Cheung (Migration)

[2018] AATA 5807

Cheung (Migration) [2018] AATA 5807 (5 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yuet Chak Cheung

CASE NUMBER:  1703558

HOME AFFAIRS REFERENCE(S):           BCC2017/387458

MEMBER:Meredith Jackson

DATE:5 December 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 05 December 2018 at 2:28pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – applicant declined offer of hearing – no evidence applicant of Certificate of Enrolment (COE) – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, r 1.03, cls 500.211-500.218

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 28 February 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 30 January 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.500.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was not enrolled as specified in a registered course.

   Applicant declined offer of a hearing

4. On 9 November 2018 the applicant was invited to a hearing scheduled for 5 December 2018 at 12 noon and was sent information about the hearing and the implications of not attending.

5. On 9 November the applicant telephoned the Tribunal to advise that he is no longer studying and does not have a current Certificate of Enrolment. The Tribunal outlined to the applicant his options, including withdrawing his application. The applicant responded that he did not wish to have a visa refusal on his immigration record. He indicated his intention to decline the offer of a hearing and then said he would submit evidence for the Member’s consideration. The applicant subsequently uploaded a response to the hearing invitation, clearing indicating that he would not take part in the hearing.

6. On 28 November 2018 the applicant telephoned the Tribunal in response to an SMS reminder about the hearing set down for 5 December. The applicant brought to the Tribunal’s attention that he had previously indicated that he would not be attending. The Tribunal outlined the implications of not attending. The applicant stated that he had previously been advised that a decision could be made on the papers without attending a hearing and that this is the course he wished to pursue. The Tribunal requested he confirm this in writing and he committed to doing so by the next day.

7. The Tribunal received no further evidence from the applicant prior to the hearing concerning any matter, including on his enrolment status.

8. The Tribunal accordingly proceeded to make this decision based on the information in the papers before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 at the time of this decision the applicant was enrolled in a registered course of study as specified.

    Enrolment (cl.500.211)

11. 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.

12. ‘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.

13. There is no evidence before the Tribunal that the applicant is in possession of a current Certificate of Enrolment. Accordingly, 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.

14. 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

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

    Meredith Jackson
    Member