Shrestha (Migration)

The applicant, a Nepalese citizen, sought review of a decision to refuse him a Subclass 500 (Student) visa. The applicant had arrived in Australia in 2009 and applied to undertake a Master of Professional Accounting and a Master of Business Administration. The Department issued a notice under s 359 of the Migration Regulations 1994, inviting the applicant to respond to concerns regarding his enrolment status and genuine student status. The applicant indicated he would not provide a response or any documents.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Subclass 500 (Student) visa, specifically concerning his enrolment in a registered course of study. The Tribunal was required to determine if the applicant was enrolled in a full-time registered course at the time of the decision under review, and whether he had been enrolled at all times while in Australia as a student visa holder. The definition of a "course of study" and "registered course" under the Regulations were relevant to this determination.

The Tribunal reasoned that the applicant's only evidence of enrolment was a confirmation of enrolment with a completion date of 31 December 2018. Given the applicant's explicit statement that he had no documents to provide and his refusal to respond to the s 359 invitation, the Tribunal found there was no evidence that he was currently enrolled in a registered course or had been enrolled at all times since 31 December 2018. The Tribunal concluded that it was the applicant's responsibility to demonstrate compliance with his visa conditions, and as he had failed to do so, the criteria for the visa were not met.

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