ARUNAIEM (Migration)

[2019] AATA 4910

ARUNAIEM (Migration) [2019] AATA 4910 (2 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sutee ARUNAIEM

CASE NUMBER:  1721549

HOME AFFAIRS REFERENCE(S):           BCC2017/2728996

MEMBER:Gabrielle Cullen

DATE:2 August 2019

PLACE OF DECISION:  Sydney

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

Statement made on 02 August 2019 at 11:05am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – limited academic progress – no current enrolment – claimed completion of a Business course – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 500.211, 500.212; r 1.03

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 Immigration and Border Protection on 8 September 2017 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 12 September 2017. 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. With his application the applicant provided a COE to study an Advanced Diploma of Business from 10 July 2017 to 5 July 2019. He also provided a genuine temporary statement in which he outlined courses competed in Australia, including a Certificate III and IV in Business, and English course. He expanded on the value of the current course to his future. He referred to his family in Thailand and wishing to return and start a business there.

4. The delegate decided to refuse to grant the visa on 8 September 2017 because the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations on the basis that he is not a genuine applicant for entry and stay as a student. The delegate was concerned at the applicant’s lack of course progression since his arrival in Australia on 16 December 2012. The delegate noted that the evidence provided indicated the applicant had only completed a Certificate III and Certificate IV in Business since their arrival and that records show that since 2014 the applicant had not successfully completed any course.

5. On 11 July 2019 the Tribunal invited the applicant to attend a hearing on 29 July 2019. The letter, among other matters, requested the applicant provide a current Confirmation of Enrolment (COE) or other documents that show he is currently enrolled in a course of study as defined in cl.500.211. It noted that this is required for the grant of a student visa. The letter also indicated that the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by clause 500.212 and asked him to provide a written statement addressing this issue by referring to Direction 69, which was attached.

6. On 27 July 2019 the applicant’s representative advised that the applicant is continuing to study an Advanced Diploma of Business but they do not have documents from the course provider yet. Also provided was the applicant’s VEVO for visa holders, untranslated Thai divorce certificate, transcript indicating the applicant achieved 3 subjects in 2015 in the Diploma of Management, evidence of successfully completing the Certificate III and IV in Business, student visa financial support statement signed by the applicant’s uncle and a COE created on 22 June 2017 as to the applicant’s enrolment in the Advanced Diploma of business from 10 July 2017 to 5 July 2019. The applicant provided a letter noting that after 2016 he was the secondary visa holder to his now ex-wife and stating that he is currently studying the Advanced Diploma of Business and has a few subjects left to complete the course.

7. The applicant appeared before the Tribunal on 29 July 2019 to give evidence and present arguments. The applicant’s representative attended the Tribunal hearing. The applicant was assisted with an interpreter in the Thai and English languages.

8. The Tribunal raised with the applicant that the matter before it is whether he meets the enrolment criteria as required by cl.500.211 which is required for the grant of a student visa. It also raised with him that the matter before it is whether he meets the requirements of cl.500.212. It outlined the section, the relevance of Direction 69 and that the Tribunal needs to be satisfied on the evidence before it that he is a genuine applicant for entry and stay as student.

9. At hearing the applicant indicated he was not currently enrolled. Via the process outlined in s.359AA the Tribunal raised with him PRISMS records that indicate that he is not currently enrolled and enrolment ceased in the Advanced Diploma of Business on 5 July 2019. He responded that he misunderstood and thought he had to wait for the outcome and then enrol. He then said he wished to enrol in a Bachelor of Human Resources and the Tribunal asked him questions about this course and why he wishes to study human resources. The Tribunal raised with him under s.359AA his study record indicating he had not successfully completed any course between December 2014 and the commencement of his current course in July 2017. He responded that he was married and granted a visa as a secondary applicant in 2016.

10. The Tribunal asked about his current course and he said he has two presentations to finish and then he will successfully complete the current course. The Tribunal noted there was no academic record before it as to the current course indicating he had successfully completed it or part of it.

11. The Tribunal asked him a number of questions as to the genuine temporary entrant requirement and he talked about the importance of studying human resources management in the future. He referred to his strong family and other ties in Thailand.

12. The Tribunal raised a number of concerns with regard to meeting the GTE requirement including his length of time in Australia, slow course progression, studying at a lower level than that competed in Thailand. He said he now wants to study human resource management for his future business, referred to working in the cleaning business in Australia and that he will then return.

13. He said he had no military commitments or civil and political reasons which would act as a disincentive to return.

14. The representative among other matters questioned the interpretation on some matters. The Tribunal asked the applicant whether he had understood the interpreter and he answered in the affirmative.

15. The applicant was given until COB on 30 July 2019 to provide further evidence. On 29 July 2019, after the hearing, the applicant’s representative provided an interim transcript indicating the applicant had completed 6 out of 8 subjects towards the Advanced Diploma of Business. It was issued on 29 July 2019 but noted a course end dated of 5 July 2019. On 30 July 2019 the applicant’s representative advised by email that the applicant had now finalised his presentations for the 2 outstanding subjects towards the Advanced Diploma of Business and has now completed the course. He advised they would forward a completion certificate as a soon as possible and requested more time.

16. The Tribunal has considered the request for further time but has decided to make a decision without giving the applicant more time to provide further evidence. The applicant was advised in writing on 11 July 2019 in his hearing initiation letter that he is required to provide evidence of a current CoE to show he is currently enrolled in a course of study as defined in cl.500.211 as is required for the grant of a student visa. His lack of enrolment as outlined in the PRISMS records was raised with him via the process outlined in s.359AA. He was given until COB on 30 July 2019 to provide further documents. At hearing he confirmed he was not enrolled but was seeking enrolment and referred to finishing his current course. The Tribunal considers he has been given sufficient time to provide evidence of enrolment. No specific reasons were provided for requiring further time other than possibly to provide a completion certificate for the Advanced Diploma of Leadership and Management, which is not determinative of this issue.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. 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. The issue before the delegate was whether the applicant met the criterion in cl.500.212, however as raised with the applicant another matter before the Tribunal is whether he meets cl.500.211.

19. 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.

20. ‘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.

21. The Tribunal raised with the applicant the requirement of enrolment for the grant of a student visa and referred to cl. 500.211. It has considered his response; however the evidence from the applicant and PRISMS records, raised with the applicant via s.359AA, is that he is not currently enrolled in a course of study and ceased enrolment on 5 July 2019. He has not provided any evidence that he is currently enrolled in any course of study. The COE provided was dated 22 June 2017 and in any event indicates enrolment ceases on 5 July 2019. On the evidence before it, 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.

22. 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

23. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Gabrielle Cullen
    Member