1994, which requires the applicant to be enrolled in a registered full-time course of study at the time of the decision. The Tribunal also considered whether the applicant genuinely intended to stay in Australia temporarily, as required by clause 500.212, and whether he had a current offer of enrolment.

The Tribunal noted that the applicant had ceased his studies after his visa application was refused and could not recall the exact date he stopped. He stated that he believed there was no benefit in continuing his studies given the visa refusal, although he also expressed a future intention to undertake further study in Australia that would benefit a project in Egypt. The Tribunal found that the applicant had a history of academic progression issues, including failing to commence or complete several courses, and that his enrolment in a Certificate IV in Bookkeeping course was cancelled due to non-payment of fees. Crucially, the Tribunal found no evidence that the applicant had a current offer of enrolment in any course.

Based on these findings, the Tribunal concluded that the applicant did not satisfy clause 500.211 as he was not enrolled in a course of study at the time of the decision. Consequently, the Tribunal found that the criteria for the grant of a Subclass 500 (Student) visa were not met. The applicant did not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa.