Ubalde (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to refuse to grant Mr Ubalde a Student (Temporary) (Class TU) visa, subclass 500. The applicant sought to undertake study in Australia. The delegate's refusal was based on the applicant not satisfying clause 500.212 of Schedule 2 to the Migration Regulations 1994, as the delegate was not satisfied the applicant was a genuine student intending to stay temporarily in Australia. Mr Ubalde's wife, the secondary applicant, had returned to their home country and did not appear before the Tribunal.

The legal issue before the Tribunal was whether the primary applicant met the enrolment requirements for a student visa at the time of the Tribunal's decision. Specifically, the Tribunal was required to determine if the applicant was enrolled in a full-time registered course of study, as mandated by clause 500.211 of Schedule 2 to the Migration Regulations. A "registered course" was defined as one provided by an institution registered under the Education Services for Overseas Students Act 2000 to provide courses to overseas students.

The Tribunal noted that the applicant had been invited to provide evidence of enrolment at least seven days prior to the hearing, but this evidence was not provided. At the hearing, the applicant candidly admitted that he was not currently enrolled in a registered course and was instead waiting for travel restrictions in his home country, the Philippines, to ease so he could return. Based on this admission, the Tribunal found that the applicant did not satisfy the requirement of being enrolled in a registered course at the time of the decision.