Nair (Migration)

The applicant, Nair, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to affirm a decision to refuse to grant a Student (Temporary) (Class TU) visa, subclass 500 (Student). The primary issue before the Administrative Appeals Tribunal (AAT) had been whether the applicant was enrolled in a registered course, which was a determinative issue for the visa grant. However, the applicant later sought to rely on evidence demonstrating they had sufficient funds to meet the costs of their stay in Australia, arguing this constituted a change in circumstances.

The court was required to determine whether the AAT erred in law by failing to consider the applicant's evidence of financial capacity as a determinative issue, despite it not being the primary basis for the initial refusal. Specifically, the court had to assess if the AAT's approach to the "change in determinative issue" provisions under the *Migration Act 1958* (Cth) was correct, and whether the AAT was obligated to consider the financial capacity evidence in the circumstances presented.

The court found that the AAT had correctly identified the determinative issue as the applicant's enrolment in a registered course. While the applicant did present evidence of financial capacity, this did not alter the fundamental requirement for a student visa, which is to be enrolled in a registered course. The AAT was not obliged to treat the financial capacity as a new determinative issue when the primary criterion for the visa remained unmet. The court affirmed the AAT's decision, finding no error of law.