Ding (Migration)

[2018] AATA 3108

Ding (Migration) [2018] AATA 3108 (5 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Minnie Ding

CASE NUMBER:  1703392

DIBP REFERENCE(S):  BCC2016/3975137

MEMBER:Stephen Conwell

DATE AND TIME OF

ORAL DECISION AND REASONS:          5 July 2018 at 2:32 pm (VIC time)

DATE OF WRITTEN RECORD:                25 July 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – No evidence of current course enrolment – Decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act (Cth)
Migration Regulations 1994 (Cth), r 1.03 Schedule 2 cl 500.211

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 February 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the Hearing on 5 July 2018 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. This is an oral decision in final number 17003392, the applicant is Ms Minnie Ding.  Ms Ding applied for a Student visa on 25 November 2016. By a decision of 8 February 2017 her visa was refused on the grounds that the delegate was not satisfied that the applicant intends genuinely to reside temporarily in Australia. 

4. At the time of the visa application, the Student (Temporary) (Class TU) visa contained two subclasses.  Subclass 500 Student visa and subclass 590 Student Guardian visa.  Ms Ding applied for the visa to undertake study in Australia and in the Hearing today confirmed that she does not claim to meet the criteria for subclass 590 Student Guardian visa.

5. Ms Ding appeared today to give evidence and present arguments and she was accompanied by her migration agent.  The Tribunal has explained to the applicant in the course of the Hearing, that while the issue before the delegate was whether she was genuine temporary entrant, the issue now before the Tribunal is whether at the time of this decision she meets the enrolment requirements for a Student visa.

6. The criteria for a subclass 500 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 if any who are applicants need only satisfy the secondary criteria. As explained to the applicant the issue in the present case is whether the applicant is enrolled in a course of study as required for the grant of a visa.

7. Clause 500.211 relatively requires that at the time of this decision the applicant is enrolled in a course of study. As discussed, the applicant does not claim to meet any of the alternative criteria in clause 500.211. ‘Course of study’ is relevantly defined in clause 500.111 of the Regulations as a full-time registered course. Registered course is defined in Regulation 1.03 as a course of study 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, to provide the course to overseas Students.

8. By written invitation of 13 June 2018 sent to you via your migration agent, the applicant was requested to provide evidence of enrolment in an approved course of study to the Tribunal at least 7 days before the schedule date of the Hearing.  Such evidence has not been provided.  At the Hearing today the applicant was again requested to provide this evidence to the Tribunal, such as a copy of a certificate of enrolment.  The applicant has not done so.

9. The applicant and her representative did request further time which was considered by the Tribunal.  Ms Ding also stated that she had offers of enrolment at home, and requested time in which to provide that to the Tribunal.  The Tribunal considered these requests and after giving consideration to them, declined to grant the request on the basis that the applicant has had several months following the delegate's decision.  Indeed it has been over a year since the delegate’s decision in February 2017, in which to provide that information.  Furthermore, since the Tribunal's invitation on 13 June 2018 the applicant has had several weeks in which to respond to providing the documents requested in the invitation, including confirmation of enrolment.  For these reasons the Tribunal declined to grant the request for further time.

10. In her sworn evidence before the Tribunal, the applicant confirmed she was last enrolled in a Diploma of Marketing and Communication, and the Advanced Diploma of Marketing and Communication.  The applicant's evidence is that she is not currently enrolled, and nor does she have a valid offer of enrolment in any course of study in Australia at the time of decision.

11. Accordingly there is no evidence before the Tribunal that she is now enrolled in, or has a current offer of enrolment 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, accordingly cl.500.211 is not met.

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

    DECISION

13. The Tribunal affirms the decision under review.  

14. The time is now 2.32.  This Hearing is now concluded.  Thank you for your attendance.

    Stephen Conwell
    Member