Rathod (Migration)

This matter concerned an appeal by the first and second named applicants, nationals of India, against the refusal of their applications for a Subclass 500 (Student) visa. The first applicant, a 34-year-old individual with prior tertiary qualifications in India, applied for the visa to undertake automotive studies in Australia, stating an intention to establish his own workshop upon return. His spouse was included as a member of the family unit. The primary criteria for the visa, as set out in Schedule 2 of the Migration Regulations 1994, included requirements relating to enrolment in a registered course of study, financial capacity, and being a genuine applicant for entry and stay as a student.

The court was required to determine whether the first applicant was enrolled in a course of study at the time of the decision, whether he was a genuine applicant for entry and stay as a student, and whether the second applicant met the relevant criteria. The Department had issued a notice under s.359A of the Act, inviting the applicants to provide information after a PRISMS search indicated the first applicant's enrolment in three courses had been cancelled and that he was not currently enrolled. Despite being given an opportunity to respond, the applicants failed to do so.

The Deputy President found that the PRISMS search results, which showed the cancellation of all three courses the applicant had enrolled in and no current enrolment, were not disputed by the applicants. As the applicants bore the onus of satisfying the Tribunal that they met the relevant criteria and had failed to provide any evidence to counter the PRISMS findings, the Deputy President was not satisfied that the first applicant was enrolled in a course of study at the time of the decision. Consequently, the criterion under clause 500.211 of Schedule 2 to the Regulations was not met, rendering it unnecessary to consider the genuine temporary entrant criterion.

Given that the primary criteria for the Subclass 500 (Student) visa were not met, and the applicants did not claim to meet the criteria for a Subclass 590 (Student Guardian) visa, the Deputy President affirmed the decision under review. The Tribunal therefore affirmed the decisions not to grant the applicants Student (Temporary) (Class TU) visas.