Gan (Migration)

[2019] AATA 2565

Gan (Migration) [2019] AATA 2565 (21 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Poi Hong Gan
Mr Chee Koon Kong

CASE NUMBER:  1726745

HOME AFFAIRS REFERENCE(S):           BCC2017/2799410

MEMBER:Damian Creedon

DATE:21 May 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 21 May 2019 at 2:26pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment status – no evidence of enrolment at time of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.212, 500.311

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 16 October 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 6 August 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas on the basis that the applicant did not satisfy the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) on the basis that he was not a genuine applicant for entry and stay as a student. 

4. The applicant provided a copy of the delegate’s decision record to the Tribunal.

5. The Tribunal formally wrote to the applicant on 27 March 2019 pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal.

6. The applicant responded to the Tribunal’s request by written instrument lodged with the Tribunal on or about 8 April 2019.  By that instrument the applicant informed the Tribunal, materially, that the applicant does not hold a current confirmation of enrolment (CoE) in a registered course of study in Australia.

7. The applicant appeared before the Tribunal on 21 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the second-named applicant.

8. While the issue before the delegate was whether the applicant is a genuine temporary entrant, arising from the applicant's response to the Tribunal’s request for information, the issue before the Tribunal became whether, at the time of decision, the applicant meets the enrolment requirement in cl.500.211(a) for a student visa. The applicant acknowledged understanding that the determinative issue before the Tribunal had changed. The applicant was given an opportunity to address the Tribunal in relation to this determinative issue.

9. 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.

10. 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.

11. ‘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.

12. At the hearing the applicant was given the opportunity to provide enrolment evidence to the Tribunal, such as a copy of a current CoE certificate.  No such evidence was forthcoming.

13. The applicant confirmed in sworn evidence that no current enrolment in an approved course of study exists. As such, there is no evidence before the Tribunal that the applicant is enrolled in any approved course of study.

14. Therefore cl.500.211 is not met by the applicant.

15. The Tribunal has considered the circumstances of the secondary applicant, the second-named applicant.

16. The Tribunal considers that the second-named applicant does not satisfy cl.500.311(a) as the primary applicant does not meet cl.500.211. 

17. At the hearing the second-named applicant was given the opportunity to provide enrolment evidence to the Tribunal, such as a copy of a current CoE certificate.  No such evidence was forthcoming.  Accordingly, the second-named applicant does not meet the primary criteria for a Subclass 500 visa as there is no evidence to show he is enrolled in a course of study, or is a Foreign Affairs or Defence student.

18. 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.  For these reasons, the Tribunal has concluded that the decision under review should be affirmed

DECISION     

1. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Damian Creedon
Member