1907873 (Migration)

[2021] AATA 1449

1907873 (Migration) [2021] AATA 1449 (22 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1907873

MEMBER:Michael Judd

DATE:22 April 2021

PLACE OF DECISION:  Perth

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

Statement made on 22 April 2021 at 10:07am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – no current enrolment – consent to decision without hearing – intention to apply for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r. 1.03, Schedule 2, cls 500.111, 500.211(a), 500.212

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 26 March 2019 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 11 February 2019. 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 had satisfied the requirement that he genuinely intends a temporary stay in Australia as a student.

4. The applicant was assisted in relation to the review by their registered migration agent.

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. No family unit issues arise in this matter.

7. The issue in the present case is whether at time of decision the applicant is enrolled in a registered course of study.

   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.

   Information from representative and section 359A letter

10. On 19 January 2021 the applicant’s representative emailed the Tribunal to advise that the applicant was not currently enrolled in a registered course of study. Further, he advised the Tribunal that as soon as the AAT decision for refusal (the present decision) has been received the applicant will be seeking to access the Ministers discretionary powers to grant a visa, based on meeting one or more of the Ministerial guidelines.

11. In accordance with the Tribunal’s obligations under section 359A of the Act, on 7 April 2021 a letter was forwarded to the representative on behalf of the applicant advising the above information was relevant to the review because as the applicant had applied for a Student visa clause 500.211 of the Migration Regulations relevantly requires that at the time of the Tribunal’s decision upon the review it must be satisfied that the applicant is enrolled in a course of study: cl.500.211(a). The applicant had not claimed to meet any of the alternative criteria in cl.500.211. The letter advised that if the Tribunal relied on the information in making its decision it may find that the applicant is not currently enrolled and therefore does not meet the criterion in clause 500.211. The letter further advised that if the Tribunal made this finding it may conclude that the applicant is not entitled to the grant of a Student visa, and as such, the decision under review would be affirmed.

12. On 21 April 2021 the representative again wrote to the Tribunal advising as follows:

    [The applicant] is no longer studying and is therefore not eligible for the grant of a student visa. The applicant wishes for the Tribunal to make a decision on the papers without going to a hearing. It is the applicant’s intention to make a request to access the Ministers Discretionary powers to grant a visa based on compelling and compassionate reasons.

13. The Tribunal is satisfied that at time of decision the applicant is not enrolled and has no intention to enrol in a course of study. 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.

14. 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

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

    Michael Judd
    Member