Perera (Migration)

This matter concerned an appeal by the applicants against a decision to refuse them a Subclass 500 (Student) visa. The primary applicant sought to undertake study in Australia, and the secondary applicant was a family member. The original refusal was based on the primary applicant not being a genuine applicant for entry and stay as a student, as they did not intend to stay temporarily in Australia. However, the issue before the Tribunal shifted to whether the primary applicant met the enrolment requirement for a student visa at the time of the decision.

The Tribunal was required to determine whether the primary applicant satisfied the criteria for a Subclass 500 (Student) visa, specifically whether they were enrolled in a registered course of study at the time of the Tribunal's decision, as stipulated by clause 500.211(a) of Schedule 2 to the Migration Regulations 1994. The definition of a "course of study" under clause 500.111 required it to be a "full-time registered course," with "registered course" defined by regulation 1.03 as one provided by an institution registered under the Education Services for Overseas Students Act 2000.

The Tribunal noted that the primary applicant had completed multiple courses previously and, crucially, admitted at the hearing that they were not presently enrolled in a course of study. This admission was made after the Tribunal had invited the applicant to provide information regarding their current enrolment and genuine intention to study in Australia. The applicant confirmed in writing that they did not have a current Confirmation of Enrolment (COE) in a registered course of study. Consequently, the Tribunal found that the primary applicant failed to meet the mandatory enrolment requirement under clause 500.211(a).

As the primary applicant did not satisfy the primary criteria for the visa, the secondary applicant, as a family member, could not satisfy the secondary criteria. Therefore, the Tribunal affirmed the decision to refuse the visa.