DEMA (Migration)

[2018] AATA 3164

DEMA (Migration) [2018] AATA 3164 (1 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss YESHI DEMA

CASE NUMBER:  1709220

HOME AFFAIRS REFERENCE(S):           BCC2016/4216371

MEMBER:Wendy Banfield

DATE:1 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 01 August 2018 at 4:56pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Course enrolment – Applicant discontinued studying Bachelor’s degree – Decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03 Schedule 2 cls 500.111, 500.211, 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 and Border Protection on 7 April 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 13 December 2016. 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.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because it was determined the genuine temporary entrant criteria had not been met.

   Background

4. The applicant is a citizen of Bhutan and is currently 24 years old. She came to Australian in 10 October 2012 to study a Bachelor degree but after commencing the Foundation Program, the applicant did not complete it and did not undertake the Bachelor degree. Since arriving in Australia the applicant has completed Certificate and Diploma courses in Business and Management, as well as an English course. The applicant had been enrolled in a Bachelor of Arts degree; however, that enrolment was cancelled.

5. The applicant appeared before the Tribunal on 24 July 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 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 is enrolled in an approved course of study as required for the grant of a student visa.

8. 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.

9. ‘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.

10. The applicant gave evidence at the Tribunal hearing that she did not continue studying her Bachelor degree at the University of Western Sydney after the first semester. She said she had time to think about it and was uncertain whether she would continue. The applicant since her visa was refused; she had decided to return to Bhutan after finalising her lease and other matters in Australia. The applicant confirmed she was not currently enrolled in an approved course of study.

11. 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.

12. 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

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

    Wendy Banfield
    Member