Shrestha (Migration)

The applicant, a national of Nepal, sought review of a decision not to grant her a Subclass 500 (Student) visa. The applicant had applied for the visa to undertake a course of study in Australia, intending to develop her English skills and pursue qualifications in commercial cookery and hospitality management. The core of the dispute revolved around whether the applicant met the mandatory criteria for the visa, specifically those relating to enrolment in a registered course of study and being a genuine applicant for entry and stay as a student.

The court was required to determine two primary legal issues. Firstly, whether the applicant was enrolled in a course of study at the time of the decision, as required by clause 500.211 of Schedule 2 to the Migration Regulations 1994. Secondly, if she met the enrolment criterion, whether she was a genuine applicant for entry and stay as a student, as stipulated by clause 500.212(a) of Schedule 2. The court noted that all criteria must be satisfied at the time a decision is made on the application.

The court's reasoning focused on the evidence presented, particularly the results of a PRISMS search which indicated that the applicant's previous enrolments in three courses had all been cancelled on 21 December 2019, with no current enrolment recorded. The applicant was invited to respond to this information but failed to do so. The court applied the principle that it is for the applicant to satisfy the Tribunal that they meet the relevant criteria. As the applicant did not provide evidence to demonstrate current enrolment, the court found that clause 500.211 was not met. Consequently, it was unnecessary to consider the genuine temporary entrant criterion.

Given the finding that the applicant did not meet the enrolment criterion, the Tribunal affirmed the decision under review. The applicant did not claim to meet the criteria for a Subclass 590 (Student Guardian) visa, and therefore, the criteria for the grant of a Subclass 500 (Student) visa were not met.