HSIEH (Migration)

[2018] AATA 3001

HSIEH (Migration) [2018] AATA 3001 (5 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs YI-CHUAN HSIEH
Mr YUNYONG LI
Mr XI-YAN LI

CASE NUMBER:  1704775

HOME AFFAIRS REFERENCE(S):           BCC2016/2922977

MEMBER:David Barker

DATE:5 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 05 July 2018 at 1:12pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant genuinely intends to stay in Australia temporarily – Requirement for applicant to be enrolled in a course of study – Applicant not currently enrolled – Decision affirmed

LEGISLATION
Education for Overseas Students Act 2000, Pt 2 Div 3
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cl 500.111, 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 Immigration and Border Protection on 23 February 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 2 September 2016. 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 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because they were not satisfied genuine temporary entrant criteria were not met.

4. The applicant were originally invited to appear before the Tribunal on 27 April 2018, however on the basis of the Tribunal consenting to her request the hearing be postponed, the applicant appeared before the Tribunal on 14 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from her husband, the second named visa applicant.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 considered by the delegate was whether the applicant was a genuine applicant for entry and stay as a student. However, the issue that has now arisen is whether the applicant is enrolled in an approved course of study as required for the grant of a student visa.

7. 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.

8. ‘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.

9. The applicant gave evidence that after the delegate’s decision in February 2017, to refuse her visa she did not commence any studies. She said this included both the general English and leadership management courses that she had enrolled in at the time of her visa application.  She said she did not have any assistance from a migration agent and was unaware that she had an entitlement to study on the Bridging visa she was placed on after the refusal of her application for the student visa.

10. The applicant told the Tribunal she, her husband and child returned to the Northern Territory after her visa was refused, as this was where they initially met as students and they prefer the climate and the non metropolitan lifestyle there.  She said neither she nor her husband have worked much since their return to the Northern Territory.  She said she helps a friend with some cleaning work, but does not earn much money from that activity.  She said their respective families are supporting them and that the time they have both spent looking after their child has been very precious, as it would not be possible if she is permitted to undertake studies in Australia, or if they return to Taiwan or China, as they will look for work and life will get much busier.

11. The applicant gave evidence she came to Australia when she was already over the age of 30.  She said she has extensive previous work in sales in her home country and wanted to study management courses so that her future career prospects would be improved back in Taiwan.  She said she formed a relationship and fell pregnant, which disrupted these study plans.  She said she would like to have the opportunity to commence studies and achieve the study goals she had set for herself before she came to Australia.

12. The evidence provided by the applicant’s husband was in all respects consistent with that provided by the applicant. The Tribunal is satisfied the applicant and her husband gave her evidence in a straight forward and honest manner. However, on that basis of the evidence that is available to 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.

13. 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.

    The second and third named visa applicants

14. As the Tribunal does not accept that the first named visa applicant satisfies the primary criteria, the second and third named visa applicants are unable to meet the criteria because they are not a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in cl.500.212.

15. Accordingly, the decision under review must be affirmed.

    DECISION

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

    David Barker
    Member