Garyfalaki (Migration)

[2020] AATA 5789

Garyfalaki (Migration) [2020] AATA 5789 (28 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Marianthi Garyfalaki

CASE NUMBER:  1923134

DIBP REFERENCE(S):  BCC2019/2998907

MEMBER:Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:         28 August 2020 at 11:08 am (VIC time)

DATE OF WRITTEN RECORD:                9 October 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 09 October 2020 at 11:01am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa –not currently enrolled in a registered course of study –no current confirmation of enrolment– decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 500.211,500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 August 2019 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 28 August 2020 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 application for review of a decision made by a delegate of the Minister for Home Affairs on 6 August 2019 to refuse to grant the applicant a student (temporary) (class TU) visa under section 54 of the Migration Act 1958.

4. The applicant applied for the visa on 12 June 2019 to undertake study in Australia. This case involves a subclass 500 student visa application. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 because the delegate was not satisfied that the applicant was a genuine student who intended genuinely to stay in Australia temporarily.

5. On 28 August 2020 the applicant appeared before the Tribunal to give evidence and present arguments. 

6. The applicant was represented in relation to the review by her lawyer.  The hearing was conducted with the assistance of an interpreter in the English and Greek languages. 

7. While the issue before the delegate was whether the applicant was a genuine temporary entrant, the issue before the Tribunal now, at the time of this hearing is whether or not the applicant meets the enrolment requirements for a student visa.

8. The criteria for a subclass 500 student 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 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 student visa.

9. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study.  If an applicant does not meet the enrolment requirements contained in clause 500.211 the Tribunal does not proceed to consider the genuine temporary entrant criterion set out in Direction 69.

10. “Course of study” is relevantly defined in clause 500.111 of the Regulations as a “full time registered course”. “Registered course” is defined in the Regulations as “A course of education or training provided by an institution, body or person” that is registered under the Education Services for Overseas Students Act 2000 to provide the course to overseas students.

11. On 13 August 2020, a written invitation to attend today’s hearing was sent to the applicant.  In that invitation the applicant was requested to provide evidence of enrolment in a full-time registered course to the Tribunal at least seven days before today’s hearing.  At the hearing the applicant’s solicitor informed the Tribunal that he sent via email, a Confirmation of Enrolment and receipt of payment to the Tribunal at approximately 9 am.

12. The Tribunal, at the time of hearing, had not received the documents emailed by the representative.  However, the applicant’s solicitor informed the Tribunal of the content of the two documents.  The applicant’s solicitor informed the Tribunal that the Confirmation of Enrolment was issued by the Centre of Excellence and created on 5 June 2019.  The course of study was in English.  The English course commenced on 6 June 2019 and ended on 30 July 2020.  On the basis of the statements of an officer of the court as to the contents of the document, the Tribunal accepts that the applicant was enrolled in a registered course between June 2018 and July 2020.

13. The applicant’s solicitor further submitted to the Tribunal that the second document sent via email at 9 am today was a receipt of payment for the abovementioned course dated 17 July 2019 and the Tribunal accepts that submission as establishing that fact in issue.

14. Given that the confirmation of enrolment demonstrates that the applicant’s English course concluded on 30 July 2020, the Tribunal invited the applicant to explain her current circumstances.  The applicant informed the Tribunal that she last went to class, in her view, on or around 20 March 2020 and that due to the Covid-19 pandemic the English subjects and lessons continued online thereafter.

15. The Tribunal asked the applicant whether it was correct that the applicant’s lessons continued online, but that the frequency of the lessons online was not the same as when the applicant attended classes in person and the applicant stated that this was correct.

16. The applicant further informed the Tribunal it was her view she has an enrolment and that it ended due to the Covid-19 pandemic.  The Tribunal had regard to further submissions by the applicant’s lawyer.  It was submitted that the applicant is a genuine temporary entrant, that the applicant was not expecting to be in a position of having to continue her classes online, that she is presently on a bridging visa and that the applicant genuinely wishes to complete her English course by being granted a student visa.

17. On the basis that the confirmation of enrolment demonstrates a course end date of 30 July 2020, together with the applicant’s oral evidence that she continued her classes online after 20 March 2020, the Tribunal cannot be satisfied as at the date of this hearing that the applicant is currently enrolled in a course presently.

18. Therefore, the Tribunal is not satisfied at the time of this decision that there is any documentary or objective evidence before it to demonstrate that the applicant is currently enrolled in a course of study at the time of this decision and accordingly clause 500.211 is not met.

19. Given the above findings, the Tribunal finds that the criteria for the grant of a subclass 500 student visa are not met. 

20. The Tribunal notes that it has not considered the GTE criterion in this case because the only issue before the Tribunal for determination is whether or not the applicant is currently enrolled in a registered course.  There is no evidence before the Tribunal to suggest that the applicant has not attended her English course and progressed academically.

21. For these reasons the Tribunal finds that the decision under review should be affirmed.

22. The Tribunal affirms the decision not to grant the applicant a student (temporary) (class TU) visa.

23. This decision is made at 11.08 am on 28 August 2020.

    DECISION

24. The Tribunal affirms the decision under review.

    Vanessa Plain
    Member