Uttisin (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking review of a decision not to grant a Subclass 500 (Student) visa. The applicant had applied for the visa to undertake an ELICOS course, but the delegate's decision, which was under review, found that the applicant had failed to provide requested information within the prescribed period and that the genuine temporary entrant criterion was not met. Crucially, there was no evidence of current confirmation of enrolment.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for a Subclass 500 (Student) visa, specifically clause 500.211 of Schedule 2 to the Regulations, which requires the applicant to be enrolled in a course of study at the time of the decision. The Tribunal also considered the definition of "course of study" as a "full-time registered course" and "registered course" as defined in the Regulations and the Education Services for Overseas Students Act 2000.

The Tribunal reasoned that the applicant had not provided any evidence of current enrolment in a course of study to either the Department or the Tribunal. The applicant had arrived in Australia on a tourist visa, applied for the student visa, and subsequently departed Australia on a Bridging Visa B before the student visa was granted. As clause 500.211(a) requires current enrolment, and the applicant did not claim to meet any alternative criteria within that clause, the Tribunal concluded that this essential criterion was not met.

Consequently, the Tribunal found that the criteria for the grant of a Subclass 500 (Student) visa were not satisfied. The applicant did not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Therefore, the Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa.