Choijilsuren (Migration)

[2018] AATA 605

Choijilsuren (Migration) [2018] AATA 605 (2 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Soyol-Erdene Choijilsuren
Mr Chinbat Ochirbat
Master Batbileg Chinbat
Miss Nomintsatsral Chinbat

CASE NUMBER:  1620391

DIBP REFERENCE(S):  BCC2016/3154150

MEMBER:Jennifer Cripps Watts

DATE:2 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 02 March 2018 at 9:00am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Requirement to be enrolled in a registered course of study – Applicant not enrolled in a registered course at time of decision

LEGISLATION
Education Services for Overseas Students Act 2000, Pt 2 Div 3
Migration Act 1958, ss 65, 359A
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211(a), 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 on 15 November 2016 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 22 September 2016. 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 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 the applicant is a genuine temporary entrant student.

4. The visa that is the subject of this review was refused on 15 November 2016.  The applicant applied for review by this Tribunal on 1 December 2016, within time, and provided the Tribunal with a copy of the Department’s decision to refuse her student visa.  The applicant’s matter was constituted to this member on 10 January 2018 and a written invitation to attend a hearing was sent to the applicant on 12 January 2018.  In the invitation to the hearing, the applicant was informed that if she wished to provide material or written arguments for the Tribunal to consider, she should do so as soon as possible.  As the applicant’s visa was refused because the delegate was not satisfied she met the genuine temporary entrant (GTE) criteria, the Tribunal attached a copy of an extract from the Migration Act 1958, Direction Number 69 – Assessing the Genuine Temporary Entrant criterion for Student Visa and Student Guardian Visa Applications, for her ease of reference. 

5. The applicant’s agent, Aman Puri, phoned the Tribunal on 19 January 2018 and advised that she would find it difficult to attend the hearing because she had just had a baby.  She was informed that she could attend the hearing by phone and the case officer confirmed and recorded her phone number. 

6. On 19 January 2018, an email from Ms Puri was received by the Tribunal who says the applicant wants to “…represent her case by herself.”  No written notice was received from the applicant that she did not wish to be represented by Ms Puri and the Tribunal will continue to communicate with the agent until such time as written notice is received.

7. The applicants appeared before the Tribunal on 8 February 2018 to give evidence and present arguments and handed up documents on the day of the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 meets the primary criteria for the grant of the visa. The visas were refused because the applicant did not meet primary criterion cl.500.212 because the delegate was not satisfied she was a genuine applicant for entry and stay as a student.

10. The Tribunal has first turned its mind to whether the applicant meets cl.500.211, that is, whether she is enrolled in a course of study.

    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 has a current COE or a letter of offer for enrolment.

14. At the hearing, the applicant said she intended to commence study on 12 February 2018 but did not provide reliable evidence.  On 15 February 2018, a case officer at the Tribunal called the English Language Company where the applicant was claiming she intended to commence English classes the week after the hearing.  The Tribunal case officer was told by the person they spoke to that the applicant had not attended classes or paid any course fees since August 2017 and that she was not, on 15 February 2018, currently enrolled in a course of study.  The applicant had claimed at the hearing that she intended to commence classes there on 12 February 2018.  Even if she had the intention, it did not appear, on 15 February, that the applicant had commenced the intended study or that she was enrolled in a course of study.

15. The Tribunal sent the applicant a s.359A letter inviting her to comment or respond to this adverse information, that is, that she claimed she was enrolled in course of study with the English Language Company from 12 February 2018 and it appeared this was not the case, on the information before the Tribunal post-hearing. It was explained why the Tribunal may consider, subject to the applicant’s comments or response, that the information that the applicant is not enrolled in a course of study would be the reason or part of the reason for affirming the decision to refuse the visas.

16. The applicant did not respond to the s.359A letter by 1 March 2018. Neither the applicant, nor her representative engaged with the Tribunal to request additional time to provide information or evidence. The applicant has not provided a COE or offer of enrolment to the Tribunal at the time of this decision.

17. Therefore, the Tribunal is not satisfied, at the time of this decision, that 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.

    Secondary applicants

19. The applicant included her husband and two children as secondary applicant members of the family unit in her student visa application that is the subject of this review:  Chinbat Ochirbat, born October 1975, Nomintsatsral Chinbat, born December 2002 and Batbileg Chinbat, born August 2004.

20. There was no evidence before the Tribunal that the secondary applicants are no longer members of the family unit of the primary applicant.  They all attended the hearing together.  As the Tribunal has affirmed the decision to refuse the applicant’s student visa, and on the basis that the secondary applicants, on the face of it, remain members of the family unit at the time of this decision, the Tribunal also affirms the decision to refuse the visas for the secondary applicants.

    DECISION

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

    Jennifer Cripps Watts
    Member