Chen (Migration)

[2021] AATA 949

Chen (Migration) [2021] AATA 949 (23 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Lan Chen
Mr Xiangzhao Kong

CASE NUMBER:  1923077

HOME AFFAIRS REFERENCE(S):          BCC2019/3072251

MEMBER:Noelle Hossen

DATE:23 February 2021

PLACE OF DECISION:  Perth

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

Statement made on 23 February 2021 at 11:21am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – hearing invitation declined – enrolment status – no evidence of enrolment in an approved course of study – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
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 Home Affairs on 31 July 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 17 June 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas on the basis that the first named applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. On the 15th January 2021 the Tribunal wrote to the applicants inviting the applicants to attend a hearing. On the 25 January 2021 the applicant’s representative advised the Tribunal that the applicants would not be attending the hearing and stated that the applicants agreed to the Tribunal deciding the review without the applicants attending the hearing.

5. 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. On the 5th February 2021 the Tribunal obtained a copy of the first named applicant’s Provider Registration International Student Management System database, (PRISMS record)

7. On the 5th February 2021 the Tribunal forwarded, to the applicant’s personal representative in strict accordance with section 359A, a copy of the applicant’s enrolment records from the Provider Registration International Student Management System database. These records confirmed that the first named applicant was not enrolled in an approved course of study at the time that the record was obtained. The Tribunal invited the first named applicant to respond to the letter and provided 14 days for the first named applicant to respond.

8. The first named applicant did not respond to the invitation.

9. The Tribunal has decided the matter based on the information provided at the time that the applicants filed the application for review, the information supplied in response to the Section 359(2) application, the information contained in the file of the Department, and the information contained in the PRISMS records.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

    Enrolment (cl.500.211)

12. 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.

13. ‘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.

14. At the time that the applicant was provided with a copy of the PRISMS record the applicant was given 14 days to provide to the Tribunal a copy of a current confirmation of enrolment certificate. No such evidence was forthcoming.

15. There is no evidence before the Tribunal that the applicant is enrolled in any approved course of study. Therefore cl.500.211 is not met.

16. The second named applicant has applied for a visa on the basis of being a member of the family unit of the first named applicant and therefore her application is determined by the first named applicant’s Application.

17. 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.

18. 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

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

    Noelle Hossen
    Member