Esterita (Migration)

[2018] AATA 4559

Esterita (Migration) [2018] AATA 4559 (31 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Rachel Esterita

CASE NUMBER:  1710644

HOME AFFAIRS REFERENCE(S):           BCC2017/840419

MEMBER:Gabrielle Cullen

DATE:31 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 31 August 2018 at 12:13pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – Genuine applicant for entry and stay as a student – Maintaining ongoing residency in Australia – lack of enrolment in a course of study – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r.1.03, Schedule 2, cls 500.211, 500.212, 500.218
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 Immigration and Border Protection on 2 May 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 2 March 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.

3. The delegate decided to refuse to grant the visa on 2 May 2017. The delegate decided to refuse to grant the visas 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. The delegate was concerned that since her arrival in 2011 she had only completed a Diploma of Accounting and a Diploma of Business. The delegate was also concerned that she had enrolled in the Bachelor of Business just prior to her application for this visa.

4. On 18 May 2017 the applicant lodged an appeal to the Tribunal and attached the decision of the Department.

5. On 27 July 2018 the Tribunal wrote to the applicant and invited her to attend a hearing on 29 August 2018. The letter, among other matters, requested the applicant provide a current Confirmation of Enrolment (COE) or other documents that show she is currently enrolled in a course of study as defined in cl.500.211. It noted that this is required for the grant of a student visa. The letter also indicated that the Tribunal will assess whether she intends genuinely to stay in Australia temporarily as required by clause 500.212 and asked her to provide a written statement addressing this issue by referring to Direction 69, which was attached.

6. Prior to the hearing the applicant provided the following evidence:

   ·A psychologist’s report dated 9 November 2017 noting the applicant had attended the counselling services at UTS on four occasions from June 2016 to November 2017. The report refers to her suffering depression in 2015 and facing difficulties in 2016 and 2017.

   ·Letter from United Overseas Bank dated 28 August 2018 indicating the applicant is an employee of their bank and that she is diligent and responsible in her tasks.

   ·Letters from UTS and academic records confirming she successfully completed the Bachelor of Business in 2017.

   ·Emails between the applicant and UTS.

7. She also provided a statement dated 28 August 2018 indicating that in late 2014 she was diagnosed with clinical depression due to family and personal issues. She claims as a result she returned to Indonesia. She claims she returned in 2015 and passed her subjects and then enrolled at UTS but her depression led her to not concentrate on her studies. She claims she made a new application and was granted permission to finish the course. She provided emails as evidence of these conversations.

8. The applicant appeared before the Tribunal on 29 August 2018 to give evidence and present arguments. The applicant’s representative attended the hearing.

9. The Tribunal raised with the applicant that the 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. It also raised with her that the matter before it is whether she meets the requirements 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 she is a genuine applicant for entry and stay as student.

10. The Tribunal raised with the applicant via s.359AA that PRISMS records indicate she ceased enrolment on 3 July 2017. It outlined that the information is relevant as it may lead the Tribunal to find she is not enrolled in a course of study and does not meet cl.500.211. She said that was correct that she ceased her enrolment in July 2017 as she finished her course. She said she did not know how long it would take for the Tribunal to make its decision and did not want to start if she had to stop. She said she is planning undertake a Master in Banking/Finance course when asked why she wanted to undertake this course, she said for her personal benefit as she is interested in the area. She said it would also help here work in the family business. She referred to currently working in bank and being interested in the area. As to why she studied the courses she had, she said she wanted to return to assist the family garment business. She said the business has 500 employees and showed photos of her family in front of the business premises in Indonesia.

11. The Tribunal asked questions about her course progress and periods of no enrolment. In particular it noted she achieved no course progression in 2016 and had not been enrolled since July 2017. She referred in detail to the psychological problems she sustained in 2015 and 2016 and having to return to Indonesia from April to July 2015.

12. She said she had no family in Australia, all her family was in Indonesia. She said she had no civil or political reasons or military commitments which would act as a distinctive for her to return.

13. The Tribunal raised on a number of occasions her lack of enrolment in a course of study being required for the grant of a student visa.

14. Her representative gave evidence as to the psychological issues the applicant has faced and that since she finished the Bachelor of Business she has been waiting for the Tribunal to hear and decide the case. She said the applicant’s mental health is much improved and she is working at the bank. She noted that she wanted to study a Master degree so she could both help the family business and have better career opportunities in banking on her return.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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 is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.

16. 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.

17. ‘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.

18. The evidence from PRISMS records, raised with the applicant via s.359AA, and the applicant is that she is not currently enrolled in a course of study and ceased enrolment in 2017 after she finished the Bachelor of Business. While she indicated she wished to study a Master degree there is no evidence of enrolment. The Tribunal raised with her on a number of occasions the requirement for her to be enrolled in a course of study for the grant of the student visa.

19. Notwithstanding, as to her past difficulties and slow course progression, the Tribunal found the applicant to be a genuine and credible witness who has completed study in the Bachelor of Business.

20. However, 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.

21. 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

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

    Gabrielle Cullen
    Member