1814562 (Migration)

[2019] AATA 5253

1814562 (Migration) [2019] AATA 5253 (26 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1814562

MEMBER:David Thompson

DATE:26 September 2019

PLACE OF DECISION:  Perth

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

Statement made on 26 September 2019 at 12:33pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) – genuine temporary entrant – not enrolled in a registered course of study – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 359AA
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 500.111, 500.211, 500.212
Education Services for Overseas Students Act 2000 (Cth)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 April 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2.    The applicant applied for the visa on 10 March 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

4.    The applicant appeared before the Tribunal on 25 September 2019 to give evidence and present arguments.

5.    For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

6. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.

7. The issue before the delegate was whether the applicant was a genuine temporary entrant for the purposes of cl.500.212. However, as a result of the evidence given by the applicant the issue before the Tribunal became whether, at the time of decision, the applicant met the enrolment requirement for a student visa provided in cl.500.211(a) of Schedule 2 of the Regulations.

Enrolment (cl.500.211)

8.    Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.

9.    ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

1. On 25 June 2019 the Tribunal invited the applicant, pursuant to s.359(2) of the Act, to provide information relevant to his review application. The applicant responded on 2 July 2019 by completing an online Request for Student Visa Information form (Response). In that response, the applicant stated, amongst other things, that he did not have a current Confirmation of Enrolment (CoE) in a registered course of study. On 10 September 2019 the Tribunal sent the applicant an invitation to attend a hearing, asking that he provide a copy of his current Certificate of Enrolment or other documents showing that he was currently enrolled in a course of study as defined in cl.500.211 of Schedule 2 to the Regulations “as is required for the grant of a student visa.” The applicant responded to that hearing invitation by submitting a ‘Response to Hearing Invitation – MR Division’ form. He did not provide any other documents to the Tribunal prior to hearing.

2. Before the hearing, the Tribunal obtained a copy of the applicant’ record from the Provider Registration International Student Management System (PRISMS) database, which showed that the applicant was not currently enrolled in any registered course of study in Australia.

3. The Tribunal heard the applicant’s review application on 25 September 2019. The applicant attended in person and made an oath. At hearing, the applicant was asked if he was currently enrolled in any registered course of study. He said that he was. When asked what that course was, the applicant said that it was a [qualification] at [Education Provider 1]. The Tribunal pointed out to the applicant that his Response stated that he was not currently enrolled. The Tribunal then put the applicant’s PRISMS record to him, strictly in accordance with s. 359AA of the Act. The applicant was told that his PRISMS record did not show any current enrolment, and that this was a reason for affirming the delegate’s decision because being enrolled in a registered course of study at the time a decision is made on the applicant’s student visa application is a necessary criterion for the grant of a student visa. The Tribunal also explained to the applicant that the time at which the decision was being made on his visa application was the date of hearing and the days following. 

4. The Tribunal then explained to the applicant that the determinative issue in this case had changed: it was no longer the issue of whether the applicant was a genuine temporary entrant, and was now the issue of whether the applicant was enrolled in a registered course of study. The applicant acknowledged understanding that the determinative issue before the Tribunal had changed, and was given an opportunity to address the Tribunal in relation to this determinative issue, and in relation to his PRISMS record.

5. The applicant admitted that he was not enrolled in a course of study. He said that this was because two of his course providers had ceased business, and also because he had become ill with tuberculosis in approximately September 2018. The applicant provided the Tribunal with a copy of a letter dated 19 September 2019 from Dr [A] [to] his General Practitioner, Dr [B], confirming that the applicant had successfully completed a 9 month treatment course for fully susceptible pulmonary tuberculosis and at the conclusion of the treatment was asymptomatic.

6. The Tribunal does not doubt that the applicant has been ill, and seriously so. The Tribunal has some doubts as to whether that illness overlapped with any period of enrolment, and therefore whether it was the reason why the applicant ceased to be enrolled in a registered course of study. However, it is unnecessary to make any findings on that issue, as the enrolment criterion provided by cl.500.211 of Schedule 2 to the Regulations is a mandatory criterion and the Tribunal has no discretion or power to excuse an applicant from the need to meet it. There is no evidence before the Tribunal that at the date of this decision the applicant is enrolled in a course of study, and indeed there is positive evidence in the form of the applicant’s admission that he is not enrolled.

7. Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

8. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

   DECISION

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

   David Thompson
   Member