Chua (Migration)

[2019] AATA 6461

Chua (Migration) [2019] AATA 6461 (4 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ka Heng Chua
Mrs Vera Sanjaya
Mr Alvin Hayden Chua
Ms Calista Evelyn Chua

CASE NUMBER:  1803406

DIBP REFERENCE(S):  BCC2017/4280808

MEMBER:Elizabeth Tueno

DATE AND TIME OF

ORAL DECISION AND REASONS:         4 December 2019 at 2:42 pm (VIC time)

DATE OF WRITTEN RECORD:                24 December 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 24 December 2019 at 2:54pm

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

LEGISLATION
Migration Act 1958
Migration Regulations 1994, Schedule 2, cl 500.211

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 2 February 2018 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).

2. At the hearing on 4 November 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant applied for the visa on 15 November 2017 to undertake study in Australia.  At the time the visa application was lodged the Student (Temporary) (Class TU) visa contained two subclasses, subclass 500 student visa and subclass 590 student guardian visa.  The applicant does not claim to meet the criteria for a subclass 590 student guardian visa.

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.211 of schedule 2 to the Migration Regulations. The delegate was not satisfied that he was a genuine student who intends genuinely to stay in Australia temporarily.

5. The applicant attended the hearing before the tribunal today by telephone to give evidence and present arguments.  The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. While the issue before the delegate was whether the applicant is a genuine temporary entrant, the issue before the tribunal is now whether at the time of this decision he meets the enrolment requirements for a student visa.

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 clause 500.211 to clause 500.218 must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need only satisfy the secondary criteria.

8. The issue in the present case is whether the applicant is enrolled in a course of study as required for the grant of a student visa. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study.

9. On 18 November 2019 a written invitation to attend today’s hearing was sent to the applicant.  In that invitation he was requested to provide evidence of enrolment in a fulltime registered course to the tribunal at least seven days prior to today’s hearing.  Such evidence has not been provided.

10. At the hearing today the applicant was again asked about his current enrolment.  In his sworn evidence before the tribunal the applicant confirmed that he was last enrolled in a course in September to October 2017.  His last course of study in 2017 was a human resources course.  He stated that he is not currently studying and that he is not currently enrolled in a course, however he would like to continue studying.

11. The applicant also gave evidence about having previously been enrolled in a course and being asked to pay tuition fees by his agent.  This agent told him he just needed to pay the fees and did not need to attend the classes.  He contacted other agents who told him the same thing.

12. The applicant provided responses in a questionnaire to the tribunal which also stated that he is does not have a current confirmation of enrolment in a registered course of study. Accordingly, there is no evidence before the tribunal that the applicant is enrolled in any course of study. Therefore, the tribunal is not satisfied that at the time of this decision that the applicant is enrolled in a course of study and accordingly, clause 500.211 is not met.

13. Given the above findings the tribunal finds that the criteria for the grant of a subclass 500 student visa are not met.  For these reasons the tribunal finds that the decision under review should be affirmed.  The tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

14. It follows that the tribunal also affirms the delegate’s decision in this case of the second, third and fourth named applicants.

    DECISION

15. The Tribunal affirms the decisions under review.

    Elizabeth Tueno
    Member