Ogkanesian (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking review of a decision not to grant a Student (Temporary) (Class TU) visa, specifically a Subclass 570 Independent ELICOS Sector visa. The applicant had failed to provide requested information within the stipulated timeframe, even after an extension was granted.

The primary legal issue before the Tribunal was whether the applicant met the current enrolment requirements for a student visa at the time of the Tribunal's decision. This involved determining if the applicant was enrolled in, or had a current offer of enrolment in, a principal course of study as specified by the regulations for the relevant visa subclass, with consideration given to exceptions for eligible higher degree, exchange, or non-award students. The Tribunal also considered whether the applicant met the criteria for other subclasses within Class TU, namely Subclass 576 (AusAID or Defence Sector) and Subclass 580 (Student Guardian) visas.

The Tribunal reasoned that the applicant's failure to provide requested information meant they were not entitled to appear before the Tribunal, as per section 359C and 360(3) of the Act, and that the Tribunal had no power to permit their appearance in such circumstances, following *Hasran v MIAC* [2010] FCAFC 40. Crucially, the Tribunal found no evidence that the applicant was currently enrolled in, or had a current offer of enrolment in, an applicable course of study. Furthermore, there was no evidence to suggest the applicant qualified as an eligible higher degree, exchange, or non-award student, nor did they meet the criteria for Subclass 576 or Subclass 580 visas. Consequently, the relevant regulatory clauses concerning enrolment requirements were not met.

The Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa.