Buddee (Migration) - [2025] ARTA 439

Buddee (Migration) [2025] ARTA 439 (13 February 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Miss Anchalee Buddee
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2312286

Tribunal: General MemberR Guemy
Place:Sydney
Date: 13 February 2025
Decision:The decision under review is affirmed.

Statement made on 13 February 2025 at 12:52pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine student – genuine temporary entrant – enrolment in a registered course – enrolment ceased – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 500.111, 500.211, 500.212; r 1.03
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 July 2023 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 21 June 2023. 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.
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 (Cth) (the Regulations) because they were not satisfied that the applicant intended genuinely to stay temporarily in Australia.
Evidence given to the Tribunal
The applicant provided the following relevant evidence to the Tribunal:
i.Screenshots of emails she sent enquiring about English language courses at TAFE Kempsey dated 28 November 2024;
ii.Written submissions dated 3 February 2025 where, among other things, she claims that her studies were disrupted due to emotional distress and the inability to focus, that she plans to re-enrol in her course and was fully committed to resuming her studies;
iii.Consultation notes recorded by Dr Warwick Wickham dated 30/01/2025 for medical appointment with the applicant and prescriptions dated 30 January 2025 issued to the applicant for Temazepam and Sertraline.
Tribunal hearing – 11 February 2025
The applicant appeared before the Tribunal on 11 February 2025 to give evidence and present arguments. The applicant was assisted in relation to the review by her representative. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
The Tribunal put to the applicant information contained in PRISMS records which indicated that the applicant was not enrolled in a course of study. The Tribunal explained to the applicant that this was relevant because it was a requirement for the grant of a student visa that she be enrolled in a course of study. The Tribunal then explained to the applicant that if it relied on the information contained in the PRISMS records then this may lead it to find that she was not currently enrolled in a course of study and to make an unfavourable decision. The Tribunal invited the applicant to comment on the information and the applicant told the Tribunal that she did not have any comment, however she indicated that she had been trying to enrol in a course of study in Kempsey where she and her Australian boyfriend lived.
When the Tribunal invited the applicant’s representative to present oral submissions in respect of the issue of enrolment, the representative indicated that the applicant was not currently enrolled in a course of study.
For the following reasons, the Tribunal considers the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 in the present case is whether the applicant is enrolled in a course of study.
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.
‘Course of study’ is relevantly defined in cl 500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in reg 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 (Cth), to provide the course to overseas students.
On 11 November 2024, the Tribunal sent the applicant a Student Visa Information Request form for her to complete. The form indicated that not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the primary decision maker.
The Tribunal has considered the applicant’s written submissions where she claimed that her studies were disrupted due to emotional distress and the inability to focus. PRISMS records indicate that she was last enrolled in a course of study on 9 May 2024. The applicant has presented no contemporaneous independent evidence indicating that she was experiencing any medical conditions at that time causing her to stop studying and become unenrolled. The Tribunal does not accept that her studies were disrupted due to emotional distress and the inability to focus.
The Tribunal has considered the evidence the applicant provided of consultation notes indicating that she attended a medical appointment on 30 January 2025 and was prescribed medication. However, the Tribunal does not accept that this explains why she has been unable to enrol in a course of study for more than nine months or why, now that she is receiving treatment, she is unable to enrol in a course of study.
The Tribunal has considered the screenshots that the applicant sent of enquiries she has made with Kempsey TAFE about English classes there. While the Tribunal acknowledges that the applicant would like to undertake study close to where she resides with her Australian boyfriend, the Tribunal also considers that the applicant has had a reasonably adequate amount of time to enrol in a course of study.
At the time this decision, PRISMS records indicate that the applicant is not currently enrolled in a course of study. The applicant has otherwise provided no evidence to the Tribunal indicating that she is enrolled 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. Accordingly, cl 500.211 is not met.
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
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Dates of hearing(s): 11 February 2025
Representative for the Applicant: Miss Mel Malherbe (MARN: 2418570)