Cai (Migration)

[2020] AATA 3937

Cai (Migration) [2020] AATA 3937 (17 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Qi Cai

CASE NUMBER:  1913384

HOME AFFAIRS REFERENCE(S):          BCC2019/1273191

MEMBER:Peter Booth

DATE:17 July 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 17 July 2020 at 4:49pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–genuine temporary entrant criterion not met–not currently enrolled in a registered course of study –no evidence of current confirmation of enrolment– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, r 1.03, Schedule 2, cl 500.211

Education Services for Overseas Students Act 2000

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 10 May 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 13 March 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 applicant was not a genuine temporary entrant.

4. On 20 April 2020, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information about the review application in writing. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 4 May 2020, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. In her response, the review applicant stated that she consented to the matter being determined without the need for a hearing. The Tribunal is satisfied that the necessary consent has been given under s.360(2)(b) of the Act and that, pursuant to s.360(3), the review applicant is no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 currently 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.

10. In a response to a request to provide information to the Tribunal pursuant to s.359(2) of the Act, the applicant asserted that she was currently enrolled in a registered course of study. The applicant has also provided confirmation of enrolment documents in respect of two courses of study: first, a Diploma of Interpreting which was due to commence on 29 April 2019 and be completed on 13 October 2019; secondly, an Advanced Diploma of Translation which was due to commence on 18 November 2019 and be completed on 3 May 2020. She has also provided a letter dated 28 April 2020 from the Sydney Institute of Interpreting and Translation confirming that she was then currently enrolled in an Advanced Diploma of Interpreting and Translation which would be completed on 6 July 2020. The Tribunal assumes that the applicant has completed her most recent course of study, although there is no evidence of this. However, the applicant has not provided any documentary corroboration of being currently enrolled in a registered course of study. This is a critical fact of which the Tribunal must be satisfied at the time of determining the application for review.

11. 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 met.

12. 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

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

    Peter Booth
    Member