D'Alto (Migration) - [2019] AATA 6526

D'Alto (Migration) [2019] AATA 6526 (13 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Paola D'Alto
CASE NUMBER:  1819314
HOME AFFAIRS REFERENCE(S):          BCC2017/1992307
MEMBER:P. Wood
DATE:13 November 2019
PLACE OF DECISION:  Perth, Western Australia
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 13 November 2019 at 12:36pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – dispute with education provider – advised by lawyer against enrolling in shorter course – personal issues – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cl 500.211
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 June 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 5 June 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.
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).
The applicant appeared in person before the Tribunal on 13 November 2019 to give evidence and present arguments. Upon attending the Tribunal on this day, the applicant advised that she no longer required an interpreter and removed her representative from being the authorised recipient. That is, the applicant appeared before the Tribunal unrepresented.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 cl.500.211.
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.
“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.
The applicant’s oral testimony was that she was not enrolled in a course of study at the time of the hearing. The applicant told the Tribunal that she understood that this meant that she would not be successful in her application to the Tribunal. Notwithstanding this, the applicant told the Tribunal of a dispute with her education provider and said that she has been unable to obtain a refund of her student fees from the education provider.[1]
[1] The Tribunal observes that the [2019] WASAT 61 decision provided by the applicant notes that a cheque for $18,578 was sent to the applicant, and banked by her on 4 December 2017
The applicant told the Tribunal that she had considered enrolling in a shorter course to satisfy the enrolment requirement of cl.500.211, but that her lawyer had advised her that she would need to be enrolled in a university level program. The applicant spoke of the passing of her father affecting her, and of being involved in a Magistrates Court proceeding. In all the circumstances, given that the applicant was refused by the delegate on 14 June 2018, 517 days ago, the Tribunal did not consider it appropriate to grant the applicant further time to obtain enrolment in a course of study.
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.
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
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
P. Wood
Senior Member

Details

AGLC: D'Alto (Migration) [2019] AATA 6526
Case: [2019] AATA 6526
Decision Date: 13 November 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an appeal by an applicant for a Subclass 500 (Student) visa. The applicant sought review of a delegate's decision to refuse their visa application. The core of the dispute revolved around whether the applicant met the eligibility criteria for the visa, specifically concerning their enrolment in a course of study.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 500.211 of Schedule 2 to the Migration Regulations 1994. This clause requires that an applicant be enrolled in a "full-time registered course" at the time of the decision. The Tribunal also considered the definitions of "course of study" and "registered course" as provided in the Regulations and the *Education Services for Overseas Students Act 2000*.

The Tribunal found that the applicant, in their oral testimony, admitted to not being enrolled in a course of study at the time of the hearing. While the applicant explained personal difficulties, including the passing of her father and involvement in legal proceedings, and a dispute with her education provider regarding fees, these circumstances did not alter the fundamental requirement of enrolment. The applicant had been advised by her lawyer against enrolling in a shorter course, and the Tribunal determined that, given the significant delay since the initial refusal, it was not appropriate to grant further time for the applicant to secure enrolment. Consequently, the Tribunal was not satisfied that clause 500.211 was met.

As the applicant did not claim to meet the criteria for an alternative visa, the Subclass 590 (Student Guardian) visa, and had failed to satisfy the primary criteria for the Subclass 500 visa, the Tribunal affirmed the delegate's decision. The decision not to grant the applicant a Student (Temporary) (Class TU) visa was therefore upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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 cl.500.211. 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. “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. The applicant’s oral testimony was that she was not enrolled in a course of study at the time of the hearing. The applicant told the Tribunal that she understood that this meant that she would not be successful in her application to the Tribunal. Notwithstanding this, the applicant told the Tribunal of a dispute with her education provider and said that she has been unable to obtain a refund of her student fees from the education provider.[1] [1] The Tribunal observes that the [2019] WASAT 61 decision provided by the applicant notes that a cheque for $18,578 was sent to the applicant, and banked by her on 4 December 2017 The applicant told the Tribunal that she had considered enrolling in a shorter course to satisfy the enrolment requirement of cl.500.211, but that her lawyer had advised her that she would need to be enrolled in a university level program. The applicant spoke of the passing of her father affecting her, and of being involved in a Magistrates Court proceeding. In all the circumstances, given that the applicant was refused by the delegate on 14 June 2018, 517 days ago, the Tribunal did not consider it appropriate to grant the applicant further time to obtain enrolment in a course of study. 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. 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 The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.P. WoodSenior Member

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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