Burman (Migration)

[2019] AATA 1317

Burman (Migration) [2019] AATA 1317 (13 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Puja Burman

CASE NUMBER:  1712941

HOME AFFAIRS REFERENCE(S):           BCC2017/774388

MEMBER:David Thompson

DATE:13 April 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 13 April 2019 at 4:54pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment status – not enrolled in a course of study at time of decision – no discretion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.212

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 31 May 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 27 February 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. 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 is a genuine student who intends genuinely to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 10 April 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.  However, in this case the issue before the Tribunal became whether, at the time of decision, the applicant met the enrolment requirement in cl.500.211(a) for a student visa. The circumstances in which the determinative issue before the Tribunal changed are set out below.

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.

10. On 7 January 2019 a written invitation to appear before the Tribunal was sent to the applicant.  In that invitation the applicant was requested to provide information about (amongst other things) the course of studies she was then undertaking to the Tribunal by 21 February 2019.  The applicant provided information by means of a request for student visa information form, which she completed online.  The form asked the applicant whether she had a current Confirmation of Enrolment in a registered course of study.  The applicant answered that question in the negative.

11. At hearing, the applicant was referred to that answer, and was asked if it was correct. The applicant confirmed that it was. The Tribunal explained that enrolment in a registered course of study at the time a decision is being made on an application for a student visa is a prerequisite for the issue a student visa, and that this was a requirement which must be met at the time of the Tribunal’s decision. The Tribunal went on to explain that accordingly, although the delegate’s decision had addressed the genuine temporary entrant requirement in cl.500.212 of the Migration Regulations, the determinative issue before the Tribunal had now changed to the issue of whether the applicant was enrolled in a registered course of study.  The applicant was asked whether she understood.  She acknowledged that she did.  The Tribunal then asked the applicant whether she was currently enrolled in a registered course of study.  She answered that she was not.  The applicant was then invited to address the Tribunal on that issue.

12. The applicant explained that she had completed her Certificate III in Early Childhood Education and Care within the specified time limits for that course, and had enrolled in and commenced her Diploma of Early Childhood Education and Care.  The applicant’s written submissions to the Tribunal indicate that she finished her Certificate III course on 29 June 2016. The applicant’s student visa was due to expire, to the best of her recollection, in March 2017.  She applied for a further student visa on 27 February 2017.  That application was refused.  The Tribunal’s file indicates that the date of the delegate’s decision to refuse the applicant’s visa application was 31 May 2017, and that the applicant lodged her application for review of that decision in 19 June 2017.  The applicant completed her Diploma studies on or about 11 December 2017, whilst the review process was on foot in the Tribunal.  The applicant stated, in answer to the Tribunal’s questions, that she had not been enrolled in a course of study since then.

13. The applicant gave evidence that she consulted migration agents about enrolling for a Bachelor’s degree in early childhood studies, but that she had been told that she would not be able to do so without a visa.  The applicant took the view that these agents had misled her.  Nonetheless, the applicant also stated that she had approached some universities about enrolling in a Bachelor’s degree course, and had been told that although they could not accept her application if she had no student visa she should come back when she had received one.  The applicant evidently felt deeply aggrieved about the advice she had been given and the service she had received from migrations agents, including the agent who had prepared her student visa application and had neglected (the applicant alleged) to include various important supporting documents in that application.  The applicant excepted only her current representative, Ms Jaya Butani, from her allegations.

14. The Tribunal has no power or discretion to exempt the applicant from the requirements of cl. 500.211.  Therefore, the Tribunal can only state that it is not satisfied that at the time of this decision, the applicant is enrolled in a course of study.  Accordingly, in this case cl.500.211 is not met.

15. 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

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

    David Thompson
    Member