Chunto (Migration)

[2021] AATA 3461

Chunto (Migration) [2021] AATA 3461 (24 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Amornpan Chunto

CASE NUMBER:  1930682

HOME AFFAIRS REFERENCE(S):          BCC2019/4592599

MEMBER:Gabrielle Cullen

DATE:24 August 2021

PLACE OF DECISION:  Sydney

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

Statement made on 24 August 2021 at 1:15pm

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 current confirmation of enrolment – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212
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 18 October 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 September 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. Confirmation of Enrolments attached to the current application of 13 September 2019 refer to the applicant studying a Diploma and Advanced of Leadership and Management from 4 November 2019 to 19 December 2022.

4. With her application she also submitted a statement addressing the genuine temporary entrant criteria including current enrolments, evidence of past educational qualifications, evidence of financial capacity, as well as evidence of overseas student health cover to 15 March 2023.

5. On 18 October 2019 the delegate decided to refuse to grant the visa because the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations on the basis that she is not a genuine applicant for entry and stay as a student.

6. On 29 October 2019 the applicant lodged an appeal to the Tribunal.

7. On 28 July 2021 the applicant was invited to attend a hearing on 23 August 2021 by telephone. The letter, among other matters, requested the applicant provide a current COE or documents that show she is currently enrolled in a course of study as defined in cl.500.111 and as required by cl.500.211(a) and documents that show her past studies in Australia. It noted the Tribunal may assess whether she is a genuine applicant for entry and stay as a student, which was the reasons for the delegate’s decision, and referred to and attached Direction 69. The letter also noted that the Tribunal may assess whether the applicant is enrolled in a registered course of study and that not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review.

8. The applicant appeared before the Tribunal on 23 August 2021 by telephone via MS Teams to give evidence and present arguments. She was assisted with an interpreter in the English and Thai languages.

9. The Tribunal raised with the applicant that a matter before it is whether she meets the enrolment criteria as required by cl.500.211 which is required for the grant of a student visa and outlined the requirement. It also raised with her that another matter before it is whether she meets the requirement of cl.500.212. It outlined the section, the relevance of Direction 69 and that the Tribunal needs to be satisfied on the evidence before it that he is a genuine applicant for entry and stay as student.

10. At hearing the applicant indicated she was not currently enrolled in a course of study. Via the process outlined in s.359AA the Tribunal raised with her that the PRISMS record indicates that she is not currently enrolled and enrolment ceased in the Diploma and Advanced Diploma of Leadership and Management on 29 October 2019 It outlined the relevance with regard to cl. 500.211. She responded that she wants to stay because of Covid in her country and asked whether she could apply for another student visa and asked how long she could stay after the Tribunal decision. The Tribunal advised her that it was unable to provide her with migration advice and suggested she seek assistance from a migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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 before the delegate was whether the applicant met the criterion in cl.500.212, however as raised with the applicant another matter before the Tribunal is whether he meets cl.500.211.

13. 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.

14. ‘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.

15. The Tribunal raised with the applicant the requirement of enrolment for the grant of a student visa and referred to cl. 500.211 in writing on a number of occasions including via s.359AA at the hearing on 23 August 2021.

16. The evidence submitted by the applicant to the Department and then the Tribunal indicated the applicant was enrolled in a Diploma of Leadership and Management followed by an Advanced Diploma of Leadership and Management from 4 November 2019 to 19 December 2022

17. The applicant indicated at hearing that she is not currently enrolled in a course of study and the Tribunal also raised with her via the process outlined in s.359AA that information from the PRISMS record indicates that her enrolment in the Diploma and Advanced Diploma of Leadership and Management ceased on 29 October 2019 and she is not currently enrolled in a course of study.

18. It has considered her response; however, the evidence from the applicant and PRISMS records, is that she is not currently enrolled in a course of study and enrolment ceased on 29 October 2019. She has not provided any evidence that she is currently enrolled in any course of study.

19. On the evidence before it, 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.

20. 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

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

    Gabrielle Cullen
    Member