He (Migration)

[2022] AATA 1837

He (Migration) [2022] AATA 1837 (23 May 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Xuebing He

CASE NUMBER:  2116026

HOME AFFAIRS REFERENCE(S):           BCC2021/1556896

MEMBER:  David Thompson

DATE:  23 May 2022

PLACE OF DECISION:  Perth

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

Statement made on 23 May 2022 at 12:27pm

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, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 500.211

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 Home Affairs on 19 October 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

1. The applicant applied for the visa on 10 August 2021. 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.

1. 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 (Cth) (the Regulations) because they were not satisfied that the applicant genuinely intended to remain in Australia only temporarily in order to study.

1. The applicant appeared before the Tribunal on 20 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

1. For the following reasons, I have concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 delegate refused the applicant’s visa application in the present case on the basis that the applicant did not meet the requirements of cl 500.212. However, at hearing the issue in the present case because whether the applicant met the requirements of cl 500.211.

Enrolment (cl 500.211)

1. 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.

1. ‘Course of study’ is relevantly defined in cl 500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in reg 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 (Cth), to provide the course to overseas students.

1. At hearing, I asked the applicant when he first arrived in Australia. He stated that he had first arrived on 20 August 2018, and that he had done so as the holder of a student visa. I then asked him what courses he had been enrolled in at the time. His evidence was that he had been enrolled in an English Language course. He was then asked what subsequent courses he had been enrolled in. At this point, the applicant’s evidence became exceedingly vague, even allowing for the fact that the applicant gave his evidence through an interpreter throughout the hearing. His response was that he had been enrolled in Human Resources Management. I asked him what course he was currently studying. His response was that he

was studying Human Labour Management. He could not, on being questioned, give the name of his course provider.

1. On the day before hearing, the Tribunal had obtained a copy of the applicant’s record from the Provider Registration and International Student Management System (PRISMS). That record showed that all of the applicant’s enrolments in courses since his arrival in Australia, including his initial enrolment in English Language Programs, had been cancelled. It also showed that he was not on the day of hearing enrolled in any course of study at all.

1. This information was put to the applicant at hearing pursuant to s.359AA of the Act. I explained to the applicant that the information as to his lack of any current enrolment was relevant to the decision I had to make because a current enrolment was a mandatory requirement for the grant of a student visa, and because that being the case I had the power to change the determinative issue in this case from the issue of whether the applicant genuinely intended to stay in Australia only temporarily in order to study to the issue of whether he was enrolled in a course of study.

1. The applicant was invited to comment on or respond to these items of information. He stated that he did not wish to respond to or comment on the information as to his cancelled enrolments. He did, however, respond to the information that he was not currently enrolled in any course of study. He stated that his college had informed him that he was enrolled. He then sought additional time in which to comment or respond so that he could check this with his college. The hearing taking place on a Friday, the applicant proposed to do this on the following Monday. The applicant also stated that he had a Confirmation of Enrolment (CoE), but that he could not find it and would need to ask his college for a further copy. He proposed to do that on the following Monday also.

1. I informed the applicant that I was reluctant to allow his application for additional time, because the Tribunal had twice before hearing asked the applicant to provide proof of his enrolment (a fact the applicant admitted), to no avail. I did, however, adjourn the hearing for a short period before finally disposing of the applicant’s application for additional time to allow the applicant to contact his college to find out its name, which he stated he was unable to remember, and to obtain if he could the number of his CoE so that the Tribunal could obtain a copy of it from PRISMS without having to delay the hearing for any longer than was necessary.

1. When the Tribunal reconvened after that short adjournment, the applicant was able to identify the college to which he had referred, and to provide a CoE number. It transpired that the CoE in question was listed on the applicant’s PRISMS record, and that the enrolment to which it related was listed as having been cancelled on 1 December 2021. The reason for cancellation given was that the applicant no longer held a student visa. I invited the applicant to address me as to why he should have additional time to comment or respond in these circumstances. He conceded that he would not be able to obtain any further evidence as to enrolment. At that point, I made a formal finding that the applicant was not enrolled in a course of study, and informed him that I proposed to change the determinative issue in this matter from the issue of whether the applicant genuinely intended to remain in Australia only temporarily in order to study to the issue of whether he was enrolled in a course of study. I then invited him to address me on the proposed change of determinative issue.

1. The applicant stated that he had been studying, although he had not been enrolled. He said that his college had told him that once he obtained a student visa they would formally enrol him in his course. He sought additional time to allow him to obtain enrolment. I refused to allow any additional time for that purpose, on the basis that as his enrolment had on the evidence before me been cancelled for lack of a student visa, there would appear to be no

point in doing so, and also because the applicant had had plenty of time to regularise his position before hearing, and had failed to do so.

1. For these reasons, I stated that I would change the determinative issue. I then stated that I affirmed the delegate’s decision on the ground that, at the time of my decision, the applicant was not enrolled in a course of study and accordingly did not meet the requirements of

   cl 500.211 of Schedule 2 to the Regulations. I informed the applicant that although I had made an oral decision in that regard, I would provide written reasons for my decision. These are those reasons.

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

David Thompson Member