Rossaroli (Migration)

This matter concerned an appeal by the applicant against the decision of the Administrative Appeals Tribunal (the Tribunal) to affirm the refusal of a Subclass 500 (Student) visa. The applicant had not responded to an invitation issued under section 359(2) of the Migration Act 1958, which meant they were not entitled to appear before the Tribunal. The primary issue before the court was whether the Tribunal had erred in law in affirming the decision to refuse the visa.

The legal issues before the court were whether the Tribunal had correctly applied the criteria for a Subclass 500 visa, specifically clause 500.211 which requires the applicant to be enrolled in a course of study at the time of the decision, and clause 500.212(a) concerning the genuine temporary entrant criterion. The court also considered the scope of the Tribunal's obligations in assessing the applicant's case, particularly in the absence of a response to a section 359(2) invitation.

The court reasoned that it is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met, and a decision-maker is not required to make the applicant's case. The Tribunal had found no recent evidence of the applicant being enrolled in a course of study, a prerequisite for the visa under clause 500.211. Furthermore, the Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily, thus failing to meet clause 500.212(a), as guided by Direction No. 69.

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