Nepal (Migration)

Mr Vivek Nepal applied for review of a decision by a delegate of the Minister for Immigration to refuse him a Student (Temporary) (Class TU) Subclass 500 visa. The Administrative Appeals Tribunal (AAT) considered whether Mr Nepal met the criteria for the visa.

The primary legal issue before the Tribunal was whether Mr Nepal satisfied the enrolment requirement under clause 500.211 of Schedule 2 to the Migration Regulations 1994. This clause requires an applicant to be enrolled in a registered course of study at the time of the decision. The Tribunal also considered the significance of this requirement, noting that it is a prerequisite for the consideration of other primary criteria for a student visa and that a continuing enrolment condition applies to the visa itself.

The Tribunal reasoned that producing evidence of current enrolment is a critical first step in obtaining a student visa, as it demonstrates a legally binding contract with a registered course provider. The Tribunal had written to Mr Nepal requesting information to satisfy it that he met the enrolment and genuine applicant requirements. Mr Nepal responded that he did not have a current confirmation of enrolment and confirmed in evidence that he was not enrolled in any course of study and was unable to be enrolled. The Tribunal found that there was no cogent evidence of a current enrolment before it.

Consequently, the Tribunal was not satisfied that Mr Nepal was enrolled in a registered course of study at the time of the decision, meaning clause 500.211 was not met. As this primary criterion was not satisfied, the Tribunal found that the criteria for a student visa subclass 500 were not met. The Tribunal affirmed the decision under review to refuse the visa.