Munkhbayar (Migration)

This matter concerned an application for review of a decision by the Department of Home Affairs not to grant the applicant a Subclass 500 (Student) visa. The applicant, Munkhbayar, sought to challenge the Department's decision before the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant had satisfied the criteria for the grant of a Subclass 500 (Student) visa, specifically the requirement under clause 500.211 of the Regulations that the applicant be enrolled in a course of study at the time of the decision. The Tribunal also considered whether the applicant had failed to provide requested information within the prescribed period, which may have impacted the assessment of the genuine temporary entrant criterion.

The Tribunal reasoned that it is incumbent upon the applicant to provide sufficient evidence to satisfy the requirements of the Act and Regulations, rather than for the decision-maker to construct the applicant's case. While the applicant had previously provided a Confirmation of Enrolment for a General English course, there was no recent evidence before the Tribunal demonstrating current enrolment in a course of study as mandated by clause 500.211. Consequently, the Tribunal could not be satisfied that the visa criteria were met.

Accordingly, the Tribunal affirmed the decision not to grant the applicant a Subclass 500 (Student) visa.